Constructive desertion, while living in adultery? | Daily News

Constructive desertion, while living in adultery?

This is a case in which a District court judgement in a divorce case was appealed in the Court of Appeal. (Neville Fernando v. Chandrani Fernando - SLR - 159, Vol 1 of 2007 [2007] LKCA 12; (2007) 1 Sri LR 159 (September 21, 2007).)

The plaintiff in the DC case filed for divorce from his wife with whom he had had two children. The plaintiff’s position was that his wife was harassing him by coupling his name with sundry other women, and therefore she was deserting the marriage, constructively. This is a legal term i.e constructive desertion. Desertion is one grounds for divorce in Sri Lanka, and constructive desertion is when there is no physical desertion but desertion can be inferred constructively, say for instance by the behaviour of the party that wants to leave the marriage.

The case antecedents were recorded in the Appeal Court judgement in this way:

“The plaintiff-appellant (hereinafter sometimes referred to as the plaintiff}, has preferred this appeal from the judgement of the learned District judge of Kalutara dated 20.11.1995, pronounced in District Court, Kalutara Case No 2731/D, seeking inter alia to set aside the said judgement and decree of the District Court and to enter judgement and decree as prayed in the plaint.”

However, the plaintiff, though alleging constructive desertion had in fact been enjoying a parallel marriage. It appears it took him some brass to allege constructive desertion i.e that his wife deserted the marriage by her actions, when he was having another family. Whether the allegation was true or not, the defendant also submitted in the DC that on occasion she had been chased out of the house after considerable ill-treatment and abuse by the plaintiff.

The case record notes:

“The plaintiff had instituted the above styled divorce action against the defendant-respondent (hereinafter sometimes referred to as the defendant) seeking inter alia a divorce vinculo matrimonii dissolving the marriage between the plaintiff and the defendant on the ground of constructive malicious desertion of the defendant. By way of further answer defendant had contended that the plaintiff was living with another lady — and even a child was born to her as a result of the said undue intimacy and denying the averment in paragraphs 7 of the plaint stated that in or about February 1987 she was chased out of the matrimonial home by the plaintiff after ill-treating her and harassing her.”

The case for the defendant was flawed inasmuch as no oral evidence was led on her behalf. The submissions of the plaintiff had been concluded with evidence, but no oral evidence had been adduced in respect of the defendant's case.

The plaintiff had in his own evidence upon cross-examination admitted that he had a child from a liaison with another woman.

The evidence to the above effect was not contradicted and his evidence in cross examination had been that “a certain lady (name withheld in this article) had a child from him and said the child's birth certificate was also produced through him marked as V3. He had further testified that said child was born on 18.04.1993 and particulars to prepare V3 was furnished by him and the above position is supported by the particulars appearing in cage 9 of V3. According to V3 father of the child born to said (name withheld in this article) is Hikkaduwa Nevil Fernando - the plaintiff.”

Having subjected the evidence of the plaintiff with regard to the conduct and behaviour of the wife (the defendant) to a severe scrutiny, the trial judge had concluded in the judgement that leaving of the matrimonial home by the plaintiff was not due to any fault of the defendant, and according to our law matrimonial reliefs could be granted only to the innocent spouse.

Weerasuriya, J. in the case of Anulawathie v Gunapala and another held as follows, it was noted in judgement:

“It is to be observed that when a party seeks a divorce on the ground of constructive malicious desertion what is required to be proved is that, the innocent party was obliged to leave the matrimonial home as a direct consequence of the expulsive acts of the other party.”

The Appeal Court was adamant in holding that if malicious desertion is to be proved the actions of the wife (in this instance it is the wife) should be grave and of a convincing in character. The mere fact of coupling names with various women etc. as alleged by the plaintiff, particularly when the husband was enjoying a separate ‘married’ life with another family was definitely not behaviour convincing in character, justifying a conclusion of malicious desertion.

In Edwards v Edwards their Lordships at 148 stated, the judgement notes:

“But the necessary conduct must, from the very nature of the offence of desertion, obviously be of a grave and convincing character. Whether in any given case this requirement is fulfilled is a question of fact on which a jury would require to be carefully directed. It would be for the judge to say whether the facts were capable of being regarded as equivalent to an expulsion from the matrimonial home.”

Requirements to constitute constructive malicious desertion are a question of fact, not law, it was underscored by the Court.

The observations of Lord Radcliffe with regard to finding of fact by a trial judge, in Alles v Alles would also be of importance. Per Lord Radcliffe, it was cited:

“The function of an Appeal Court is therefore to consider the matter without either denying its first Court its special advantages or supposing that it can place itself in the same position by a mere study of the record. With these limitations in mind it has to decide whether the judge's findings of fact, since no question of law is in dispute, are so far unmaintainable upon the whole conspectus of the evidence, oral and documentary, that they cannot be supported.”

Though so much other case law had been adduced the basis of the case was that the plaintiff is not an innocent party, and the law of the land requires that if relief is granted on grounds of constructive desertion, it must be to an innocent party.

The judgement noted:

“The legal position too had been considered by the learned judge. Judge's findings on facts appear to be that according to the own testimony of the plaintiff he had been living as husband and wife with another lady (from 1992) and thus a matrimonial offence by plaintiff was proved before the Court”.

For the foregoing reasons the Court of Appeal saw no justification in interfering with the findings of the DC. Accordingly the appeal was dismissed. No order was made with regard to costs.

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