Appuhamy V. Julihamy Et Al.

1912 Present: Lascelles C.J. and Wood Renton J.

APPUHAMY v. JULIHAMY et al.

303-D. C. Chilaw, 4,530.

Divorce-Action by husband against wife on ground of adultery and desertion-Husband communicating venereal disease to wife- Cruelty-Divorce not granted.

The plaintiff sued his wife,, the first defendant, for divorce on the grounds of malicious desertion and adultery with second defendant. The Supreme Court refused to grant a decree for divorce though the adultery was proved, as the plaintiff was guilty of cruelty to his wife, inasmuch as he had communicated venereal disease to her.

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

Where a husband did not come forward and assert his ignorance of his condition the Court would hold the charge of wilful infection established, the principle being that the husband's health was presumably within his own knowledge.

THE facts are fully set out in the judgment.

Bawa, K.C., for the plaintiff, appellant.-The Judge has found that the respondent was guilty of adultery and desertion. The plaintiff was entitled to a decree for divorce on that finding. There is absolutely no evidence to support the finding of the Judge that the plaintiff was guilty of adultery; the fact that the plaintiff communicated venereal disease to the respondent is no-proof of the fact that the plaintiff had committed adultery after his marriage; the plaintiff might have contracted the disease before the marriage.

Communication of venereal disease by the husband to his wife is not cruelty unless it was wilful. See Dixon on Divorce, 3rd ed., p. 154; Collett v. Collett;1[1 Curb. 678.] Brown v. Brown2[(1865) L. R. 1 P. & D. 46.] Even if the husband was- guilty of cruelty, the wife had condoned the cruelty by continuing to live together in spite of the disease.

No issue as to cruelty was raised at the trial.

Chitty, for the defendant, respondent.-There is sufficient evidence to prove that the communication of the disease was wilful. The Court will infer from the facts of communication of the disease that the communication was wilful. The evidence of the husband was not accepted by the Court; in the absence of an explanation by the husband, the Court will presume that the communication was wilful. Counsel argued on the facts.

Cur. adv. vult.

December 17, 1912. LASCELLES C.J.-

This is an appeal from a decision of the District Judge of Chilaw dismissing the plaintiff's claim for a dissolution of his marriage with the first defendant-respondent on the ground of her desertion and adultery. The learned District Judge has found that the first defendant was guilty of wilful desertion and adultery, but in the exercise of the discretion vested in the Court by section 602 of the Civil Procedure Code has dismissed the claim for divorce on the ground that the plaintiff himself was guilty of adultery. The mental process by which the learned District Judge arrives at the conclusion that the plaintiff has been guilty of adultery is curious.

It was admitted that both the plaintiff and the first defendant were infected with syphilis. The plaintiff swore that he contracted the disease from his wife two or three days after their marriage. The defendant, on the other hand, deposed that she was infected by her husband, and that the disease appeared two months after the marriage, and that her husband subsequently re-infected her. The learned District Judge accepts the defendant's version, which I think is the more probable, and concludes that the plaintiff must have committed adultery.

But it does not follow from the fact that the husband was suffering from this disorder at or shortly after his marriage; that he was guilty of adultery during the marriage. The facts are quite consistent with the plaintiff having contracted the disease before marriage.

But accepting the finding of the District Judge as to the f

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