Wednesday, 27 August 2014
Galle Law Association

CASE LAW – DIVORCE

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CASE LAW – DIVORCE

 

Prepared by Mr Rohan Sahabandu AAL

Deputy President - BASL


 


1. Tennakoon Vs. Tennakoon 1984 -2 Sri LR  217

 

Divorce Vs Judicial Separation - Ingredients.

 

2.  K. A. Somawathie Vs. Perera

CASC 948/75 C.A.M. 2.2.84

 

Malicious Desertion - guilty party (wife) -      cannot ask for property.

 

3. Leelawathie Vs. Ponnambalam

CA 1930/ C.A.M  21.1.81

 

Divorce Action – Settlement-No decree        entered - Party Dying - Marriage stands.

 

4. Sediris Singho Vs. Somawathie

1978 – 79 (2) Sri LR 140

 

Section 602 C.P.C. discussed.

 

5.   Peiris Vs. Peiris 1978 – 79 - 2 SLR 55

 

District court has jurisdiction to declare marriage null and void on the ground of        lack of consent and   duress.

 

6. Andradie Vs. Jayasekera Perera  1985-2 Sri LR 204

Ex parte Trial-Fraud in service of Summons.               procedure to be followed - Decree valid?  See 8

 

7. Fonseka Vs. Silva 1 Sri Skantha – 9

 

Malicious Desertion inability to live on a Physical level – impotency - Malicious Desertion?  Is it?

 

8. Soosaipillai Vs. Parpathipillai [1985] 2 SLR 55

 

Customary marriage – Kalam Ceremony -Presumption of valid marriage between man and woman living together – maintenance.

 

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9. Mutubanda Vs. Jayawardane 1986.  2 CALR 203

 

Damages against Co-respondent -       condonnation, connivance - Discussed.

 

 

10. Ittepana Vs. Hemawathie. 1981 – 1 Sri LR 476

 

Failure to serve summons – vacating of Decree Nisi. – Law discussed.-

 

11.   Samarasinghe Vs. Samarasinghe

1989 – 2 SLR 180, 1990 – 1 SLR 31

 

Forfeiture of benefits - section 615. Dowry re-claimed – Circumstances. -

 

12. Kaluarachchi Vs. Wijewickrame  1990 – 1SLR 262

 

Who is entitled:–

Custody of Children - Application to make         decree absolute – Any party?

 

13. Nihal Perera Vs. Seneviratne 1991–1 Sri LR 313

 

Defendant Proceeding with claim in re-         convention for Divorce- Permissibility?

 

14. Dias Vs. Kodithuwakku 1993 - 3 SLR 354

 

District court can grant an interim injunction preventing the husband from alienating the matrimonial house pending a divorce action.

 

15.  Kandasamy Vs. Asokan 1994 – 1 Sri LR 413

 

Marriage contracted abroad - Defendant resident abroad. Procedure - consequences. Which court has jurisdiction.

 

16. Ramanathan Vs. Thambimuthu 1994 -3 Sri LR 367

 

Alimony Pendente – lite - Discussed. -           Circumstances.


17. Perera Vs. Rodrigo 1994 – 2 SLR 332

 

Right of Divorced wife to claim Maintenance - Is it Possible?

 

18. Khan Vs. Moomia and others 1995 - 1 SLR 107

 

Muslim – Pronouncement of Talak–procedure – What follows?

 

19. Pathmawathie Vs. Jayasekare 1997–1SLR   248

 

Malicious Desertion - duty of Judge. To consider the expulsive circumstances.

 

20. Anulawathie Vs. Gunapala 1998 -1 SLR 63

 

What is constructive Malicious Desertion as opposed to Malicious Desertion. Consider the expulsive circumstances which the plaintiff appellant had placed before him which culminated in the act of desertion.

 

21. Mallika De Silva Vs. Gamini De Silva

1999 – 1 SLR 85

 

Interim Relief for alienating matrimonial        property – Is it permissible?

 

22.  Ubeyratne Vs. Karunawathie 1999- 3 SLR 16

 

Third party cannot attack the validity of a contracted marriage nor it’s consequences.

 

23. Ajith Kulatunga Vs. Shiromala 2001–2 SLR 108

Divorce on grounds not pleaded – could divorce be granted.

 

24. Calendar Vs. Fernando 2001 – 2 SLR 355

 

Divorce - Deed of Gift - Assault - Setting aside deed on gross ingratitude-Permissibility.                                                     2

25. Kuruppuarachchi Vs. Andreas 1996 – 2 SLR  11

 

Divorce – Adultery - Cause of Action – After filing of answer – No amendment possible?

 

26. Bednarz Vs. Bednarz 2002 -1  SLR 99

 

Divorce- counter claim for divorce on adultery – Section 598 readwith Section 603- discussed.

 

27. Kusumawathie Vs. Wijesinghe 2001– 3 SLR 238

 

Divorce - Ex Parte-Death of Husband    – Validity of Judgment - Is the Divorce Action a Personal action?

 

28.  Gunarathnam Vs. Registrar General

2002- 2 SLR 302

 

Act 18 of 1995 prevails - Minor cannot enter in to a marriage even with the consent of their parents.

29. Jayaratna Vs. Jayaratna 2002 – 3 SLR 331

 

Amendment of answer- alleging adultery Validity?  Adultery after answer- See 21

 

30. Pushpakumara Vs. Marmet 2003 - 2 SLR 244

 

Malicious Desertion - No Issue – Could Divorce be granted?

 

31. Pathmenayaky Vs. Mahenthiran 2003-3 SLR 241

 

Divorce–section 608 (2) should matrimonial

fault be established – willful Non Consummation of marriage – Is it a Matrimonial offence?

 

 

 

 


32. Murin Perera Vs. Gajaweera 2005–1 SLR  103

 

Malicious Desertion    discussed - Animus  Discerendi?

 

See- Rajeswararanee Vs. Sunthararasa, 64 NLR 366

See- Ariyapalaa Vs. Ariyapala - 65 NLR 453

See – Kanekeratne Vs. Kanekeratne

66 NLR 380

 

 

33. Jayawardane Vs. Ranaweera 2004- 3 SRL 37

 

Divorce – Husband removing child –Custody under what section? S 621 or S 23 of Judicature Act-

 

34. Stella Perera Vs. Silva 2004 – 3 SLR 233

 

When the Husband is the owner of the Property – occupied by the couple- he has no right when the Marriage is in existence to  eject  his wife  from or  without providing her  another  alternative  accommodation. Her occupation is not by License of her husband It is Sui Generis –Similarly the wife has no right to eject her husband.

 

35. Karunasekare Vs. Abeywickrame 2005-2 SLR 299

 

Divorce action - Custody of two minors –Application to vary an earlier order –When  and How could it   be made.

 

36. Varuna Jayasuriya Vs. Krishshangi Jayatunge

2005 - 2 SLR 302

 

Divorce action - No bar to an application for Habeas Corpus?

 

 

37. Paulis Vs. Joseph and Others 2005–3 SLR 162

Divorce ex-parte - Fraud – Restitution in  intergrum  - misuse of legal process - Decree  valid?

 

38. Neville Fernando Vs. Chandrani Fernando

2007 – 1  SLR  159

 

Constructive Malicious desertion – Ingredients- Burden on Whom? Matrimonial relief only to the innocent?

 

39. Nilanthi Siriwardana Vs. Crishantha

2008 (2) SLR 281

 

Constructive Malicious Desertion – Date on which Malicious Desertion took place – is it fatal? Issue raised giving the exact date – permissibility?

 

 

40. Samaraweera Vs. Jayawardana  4 NLR 106

 

Allegation of misconduct- ought to Specify the date and place of the act complained of - Necessary?

 

 

41.  Karonchihamy Vs. Angohamy 8 NLR 1

 

Can a man marry with the woman he lived in adultery after the death of his wife.

 

42. Dissan Appu Vs. Baba Hami 10 NLR 343

 

Action for divorce brought by husband dismissed on the ground that the plaintiff has been guilty of connivance under section 601 –No damages against the co-respondant. - Divorce could not be granted.



43. Abeyagoonesekera Vs. Abeyagoonesekera

12 NLR 95

Husband liable to pay into Court or give security to cover wife’s cost in connection   with        case.

 

44. Pinhamy Vs. Babynona 14 NLR 104

 

Agreement between party to Marriage not to seek legal remedy was an immoral agreement .The defendant getting the liberty to lead an immoral life and the plaintiff deprived of his right under the law.

 

45. Appuhamy Vs. Menikhamy 15 NLR 100

 

See SeneviratneVs. Panishamy  29 NLR 97

Divorce action - ground of Adultery of wife can be dismissed if the Husband himself was guilty of adultery.

 

46. Appuhamy Vs. Julihamy 16 NLR 83

 

Communication of venereal disease by a husband to his wife, if willful, constitutes legal cruelty.

 

47.  Soysa Vs. Soysa 17 NLR 385

 

Under  RDL an Agreement for voluntary separation and granting of property – illegal but valid as between the parties.

 

48.  Silva Vs. Silva 18 NLR 26

 

Under RDL an Agreement between husband and wife for separation Mensa et thoro – Payment of husband to the wife of a monthly   allowance can be enforced, any party can terminate by agreement.

 

49. Silva Vs. Carlinahamy 23 NLR 344

 

It is not competent to the Court to enter in to a conditional decree of divorce in the event of wife not returning to her husband within a period fixed in the decree.

50. Silva Vs. Missinona 26 NLR 113

 

What constitutes malicious desertion?

See also

34 NLR 5 Gunawardana Vs Wickramasinghe

 

51. Eliyathamby Vs. Eliyathamby 27 NLR 396

 

Letters written by the wife to the co- respondent but not delivered to him are not admissible against the co-respondent.

 

52. De Silva Vs. De Silva 27 NLR 289

 

See Perera Vs. halwatura 59 NLR 233

In an action for divorce brought by a husband,   the nature of damages awarded against a co-respondent is compensatory, not punitive. The measure of damage is based on –

 

(1)  actual value of the wife to the husband.

 

(2)  proper compensation to him for the injury to   his  feelings, the blow to his honour and the hurt to his matrimonial and family life.

 

53. Joseph Vs. Alexander Elizabeth 28  NLR 411

 

If wife is possessed of property and is in a position to find the means to defend the action, the Court should not order the husband to provide for her costs.

54. De Silva Vs. De Silva 29 NLR 378

A decree nisi granting a divorce may be made absolute while an order with respect to a settlement on the aggrieved party is under appeal.

 

55. Annakedde Vs. Myappen 33 NLR 198

 

When the Defendant Husband claims a divorce on      ground of adultery of the wife, the alleged    adulterer should be made a party.


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56. Aserappa Vs. Aserappa 37 NLR 372

 

Liability to pay alimony pendent lite continues until the divorce is made absolute.

 

57.  Gunathilaka Vs. Milinona 38NLR 291

 

Marriage may be dissolved on the ground of incurable impotency in either party at the time of Marriage.

 

58. Sathiyanathan Vs. Sathiyanathan 39 NLR 241

 

Can the Court enter a decree absolute where the marriage has been dissolved by the death

of a party after decree.

 

59. Nelson Vs. Foenander 41 NLR 452

 

A person who suspects collusion between parties for the purpose of obtaining a divorce and who intervenes under section 606 is entitled to rely on collusion that has taken place after the decree nisi was  entered.

 

60. Blok Vs. Blok 42 NLR 70

 

Co-respondent conduct – reasonable suspicion – cost.

 

61. Silva Vs. Silva 44 NLR 494

 

father entitled to custody of a child pending divorce proceedings especially where the best interests and safety of the child require that the child should continue to remain in his custody.

 

62. Todd Vs. Todd 44 NLR 497

 

Divorce - adultery with X. the Court may act on the admission of respondent, provided it has no reason to doubt the genuineness of the admission.

 

63. Asilin Nona Vs. Peter Perera   46 NLR 109

 

Non-compliance with an order of court in divorce proceedings to pay alimony pendentlite amounts to contempt of court- the court may in its discretion stay proceedings until the alimony due is paid.

 

64. S.W.E. Dias V. Mensaline Hamine 46 NLR 193

 

See Baptiste Vs. Selvarajah 59 NLR 284

See Mutukumarasamy vs Parameshwary  78 NLR 488

 

Wife lives in same house – shares same bed after knowledge of husband's adultery - No     Proof of condonnation – Further proof required of forgiveness and reinstatement of offending spouse required. – Discussed.

 

65. Wijeratne Vs. Wijeratne 47 NLR 324

 

See Sinnathamby Vs. Annammah 55 NLR 349

 

No consummation of marriage-Willful refusal of husband to copulate – wife was entitled to have the marriage dissolved on        the ground of malicious desertion. -   Discussed

 

66. De Silva Vs. De Silva 49 NLR 73

 

Section 622 extends the jurisdiction of the District Court as regards the Custody, maintenance and education of minor children to application made after divorce absolute. Court can vary the provisions of the divorce absolute in respect of these matters from time to time as occasion arises.


 


 

 

 

 

 

 

 

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67. Fernando Vs. Fernando 49 NLR 114

 

Decree nisi entered-Petition by defendant that decree be not made absolute-allegation of adultery at the time of action – can Court entertain this application? -

Decree Nisi was Res judicata between the parties "any person" in sections 604 does not include a party to the suit?

 

68. Jasline Nona Vs. Samaranayake 49 NLR 381

 

Divorce action – adultery - Adulterer a necessary party? – What follows?

 

69. Fernando Vs. Peiris 50 NLR 40

 

Action for nullity of marriage on the ground of latent impotency - should not be instituted until the lapse of at least three years from' marriage?

 

70.  Karunatilleke Vs. Karunatilleke  52 NLR 300

 

Divorce action Defendant husband's counter-claim for divorce-Allegation of acts with A, B, C and D –    Husband condoning acts of A, B, C, D – Not necessary to make all of them parties? Who should be make a party.

 

71.  Subramaniam Vs. Pakkiyaledchumy

55 NLR 87

 

If one of the spouses re-married before decree nisi absolute – that party has no right to claim maintenance as wife from new partner – Subsequent marriage treated as void.

 

 

 

 

 

 

72.   Wijesinghe Vs. Wijesinghe 57 NLR 489

Decree of judicial separation moral cruelty will suffice.

 

73. Fernando Vs. Fernando 59 NLR 522

 

A divorced wife is entitled to make an application under section 10 of the Maintenance Ordinance to   enhance an order of maintenance obtained by her   under section 2 prior to divorce.

 

74. Perera Vs. Hulwatura 59 NLR 233

 

Reduction of damages in appeal.

 

See also Alles VS. Alles 51 NLR 416

Dean Vs. Anthoniz 54 NLR 539

 

75. Visvaverni Vs. Murugiah 60 NLR 541

 

Action for declaration of nullity of marriage - pregnancy prior to marriage – No condonnation permissible. Is this marriage a Nullity?

 

76. K. Sinnathanby Vs. Yokammah 61 NLR 183

 

Divorce-Action - Alimony pendente lite - Failure of husband to pay - Court cannot strike out defence.

 

77. Emelda Fernando Vs. W.S. Elaris Fernando 63 NLR 416

 

Where, in a divorce action - parties do invite Court to grant any relief by way of settlement of property under section 617 / 618 - They may be permitted by Court, on their election, to reserve their rights to file separate actions under the common law for the recovery of any property in the hands of each other.


 

 


 

 

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78. V.S. Nadarasa Vs. Navamany  64 NLR 232

 

Where for dissolution of marriage is entered at the suit of a husband, a promise by the husband to make an ex gratia payment to the wife cannot be incorporated in the decree so as to compel him to pay the sum.

 

79. T. Christina Vs. Ceciln Fernando 65 NLR 274

Decree absolute for divorce entered - however erroneous or irregular it may have been as between the parties to the        action, it was not open to collateral attack by third parties in other proceedings.

 

80. Rajeswararanee Vs. Sunthararasa 64 NLR 366

 

Divorce – Malicious Desertion – Proof – willfully brought to an end the state of cohabitation.

 

81. W. H. Babunona Vs. Albin Kemps 67NLR 183

 

Cruelty on the part of one spouse is not a ground for divorce, for the dissolution of marriage unless it is of such a nature as to make cohabitation intolerable for the latter and amounts to constructive malicious desertion.

 

82. Perera Vs. Mathupali 71 NLR 461

 

Divorce-Suit by husband-Husband guilty of matrimonial offence-Delay in filing action-Circumstances   when he nevertheless be granted divorce-Discretion vested proviso section 602 - interest of child    considered.

 

83. Canekeratne Vs. Canekeratne 71 NLR 522

 

See 2004 – 3 SLR 233

Right  of  deserted  wife  to  remain  in  occupation of  Matrimonial home –Can she be evicted?

 

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84. Dharmasena Vs. Nawarathna 72 NLR 419

 

Statement made outside court by the defendant’s wife admitting adultery cannot be used against the co-respondent – Proof beyond reasonable doubt is a required proof.

 

English Cases

 

85. Bartholomew  Vs. Bartholomew

[1952] 2 All  E R 1035, C.A.

 

Wife Lazy – dirty – Husband files for Divorce No constructive Malicious Desertion?

 

86. Smith Vs. Smith [1939] 4 All E. R. 533

 

Couple – same House – mother looked after Husband – in Basement all duties performed by Husband Constructive Desertion - Divorce – Husband deserted?

 

87. Littlewood  Vs. Littlewood [1942] 2 All E.R. 515

 

Wife ignoring Husband – but cooked for Husband - No desertion?

 

88. Pheasant Vs. Pheasant (1972) Fam 202, 208, (1972) 1AllER 587, 591

(Bromley’s Family Law  8th Edition  P. 194)

See Kisala Vs Kisala (1973) 117Sol Jo 664

 

Sole charge against the wife was that she was unable to give him the demonstrative affection for which he craved. Court found that she had given him all the affection she could and nothing in her behavior could be regarded as a breach of any of the obligations of marriage.

 

89. Stringfellow Vs. Stringfellow

(1976) 2 All ER 539

 

Simple desertion on the port of the respondent cannot found a petition based on breach of any of the obligations of marriage.



90.   Thurlow Vs. Thurlow (1976) Fam 32

(Bromley’s Family Law  8th Edition  P. 197)

 

As a result of mental disease the wife became progressively less able to perform any domestic duties. Eventually she became bedridden and incontinent and was admitted to hospital. When her husband could no longer cope with the situation. There was no reasonable hope that her condition would improve and the husband petitioned for divorce alleging that her behavior was such that he could no longer reasonably be expected to live with her.

 

91. Williams Vs. Williams (1964) AC 698

(Bromley’s Family Law  8th Edition  P. 196)

 

House of Lords laid down the rule that the respondent’s mental illness was not necessarily a defence to a charge of cruelty but was one of the matters to be taken in to account.

 

92. Bergin Vs. Bergin (1983) 1 AER 905

(Bromley’s Family Law  8th Edition  P. 198)

 

The wife accepted as part of married life three serious physical attacks by her husband. Six months after the last, when she was two months pregnant, she left in fear when her husband started throwing the furniture about. It was held that she was justified in alleging that she could not reasonably be expected to live with him.

 

93. Biggs Vs Biggs (1977) Fam 1, (1977) 1 AER 20

(Bromley’s Family Law 8th Edition  P. 223)

 

Cohabitation between decree nisi and decree absolute is to be treated in the same way as cohabitation before decree nisi. Hence if the parties live together for more than six months after a decree nisi based on adultery, this must lead to its rescission.

 

 

 

 

 

94. Savage Vs. Savage (1982) Fam 100,(1982) 3AER 49 (Bromley’s Family Law  8th Edition  P. 223)

 

Decree based on the respondent’s behavior will not be made absolute if the subsequent cohabitation shows that the court was wrong in finding that the petitioner could not reasonably be expected to live with the respondent at the time of the decree nisi.

 

95. Walter Vs. Walter (1949) 65 TLR 680

(Bromley’s Family Law 8th Edition  P. 208)

Husband and wife were both working in different parts of London. Neither of them could succeed on petitions based upon desertion because neither could prove that the separation was due to the other’s fault.

 

96. Estate Nichols V. Nichols, N.O., 1948 (3) S.A.I.(N)

(H.R.Hahlo Husband and Wife 2nd Edition P 347 )

 

In the case of the dissolution of a marriage by divorce the marriage tie is severed as from the date when the decree of divorce is pronounced.

 

97. Colly Vs. Colly’s Estate 1946 W.L.D. 83

(H.R.Hahlo Husband and Wife 2nd Edition P 373 )

Husband had agreed to pay his divorced wife maintenance until her death or remarried. The husband died before the wife who had not remarried. The court held that in the absence of any provision to the effect maintenance was to cease on the husband’s death, the obligation continued and had to be met out of his estate.

 

98.   Belfort Vs. Belfort (1961) 1SA 257

(H.R.Hahlo Husband and Wife 2nd Edition P 384)

 

Despite the sympathy for the husband who had suffered unhappiness by reason of the Defendant’s conduct, their married life been ridden with drink, neglect, deceit and broken promises, the husband was not granted a divorce, because there was no evidence that the wife never visualized his departure.


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