1958 Present: H. N. G. Fernando, J., and T. S. Fernando, J.

K. SINNATHAMBY, Appellant, and YOKAMMAH, Respondent

S. C. 396-D. C. .Jaffna, 154/D

    Divorce-Action in81ituted by wife-Alimony pendente lite-Failure of husband to pay it-Can Court refuse to hear defence ?-Civil Procedure Code, ss. 85, 109, 839.

When, in divorce proceedings instituted by a wife, an order for the payment of alimony pendente lite is flouted by the husband, the Court has no power to strike out the defence and to place the defendant-husband in the same position as if he had not appeared.

APPEAL from a judgment of the District Court, Jaffna.

C. Ranganathan, for the Defendant-Appellant.

S. Sharvananda, for the Plaintiff-Respondent.

Cur. adv. vult

December 5, 1958. H. N. G. FERNANDO, J.-

The plaintiff, who is the wife of the defendant, instituted this action for divorce on the grounds of malicious desertion. The defendant in his answer alleged that the plaintiff had committed adultery and asked on that ground for a decree of judicial separation. On 25th February 1957 the parties agreed upon alimony pendente lite at the rate of Rs. 25 per month and order for alimony was made accordingly. The case was fixed for trial on several dates, and on 24th July lQ57 arrears of alimony amounting to Rs. 100 w re paid in Court.

The case was ultimately taken up for trial on 9th March 1958. On that day Counsel for the plaintiff stated that the defendant had failed to pay alimony for a period of eleven months, and moved to lead evidence to show that the defendant had the means to pay the alimony and called the plaintiff as a witness for the purpose. After a brief examination of the plaintiff, Counsel for the defendant moved "that the defendant be given some time, at least one hour, to find the money to pay the alimony".

Objection to the grant of time having been taken, the District Judge held that the alimony was in arrear and he made order striking off the defence. Thereupon the plaintiff's Counsel framed the relevant issues only on the question of malicious desertion, and the District Judge proceeded to hear the case ex parte and thereafter entered decree for divorce. The present appeal is against that judgment and decree.

At the trial the plaintiff relied on the decision of this Court in Asilin Nona v. Peter Perera 1. In that case, the plaintiff husband had failed to pay alimony even though the wife had already a writ in her hands for the recovery of the amount due. On the trial date application was made on behalf of the wife that the Court should stay the hearing of the Court until the alimony was paid.

The District Judge refused that application on the ground that no such power was conferred by the Code. In appeal however the order refusing the application to stay proceedings was set aside and the case was remitted to the District Judge, firstly to consider whether the husband had refused to pay the alimony while being in possession of the means to pay, and secondly to exercise his discretion to stay the action until the payment of the alimony.

Keuneman J. in Asilin Nona v. Peter Perera 1[1 (1945) 46 N. L. R. 109.] referred to the English Jase of Leavis v. Lea.vi 2[2 L. R. 1921 Probate 299.]. In that case the wife med a petition for restitution of conjugal rights. Orders were thereafter made against the husband for the payment of taxed costs, for security pending the suit, and for alimony. The husband failed to comply with these orders and while in default took out summons under the Divorce Rules to stay the suit on the ground that he was willing to return to cohabitation. A preliminary objection to the hearing of this summons was taken on behalf of

the wife, on the round that the husband was in contempt. This objection was upheld by the Court and the summons to stay the suit was dismissed. In Cooper v. Cooper 1[1 English Reports 164 at page 1327.] a wife who had sued for judicial se