Malicious Dersertion
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Transcript of Malicious Dersertion
Bye..
Shifan Tariq
Family Law
I`m Leaving
LL.B/13/13/25 Application of skills to a given scenarioAssesment type -
Divorce Legal separation of a man and woman to terminate their marriage relationship.
•Therefore it requires a matrimonial fault to claim divorce.
•Marriage Registration Ordinance (1907) & the Civil Procedure Code constitute the general law on divorce.
•The provisions of the ordinance firmly establish divorce as fault-based and case law has reaffirmed this concept
What is
Shifan TariqLL.B/13/13/25
Grounds for Divorce
• Marriage contract is also same as the normal civil contract and it should be maintained accordance with the conditions and warranties.
• Both partners should strive to maintain the concept of “uberrimae fidei” .In doing so if there is a breach of a condition (not a warranty) by either party; necessarily on:
1. Adultery
2. Malicious Desertion
3. Incurable impotency
S.19(1)MRO
it will form the grounds for divorce.
Malicious
• Malicious Desertion(MD) is the deliberate, definite & final repudiation of obligations of the marriage.
( Silva V Misinona)
• A claim may be proved through balance of probabilities.
Two Kinds of MD exists:
• Simple malicious desertion- The deserting spouse leaves the matrimonial home.
• Constructive malicious desertion – The deserting spouse stays in the home while the innocent spouse leaves.
Desertion Shifan TariqLL.B/13/13/25
Malicious • Therefore simply leaving the matrimonial
home will not give rise to a malicious desertion. There should be an intention together with the conduct
• What is meant by intention?
Intention to repudiate the marital relationship should be proved. (Rajeswaranee v Suntherarasa)
Desertion Shifan TariqLL.B/13/13/25
Facts of the Scenario
• Anula & Saman are legally married in Dec- 2010.
• From there they lived together for 6 months.
• Saman had left the matrimonial home in pursue of his masters to Australia in June 2011.
• His contact with home severed & he is known to be living in adultery in Australia.
• Saman seems to have been away from the matrimonial home for 3 years before returning home in 2014.
Shifan TariqLL.B/13/13/25
Application skills I Problem solving
Legal Issues in the Scenario
• Saman wants to claim divorce from Anula.
• On grounds of Constructive Malicious Desertion.
• Plaintiff - Saman & Defendant - Anula
• The Scenario provides that his leaving the matrimonial home was not to desert the wife , but for studies.
• But later on Saman seems to have changed his mind.
• Is Constructive Malicious Desertion possible ?
Shifan TariqLL.B/13/13/25
Can Saman institute action!
• If some one needs get divorce under malicious desertion in Rajeswararanee V Suntherasa it was established that intention to repudiate the marital relationship should be proved by the plaintiff.
• In this case Saman is the plaintiff & is insisting a divorce.
( But he is deemed to be the deserter)
• For a Constructive MD, the deserter must stay at the home.
What can I do!
Shifan TariqLL.B/13/13/25
Can Saman institute action!
• The Scenario seems to suggest that it was Saman who has deserted & left the home.
• So he cannot institute a Constructive MD action.
• Or either a Simple MD action even though it provides for the deserter to have left the home.
• To file a divorce he must provide fault of the defendant(Anula). We are not to find any fault on Anula.
Get Lost Gud Bye
Shifan TariqLL.B/13/13/25
Can Saman institute action!
• Infact, Saman has another justiciable option(without fault):
• Divorce based on Civil Procedure Code, s. 608 (2) (b) – either spouse can petition on a mensa et thoro(from bed and board) for 7 years by itself as ground for divorce.
• They have been distanced only for 3 years(2010-2014). But even if they have separated for 7 years , the current law ; citing proposition to the case of :
• Tennakoon V Tennakoon(1984) holds that separation alone is an insufficient ground for divorce & one of the three grounds under MRO s.19(1) be accompanied with it.
Shifan TariqLL.B/13/13/25
Conclusion
• Saman cannot institute any form of divorce action or does he have any remedy.
• But the entire Scenario can be successfully manipulated by Anula for her benefit if she wishes for a divorce.
• She can claim a divorce from Saman for Simple Malicious Desertion; on deserting her for 3 yrs ( he only
returned home for asking a divorce), his alleged adultery practices & also for his initial divorce plaint.
• Anula being the - Plaintiff & Saman- Defendant
Shifan TariqLL.B/13/13/25
Conclusion
• She is thus entitled to two remedies
1.Repudiation of marriage
2.Maintenance.
• However, due to this Saman is free to seek a new marriage as a subsequent remedy.
• But at the cost of paying maintenance.
Shifan TariqLL.B/13/13/25