1939 Present: Keuneman and Nihill . T. T.

EBERT v. EBERT.

121-D. C. (Inty.) Colombo, 204.

Alimony-Decree for dissolution of marriage-Obtained by husband-Civil Procedure Code, s. 615.

A Court has no power, in a decree absolute for the dissolution of marriage entered at the suit of the husband, to award permanent alimony to the wife.

THE plaintiff-respondent instituted an action for divorce against her husband on the ground of malicious desertion, and claimed alimony of Rs. 200 per month; the defendant denied the allegations, and in reconvention claimed a decree for divorce, on the ground of malicious desertion by the plaintiff. The learned District Judge dismissed the plaintiff's action, and granted to the defendant, the decree for divorce, on his claim in reconvention. Decree nisi was entered with no provision for alimony to the plaintiff. The plaintiff already had in her favour an order for the payment of Rs. 55 per month, for maintenance, passed against the defendant in case No. 15,791 of the Additional Police Court of Colombo. The plaintiff, once decree absolute was entered, applied to the learned District Judge to give effect to the order for maintenance, in her favour in the decree absolute. After hearing argument, the learned Judge allowed the plaintiff's application from which the defendant appealed.

Colvin R. de Silva, for defendant, appellant. -Court is empowered to order permanent alimony in a decree for divorce, only under section 615 of the Civil Procedure Code. In this case the decree was obtained at the instance of the husband. Section 615 contemplates two circumstances under which a wife may obtain alimony, viz., on a decree for separation, on a decree for divorce, in both cases, the decree has to be obtained at the instance of the wife. She having failed, section 615 cannot help her. The interpretation placed on section 615 by the learned District Judge is not correct, viz., ?that obtained by the wife? refers only to an order for separation, the comma placed after dissolved does not preclude a wife, at whose instance the marriage is dissolved ?from obtaining permanent alimony. For instance, in section 606 where the Court is empowered to order the payment of casts by an intervenient, the position is made clear. It contemplates two sets of circumstances under which an order may be made under this section: (1) the applicant had no grounds for intervening; (2) had no sufficient grounds for intervening. Here the comma is placed after ?grounds?, so that if we adopt the same line of interpretation given by the learned Judge to this section we are reduced to the position that the Court is empowered to grant costs, only in cases where the intervenient had no grounds for intervening, and not if it is satisfied that the applicant had no sufficient grounds. Such a construction is clearly unreasonable and the Legislature could not have meant to draw a distinction.

If the Legislature intended to confer upon a wife the power to claim permanent alimony even when the decree for dissolution was obtained at the instance of the husband it would have made itself quite clear, for instance, under section 614, alimony pendente lite can be obtained by the wife, whether the action be instituted by the husband or wife. If the words ?instituted by the husband or wife? could be inserted in section 614, somewhat similar words could have been employed in section 615.

R. L. Pereira, K. C. (with him B. C. Ahlip and Mackenzie Pereira), for respondent. -The draftsman had before him the Roman-Dutch law principle which always contemplated the hope of a reconciliation at some stage during the separation of the spouses, and therefore gave the wife the right to claim alimony when the decree for separation was obtained by her, but left to the discretion of the Court the power to order alimony to a wife who has been divorced at the instance of the husband, so that the