IN THE HIGH COURT OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI

LANKA OF THE NORTH WESTERN PROVINCE HOLDEN AT KURUNEGALA

EXERCISING JURISDICTION IN TERMS OF SECTION 5(B) OF THE HIGH

COURT OF THE PROVINCES (SPECIAL PROVISIONS) ACT NO. 54 OF 2006.

Rathnayake Herath Mudiyanselage

Ajith Kumara Rathnayake,

Raaja Santhakaya, Ipalawa,

Malagane.

Plaintiff

NWP/HCCA/KUR/90/2015(F)

D. C. Wariyapola Case No. 344/D

Vs.

Adhikari Mudiyanselage Inoka

Sanjeewani Adhikari,

Ipalawa, Malagane.

Defendant

And Now Between

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 Adhikari Mudiyanselage Inoka

Sanjeewani Adhikari,

Ipalawa,

Malagane.

Defendant-Appellant

Vs.

Rathnayake Herath Mudiyanselage

Ajith Kumara Rathnayake,

Raaja Santhakaya, Ipalawa,

Malagane.

Plaintiff-Respondent

Before: Hon. K.M.S. Dissanayake - HCJ [HCCA]

Hon. Dr. Sumudu Premachandra - HCJ [HCCA]

Counsels: Mr. Lakmina Ariyaratne instructed by Ms. Chamila Dilrukshi

A.A.Ls for the Defendant- Appellant.

Mr. Sapumal Bandara A.A.Ls for the Plaintiff- Respondent

Arguments on: 15th February 2018

Written Submissions on: 26-03-2018 by the Defendant Appellant

02-05-2018 by the Plaintiff Respondent

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Decided on: 07th June 2018

Dr. Sumudu Premachandra, HCJ. [HCCA]

1] The Plaintiff Respondent instituted this action against the Defendant

Appellant in the District Court of Wariyapola seeking inter alia a judgment in

his favour of dissolution of marriage between the parties on the matrimonial

fault namely malicious desertion on the part of the Defendant. In addition to

that, the Plaintiff Respondent sought the physical and legal custody of the child

born within the wedlock, namely master Iresh Nimsara Rathnayaka.

2[] The Defendant Appellant resisted this application and sought for a

dismissal of the action of the Plaintiff, inter alia she prayed for a divorce on

ground of constructive malicious desertion part of the Plaintiff Respondent, the

custody of above named child and one million to her as the permanent

alimony.

3] The trial proceeded on 19 issues and after a highly contested trial, the

learned District Judge of Wariyapola by his judgment dated 08.06.2015

granted judgment in favour the Defendant Appellant on the constructive

malicious desertion by the Plaintiff and the custody of the child was given to

the Appellant but the physical custody was given to child from Friday evening

till Sunday 8.00 a.m. was given to the Plaintiff, the father of the child.

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4] The original Plaintiff was happy with said judgment. But Defendant, the

Appellant preferred this appeal against the refusal of granting permanent

alimony to her and in relation to the access of the child.

5] The Plaintiff Respondent resisted the preferred appeal on following grounds;

a) In relation to order of alimony, final appeal does not lie.

b) No final appeal could be filed to the order of in relation to the access to

the child.

6] The Plaintiff Respondent contended that there was no proof of financial

status of the Respondent therefore no alimony can be awarded to the

Defendant Appellant. Further they contended that the father’s affection and

security is essential for the physical and physiological well been of the child.

7] I would now consider law relating to this. The first question is that

entitlement of permanent alimony. The section 615(1) of the Civil Procedure

Code enacts provision in relation to granting of alimony in matrimonial action

and the Appellant sought sum of one million rupees as permanent alimony as a

lump sum. I now reproduce this section for clarity.

“615 (1) The court may, if it thinks fit, upon pronouncing a decree of divorce or

separation, order for the benefit 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:-

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 (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 revive or enhance an order made under subsection (I).”

8] Thus, it is seen that the Appellant can claim gross sum of money as

permanent alimony under this section. The section itself says that these orders

may at any stage discharge, modify, temporarily suspend and revive or

enhance. Thus the Plaintiff Respondent contends that the orders of permanent

alimony and access to child are temporary, thus the Appellant has no right to

appeal, thus appeal should be dismissed in limine.

9] When we address this issue, it is seen in this case that all issues, divorce,

custody and permanent alimony have been considered in the main trial.

Though, these orders can be modified those decision have been reached to the

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finality. In the instant action, the no permanent alimony had been awarded

thus the trial judge cannot entertain another application on this as it reached

finality. Since matter is decided, thus, it is clear, that the Appellant could

invoke the jurisdiction for same issue in the Appellate Court. The recent 7

bench Judgment affirmed the application approach when deciding whether to

lie a final appeal or a leave to appeal. It was held, if the rights of the parties

have been decided by the trial court, the final appeal would lie1. In this matter

it is clear these all issues have been addressed by the trial court. Thus, we are

of the view that the final appeal would lie in this case. We therefore refused to

accept this contention.

10] Further to above in BUDDHADASA KALUARACHCHI v. NILAMANI

WIJEWICKRAMA AND ANOTHER [1990] 1 SLR 262, H. W. SENANAYAKE, J.,

held that revisionary power could be used if there is no right of appeal lies

considering the delay and hardship2. In that it was held;

1 S.R. Chettiar and others Vs S.N.Chettiar [2011] 2 SLR 70, (2011, Bar Association Law
Journal at 25, Ranjith vs. Kusumawathi [1998] 3 Sri.LR 232, Dona Padma Priyanthi
Senanayake v H.G. Chamika Jayantha, (unreported) SC Appeal No. 41/2015 , decided on
04.08.2017

2 SAMARASINGHE v. SAMARASINGHE [1989] 2SLR 180, WIJEYARATNE, J;

How then can a court make an order under the new section 615(1) in respect of property which
a party is entitled to or order the payment of sums of money as the court thinks reasonable
except by going into these matters at the main trial itself. In my opinion the words "upon
pronouncing a decree or divorce or separation" imply that these questions which can relate to
forfeiture of benefits by the guilty spouse could be put in issue at a trial for divorce or
separation. Though it can embarrass the trial of the main issues by introducing a whole
volume of other evidence, nevertheless it has the following advantages:-

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 (1) ….

(2) …

(3) The Court can make subsidiary orders relating to permanent

alimony, custody of the children and other settlements in terms of

section 615 of the Civil Procedure Code. These orders as stated in section

615 (2) can be discharged, modified, temporarily suspended and revived

or enhanced. These orders are not part of the decree nisi.

(4) As there was no appeal from the decree for dissolution of the marriage

the Court will not grant any relief the parties have not asked for.

(5) The Court of Appeal has the power to act in revision, even

though the procedure by way of appeal is available, in appropriate

cases.

(6) The action for divorce was filed so far back as 1982 and it had taken

nearly 7 years for the District Court to conclude the trial. An appeal from

the judgment dated 25. 05. 89 with the present backlog of cases in the

appellate cases in the Appellate Court would be considerably delayed

The parties are already before court and it is convenient to go into these matters in the same
case itself.

If a separate action is filed for forfeiture of benefits (as has been done in the cases cited
above except in the case of Karunanayake vs. Karunanayake (3), there will be a lot of
delay and expense to be incurred by the parties.[Emphasis is supplied]

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 Hence this is an apt case for the Appellate Court to excerize its

revisionary powers. [Emphasis is supplied]

11] We too would treat this application but as above decided we are of the view

that the final appeal lies in this case. The next question is the payment of

alimony. Though, section 615(1) is given wider power to the courts to consider

permanent alimony, but criteria have not been set out how to calculate it. This

area has been developed by judge made law.

12] In ANULAWATHIE v. GUNAPALA AND ANOTHER, [1998] 1 SLR 63,

WEERASURIYA, J., interpreted the criterion as;

“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. It was revealed that in case No. 3427 of the

Magistrate's Court of Kuliyapitiya, the 1st defendant-respondent was

ordered to pay Rs. 500/- monthly for each child as maintenance which

would remain in force in the absence of any order to the contrary in divorce

proceedings. Besides it is well to remember that wide discretionary powers

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 have been conferred on the District Court which may if it thinks fit, upon

pronouncing a decree of divorce order alimony for the benefit of either

spouse. 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” [Emphasis is supplied]

13] In the neighbouring jurisdiction, Indian apex courts decided this issue as

follows;

Kalyan Dey Chowdhury vs Rita Dey Chowdhury Nee Nandy on 19

April, 2017, CIVIL APPEAL NO. 5369 OF 2017 (Arising out of SLP(C) No.

34653 of 2016), Supreme Court of India, R. BANUMATHI, J,

“The amount of permanent alimony awarded to the wife must be befitting

the status of the parties and the capacity of the spouse to pay

maintenance. Maintenance is always dependant on the factual

situation of the case and the court would be justified in moulding

the claim for maintenance passed on various factors.” [Emphasis is

supplied]

14] Further in Mrs. Savithri Selvakumar vs Dr. S. Selvakumar, Civil

Miscellaneous Appeal No. 1213 of 2016, Madras High Court of India, R.

SUBBIAH, J decided no 22-09-2017 held;

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 “The learned counsel for the appellants relied on the decision of the

Honourable Supreme Court in the case of (Vinny Parmvir Parmar vs.

Parmvir Parmar) reported in (2011) 7 Scale 741 to contend that the

quantum of maintenance awarded must inter alia depends on the

status of the husband. The Court has to consider the status of the

parties, their respective needs, the capacity of the husband to pay,

the claim of the parties to incur reasonable expenses for his own

maintenance and others whom he is obliged to maintain under the

law and statue. The Court also has to take note of the fact that the

amount of maintenance fixed for the wife should be such as she can live in

reasonable comfort considering her status and mode of life she was used

to when she lived with her husband. For the very same proposition, the

learned counsel for the appellants also placed reliance on the decision of

the Honourable Supreme Court in (i) (Dr. Kulbhushan Kumar vs. Smt. Raj

Kumari and another) reported in (1970 (3) Supreme Court Cases 129 (ii)

(Chaturbhuj vs. Sita Bai) reported in AIR 2008 Supreme Court 530 and (iii)

(Kalyan Dey Chowdhury vs. Rita Dey Chowdhury Nee Nandy) reported in

(2017) (3) CTC 209.”[Emphasis is supplied]

15] When we consider the peer common law Roman Dutch Law Country, South

Africa, the Right to maintenance and obtain permanent alimony is permitted.

In K v K 2006 (6) SA 127 (C) where the court considered a wife’s decision to

remain working only in a part-time capacity to be reasonable since this would

be in the best interests of the children. The court also mentioned that when it

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considers the earning capacity of the parties, it must take note not only of the

emancipation of women but also of the fact that the division of roles in families

influences not only the past and incapacity of the parties but also the future

earning capacity. It was held in N v N 1984 (2) SA 294 (C) that: „A proper

weighing of all these factors is important to counter-balance the inherent

immorality that could follow were the sole or even the main criterion for a claim

for maintenance to be the plaintiff‟s need or ability to maintain herself‟.

16] Further in G v G 1987 (1) SA 48 (C) it was held that;

"Middle-aged women who have for years devoted themselves full-time to

the managing of the children of the marriage, are awarded rehabilitative

maintenance for a period sufficient to enable them to be trained or

retrained for a job or profession. Permanent maintenance is reserved for

the elderly wife who has been married to a husband for a long time and is

too old to earn her own living and unlikely to remarry"

17] In P v P 1990 (1) SA 998 (E) the court stated that: „a wife should, in my

view, be able to expect the same standard of living that she had as a married

woman. In most cases it may not be possible to achieve this goal, and of course a

husband should be entitled to the same expectation, but in the final result it is a

question of balancing up the needs of both parties and making an equitable

distribution of the available income‟.

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18] In MB v NB 2010 (3) SA 220 (GSJ) it was held that „the proper approach is

to postulate that the parties should each continue, following divorce, to live in the

style to which they have become accustomed for so long as this was permitted

by the resources at their disposal. If, as so often happens, the capital and income

are insufficient to meet this standard, then each should abate their requirements

accordingly. In this limited sense the touchstone is subjective: The issue is not

what people generally would regard as reasonable … but what the parties have

come to depend on, subject always to the criterion of affordability‟.

19] In the United Kingdom, the section 25 of the Matrimonial Causes Act of

1973, Part II illustrates what matters to be considered when awarding

permanent alimony. In that section 25[2] says;

“As regards the exercise of the powers of the court under section 23(1)( a ),

( b ) or ( c ), 24 , 24A , 24B or 24E, above in relation to a party to the

marriage, the court shall in particular have regard to the following

matters—

(a)the income, earning capacity, property and other financial resources

which each of the parties to the marriage has or is likely to have in the

foreseeable future, including in the case of earning capacity any increase

in that capacity which it would in the opinion of the court be reasonable to

expect a party to the marriage to take steps to acquire;

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(b)the financial needs, obligations and responsibilities which each of the

parties to the marriage has or is likely to have in the foreseeable future;

(c)the standard of living enjoyed by the family before the breakdown of the

marriage;

(d)the age of each party to the marriage and the duration of the marriage;

(e)any physical or mental disability of either of the parties to the marriage;

(f)the contributions which each of the parties has made or is likely in the

foreseeable future to make to the welfare of the family, including any

contribution by looking after the home or caring for the family;

(g)the conduct of each of the parties, if that conduct is such that it would in

the opinion of the court be inequitable to disregard it;

(h)in the case of proceedings for divorce or nullity of marriage, the value to

each of the parties to the marriage of any benefit . . . which, by reason of

the dissolution or annulment of the marriage, that party will lose the

chance of acquiring.

(3)As regards the exercise of the powers of the court under section

23(1)( d ), ( e ) or ( f ), (2) or (4), 24 or 24A above in relation to a child of the

family, the court shall in particular have regard to the following matters—

(a)the financial needs of the child;

(b)the income, earning capacity (if any), property and other financial

resources of the child;

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 (c)any physical or mental disability of the child;

(d)the manner in which he was being and in which the parties to the

marriage expected him to be educated or trained;

(e)the considerations mentioned in relation to the parties to the marriage in

paragraphs ( a ), ( b ), ( c ) and ( e ) of subsection (2) above.

(4)As regards the exercise of the powers of the court under section

23(1)( d ), ( e ) or ( f ), (2) or (4), 24 or 24A above against a party to a

marriage in favour of a child of the family who is not the child of that

party, the court shall also have regard—

(a)to whether that party assumed any responsibility for the child‟s

maintenance, and, if so, to the extent to which, and the basis upon which,

that party assumed such responsibility and to the length of time for which

that party discharged such responsibility;

(b)to whether in assuming and discharging such responsibility that party

did so knowing that the child was not his or her own;

(c)to the liability of any other person to maintain the child.

20] In our jurisdiction recently, in Mangalika De Silva (nee Hemachandra) v

Prabhath Joseph De Silva, (Unreported) S.C. Appeal No. 122/2011,

26.06.2015, GOONERATNE J.,

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 “There is an area of discretion vested with the court as per Section 615(1).

An order under this section could be made “if it thinks fit”. Section 615

(1)(a) could be resorted to, if the court thinks it be „ reasonable‟ to make a

conveyance of property. Much emphasis has to be placed on the words “if

it thinks fit” and „reasonableness‟. If the court wish to act in terms of

Section 615(1)(a) it could do so if it thinks fit and make a reasonable order.

This would not attract any kind of order to favour one of the two spouses.

What is contemplated is the reasonableness to make an order

having considered the entitlement to property of each spouse.

Further such an order could be made upon pronouncing a decree for

divorce or separation. As such court necessarily has to make an order for

divorce on the available grounds for divorce, and thereafter decide to make

such conveyance or settlement which is reasonable. It is my view that the

grounds of divorce should not influence the trial Judge if he decides to act

under Section 615(1)(a).” [Emphasis is supplied]

21] It should be noted in all above decisions considered that the court has

discretionary powers to award permanent alimony. But, this discretion should

be exercise judiciously. In Dharmaratne v Dassanaike [2006] 3 SLR 130

Andrew Somawansa (P/CA) J, clearly clarified the judicial discretion as;

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 “Discretion given to a judge must be exercised according to the rules of

reason and justice, not according to private opinion, according to law and

not humour, its exercise must be uninfluenced by irrelevant consideration

must not be arbitrary, vague and fanciful but legal and regular, and it

must be exercised within the limit to which an honest man competent to

discharge his office ought to confine himself”

22] Further, in KARUNANAYAKE v. KARUNANAYAKE, 39NLR 275,

MAARTENSZ J. - mentioned the calculation of permanent alimony,

“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.”

23] Blending from above guidelines; it should be decided whether permanent

alimony to be granted in the instant case. It is seen at the time the marriage

the Appellant was 20 years of age, a maiden. After the breakdown of the

marriage, her status of the society was diminished as she is now a divorcee

with one child. It should be noted that the burden of the child would rest for

her life. The learned trial judge is of the view that the financial status of the

Plaintiff was not proved. It is true; the proof of financial status is sine qua non

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to consider permanent alimony. In the instant case, evidence shows that the

Plaintiff works as a security officer and earn sum of Rs. 20,000/= per month.

This fact was proved by ී 3 and ී 4. Thus as in KARUNANAYAKE v.

KARUNANAYAKE, (supra) noted, the permanent alimony could be 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. Thus, last three years’ annual income of the Respondent would be

20,000/= X 12 X 3 = Rs. 7, 20,000/=. If we consider the 1/5 of alimony from

this, it would be sum of Rs. 1, 44,000/=. In view of the above evidence we fix

that the Appellant is entitled to get sum of sum of Rs 1,44,000/= as permanent

alimony in this case.

24] Next question is regarding custody of the child. In view of the access to the

child, we are of the view, since the child is a boy, the fair amount of custody to

should be given to the Plaintiff, father of the child. We are of the view, no

sinister will be done by giving two nights to the father for a week as ordered.

But, parties, as parent must know the best interest of the child should be

paramount. Hence, the child education and well being should be paramount.

We think, by consent of the parties, the access can be adjusted to the needs

and best interest of the child. At this juncture, we should not disturb it. We

therefore affirm the order for access to the child.

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25] In view of the aforesaid reasons, the Appellant is awarded sum of Rs. 1,

44,000/= as permanent alimony. The custody of child will remain as ordered

by trail court. Subject to above variations the appeal is allowed with costs.

Sumudu Premachandra

Judge of the Provincial High Court

(Exercising Civil Appellate Jurisdiction)

I agree

K.M.S. Dissanayake

Judge of the Provincial High Court

(Exercising Civil Appellate Jurisdiction)

(Sumudu)

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