IN THE SUPREME COURT OF THE DEMOCRATIC SOCILIST REPUBLIC OF SRI LANKA In the matter of an application for Leave to Appeal under the Provisions of Section 5C (1) of the High Court of Provinces (Special Provisions) Act No. 19 of 1990 as amended by Act No. 54 of 2006.

Wewita Hettige Upul Premalal Perera, No. 209A, Mahawatta, Alubomulla.

Petitioner Supreme Court Case No.

SC Appeal 192/14 Civil Appeal High Court –

Kalutara,case No.

WP/HCCA/Kal 13/10 (F)

District Court – Panadura, Case No. 4194/D Vs-

Kiriwanawattegedara Beatrice Sandya Kumari, Udahawatta, Siyambalagoda, Danture Kandy.

Respondent And between Kiriwanawattegedara Beatrice Sandya Kumari, Udahawatta, Siyambalagoda, Danture, Kandy.

Respondent-Appellant -Vs-

Wewita Hettige Upul Premalal Perera, No. 209A, Mahawatta, Alubomulla.

Petitioner-Respondent And now between Wewita Hettige Upul Premalal Perera, No. 209A, Mahawatta, Alubomulla.

Petitioner-Respondent-Petitioner -Vs-

Kiriwanawattegedara Beatrice Sandya Kumari, Udahawatta, Siyambalagoda, Danture, kandy.

Respondent-Appellant-Respondent Before: Hon. Buwaneka Aluwihare P.C J Hon. Upaly Abeyrathne J Hon. Anil Gooneratne J Counsel: W. Premathilaka for the Petitioner Respondent Appellant Rohana Jayawardane For the Respondent –Appellant Respondent Argued on: 16. 01. 2016 Decided on: 12. 07.2016 Aluwihare PC. J Petitioner-Respondent-Petitioner-Appellant (hereinafter the Appellant) instituted action in the District Court by way of summary procedure against his wife praying for a divorce a vinculo matrimonii on the sole ground that they had been living in separation, a mensa et thoro, for a period of seven years prior to the institution of the action together with malicious desertion, in terms of section 608 (2) of the Civil Procedure code.

The appellant took up the position that he was legally married to the Respondent Appellant Respondent (hereinafter the Respondent) in the year 1994 and brought the Respondent to his residence where they commenced the matrimonial life.

It was the assertion on the part of the Appellant that the Respondent quarrelled with the Appellant and his parents and in the year 1995, she left the matrimonial home with their only child. Appellant asserts further that with the intention of continuing on with the married life he brought back the Respondent and the child to his residence. The Respondent, however had left the matrimonial home with the child for the second time in the year 1997. It is the contention of the Appellant that she did so with the intention of never returning to live with the Appellant. The Appellant has averred that he and the Respondent have been living in separation from bed and board (mensa et thoro) for a period of 10 years, and that the Respondent had maliciously deserted him and she had deprived him from having sexual relationships continuously for the said period.

The learned trial judge having satisfied himself of the material placed before the court on behalf of the Appellant granted a divorce in his favour on the ground of malicious desertion on the part of the Respondent and directed to have the decree nisi served on the Respondent in terms of section 377 of the Civil Procedure Code.

The Respondent filed objections seeking to set aside the judgement of the learned District Judge and she took up the position that the Appellant had previously instituted divorce action in the same district court against the Respondent and the said action had been dismissed by the court. The Respondent, however admitted (paragraph 6 of the objections filed before the District Court) that she and the Appellant lived separately from 1997 to the date of filing the case. It was her position that there was constructive malicious desertion on the part of the Appellant as she was ejected from the matrimonial home.

At the inquiry before the District Court the sole evidence placed by the Respondent was, with regard to the case filed previously (case no 3118 District Court Panadura) by the Appellant for divorce. This evidenc