1954 Present: Gratiaen J. and Gunasekara J.

JAYASINGHE, Appellant, and JAYASINGHE, Respondent

S. C. 29-D. C. Gampaha, 1179/1182D
 

Divorce action-Requisite standard of proof-Condonation of adultery-No issue raised at trial-Circumstances when Court is put upon inquiry-Civil Procedure Code, s. 602.

In an action for divorce on the ground of adultery-

Held, (i) that the words " satisfied on the evidence " in section 602 of the Civil Procedure Code mean that in actions for divorce the Court must demand the same general standard of proof beyond reasonable doubt as is required to support a conviction in a criminal court.

(ii) that, even in the absence of an issue as to condonation of the alleged adultery, the trial judge is put upon inquiry as to whether there has been condonation or not if the evidence discloses that the parties had resumed living together under circumstances which would justify the belief that a reconciliation had taken place. " Conjugal cohabitation " within the meaning of section 602 (2) of the Civil Procedure Code can be resumed even without a renewal of sexual intercourse between the spouses after reconciliation.

APPEAL from a judgment of District Court, Gampaha.

Plaintiff sued the 1st defendant for divorce on the ground of adultery. They were married in May, 1920. It was alleged that during the period April to August, 1945, the 1st defendant committed adultery with the 2nd defendant. Although no issue as to condonation was raised at the trial, the plaintiff conceded in his plaint and evidence that he forgave his wife and lived with her in the same house until 30th May, 1946, after he became aware, in April 1946, of the alleged adultery.

H. W. Jayewardene, with Ivor Misso and D. E. P. Goonetilleke, for the 1st defendant appellant.-On the facts it is submitted that the conclusions of the trial Judge are not warranted by the evidence led in the case.

There are more fundamental misdirections on the law. In regard to the burden of proof in a divorce case, it is now settled law that the Court must demand the same strict standard of proof-proof beyond reasonable doubt-as is required to support a conviction in a criminal court- Preston Jones v. Preston Jones1[(1951) A. C. 391; (1951) 1 A. E. R. 124.]. See also Ginesi v. Ginesi 2[ (1948)P.179 ;(1948) 1 A. E. R. 373.], Baler v. Bater 3[ (1951) P. 35 ; (1950) 2 A. E. R. 458.] and Davis v. Davis 4[(1950) P. 125 ; (1950) 1 A. E. R. 40.].

The trial Judge has failed to address his mind to the plea of condonation appearing in the pleadings and evidence. It was the clear duty of the Court to have raised it as an issue even though the parties or their Counse, failed to do So-Moosbrugger v. Moosbrugger 5[(1913) 29 T. L. R. 715.]. In Roman Dutch law condonation implies " forgiveness " and " complete reconciliation "

(Voet 24.2.5, Young v. Young1[ 25 S. C.428.] Dias v. Mensaline Hamine2[(1945) 46 N. L. R. 193]) or, in the words of section 602 (2) of the Civil Procedure Code, " conjugal cohabitation ".

There is no such thing in law as conditional cohabitation-Henderson v. Henderson3[(1944) A. C. 484 (1944) 1 A .E .R. 44]. Assuming, therefore, that the 1st defendant was guilty of adultery, the plaintiff has completely condoned it.

There is the further point that the Court has no power to award the plaintiff Rs. 150 a month out of 1st defendant's property as permanent alimony-De Silva v. De Silva 4[ (1925) 27 N. L. R. 289.], Lorriman v. Lorriman5[(1908) P. 282]. The circumstances under which such permanent alimony should be granted to the husband are discussed in Rayden on Law of Divorce, p. 441 (4th ed.).

Issadeen Mohamed, with M. L. de Silva, for the plaintiff respondent.- It may be admitted that the first part of the judgment of the trial Judge on the question of the burden of proof does not contain a correct statement of the law. But the Judge in effect tries to reconcile conflicting English