K. PRIYANTHA FERNANDO, J

1.The Plaintiff-Respondent-Respondent (hereinafter referred to as the Plaintiff) filed action in the District Court of Hatton against the Defendant-Respondent-Respondent (hereinafter referred to as the Defendant) for divorce on the ground of malicious desertion by the defendant. The plaintiff also prayed for permanent alimony and the custody of the two children. The plaintiff is the wife and the defendant is the husband.

2. In his amended answer, the defendant while denying the malicious desertion on his part prayed for a dismissal of the plaintiff's action, and alleged that the plaintiff is committing adultery with the Co- defendant-Appellant-Appellant (hereinafter referred to as the co- defendant) and claimed Rs. 1,000,000 as damages from the co- defendant for breaking down his marriage. It was the position of the defendant that the plaintiff has filed this action in order to obtain a divorce as she is living in adultery with the co-defendant. However, it is pertinent to note that, the defendant did not pray for divorce from the plaintiff based on the alleged adultery. For the ease of reference, I will refer to the parties as they were referred to in the District Court.

3. After trial, the learned District Judge entered judgment in favour of the defendant dismissing the plaintiff's action. The District Court also ordered the co-defendant to pay the defendant damages in a sum of Rs.500,000 as prayed for in the prayer to the plaint.

4. The co-defendant being dissatisfied with the said judgment of the learned District Judge, appealed against the said judgment to the Provincial High Court of Civil Appeals of the Central Province holden in Kandy.

5. The learned Judges of the High Court, after hearing the appeal, by their judgment dated 08.02.2017 dismissed the appeal preferred by the co-defendant. Being aggrieved by the said judgment of the High Court of Civil Appeals, the co-defendant sought leave to appeal against the said judgment of the High Court from the Supreme Court. This Court, after considering the application, granted leave to appeal on the following question of law:

“Whether the party in a divorce action can claim damages against the co-defendant without praying for a divorce, on the ground of adultery.”

10. The learned Counsel for the co-defendant submitted that, a party cannot claim damages from the co-defendant for committing adultery, without him seeking divorce from the spouse. It is his contention that, the defendant has not prayed for divorce from the plaintiff but made the co-defendant a defendant for the purpose of seeking damages without disclosing a cause of action known to the law of this country. The learned Counsel further submitted that, as there is no claim from the plaintiff in terms of section 598 of the Civil Procedure Code read with section 603, the defendant cannot claim pecuniary damages from the co-defendant.

7. In his written submissions, the learned Counsel for the co- defendant has submitted that the finding of the learned trial Judge is wrongful and is against the applicability and/or the scope of section 598 read with section 603 of the Civil Procedure Code. The learned Counsel relied on what was held in case of Premanie V. Leelaraja [1990] 1 S.L.R. 31.

8. It is the submission of the learned Counsel for the co-defendant that adultery is not a delictual wrong in Sri Lanka, and is only one of the grounds for which marriage may be dissolved by the law applicable in Sri Lanka. The learned Counsel also relied on the case of Senadipathi V. Senadipathi 43 NLR 272 in this aspect.

9. The learned Counsel for the defendant submitted at the hearing of this case that, the defendant is entitled to file action for damages against the co-defendant without praying for divorce from the plaintiff, due to the loss of consortium caused by the co-defendant by committing adultery with the plaintiff. The learned Counsel relied on the case of Abeysundara V. Abeysundara CA 63/2004 (F), decided on 30.0