CANEKERATNE J.—Wijeralne v. Wijeralne.
1946Present : Jayetlleke and Canekeratne JJ.
WIJERATNE, Appellant, and WIJERATNE, Respondent.
6—D. C. Colombo, 697.
Divorce—No consummation of marriage—Wilful refusal of husband to copulate—Sufficient ground for dissolution of marriage.
Where there was no consummation of a marriage owing to the wilfulrefusal of the husband to copulate—
Held, that the wife was entitled to have the marriage dissolved on theground of malicious desertion.
PPEAL from a judgment of the District Court of Colombo.
H. V. Perera, K.G. (with him N. Nadarajah, K.C., E. B. Wifcramanayakeand D. W. Fernando), for the defendant, appellant.
E. G. Wikramanayake (with him H. W. Jayewardene), for the plaintiff,respondent.
Cur. adv. vult.
April 11, 1946. Canekeratne J.—
The action was brought by the respondent, the wife, against herhusband, the appellant, for a decree of divorce on the ground of impotencyand alternatively a decree of divorce on the ground of desertion, thedesertion being a wilful and malicious refusal of carnal intercourse.
The parties were married on February 1,1940 ; the respondent remainedwith the appellant till the evening of February 1, 1941, when she left theappellant’s house and went to Nugegoda, the residence of her mother.She did not return to the appellant’s house again. Since then the partieshave not met and the present action was instituted. It is not a matterof controversy between the parties that there never has been actualconsummation of the marriage.
The case was defended by the appellant who denied that he was impotentor that he deserted the respondent : he contended that there was maliciousdesertion on the part of the respondent.
The evidence shows that the respondent was a virgin at the time whenshe came into Court. Sfie described her married life ; her evidence inthe main was accepted by the learned trial Judge. The appellant gaveevidence to show that he j-efrained from carnal intercourse on account
* (1939) 14 C. L. W. 11.
K at hit gam or v. Iyer.
of her aversion, to it. The medical witness called by the appellant showedthat there was no sign of organic impotency on the part of the appellant :he hazarded the opinion that the appellant would be able to consummatethe marriage. The respondent had objected to the appellant calling amedical witness at that stage but the objection was overruled.
The learned Judge held that impotency on the part of the appellantwas proved and that there was no malicious desertion by the respondent.Great stress was laid by counsel for the appellant on the shortness of theperiod as inadequate to give a full trial and we were reminded of the threeyears’ rule as demanded by the Canon Law. He contended that theevidence does not show impotency on the part of the appellant. Counselfor the respondent contended that he should be given an opportunity tolead medical evidence in this Court or in the District Court.
Counsel for the appellant does not contend that there was no maliciousdesertion on the part of the defendant; he was, according to his evidence,at all times capable of consummating the marriage : the reason given byhim for exercising restraint has been found, by the learned trial Judge,to be untrue. The fact that there has been no copulation can be con-sidered to be due to wilful refusal on his part. The case can be decided onthis view ; in these circumstances it seems unnecessary to make apronouncement on the first issue.
The respondent is entitled to have her marriage dissolved on the groundof malicious desertion by the appellant. The judgment of the learnedJudge is set aside. The appellant should pay the respondent the costsof the action and of the appeal. The parties are at liberty to make anapplication to this Court or to the District Court to have the amount ofalimony, if any, agreed upon by them, made part of the decree or madoan order of Court: in the alternative the parties may make an applicationto the District Court to fix the amount of alimony.
Jayetileke J.—I agree.