Dias, S.W.E. V. Mensaline Hamine Et Al.,

1945 Present: Keuneman and Jayetileke JJ.

S. W. E. DIAS, Appellant, and MENSALINE HAMINE et al,
Respondent.

234-D. C. Colombo, 619.

Divorce-Wife lives in the same house after knowledge of husband's adultery- No proof of condonation-Further proof required of forgiveness and reinstatement of offending spouse.

The fact that a wife after knowledge of her husband's adultery shares his bed is not strong or conclusive proof of condonation; still less, the fact that she merely resided in the same house with her husband. There should be, in addition, proof of forgiveness and of the reinstatement of the offending spouse.

THE plaintiff sued her husband the first defendant for divorce on the grounds-(1) of constructive malicious desertion by him, (2) of his adultery with a servant woman. The first defendant denied these allegations and himself claimed a divorce on the ground that the plaintiff had committed adultery with the second defendant in 1940 and 1942 and thereafter. The District Judge found that the first defendant had committed adultery with the servant woman and dismissed the defendant's claim for divorce. The District Judge further held that the plaintiff had condoned the first defendant's adultery, but that his misconduct later had revived the earlier condoned adultery. He thereupon entered decree for divorce in favour of the plaintiff.

N. Nadarajah, K.C. (with him H. W. Jayawardene) for the first defendant, appellant.-There is clear evidence in this case that the plaintiff had condoned the first defendant's adultery. Although the best evidence of reinstatement is the continuance or resumption of sexual intercourse there may be a resumption of conjugal cohabitation, sufficient to constitute a reinstatement, without sexual intercourse. Restoration of conjugal cohabitation as distinguished from sexual intercourse will carry condonation with it-Rayden on Divorce (4th ed.) p. 134; Cramp v. Cramp 1; Germany v. Germany 2. In Roman-Dutch law, too mere reconciliation is sufficient to establish condonation- Voet 24.2.5; Young v. Young 3; De Hoedt v. De Hoedt 4.

The next question is whether a matrimonial offence, once it is condoned, can, in Ceylon, be revived by a subsequent offence. The trial Judge has held that it can be revived. The common law governing divorce in Ceylon is the Roman-Dutch law-Seneviratne v. Panishamy, et al. 5; Le Mesurier v. he Mesurier 6; Karonchihamy v. Angohami et al. 7; Wright v. Wright 8. The Roman-Dutch law does not recognize such a thing as a revival of a matrimonial offence after a reconciliation has taken place. The reconciliation completely extinguishes the antecedent misconduct,

1 L. R. 1920 p. 158 at 165-6.
2  (1938) 3 A. E. R. 64.
3 S. African L. R. (1908) 25 S. C. 428.
4 (1910) 4 Leader 66.
5 (1927) 29 N. L. R. 97 at 101.
6 (1895) 1 N. L. R. 160 at 164.
7 (1896) 2 N. L. R. 276.
8 (1903) 9 N. L. R. 31.

and any subsequent proceedings for a divorce must be upon a new matrimonial offence which in itself would entitle the innocent spouse to such relief-Young v. Young (supra) which is directly in point in the present case; Sande's Frisian Decisions 2. 6. 2. Even in English law there is no such thing as contingent condonation-Henderson v. Henderson 1. The alleged misconduct of the first defendant subsequent to the reconciliation cannot, in the present case, be regarded as a matrimonial offence of such a nature as is sufficient to revive the earlier condoned adultery-Collins v. Collins 2; 27 Empire Digest 135, para, 3174; Hart v. Hart3; Palmer v. Palmer 4; Rayden on Divorce (4th ed.) p. 135.

H. V. Perera, K.C. (with him H. Deheragoda), for the plaintiff, respondent.-The finding of the trial Judge that there was condonation is not correct. Section 602 of the Civil Procedure Code does not contain a definition of condonation. The fact that a wife remains in the house, and even permits intercourse, after knowledg

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