044-NLR-NLR-V-67-W.-H.-BABUNONA-Appellant-and-ALBIN-KEMPS-Respondent.pdf
Presen*: Weerasooriya, S.P.J. and Abeyesundere, J.W. H. BABUNONA, Appellant, and ALBTN KEMPS, RespondentS. C. 440/60—D. C. Tang alia, 6813 /D
Divorce—Cruelty per se is not a ground—Marriage Registration Ordinance (Cap. 112),
s. 18(2).
Cruelty ou the part of one spouse is not a ground under section 19 (2) of theMarriage Registration Ordinance for the dissolution of marriage at the suitof the other spouse, unless it is of such a nature as to make cohabitationintolerable for the latter and amounts in law to constructive malicious desertionby the offending spouse.
Where a wife assaulted her husband who had, by his own adulterousmisconduct in the matrimonial homo, rendered cohabitation intolerable forthe wife—
Held, that it was not open to the husband to sue for dissolution of marriageeven if the assault amounted to cruelty.
Appeal from a judgment of the District Court, Tangalla.
W. D. Gunasekera, for Defendant-Appellant.
Cecil de S. Wijeratne, with E. B. Vannitamby, for plaintiff-respondent.
July 19, 1962. Weerasooriya, S.P.J.—
This is an appeal from the judgment and decree of the District Courtof Tangalla granting to the plaintiff-respondent a dissolution of hismarriage with the defendant-appellant. The plaintiff brought thisaction on the 30th May, 1958, alleging that from about May, 1957, thedefendant treated him with habitual cruelty and on several occasionsassaulted him and that as a result he was compelled to live apart fromher. He claimed a declaration dissolving their marriage on the groundof constructive malicious desertion.
The only issues raised at the trial by plaintiff’s counsel closely followthe averments in the plaint and are as follows :—
Did the defendant treat the plaintiff with habitual cruelty from
about May, 1957 ?
As a result of such conduct on the part of the defendant was the
plaintiff compelled to leave the defendant 1
If so, is the plaintiff entitled to a divorce on the ground of construc-
tive malicious desertion ?
It is clear that on these issues the plaintiff would not be entitled to adivorce on the ground of constructive malicious desertion unless bothissues (1) and (2) are decided in the affirmative. The Judge decided
issue (1) in the affirmative. He did not give a direct answer to issue (2),but in effect he decided it in the negative, for his finding was that thedefendant left the plaintiff. He should, therefore, have decided issue
also in the negative. Instead of doing so, he held that the defendantwas guilty of malicious desertion.
Mr. Wijeratne who appeared for the plaintiff sought to support thejudgment and decree on the strength of the finding that the defendanttreated the plaintiff with habitual cruelty fiom about May, 1957. Hesubmitted that such conduct per se constituted malicious desertion.
According to the evidence, the plaintiff married the defendant in 1934,and they appear to have lived happily till 1957. The parties did nothave any children. In 1946 or 1947 one Heen Nona, the daughter ofthe defendant’s sister, came to reside with them. Shortly afterwards,the plaintiff became intimate with Heen Nona. She conceived and gavebirth to a child. For her confinement she was taken to Tangalla Hospital.According to the defendant, she had no suspicion at the time that thefather of the child was the plaintiff. That child was given away to athird party, and Heen Nona returned to the house of the plaintiff andthe defendant and continued to five there. In 1953 she conceived again.She gave birth to the second child at the Tissa Hospital. This childand Heen Nona were brought to the house of the plaintiff and the defen-dant where they have been ever since. According to the defendant,even at that time she had no suspicion that the plaintiff was the fatherof this child. It was only in April, 1957, that the plaintiff admittedto her that he was the father and then trouble arose between them.
The evidence of the plaintiff that from the inception of his intimacywith Heen Nona the defendant was a party to an arrangement whereby,as they had no child, he should live with Heen Nona for the purpose ofbegetting a child which they could adopt, has been rejected by theJudge as a fabrication.
It is common ground that on the 24th May, 1957, the defendant assaul-ted the plaintiff and caused him injuries which necessitated his stayingin. hospital for three days. According to P5, which is a complaint madeby the plaintiff to the village headman, the defendant left him on the26th of June taking with her all her clothes and some jewellery. Thedefendant does not appear to have returned to the matrimonial homethereafter. The plaintiff said that on the 3rd August tne defendant cameup to his hcuse and aimed a blow at him with a club which he warded off.He made a complaint to the headman. Then again on the 19th of Augustthe defendant walked up and down the stile of bis house armed with an ironrod saying that she would eat his flesh. On that occasion too the plaintiffmade a complaint to the village headman. As a result of this complaintthe Police applied to the Magistrate to have defendant bound over tokeep the peace. The defendant then undei took to keep away from theplaintiff and not to haiass him. The plaintiff" stated that he did notwant her to come back to him. No further action was taken thereafteron that application.
It is clear that from about Maj, 1957, there had been cessation ofcohabitation between the plaintiff and the defendant, and that the reasonfor it, as well as for the defendant leaving the plaintiff on the 26thJune, was because the plaintiff insisted on keeping Heen Nona in thehouse and living with her. The plaintiff, therefore, would appear tobe the party guilt v of constructive malicious desertion, and not the defend-ant. But even assuming tc be correct the finding of the Judge that theconduct of the defendant towards the plaintiff from May, 1957, onwardsamounted to habitual cruelty, the question is whether the defendantcould on tha* ground be held to be guilty of malicious desertion so as toentitle the plaintiff to a declaration dissolving his marriage with her.
Counsel for the plaintiff relied on ceitain dicta in the judgments ofthe Court of Appeal in the South African case cf Wentzel v. Wentzel1and the local case of WijeAnghe v. Wijeoinghe 2 for his submission thatcruelty per se constitutes malicious desertion. In each of those cases thewife sued the husband for a judicial separation on the ground of hiscruelty and misconduct and as a result of which, it was alleged, shewas compelled to leave him. In the former case Solomon, J., whileholding that the defendant was guilt j of misconduct and cruelty towardshis wife, stated : “ But that does not in my opinion conclude the case.For it is not sufficient for the plaintiff to prove cruelty towards her onthe part of her husband, she must go fmthei and show that tne crueltyhas been of such a nature and so persistent as to make further co-habitation with him intolerable.” In the latter case my brother Sansoniexpressed himself in more or less the same terms.
1 do not think that it is open to the plaintiff in the present case tosay that the assault on him by the defendant on the 24th May, 1957,even if it amounted to cruelty, made cohabitation -with her intolerable,for he had already by his own misconduct with Heen Nona renderedcohabitation intolerable for the defendant. Still less can he availhimself of the acts imputed to the defendant on the 3rd and 19th ofAugust, 1957. It is hardly necessary to point out that under section 19 (2)of tbe Marriage Registration Ordinance (Cap. 1.12), which governs themarriage of the parties to this case, cruelty per se is not a ground fordissolution of a marriage. But cruelty on the part of one spouse, whichis of such a nature as to make cohabitation intolerable for the other,amounts in law to constructive malicious desertion by the offendingspouse, and would on that basis constitute a ground for dissolution ofthe marriage at the suit of the innocent spouse.
On the evidence as accepted by the trial Judge, no constructivemalicious desertion has, in our opinion, been established against thedefendant. If th» finding of the Judge on issue (3) was intended to be afinding of actual malicious desertion based on the fact that the defendantleft the plaintiff, it would be a wrong finding in law since the plaintiffwas entirely to blame for the defendant leaving him and tbe circumstances
i (1913) A.D. 55.
* (1954) 57 N. L. R. 489.
in which she left him were such that no self-respecting wife could havedone otherwise. Moreover, the case fcr the plaintiff, as set out in hispleadings and in th9 issues, was not one of actual malicious desertion.
The judgment and decree appealed from are set aside and the plaintiff’saction is dismissed with costs in both Courts.
Abeyesttndere, J.—I agree.
Appeal aliened.