Seneviratne V. Panishamy Et Al.,

1927 Garvin and Lyall Grant JJ.

 SENEVIRATNE v. PANISHAMY et al.

280-D. C. Galle, 22,893.

Divorce-Adultery of wife-Husband himself guilty of adultery-Discretion of Court-Civil Procedure Code, s. 602.

Where a plaintiff, who institutes proceedings for divorce from his wife, four and a half years after the adultery complained of. is himself found to have lived in adultery for four years up to the. institution of the action and also during its pendency,-

Held, that the Court is justified in refusing to grant. I he plaintiff a divorce.

Per GARVIN J.- He who seeks to be released from the matrimonial tie must himself be free from matrimonial offence.  This rule may only be relaxed in exceptional cases and where the relief prayed for may be granted without prejudice to the interests of public morality.

APPEAL from a judgment of the District Judge of Galle. The facts appear from the judgment of Garvin J.

Hayley, K. C. (with Ranawake), for plaintiff, appellant.

T. Weeraratne (with Zoysa), for first defendant, respondent.

H. V. Perera (with Rajapakse), for second defendant, respondent.

August 29, 1927. GARVIN J.-

This is an appeal from a decree refusing to grant a divorce a vinculo matrimonii. The action was by a husband on the alleged ground of his wife's adultery. He endeavoured to establish specific acts of adultery in April. 1921, between his father and the defendant his wife. To this the crucial issue in the case the District Judge has given a somewhat halting answer. He says it is "probable" and it would seem from his judgment that he thought it a case of strong suspicion but not proved " to the hilt." It has also been found by the Judge that the plaintiff committed adultery prior to the alleged adultery by the wife, and it is admitted that from some date in 1921 and continuously thereafter up to the present time the plaintiff lived and is living in adultery with, one Elo Nona.

In appeal the case was treated by learned counsel for the appellant as one in which though the adultery of the wife had been found or at least established the learned District Judge had refused a divorce to the plaintiff on the ground of his own adulter.

It has been clearly established that the plaintiff has been actually living with Bio Nona from the middle of 1921 at the latest. This is the position in which the case on this point is left by the evidence of the plaintiff and his witnesses. The defendant, however, says that the plaintiff's association with Elo Nona commenced seven years before the date on which she gave her evidence. She was then confronted with her evidence in a proceeding under the Maintenance Ordinance in which speaking on July 20. 192"), she said " He left me four years ago." Her explanation that her husband finally abandoned her two years after he commenced to associate with Elo Nona is a possible one and has been accepted by the Judge.

But there is in addition the evidence of the plaintiff's daughter that her father used to visit a woman for six or seven years and " for the last four years he stayed there altogether." There is therefore ample evidence to support the Judge's finding that the plaintiff's misconduct preceded the alleged misconduct of his wife. If it be necessary in law to establish the prior misconduct of the plaintiff as a justification for refusing to grant him a divorce upon the ground of his wife's adultery, T should hold that the Judge was right in his finding upon the evidence that such prior misconduct has been proved.

In a case where a plaintiff, who institutes proceedings for a divorce from his wife four and a half years after the adultery complained of, is compelled to admit that for at least four of those years, up to the institution of the action, and during its pendency he has lived and is continuing to live in adultery a Court would be justified in refusing him the relief he claims.

Section 602 of the Civil P

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