Tennakoon v. Tennakoon (SLR - 217, Vol 2 of 1984 [1984] LKCA 13; (1984) 2 Sri LR 217 (September 5, 1984) is a somewhat celebrated case in the annals of divorce law in Sri Lanka for several reasons.
A plaintiff in the District Court (DC) had obtained a divorce, but that decree was challenged by the then defendant in the DC, in a petition in the Court of Appeal.
The Court of Appeal observed in Judgement:
“The main question that arises for our determination in the instant appeal is whether s. 608 (2) warrants the grant of a decree for divorce upon proof of a 7 year period of separation between the parties to the marriage.”
Section 608 (2) of the Civil Procedure Code gave some hope to litigants that there could be something equal to a no fault divorce in Sri Lanka, because it essentially seemed to indicate that a 7 year period of separation was grounds for divorce. Or at least that was a meaning that was derived from this section by certain parties.
If the married parties lived separately for seven years, either spouse is permitted to request the decree for dissolution of marriage from Court. That was the net result from the new section 608, and it was thought, as per the Civil Procedure Code, it is not necessary to prove the grounds relating to matrimonial fault. “It can be argued that through these provisions policymakers attempted to introduce the doctrine of breakdown of marriage rather than seek the guilt or innocence of the parties,” argued a legal scholar, E.M.Y.G. Ekanayaka of the University of Colombo.
The case law also came around to recognizing this position.
In Muthurani v. Thureisingham, Thambaiah J. held that petitioner’s adultery was not a bar for obtaining the divorce.
However, in the case under review, Tennakoon vs. Tennakoon, the Appeal Court observed in judgement:
“Thus it was only the innocent spouse who Could in law have obtained a decree for divorce and that too (in so far as is applicable to the instant case) upon one or more of the three grounds specified in s. 19 of the Marriage Registration Ordinance. The question that arises for our determination is whether s. 608 (2) enacted on 15.12.1977 by Law No. 20 of 1977 has altered this legal position. The relevant portion of this subsection reads as follows:
“(2) Either spouse may
(a) after the expiry of a period of two years from the entering of a decree of separation under subsection (1) ........... or
(b) notwithstanding that no application has been made under subsection (1) but where there has been a separation a mensa et thoro for a period of seven years, apply........ by way of summary procedure for a decree of dissolution of marriage, and the court may, upon being satisfied that the spouses have not resumed cohabitation in any case referred to in paragraph (a), or upon the proof of the matters stated in an application made under the circumstances referred to in paragraph (b), enter judgement accordingly.”
The Appeal Court — in the Judgement written by Athukorale J in the case under review, decided that Section 608 only allowed for a party to have recourse to summary procedure as opposed to regular procedure.
Court held:
“This subsection enabled, for the first time, either spouse to apply to the appropriate District Court by way of summary procedure. For a decree of dissolution of the marriage without proceeding by way of plaint in the course of regular procedure. It also prescribed in paragraphs (a) and (b) aforesaid the circumstances under which such an application by way of summary procedure may be made by either spouse. The circumstances specified in paragraph (a) or (b) must be shown to pre exist before a spouse can have recourse to summary procedure for the dissolution of his or her marriage. In the instant case the circumstances set out in the paragraph (b) have been established to exist prior to the respondent's application for a decree for divorce. The crucial and decisive words in so for as the instant case is concerned are therefore the following: “the court may .......upon the proof of the matters stated in the application made under the circumstances referred to in paragraph (b), enter judgement accordingly.”
Basically the judgement in this case under review, considering the words in the legislation “enter judgement accordingly”, reversed the position in the earlier case in which Justice Thambiah had held that irrespective of the fact that the plaintiff had Committee adultery — i.e. the fault was his — he could still obtain a divorce after establishing 7 years separation.
In this case under review, the Appeal Court held that the 7 year separation only allowed the party to obtain summary as opposed to regular procedure. However, to obtain a divorce, it was held that the party has also to establish in addition one of the three grounds for divorce in Section 19 of the Marriage Registration Ordinance, which is adultery, malicious desertion or incurable impotence.
Court held:
“It is my view that the primary intent of s. 608 (2) of the Code is to make provision for a quicker and cheaper procedure for obtaining relief in matrimonial case and not to alter the substantive law upon which marriages can be dissolved. I do not think that English decisions or the Divorce Reform Act of England are of any assistance in construing s. 608 (2) of our to note that the Divorce Reform Act of 1969 is a substantive piece of legislation which made provision for the dissolution of marriages which had broken down irretrievably.”
So it is that in this country, there is no such thing as a dissolution of marriage that has broken down irretrievably i.e. irreconcilable differences — or no fault divorce.
