CIVIL APPELATE HIGH COURT OF THE EASTERN PROVINCE

HOLDEN AT AMPARA

EP/ HCCA/AMP/275/2013

Dammika Bandula Kumara

Weeraratne,

No. 146, Bihirisorowwa,

Mawanawela.

D.C. / Ampara Case No: 1791 /Divorce Plaintiff Appellant

Vs.

K.A Lilani Kasthuri,

“Kiri Kadaya”, Handapanagala,

Weherayaya.

Defendant-Respondent

Argued on: - 02nd and 16th October 2014

Decided on: - 27th November 2014

Before : N. T. I. Abeygunasekera HCJ

Dr. Sumudu Premachandra HCJ

Counsels : Mr. D.R. Sunil Dissanayake A.A.L. for the Plaintiff

Appellant

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 : Mr. A.U.P. Ukwatte A.A.L. for the Defendant-

Respondent

JUDGEMENT

Dr. Sumudu Premachandra HCJ

1] This appeal stems from the judgement of learned District

Judge of Ampara dated 14th October 2013. Initially, the

Plaintiff Appellant (hereinafter sometimes referred to as "the

Appellant") has filed this action seeking a divorce (vinculo

matrimonii) on the ground of malicious desertion of the

Defendant-Respondent (hereinafter sometimes referred to as "the

Respondent"). The Appellant has further prayed the legal and

physical custody of the child namely Geethanjana Dinithi

Weeraratne, was born in lawful wedlock of this marriage,

together with costs.

2] The Respondent has filed her answer praying the dismissal of

the Appellant action, claiming divorce on constructive

malicious desertion of the Appellant and prayed physical and

legal custody of the above named child to be given to her. She

has further prayed rupees one million (Rs. 10, 00,000) as

Permanent Alimony from the Appellant, alternatively rupees ten

thousand (Rs. 10,000) monthly payment. She further prayed an

order of her gold chain and Rs. Sixty Thousand (Rs. 60,000),

which were taken by the Appellant, to be returned.

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3] The trial went on, on 7 admissions, 10 issues by the

Appellant and 20 issues were raised by the Respondent. On 14th

October 2013, the learned District Judge of Ampara held with

the Respondent but constrained the permanent alimony to be paid

to rupees three hundred thousand (Rs. 3, 00,000). The Appellant

was disturbed by said judgment and he now prefers this appeal.

4] The main grounds for the appeal are;

a) The learned trial judge has failed to evaluate the

evidence of the Appellant properly.

b) The Learned Trial Judge has misdirected himself of the

Respondent’s evidence as it was sufficient to hold with

the Respondent.

c) While admitting that the Respondent has not proved the

earning capacity of the Appellant, but trial Judge has

erroneously granted alimony.

5] The Respondent contended that;

a) The Appellant has failed to prove that there was a

malicious desertion on the Respondent part.

b) Based on the evidence, the order of permanent alimony

is lawful.

c) Since the Appellant has denied the paternity of child

initially, he has no moral or legal right to claim the

custody of the child.

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6] When we peruse the record, it is seen that ,on behalf of the

Appellant, the Appellant, R.M. Muthu Menike (mother of the

Appellant), L.K. Sirisena( the uncle of the Appellant), Police

Constable 43822 T.M. Vijaya Kumarasinghe Banda have given

evidence. On Behalf of the Respondent, The Respondent, and her

mother W. Chitrani Mendis have given the evidence. Both

produced three documents by marking P1, 2, 3 and V1, 2, 3

respectively. We have carefully considered the oral and

documentary evidence adduced before the learned trial judge and

the written submission made on behalf of the parties in this

appeal. Therefore ,they need not be reiterated.

7] When we consider the grounds/matrimonial fault for divorce

the Appellant relied on malicious desertion and the Respondent

relied on constructive malicious desertion. Both are two sides

of the same coin and has slight difference between each other.

The difference is that the innocent party should be expelled

from the guilty party from the lawful wedlock to create the

constructive malicious desertion. In this case marriage was

admitted and the party got married on 25th May 2006. The

Appellant in his evidence has adduced their marriage lasted on

25th August 2007 as the Respondent-lady left him. Thus it lasted

nearly one year. He said that he tried to reconcile with her

three times, but those attempt were unsuccessful. Then, the

Respondent has filed a maintenance case in Wellawaya

Magistrate’s Court. He further adduced that the child is with

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the maternal grandmother, hence there is no security and

welfare of the child and custody of the child thus be given to

him. In cross examination the Appellant admitted that he is

paying monthly Rs 6500 as maintenance of the child. In the

evidence it is revealed that he is a Store Keeper by profession

at Sri Lanka Transport Board and earns Rs 17,200. He admitted

that when he got married, he was under interdiction on a

disciplinary matter. In the lower court that the appellant has

said on information of the family health officer, he denied the

paternity of the child. However, D.N.A test proved that he is

the father of the child. The Appellant has been cross examined

at length. It is revealed that the Appellant lodged a complaint

on 05th June 2009, but in that nothing mentioned about the

child.

8] The gist of the Respondent’s evidence is that the Appellant

dropped her at parent’s house to do external degree exam. At

that time she was pregnant. after doing exam, she returned

matrimonial home on 10th September 2006 with her mother. But it

is seen there were problems with them. Finally she went to

reconcile with the Appellant on 24th May 2007 there she was

assaulted by the Appellant.

9] Considering the totality of evidence the learned District

Judge has rightly addressed the issue of malicious desertion

and he concluded that there was a constructive malicious

desertion of the Appellant. In Anulawathie v Gunapala [1998] 1

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SLR 63 the court held that to claim the constructive malicious

desertion 'the innocent party was obliged to leave he

matrimonial home as a direct consequence of the expulsive acts

of the other party. In the instant case the Respondent was

assaulted and the acts of the Appellant prove the case of

Respondent’s'. assaulting the Respondent is an expulsive act

thereby the Respondent succeeds her claim on constructive

malicious desertion.

10] It is seen that both wanted the divorce. But the burning

issue is the alimony grated towards the Respondent. The grounds

to grant alimony and criteria to grant alimony has not clearly

described in recent authorities. But in Karunanayake V

Karunanayake 39NLR 275 Supreme Court held;

“Permanent alimony granted to a wife on the dissolution of

a marriage is, as a rule, larger than alimony pending the

action which is fixed by section 614 of the Civil

Procedure Code at a sum not less than one-fifth of the

husband's average nett income for the three years

preceding the date of the order.” [Emphasis Added]

11] Payment of permanent alimony is a statutory right and it is

a discretionary right too of the trial judge. The section 615

of Code of Civil Procedure postulates as follows;

615. (1) The court may, if it thinks fit, upon pronouncing

a decree of divorce or separation, order for the benefit

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 of either spouse or of the children of the marriage or of

both, that the other spouse shall do any one or more of

the following :-

(a) make such conveyance or settlement as the court

thinks reasonable of such property or any part thereof as

he may be entitled to ;

(b) pay a gross sum of money ;

(c) pay annually or monthly such sums of money as the

court thinks reasonable ;

(d) secure the payment of such sums of money as may be

ordered under paragraph (b) or paragraph (c) by the

hypothecation of immovable property or by the execution of

a bond with or without sureties, or by the purchase of a

policy of annuity in an insurance company or other

institution approved by court.

(2) The court may at any stage discharge, modify,

temporarily suspend and review or enhance an order made

under subsection (1).”[Emphasis added]

12] In Wijaratne v. Wijeratne - 73 NLR 546, it was held that

sufficient ground must be shown before the court can award as

permanent alimony, a sum in excess of the amount claimed by the

wife as alimony pendente lite...”

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13] In ANULAWATHIE v. GUNAPALA AND ANOTHER (supra) his lordship

Justice WEERASURIYA indicated what needs to be considered in

awarding permanent alimony. His lordship went on saying “Thus,

it would appear that the sole criterion upon which alimony

should be quantified is the financial status of the defendant.

In the instant case, no evidence had been led to establish the

financial status of the 1st defendant-respondent... Having

considered the fact that no evidence had been placed in regard

to the financial status of the 1st defendant-respondent and in

the absence of an order for alimony pendente lite it would be

inappropriate to make an order for permanent alimony for the

benefit of the plaintiff-appellant.”

13] In Mathew v Mathew 57 NLR 511 the Supreme Court held

further that in deciding the amount of permanent alimony no

fetter was imposed by the section 615 of the Civil procedure

Code on the discretion of the judge. Nor was the judge bound by

the amount awarded as alimony pendente lite.

14] In the House of Lords in White v White [2001] 1 AC 596 and

Miller v Miller and McFarlane v McFarlane [2006] 2 AC 618

considered the payment of award in property settlement cases.

Notably, in the speech of Lord Nicholls of Birkenhead in the

latter authority, his Lordship said;

"8. For many years one principle applied by the courts was

to have regard to the reasonable requirements of the

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 claimant, usually the wife, and treat this as determinative

of the extent of the claimant's award. Fairness lay in

enabling the wife to continue to live in the fashion to

which she had become accustomed. The glass ceiling thus put

in place was shattered by the decision of your Lordships'

House in the White case. This has accentuated the need for

some further judicial enunciation of general principle.

9. The starting point is surely not controversial. In the

search for a fair outcome it is pertinent to have in mind

that fairness generates obligations as well as rights. The

financial provision made on divorce by one party for the

other, still typically the wife, is not in the nature of

largesse. It is not a case of 'taking away' from one party

and 'giving' to the other property which 'belongs' to the

former. The claimant is not a suppliant. Each party to a

marriage is entitled to a fair share of the available

property. The search is always for what are the requirements

of fairness in the particular case." (Paragraphs 8 and 9):

15] In some other jurisdictions1, a married party can entitle

the half share of the savings of other party. This is given the

non economic support which have rendered by the other party

whether party is a guilty party or not. In considering the

Court should consider that;

1Section 161, 162 and 163 of the Family Law Act of Fiji Islands elaborates the procedure and
matters to be concerned in property distribution. This is the same position in Australia too.

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 a) Length of the marriage or civil union

b) Time separated while still married

c) Age of the parties at the time of the divorce

d) Relative income of the parties

e) Future financial prospects of the parties

f) Health of the parties

g) Fault in marital breakdown

16] Some jurists interpret the permanent alimony as “The

earliest type of spousal support was known as permanent

alimony. Courts typically awarded this type of support to full-

time homemakers after the dissolution of long-term marriages.”2

17] In Canakaris v. Canakaris, 382 So. 2d 1197, 1201 (Fla.

1980), The Florida Supreme Court held:

“Permanent periodic alimony is used to provide the needs

and the necessities of life to a former spouse as they

have been established by the marriage of the parties. The

two primary elements to be considered when determining

permanent periodic alimony are the needs of one spouse for

the funds and the ability of the other spouse to provide

the necessary funds. The amount of the award was based on

2“SPOUSAL SUPPORT DISORDER: AN OVERVIEW OF PROBLEMS IN CURRENT ALIMONY

LAW” By JENNIFER L. MCCOY- FLORIDA STATE UNIVERSITY LAW REVIEW [Vol. 33: page
501]

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 the needs of the receiving spouse and the ability of the

paying spouse to pay ...”

18] Thus, though the trial judge has discretion to order

permanent alimony, it has to be based on the accepted legal

principles. Blending the above principles of national and

international jurisdiction, we now address the current issue.

19] In this case parties were married for short period of time,

nearly one year. By this marriage they have a child and Rs 6500

of child’s maintenance has monthly being paid by the Appellant.

The Trial judge has ordered Rs 3, 00,000 as permanent alimony.

In his judgment learned judge says “js;a;sldrshf.a /lshdfjs ;;a;ajho"

meusKslref.a wdodhus ;;a;ajh bmhSfus yelshdj js;a;sh Tmamq fkdlsrSuo hk lreKq i<ld
n,d remsh,a ,laI ;=kl ia:Sr oslalido oSukdjla js;a;sldrshg whlr .ekSug yels njgo
;Skaoq lrus'” [emphasis added](See page 167 of the Appeal Brief).

But we see that the Appellant himself stated in his cross

examination that he earns Rs 9875 monthly as nett income (Vide

Page 59 of the Appeal Brief). Thus, this is enough to set the

alimony since the Respondent has failed to prove the exact

income. In applying the principles laid down in Karunanayake V

Karunanayake (supra), we calculate the alimony. That is Rs 9875

x 12 x 3 / 5. Then 1/5 of the Appellant’s income for preceding

3 years comes as Rs 71,100. This is the minimum payment of

permanent alimony. Considering the financial status of the

Appellant and the Respondent, period of marriage, child, age

and health condition of the parties, we decide to enhance this

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amount to Rs. 1, 50,000. Therefore the original order of

permanent alimony to pay Rs. 3, 00,000 is here by reduced to Rs

1, 50,000. We see the other findings of the learned district

judge are not perverse.

20] But, we see little ambiguity of the access order. The

custody of the child with reasonable access to the Appellant

has been given to the Respondent-mother. The child needs both

father and mother. Child is a girl. We see the conclusion of

the learned district judge to give legal and physical custody

to the Respondent is reasonable. But “Reasonable Access” must

be put in terms without ambiguity. Otherwise parties will

interpret it in favour of them, which will lead to an

unpleasant situation and commotion. Thus, we set that the

Appellant has reasonable access to the child last weekend of

the every month between 10 am to 4pm each day with the

supervision of the mother or her agent. The Appellant must

inform the place beforehand and access point could be named by

the Learned District Judge by consent of parties. Further the

Appellant has reasonable telephone access to the child every

weekend during day time not before 9am and after 7pm. These

terms can be amended by the parties with permission of the

trial court on mutual agreement at anytime. The Appellant may

represent the school activities, of the child as the father of

the child on special occasion and child’s social life.

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21] Therefore we affirm the judgment dated 14th October 2014

subject to variation of permanent alimony and the access order.

21] The Learned District Judge of Ampara is directed to re

enter the decree Nisi accordingly. Along with this judgment,

the original case record is to be remitted to the District

Court of Ampara forthwith. There will be no cost in this

appeal.

Subject to above variations, the Appeal is dismissed without

cost. The Permanent alimony is reduced to Rs 1, 50,000. The

reasonable access is defined.

Sumudu Premachandra

Judge of the High Court (Civil) -Ampara

I agree

N.T. I. Abeygunasekera

Judge of the High Court (Civil) -Ampara

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