Separation not enough

Law And Citizen

By Dr. C.Ananda Grero

A marriage between a man and a woman which takes place under the Marriage Registration Ordinance could be dissolved by a decree entered in a divorce case, by a competent court namely, a District Court. According to Section 19 of the said Ordinance the grounds of divorce are: (i) adultery subsequent to marriage; (ii) malicious desertion; and (iii) incurable impotency at the time of such marriage.

In the chapter dealing with Matrimonial Actions, Section 608 (2) (b) of the Civil Procedure Code states that where there has been a separation mensa et thoro (from bed and board i.e., food and lodging) for a period of seven years, either spouse (husband or wife) may apply to the District Court by way of summary procedure for a dissolution of the marriage.

Citizen Soyza married citizen Samanthie and they lived together for some time. Suddenly Soyza left the matrimonial home and lived separately for more than seven years.

Samanthie continued to live in the same house where both of them had lived. After the lapse of seven years of separation, citizen Soyza instituted a divorce action in the District Court of the area where both resided. The only ground of divorce was that there had been a separation from bed and board for seven years as stated in Section 608 (2) (b) of the said Code.

The question is whether plaintiff Soyza could succeed in his action. In a case where facts are similar, the District Judge before whom the case came up for trial gave judgment in favour of the plaintiff (like Soyza). Here also the ground of divorce was that the parties lived separately for seven years. The defendant in that case (like Samanthie) appealed against the judgment to the Court of Appeal and it set aside the judgment of the District Judge and dismissed the plaintiff's case. The plaintiff (like Soyza) appealed against the judgment to the Supreme Court.

This appeal was heard by five judges of the Supreme Court and this case, Tennekoon V Somawathie Perera is reported in 1986 - Sri Lanka Law Reports Vol: 1 at page 90.

In his judgment Chief Justice Sharvananda observed that Section 608 (1) of the said Code specifically requires that the party applying (husband or wife) for a judicial separation must establish a ground on which-by the law applicable - a separation may be granted.

A decree for judicial separation may not be granted where the plaintiff refuses to cohabit, other than the defendant's alleged unlawful conduct. Further he pointed out that grounds for judicial separation are: (a) that further cohabitation with the defendant (i.e., the defendant in the case) has become dangerous and intolerable for the plaintiff; (b) that the state of affairs was brought about by the unlawful conduct of the defendant (i.e., whoever the defendant in the case, either husband or wife).

The argument that the words "either spouse" (husband or wife) in Section 608 (2) (b) of the Code, stipulated that where there has been a separation a mensa et thoro (i.e., bed, food and lodging) for a period of seven years, either husband or wife will be entitled to a decree for divorce regardless of the existence or not of grounds for a dissolution of marriage was seriously considered by the Supreme Court in the said case. Chief Justice Sharvananda observed: Section 608 (2) has to be read with Section 608 (1) and not in isolation as an independent Section. Both Sections seek to give relief to the spouse (wife or husband) who is entitled to sue for a decree of separation or who has sued and obtained such a decree.

Having discussed the grounds for a judicial separation and grounds for a divorce under our law in detail, he referred to the facts of the case in appeal.

He said: the plaintiff appellant (like Soyza) bases his action for a dissolution of marriage on the ground of seven years' separation. For no fault of the defendant (like Samanthie) the plaintiff is seeking to divorce her. Giving a proper interpretation to Section 608 (2) of the Code, he stated that this Section will appear to ensure that even though the innocent spouse (who did not commit any matrimonial fault) had not chosen to apply for a judicial separation under Section 608 (1) of the Code, that circumstances will not bar that spouse from claiming a divorce on the ground of separation for seven years. The correct legal position is, that only a spouse who has lived in separation mensa et thoro for seven years and who can establish such a separation on any ground on which our law may grant such separation can resort to procedure set out in Section 608 (2) (b) of the Code and obtain a decree for divorce.

He finally held, that it is incumbent on a spouse (like Soyza) seeking a divorce under Section 608 (2) of the Civil Procedure Code on the ground of separation for a period of seven years to establish a matrimonial fault. As no matrimonial fault has been established by the plaintiff appellant, he dismissed his appeal with costs. Three Judges of that Bench agreed with this judgment and Justice Tambiah (later C.J.) wrote a separate judgment dismissing the appeal.

Thus, citizen Soyza to succeed in his action must not only prove that he has lived in separation for seven years but also establish a matrimonial fault (i.e., adultery or malicious desertion, etc.) on the part of his wife. Mere separation for seven years is not grounds for divorce.

(Names are fictitious)

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