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SC judgment calls for law reforms to expand grounds for divorce
View(s):A Supreme Court judgment this week advocated amendments to Section 19 of the Marriage Registration Ordinance to expand the grounds for divorce to instances where one party wishes to end the union but the other does not.
At present, the only grounds for divorce in Sri Lanka are adultery subsequent to marriage, malicious desertion or incurable impotency at the time of such marriage. “Cases such as the present one raise the question of whether there should be changes to our law which is presently set out in Section 19 of the Marriage Registration Odrinance, which was enacted over a century ago,” Justice Prasanna Jayawardena, PC, said in the judgment, with Chief Justice Priyasath Dep and Justice H N J Perera agreeing.
“Although, in practice, the fact that litigation in Sri Lanka is adversarial gives an opportunity for parties who have reached a consensus to exit the predicament they find themselves in, that solution is unavailable in the absence of consensus,” the Court states. “It appears to me that these are grave questions which befit the attention of the Law Commission of Sri Lanka and the Legislature.”
“Adversarial” in relation to a trial or legal procedure means the parties in a dispute have the responsibility of finding and presenting evidence. The Court ruled on an appeal by a woman (plaintiff-appellant) who for 17 years has been seeking a divorce from her husband (defendant-respondent). The plaintiff first instituted action in September 2001 in the District Court of Mt Lavinia praying for a decree of divorce on the ground that the defendant was guilty of “constructive malicious desertion”.
She was 40-years-old at the time, and her husband 43. During the course of the trial, both continued to live in their matrimonial home in Colombo, together with their four children. From April 1995 onwards, there were frequent disagreements between the spouses, the plaintiff said, alleging that the defendant and his mother harassed her.
She said she tolerated these difficulties in the interests of her children. But in July 2001, the defendant is alleged to have assaulted her in the presence of domestic staff. She alleged the defendant had ordered her to leave the home, threatening to pour kerosene on her and burn her if she didn’t.
She lodged a complaint with the Bambalapitiya police the following morning. From July 7, 2001, onwards, she was compelled “to terminate all marital relations and connections she had been having with the plaintiff”. She and the defendant ceased to cohabit with each other and lived entirely separately from each other, but within the house in Colombo.
The defendant denied all allegations, pleading that these were levelled in the plaintiff’s efforts to obtain a divorce from him. There had been some minor disputes between the spouses, he said, but he bore these difficulties in the interests of his children. At the trial, the plaintiff gave evidence but did not call any other witnesses. Similarly, only the defendant gave evidence.
The District Judge observed that the plaintiff had not claimed that, before July 2001, the defendant by his deeds or words sought to end the marriage or to eject the plaintiff from the matrimonial home or to make it impossible for her to remain in the matrimonial home.
In her police complaint, she stated the defendant had slammed her head against the wall, hit her with a torch and broken some furniture. But she did not repeat these claims during her evidence-in-chief. In her plaint, she said the defendant threatened to pour kerosene on her and burn her. But during her evidence-in-chief, she claimed he had, in fact, poured kerosene on her and tried to set her on fire.
On these and several other grounds presented in the evidence, the District Court held that the plaintiff had failed to establish the defendant was guilty of constructive malicious desertion and dismissed her case. She then appealed to the Provincial High Court of Civil Appeal in Mount Lavinia. The High Court Judges affirmed the judgment of the District Court and dismissed her appeal after which she sought leave to appeal from the Supreme Court. It was granted.
Upon examining the evidence, the Supreme Court held that “…on an application of our law as it now stands to the facts of this case as were established by the evidence placed before the District Court, the learned trial judge was correct when he dismissed the plaintiff’s case and the learned judges of the High Court were correct when they affirmed the judgment of the District Court and dismissed the defendant’s appeal.”
But Justice Jayawardena also observed that “this is a sad case which has seen the parties locked in a long and bitterly contested battle over whether they should remain married or not”.
“The wife sought this divorce in 2001, when she and her husband were both in their early forties,” he said, in the judgment. “The fact that this appeal was fought by both of them suggests that, the unhappy marriage which led to this action being instituted has continued to remain so during the 17 years in which this case has traversed the Courts. It seems that the rancour between the spouses continues unabated. This litigation has seen the plaintiff and the defendant into their late fifties and has to have exacted its heavy toll on both spouses and their children.”
The dismissal of the appeal on grounds of existing law means that “…the wife must be denied the divorce which she has sought for 17 years and be compelled to remain in what she believes is an unhappy and unfulfilling marriage. The husband is left only with what appears to be the pyrrhic victory of an empty marriage.”