Silva V. Missinona

Present: Bertram C.J. and Schneider J.

SILVA v. MISSINONA

438-D. C. Galle, 20,352.

Divorce-What constitutes malicious desertion ?-When decree should be entered ?-Interval between decree nisi and decree absolute-Civil Procedure Code,

 Desertion to be a ground for divorce must be malicious, that is to say, it must be a deliberate and unconscientious, definite, and final repudiation of the obligations of the marriage state. It must be sine animo reverlendi. Divorce should only be granted if the desertion complained of was a repeated desertion, and the offending spouse has contumaciously refused to return to married life.

Voet observes that even after judgment for desertion and separation, attempts should be made to bring about concord to the full extent to which this is possible.

" Our procedure gives opportunity for the application of the same principle through the fact that every decree for divorce is, in the first instance, a decree nisi. The period of three months before it is made absolute is only a minimum period, and in cases of malicious desertion this preliminary period should, in my opinion, be substantially longer, and we should give effect to the principles of the Roman-Dutch law by holding that in cases of malicious desertion the object of this interval is to allow an opportunity for reconciliation, and that the decree should not be made absolute, unless it appeared that the complaining spouse had, in the interval, provided a reasonable opportunity for a resumption of married life, and that this had been contumaciously and unreasonably refused by the other party."

THE facts are set out in the judgment.

H. J. C. Pereira, K.C. (with him Soertsz and M. H. W. de Silva) for defendant, appellant.

Elliott, K.C. (with him H. F. Perera and Jayasuriya), for plaintiff respondent.

Cur. adv. vult.

August 4, 1924. Bertram C.J.-

This is an appeal in an action for a divorce by a husband against his wife based on the allegation of malicious desertion. The learned District Judge has found that the plaintiff was " fully entitled to a divorce," and he has accordingly entered a decree nisi to become absolute after the very brief interval of three months. I do not

think that the learned Judge has fully considered the principles governing divorce on the ground of malicious desertion, and it is clearly very important that these principles should be understood.

I will first consider the facts: The parties were married on May 16, 1913, and for over two years after the marriage lived together at the house of the wife's father at Kogalla in the Southern Province. Two children were born, one of whom died. All the husband's furniture was taken to his father-in-law's house, but he says that it was a temporary arrangement, and that his father-in-law promised to give him some land, on which he was to build a house of his own. By July, 1915, however, a very marked state of friction had arisen. It is clear that the husband wanted to get away from his father-in-law's house and take his wife with him. He made complaints to the officer-in-charge of the police station, to the District Judge, and to the Provincial Registrar, and sent two petitions, complaining against his father-in-law, to the Police Officer at Galle. He then went away to Matale where he had property, his wife declining to accompany him. The parties then lived separate for 51/2 years until February, 1921. I am not clear that the husband was away at Matale all this time. The wife says that he was at Kataluwa, about a mile from Kogalla, at his aunt's house, and that she repeatedly wrote to him and saw him several times, taking her children with her. She wanted her husband either to live in her father's house, or at his own mulgedera at Kataluwa, a mile off. The husband, however, wanted to live at Mirissa, about 10 miles away, where he had leased a house for the purpose. In February, 1921, there was a reconciliation. The h

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