WEERASINGHE VS. RENUKA

WEERASINGHE
VS.
RENUKA

SUPREME COURT
ALUVIHARE PC J.
H.N.J. PERERA, J.
PRASANNA JAYAWARDANE, PC J.
S.C. APPEAL CASE NO. 02/2016
S.C. APPLlCATION NO SC/SPL/73/2015
PROVINCIAL HIGH COURT OF MONERAGALA CASE NO. 11/2014/APPEAL
MONERAGALA MAGISTRATE'S COURT CASE NO.47241/2011
SEPTEMBER 14, 2016

Maintenance Act, No 37 of 1999 - Sections 2(1), 4, 4(1) - Single or occasional lapse from virtue - Is it sufficient reason for rejecting maintenance ?- Burden of proof - Evidence Ordinance - sections 101, 102, 103 - Committing adultery and living in adultery? Presumption of Innocence?

The Applicant Appellant Respondent sought maintenance of Rs. 6000 a month from The Respondent - Respondent - Appellent (Husband) The Appellant resisted the application on the basis that the Applicant is living in adultery and therefore is not entitled to maintenance The Magistrate dismissed the application holding that the applicant was living in adultery. The High Court set aside the order and observed that it had not been established that the Applicant was living in adultery for the Appellant to be disqualified for maintenance under Section 2(1).

On appeal to the Supreme Court the main issue was the interpretation of the phrase living in adultery in Section 2(1) of the Maintenance Act, No. 37 of 1999.

HELD:

(1) The burden is cast upon the person alleging immorality to prove it since law presupposes the wife is leading a chaste life. There is a presumption of innocence not only in regard to the commission of a crime but also In regard to any allegation of wrong doing or immoral conduct.

(2) The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person - Evidence Ordinance Sections per H. N. G. Perera 101,102, and 103.

Living in adultery denotes a continuous course of conduct and not isolated acts of immorality. One or two lapses from virtue could be acts of adultery, but would be quite insufficient to show that the woman was living in adultery, which means that she must be living in the state of quasi-permanent union with the man with whom she is committing adultery. There is a great distinction between the words 'committing adultery' and 'living in adultery'.

(3) Words 'living in adultery' in Section 4 meant that a person is living a life of continuous adultery with some ascertained person or life of prostitution.

Appeal from the Judgment of the High Court of Moneragala.

Cases referred to:

1. Selliah v Sinnammah 48 NLR 261.
2. Armugam V Athai 50 NLR 310
3. Isabelahamy V Perera CWR Vol 111 - 294
4. Balasingham V. Kalaivany 1986 SLR 378
5. Ma The in V Maung Mya Khin AIR 1937-Nagpur, 67
6. S.S. Manickam V. Arputha Bhavani Rajam 1980 CriLj 354
7. Ma Mya Khin Vs. N.N. Godenho A.I.R. 1936 Rang 446
8. Pushpawathy V. Santhirasegarampillai 75 NLR 353
9. Ebert V. Ebert 22 NLR 312
10. Reginahamy V. Johna 17 NLR 376

Niranjan de Silva for the Respondent-Respondent Appellant

Nuwan Bopage with Lahiru Welgama and Chathura Weththasinghe for the Applicant-Appellant-Respondent.

Cur.adv.vult.

October 28, 2016

H.N.J.PERERA,.J.

The Applicant-Appellant-Respondent (hereinafter sometimes referred to as the Applicant) instituted the above styled action against the Respondent-Respondent-Appellant (hereinafter sometimes referred to as the Appellant) her husband under Section 2(1) and Section 4(1)(c) of the Maintenance Act No. 37 of 1999 in the Magistrate's Court of Moneragala seeking maintenance of Rs. 6000/= per month. The Appellant resisted the said application on the basis that the Applicant is living in adultery and is therefore not entitled to receive maintenance under the said Act.

Thereafter, after inquiry the learned Magistrate delivered order dated 21.07.2014 in favour of the Appellant holding that it has been proved that the Applicant is li

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