Sri Lanka Law Reports
I1990j 1 SriL.R.
COURT OF APPEAL.
A. S. WIJETUNAGA. J. AND H. W. SENANAYAKF. J.
C. A. No. 463/87 (F) – D. C. KALUTARA 1912/D,
NOVEMBER 20, 1989.
Divorce – Judgment – Failure to give reasons – Evaluation of evidence – Civil ProcedureCode, s. 187.
Bare answers to issues without reasons are no! in compliance with the requirements ols. 187 of the Civil Procedure Code. The evidence germane to each issue must be reviewedor examined. The judge must evaluate and consider the totality o( the evidence . Givinga short summary of the evidence of the parties and witnesses and stating that he prefersto accept the evidence of one party without giving reasons are insufficient
Case referred to:
Dona Lucihamy v. Ciciliyanahamy 59 NLR 214APPEAL from judgment of the District Judge of Kalutara.
Faiz Mustapha P.C. with H. Withanachi and F. F. Surasena for plaimirt—appellantS. C B. Walgampaya for defendant-respondent.
Cur. adv. vult.
Warnakuta v. Rarnani Jayawardena■■
March 9, 1990.
The plaintiff-appellant instituted this action against the defendant-respondent seeking a divorce on the ground of malicious desertion.
It was common ground that parties married on 18.6.1960 and thematrimonial home was at Payagaia in the plaintiff-appellant’s parentalhouse.
It was alleged that on 16.11.1980 after both parties returned fromchurch, the plaintiff-appellant had proceeded to buy the weekly provisions.The defendant-respondent had left the matrimonial home on 16.11.1980.
The defendant-respondent’s position was that after an argumentregarding money wanted by the plaintiff-appellant’s sister, the plaintiff-appellant took her and left her at the parental house.
The learned District Judge after trial dismissed the plaintiff-appellant'saction with costs.
The learned counsel for the plaintiff-appellant submitted to court thatthe learned District Judge had failed to consider and analyse theevidence. He further submitted that the learned District Judge had failedto give reasons for the findings and he had totally failed to consider thecomplaints and the documentary evidence produced in this case.
There is force in the submission of counsel. The learned District Judgehad failed to evaluate and consider the totality of the evidence. Hisjudgment was not in compliance of section 187 of the Civil ProcedureCode. He has given a very short summary of the evidence of the partiesand witnesses and without giving reasons he Mad stated that he prefersto accept the evidence of the defendant-respondent as it was satisfactoryand thereafter proceeded to anwer the issues.
The learned District Judge had failed to give his mind that within a weekfrom the disputed date 16.11.1980, the defendant-respondent's complaintto the police was subsequent to the complaint made by the plaintiff-appellant on the same day. In her complaint she stated that she,accompanied by her brother had returned to the matrimonial home, but
Sri Lanka Law Reports
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her mother-in-law had abused them. On that day she had returned bridaljewellery and the plaintiff-appellant too had returned the jewellery that hehad received. Her intention therefore was not to return to the matrimonialhome, sine animo revertendi. This aspect had not been considered by thelearned District Judge.
The learned District Judge had failed to consider the evidence olwitness Dharmaratne whose evidence establishes that the defendant-respondent left the matrimonial house at about 8.30 a m. and while goingshe was abusive. He had failed to consider the defendant-respondent'srefusal to live with the plaintiff-appellant even after he had obtained aseparate house. He had failed to consider that the defendant -respondentsunhappiness was due to the marital weakness on the part of the plaintiff-appellant. This aspect of the evidence came from the plaintiff-appellant'smother and his aunt who were informed about the nature ol impotency bythe defendant-respondent. This aspect had not been considered by thelearned Judge nor the unwillingness on the part of the defendant-respondent to live with the plaintiff-appellant after P2 indicating that aseperate house had been procured.
Though the defendant-respondent indicated that on 16.11.1980 theplaintiff-appellant requested her brother and mother to come to thematrimonial house and they complied with his request which resulted inthe plaintiff-appellant's mother's intention to seek a divorce and put anend to the matrimonial bond, none of the witnesses were called to supporther position.
It must be stated that bare answers without reasons to issues are notin compliance with the requirements of section 187 of the Civil ProcedureCode. I respectfully agree with the observations of A/Ju st ice LW.de Silvain Dona Lucihamy v. Ciciliyanahamy (1). In the result, the evidencegermane to each issue has not been reviewed or discussed. No reasonsprecede or follow the answers which are mostly yes or no or does notarise. Bare answers to issues or points ol contest – whatever may be thenames given to them, are insufficient unless all matters which arise fordecision under each head are examined.
I find the learned District Judge has failed to consider the totality of theevidence led on behalf of the plaintiff-appellant. He misdirected himself
CAEmmanuel v. The Commissioner-General of Inland Revenue209
on the facts when he concluded that the evidence o! the defendant-respondent was satisfactory.
In the circumstances I set aside the judgment and decree. The issuesin the case should be answered in the following manner:
The plaintiff-appellant will be entitled to a divorce on the grounds ofmalicious desertion on the part of the defendant-respondent and I directa decree nisi be entered accordingly.
I allow the appeal with costs.
WIJETUNGA, J.-1 agree.
WARNAKULA v. RAMANI JAYAWARDENA