Rajeswararanee V. Sunthararasa

1962 Present: Basnayake, C. J., and Herat, J.

 RAJESWARARANEE, Appellant, and SUNTHARARASA,
Respondent

S. C. 479/59-D. C. Chavakachcheri, 1688/D

    Divorce-Malicious desertion-Proof.

In an action for divorce on the ground of malicious desertion proof is necessary that the deserter wilfully brought to an end the existing state of co-habitation with the deliberate purpose of abandoning conjugal society.

Where both husband and wife were anxious to resume their conjugal life, but the husband wanted the wife to come to his house while the wife wanted' the husband to come to her house in the same village-

Held, that malicious desertion on the part of the wife was not proved.

APPEAL from a judgment of the District Court, Chavakachcheri.

S. Nade-san, Q.C., with S. Sharvananda, for Defendant-Appellant.

H. W. Jayewardene, Q.C., with P. Navaratnarajah and N. R. M. Daluwatte, for Plaintiif-Respondent.

March 7, 1962. BASNAYAKE, C. J.-

This is an appeal from the judgment of the learned District Judge of Chavakachcheri in an action for divorce on the ground of malicious desertion. The plaintiff alleged that he was married to the defendant on 22nd May 1955 and that by that marriage there were two children namely Madhumalar Rasakularanee born on 27th December 1955 and Anton Rajaselvan born on 1st December 1957.

The story of the domestic life of the parties to the marriage is briefly as follows :-The plaintiff was a clerk in the Government Clerical Service stationed at Colombo at the time of his marriage. The defendant is the daughter of a cousin of his. Their parental homes were at Nunavil in Chavakachcheri opposite each other about 200 yards apart on either side of the Kandy Road. At the time of the marriage the plaintiff was stationed in Colombo. They shared the plaintiff's brother-in-law's house at Nugegoda. He was the Chief Accountant in the Forest Department and had rented out a spacious house. They lived in that house until 2nd June 1955 when the plaintiff's brother-in-law suddenly died. In consequence of that the house had to be given up and the plaintiff's sister and the defendant left for Jaffna. At about the same time the plaintiff was transferred to the Jaffna Kachcheri, and he rented out a house at No. 18 Colombagam Road, Jaffna. He shared that house with his widowed sister Thavamany. They resided in that house for nine months until April 1956. On 17th February 1956, about two months after the birth of her first child, the defendant left for her father's house as she was suffering from an illness which was described by the doctor as puerperal insanity. Her jewellery was handed over to her father and a receipt obtained.

On 5th March 1956 the defendant lodged a complaint against the plaintiff in the Magistrate's Court of Jaffna alleging that he intentionally and wrongfully confined her two months' old baby and prevented her from feeding her infant child. That complaint was withdrawn in that month itself. On the day that complaint was withdrawn the witness K. V. Kandiah a mutual friend sought to bring the parties together. The plaintiff wanted the defendant to live with him at the Colombagam Road house and the defendant wanted him to come to her father's house a part of which bad been dowried to her. On the same day that she lodged the complaint in the Magistrate's Court, namely 5th March 1956, the defendant made a habeas corpus application to the Supreme Court in which she asked for the custody of her child Madhumalar Rasakularanee whom she alleged the plaintiff was keeping in unlawful confinement. That petition was withdrawn on 24th March 1956. The record reads as follows :-

" The petitioner states that she has now made up with her husband, the respondent, and desires to withdraw this application."

As the defendant was unwilling to come to the Coloinbagam Road house the plaintiff gave up that house and in April 1956 went to live with

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