Keerthiratne V. Karunawathie

1938   Present : Poyser S.P.J. and Maartensz J.

KEERTHIRATNE v. KARUNAWATHIE.

208-D. C. Kegalla, 10,950

Judicial separation-Grounds for decree-Malicious desertion-Roman-Dutch law.

In Ceylon a decree for judicial separation may be granted on the ground of malicious desertion.


THE plaintiff in this action sued the defendant, his wife, for divorce. on the ground of malicious desertion. The defendant denied desertion and asked for a decree of judicial separation on the ground that the plaintiff had deserted her.

The learned District Judge granted the defendant a decree of separation a mensa et thoro.

Hayley, K.C. (with him C. E. S. Perera and Chelvanayagam), for plaintiff, appellant.-Under the Roman-Dutch law, malicious desertion, is not a ground for granting judicial separation. Wright v. Wright[19N.L.R.31] enumerates the various grounds upon which separation a mensa et thoro can be claimed, but no mention is made of desertion. The remarks of Sampayo J. in Orr v. Orr[ 2 22N.L.R.57.] are merely obiter. Malicious desertion entitles the injured party to divorce only, but not to judicial separation.

Plaintiff and his witness were not questioned in cross-examination regarding the facts deposed to by the chief witness for the defence. Plaintiff's case must therefore be taken as unchallenged-Phipson's Law of Evidence (7th ed.), p. 460; Evidence Ordinance, s. 145 (2).

H. V. Perera, K.C. (with him N. E. Weerasooria and E. A. P. Wijeratne), for defendant, respondent.-On the question whether decree for judicial separation can be granted for malicious desertion, the point is covered by authority. Apart from the remarks of Sampayo J. in Orr v. Orr (supra), Van Zyl's Judicial Practice, vol. II. p. 660 mentions various grounds, one of which is wilful neglect of duty. Johnstone v. Johnstone [ 3(1917) A. D. 292.] is exactly in point.

Cur. adv. vult.

 February 2, 1938. POYSER S.P.J.-

In this action the plaintiff claimed a divorce a vinculo matrimonii on the grounds of the malicious desertion of the defendant.

The defendant, in her answer, denied deserting the plaintiff and prayed that a decree of separation be granted her on the grounds of the plaintiff's malicious desertion.

The District Judge has accepted the evidence for the defence and found that the plaintiff had maliciously deserted the defendant; he consequently granted her a decree of separation a mensa et thoro.

The evidence abundantly supported this finding and it is unnecessary to refer to it in detail.

It was however argued on behalf of the appellant that the evidence of Mr. A. A. Wickremesinghe, who was called for the defendant, was not.

put to either the plaintiff or his father in cross-examination, that the plaintiff was prejudiced thereby, and there consequently should be a o new trial.

The evidence of this witness, which was accepted in its entirety by the Judge, was to the effect that he knew the parties and tried to effect a reconciliation, that the defendant was willing to return to the plaintiff but that the plaintiff's father would not permit a reconciliation and in consequence of his attitude the plaintiff would not allow the defendant to return to him and instituted these proceedings.

This evidence was not put in detail to the plaintiff or his father, but its substance was, e.g., the father in cross-examination stated he had no objection to the defendant returning to her husband and the plaintiff stated his father did not ask him to give up his wife.

I do not therefore think the plaintiff was in any way prejudiced by the fact that every detail of Mr. Wickremesinghe's evidence was not put to him; in fact this case seems largely in its early stages to have been contested on the question of alimony, and I see no reason for ordering a fresh trial on this ground.

A further point, and one of some importance, taken by Mr. Hayley was that under the Roman-Dutch law only a divorce, no

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