1951 Present : Basnayake J. and Pulle J.

DE MEL, Appellant, and DE MEL et al., Respondents

S. C. 277-D. C. Colombo, 1,250/D

Divorce-Malicious desertion-Unfounded charge of adultery.

Where a husband suspected without reasonable grounds that his wife had committed adultery and ordered her to leave the house and refused to be reconciled to her unless she gave a written confession of adultery-

Held, that there was malicious desertion on the part of the husband.

APPEAL from a judgment of the District Court, Colombo.

U. A. Jayasundera, K.C., with J. N. Fernandopulle, C. G. Weeramantry and Felix Bahareti, for the plaintiff appellant.

H. V. Perera, K.C., with N. K. Choksy, K.C., and H. W. Jayewardene, for the first defendant respondent.

N. E. Weerasooria, K.C., with W. D. Gunasekere, for the second defendant respondent.

Cur. adv. vult.

June 28, 1951. PULLE J.-

This is an appeal in an action for dissolution of marriage instituted by the husband on the ground that his wife, the first defendant, had committed adultery with the second defendant from whom he claimed Rs. 10,000 as damages. The defence was a denial and the wife counter-claimed a divorce on the ground that the plaintiff had maliciously deserted her. The learned District Judge dismissed the plaintiff's action against both defendants and entered a decree in favour of the wife dissolving the marriage.

The case for the plaintiff centres round an incident which occurred on the night of March 7, 1945. The plaintiff and his wife retired for the night. The second defendant who was a guest and a friend of the family slept in an adjoining room. The plaintiff got out of his bed at about 1 a.m. and discovered that his wife was not on her bed and that the door leading to the room where the second defendant was sleeping was partly open. He switched on first the light in his room and on switching on the light of the neighbouring room he saw the wife rising up from the second defendant's bed. If what the plaintiff says he saw that night were true, there can be no doubt that a strong prima facie case of adultery was made out.

The wife denies that she lay on the bed of the second defendant. Admittedly she was in the room of the second defendant but her version is that she was suffering from a pain in the chest for which she consulted medical advice only two days previously and that on the night in question the pain became worse and she entered the second defendant's room to help herself to a little brandy from a bottle kept in an almirah in that room. Having taken the bottle she turned back to proceed to her own room and thence to the dining room when the plaintiff asked angrily " Why, why " and before she could explain he approached her in an

attitude of violence, whereupon she. dropped the bottle on a couch and ran towards the drawing room where he gave her a beating. The husband admits the beating and justifies it, naturally from his point of view, on the ground of provocation.

But for the unusual hour at which the wife was discovered in the room, it could not be a matter for comment if the wife entered the adjoining room, even when the second defendant was there alone, on some legitimate business. The second defendant was a friend who had a few weeks previously been lodging with them. It was also customary for the wife to prepare the second defendant's bed and take a cup of " Ovaltine " to the room before he retired.

Whether the version given by the wife was probably true depended principally on the independent evidence called to support her. The Police Sergeant and Proctor E. B. Sumanatilake who came before dawn the same night testify to having seen the bottle of brandy on the couch. It is undisputed that she gave her version regarding the bottle of brandy to the Police Sergeant who recorded her statement. Learned Counsel for the husband has invited us to reverse the finding in favour of the wife because her