MANGALIKA DE SILVA VS. JOSEPH DE SILVA

MANGALIKA DE SILVA
VS.
JOSEPH DE SILVA

SUPREME COURT
EVA WANASUNDARA, PC J,
SISIRA DE ABREW, J.
ANIL GOONARATNE, J
SC AP 122/2011
WP/HCCA/COL/51/07 (F)
DC COLOMBO 19725/D
MARCH 16, 2015

Divorce - Malicious Desertion - Divorce in favour of Plaintiff wife - Civil Procedure Code - Sections 615 (1), 616, 617 as amended by act No. 20 of 1977 - Order made to transfer 1/2 matrimonial house to wife - Legality? - Family? - Grounds of divorce should not influence the Judge if he decided to act under Section 615 (1)?

In the divorce suit filed by the wife, the Court granted a divorce to the wife on the ground of malicious desertion and adultery - having granted the divorce the trial Judge made order under Section 615 (a) of the Code ordering the Defendant - Husband to transfer an undivided half share of the matrimonial house to his wife. The High Court (Civil Appellate) set aside the said Judgment and ordered a Re trial.

The Plaintiff (wife) appealed to the Supreme Court.

The Supreme Court granted leave to appeal on the question, whether the trial Judge was correct in law in directing, that the Defendant- Respondent transfer his 1/2 share of the Matrimonial property to the Plaintiff - Respondent -Respondent (wife).

Both parties indicated to Court, that they do not wish to go for a retrial with regard to the entire matter relating to the divorce - and the appeal be limited only to the aforesaid question of Law.

Held:

(1) There is an area of discretion under section 615 (1) of the Code. An order under this section could be made "if it (Court) thinks fit" Section 615 (1) (a) could be resorted to, if the Court thinks it be reasonable to make a conveyance of properly. If the Court wishes to act in terms of section 615 (1) (a) it could do so if it thinks fit and make a reasonable order.

(2) What is contemplated is the reasonableness to make an order having considered the entitlement to property of each spouse. The grounds of divorce should not influence the trial Judge if he decides to act under section 615 (1) (a).

(3) It would be unreasonable to make such conveyance or settlement of the property in favour of the Plaintiff- Respondent (wife) and deprive the Defendant - Appellant - Respondent (Husband) of his 1/2 share to the property, irrespective of each party's contribution to the property, both have enjoyed and derived from the property as long as the marriage subsisted. It is not possible to get a fair assessment of each one's contribution to the property in question.

Per Anil Gooneratne, J.

"To give the entirety of the property to the wife atone would be unfair as it is necessary in terms of our statute law to make a reasonable order."

Per Anil Gooneratne, J.

"I have discussed in this judgment that the influence of the common law of deriving benefits from marriage should be scanfied but not to the extent of giving up the each other's half share to the disputed property. The position would have been different if the wife alone had purchased the property and convoyed the entirety to the Defendent-Appeliant-respondent. If that was so, an order by this court to re convey the entire property to the wife is reasonable and justifiable "

(4) Principles applicable to grant a divorce is one thing and distribution of assets after divorce or dissolution of marriage is another. The two aspects cannot be so closely connected to give a benefit to a spouse which enables court to re distribute property

APPEAL from the Judgment of the High Court (Civil Appeals) of Colombo.

Cases referred to:

1. Huang Vs. Secretary of State for the Home Department 2007 UKHL 11
2. Dondris Vs. Kudatchi - 1902 7 NLR 107
3. De Silva Vs. De Silva - 1925 27 NLR 289 - 304
4. Fernando Vs. Fernando Law Report Vol. 3 Co-1972 Pg. 6/7

5. P. Samarasinghe Vs. L. Samarasinghe - 1990 1 SLR 31 (CA)
6. Miller Vs. Miller

Nihal Fernando PC with Rohan Dunuwila for the Plaint

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