1. Grounds for Judicial Separation2. Civil Procedure code

3. Muthuranee v. Thuraisingham4. Tennakoon v. Somawathie Perera

5. Analysis

Overview

The Civil Procedure Code constitutes the general law on judicial separation.

The code provides that either party may petition for separation "on any ground on which by the law applicable to Sri Lanka such separation may be granted."

Thus, Roman-Dutch law grounds for separation are applicable, the essential feature of which is proof that further cohabitation has become dangerous or intolerable due to unlawful conduct by the defendant.

Grounds for Judicial Separation

CIVIL PROCEDURE CODE

No. 2 of 1889 as amended by Law No. 20 of 1977

Sec. 608 (2) (a):- A decree of judicial separation may be converted to a decree of divorce after the lapse of two years .

Sec. 608 (2) (b):- Mere separation a mensa et thoro for a period of seven years is sufficient to find an action for divorce.

Civil Procedure Code

10.6.77 Thuraisingham

filed for divorce-malicious desertion1.2.78 during its

pendency he instituted for a

decree of dissolution of

marriage : S.608(2) (b) of

the Civil Procedure code

The 1st suit was dismissed and the new

application with consent and without cost was taken in to

consideration

Muthuranee v. Thuraisingham

Key questions for determination1. Filing the 2nd suit in the

pendency of the 1st suit2. The period of seven year s

should be reckoned only prospectively from 15.12.77 which is the date on which the Civil Procedure Code was amended to bring in S. 608(2) (b)

3. In addition to cessation of cohabitation for 7 years, the conditions necessary to obtain a decree for judicial separation to be established

4. The court in the exercise of its discretion will refuse to grant a divorce in view of respondent’s own adulterous conduct which he had admitted.

No possibility of the appellant being vexed twice as the 1st suit was withdrawn and dismissed with her consent.

Section 608 (2) (b) applies even to cases where parties have been separated a mens et thoro for more than seven years prior to the subsection coming into operation.

“Seperation a mens et thoro” contemplates physical separation from bed, board, cohabitation and goods and carries with no connotation to matrimonial fault. 608 (2) (b) aims to relief irrespective of fault where marriage has broken down beyond repair.

The adultery of the plaintiff is no longer a bar to his obtaining a divorce, whether the application is based on fault under S. 597(1) or the S.608(2)(b) of the Civil procedure code.

Decision

The English law principle of irretrievable breakdown of marriage impliedly introduced to SL law via S.608 (2) (b).

Applicant for divorce to only prove the cessation of cohabitation for 7 years.

Discretionary bars to divorce are no longer applicable in SL

When a divorce is claimed on the basis of a breakdown of the marriage, the matrimonial misconduct of the plaintiff would only facilitate the court in arriving at the conclusion that the marriage bond is permanently severe with no hope of reconciliation.

Tambiah J:-

Appeal dismissed!

Civil Procedure code, S. 608 (2) (b)

Separation a mensa et thoro of over seven years as a ground –Reckoning for

seven years

Ratio Decidendi

The plaintiff-appellant filed a suit by the way of summary procedure against his wife

praying for a divorce a vinoculo matrimonii- living in separation a mens et

thoro for a period of 7 years under S.608(2) of the Civil Procedure Code

The defendant-respondent filed answer denying that they lived in separation

The trial judge rejected the evidence of the defendant and entered judgement for the plaintiff

The defendant appealed to the COA and in 5.9.84 the judgement of the trial case was dismissed

Tennekoon v. Somawathie Perera

The key questions for determination:1. Whether separation a

mens et thoro for a period of 7 years constitutes a valid ground for divorce under s. 608 (2)

2. If not, whether it is incumbent on the petitioner seeking a divorce under that subsection on such ground to establish a matrimonial fault on the part of the respondent to such separation.

The words-either spouse in section 608 (2) of the Civil procedure code must be understood as referring only to the- innocent. Spouse for the purpose of the relief of divorce under S. 608 (2) (a) or (b) of the Civil Procedure Code.

It is incumbent for the spouse seeking divorce under this section to establish matrimonial fault. Only procedural change using summary procedure to be used instead of a regular action- was effected by S.608 (2) of the Civil Procedure Code.

Tambiah J. dissenting.

Decision

Appeal dismissed!Muthuranee v. Thuraisingham(1984) 1

SRI L. R. 381 overruled.

Ratio Decidendi

Muthuranee v. Thuraisingham

Tennekoon v. Somawathie Perera

The task of the court:-• Set out requisites to be proved

under S. 608 (2) (b).• Contended for the appellant that the applicant for a decree

divorce under S. 608 (2) (b) must prove the requirements of S.

608 (1) in addition to establishing 7 years of physical separation.• Tambiah J: no differences

between the two subsections if matrimonial misconduct is read

into the latter.• Matrimonial misconduct is only proof to establishing permanent severance of marriage if divorce

claimed on breakdown of marriage

• Overruled Muthuranee v. Thuraisingham.

• The spouse seeking divorce under S. 608 (2) on the

ground of separation for a period of 7 years has a duty to establish matrimonial fault.• Tambiah J. Dissenting, stated that his views have not changed.

Analysis