A Critical Evaluation of the Law of Divorce under the General Law and

Special Laws of Sri Lanka

Rose Wijeyesekera

A dissertation submitted in fulfilment of the requirement of the degree of

Master of Philosophy
of
the Faculty of Law, University of Colombo, Sri Lanka.

2003

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 Contents

Chapter 1 5
Introduction to the Sri Lankan divorce law 5
1.i Historical background of the Sri Lankan divorce law 5
1.ii Introduction to fault-based grounds to Sri Lankan divorce law 8
1.iii Incongruity of the concept of matrimonial fault in Sri Lankan law 13
1.iv The dislocation between law and reality 15
1.v The punitive aspect of the fault theory and the stigma attached to it 20

Chapter 2 23
Fault-based grounds for divorce
2.i Features and effects of the doctrine of fault 23
2.ii The link between the doctrine of fault and bars to divorce 24
2.iii Fault-based grounds for divorce under general law 26
2.iii (A) Adultery 26
2.iii (B) Malicious desertion 38
2.iii (C) Incurable impotence 53
2.iv Fault-based grounds for divorce in Muslim law 60
2.iv (A) Fasah divorce 61
2.v Fault-based grounds for divorce in Kandyan law 75
2.v (A) Adultery 76
2.v (B) Desertion 80
2.vi Maintenance on dissolution of marriage 82
2.vii Concluding remarks 83

Chapter 3 85
Non-fault-based grounds for divorce
3.i The doctrine of breakdown of marriage 85
3.ii Doctrine of breakdown in different jurisdictions 87
3.ii (A) The South African law 87
3.ii (B) The English law 89
3.iii The Sri Lankan situation 98

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3.iii (A) Non-fault-based grounds under the general law 98
3.iii (B) Non-fault-based grounds in Muslim Law 106
3.iii (C) Non-fault-based grounds in Kandyan law 113
3.iv Concluding remarks 114

Chapter 4 116
Divorce Procedure
4.i Divorce procedure under the general law 116
4.ii The divorce procedure applicable to Muslims of Sri Lanka 133
4.iii Divorce procedure in Kandyan law 147
4.iv Concluding Remarks 155

Chapter 5 158
Towards a realistic divorce law
5.i Different approaches to reform of the general law 159
5.ii (A) A model for a reformed divorce law 166
5.ii (B) Proposals for a non-adversarial divorce procedure 168
5.iii An assessment of divorce under the Muslim Marriage and Divorce Act 174
5.iii (A) Reform of divorce law applicable to Muslims in Sri Lanka 176
5.iii (B) An evaluation of the procedural law relating to divorce among Muslims 180
5.iii (C) Procedural law as a means to an end: necessary reforms 182
5.iv Reform of the Kandyan law 184
5.iv (A) Introducing ‘irretrievable breakdown of marriage’ as
the exclusive basis for divorce 186
5.iv (B) The procedure relating to dissolution of marriage under the provisions
of Kandyan law: an evaluation 188
5.iv (C) Possible approaches for reconstruction of the procedural law 190
5.v Conclusion 192

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 INTRODUCTION

The existing divorce law of Sri Lanka encompasses three different statutes and covers three
social groups: the Marriage Registration Ordinance1 and the Civil Procedure Code2 provide for
low-country Sinhalese, some Kandyan Sinhalese as well as Tamils, including those Sinhalese and
Tamils who are Christians.3 The Muslim Marriage and Divorce Act4 prescribes the procedure
under which Muslim marriages are dissolved and is governed by the law of the sect to which the
parties belong. The Kandyan Marriage and Divorce Act5 caters for those Kandyan Sinhalese who
prefer to contract a marriage under this Act, and dissolution of such marriages are dealt with in the
same Act.6

The divorce law prescribed in the Marriage Registration Ordinance is based exclusively on
the concept of matrimonial fault, while the Muslim and Kandyan law contain grounds based on the
doctrine of fault as well as on irretrievable breakdown of marriage. The main theme of this study is
to establish the inappropriateness of the fault-based divorce law and adversarial divorce
procedure, and to introduce an effective divorce law based on marital failure.

Chapter 1 focuses on the introduction of a fault-based divorce law into the Sri Lankan legal
system with the consequent ramifications in the customary Sinhalese law 7. It is intended to
propose that a fault-based divorce law, though valid, is not appropriate in the Sri Lankan legal
context.

The detailed description in Chapter 2 sets out to prove the failure of the fault-based
grounds for divorce in general law, Muslim law and Kandyan law and to establish the background
for a reformed law.

1 Marriage Registration (General) Ordinance No. 19 of 1907. This Ordinance will be referred to as Marriage
Registration Ordinance.
2 Ordinance No. 18 of 1889.
3 Ordinance No. 19 of 1907.
4 Act No. 13 of 1951.
5 Act No. 44 of 1952.
6 Ibid.
7 Before the written laws were introduced by foreign rulers, the laws of Ceylon were based mainly on customs and
usage. See Knox, R. – A Historical Relation of Ceylon, 1681, (Reprint 1958 - Saman Press), Part III, Ch. VII,
Hayley, F.A. – A treaties on the Laws and Customs of the Sinhalese Laws and Customs or Kandyan Law, Times
of Ceylon, 1923, pp.56-57, Jayasekera, M.L.S. – The Sources of Sinhalese Customary Law, Journal of Ceylon
Law, (1970), p.81.

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 Within its limited scope, this chapter will focus only on the grounds for divorce. Hence
neither bars to divorce nor consequences of divorce, such as questions of maintenance and the
custody of children, will be discussed in detail.

Chapter 3 will focus on the doctrine of irretrievable breakdown of marriage, and the
possibility of introducing it as the sole basis for divorce. The doctrine of breakdown will be
considered as an alternative to matrimonial fault. The non-fault based grounds in Muslim and
Kandyan law will also be discussed in Chapter 3.

A critical analysis of the divorce procedures under the three systems of law will follow in
Chapter 4, and will evaluate the feasibility of implementing a divorce law based on breakdown of
marriage within the existing adversarial procedure. It is thus restricted to the provisions which are
directly relevant to divorce.

It is intended to propose a divorce law which will save marriages that are not broken down
irretrievably, and provide adequate means to end a relationship with minimum conflict. Reforms
both in substantive and procedural law are suggested in Chapter 5, since the degree of marriage
stability prevailing in a given society depends on that society’s social climate, positive social policy
and effective marriage counselling.

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 CHAPTER 1

INTRODUCTION TO SRI LANKAN DIVORCE LAW

The Constitution of Sri Lanka recognises the family as the basic unit of society, 8 and
marriage is the tie that binds a family together. Yet some marriages do not endure in the manner
expected in the traditional sense of the term, and dissolution becomes inevitable. Hence the law
must provide for divorce, and thus it has to become an integral part of the legal system. Divorce is
painful and leaves lasting scars, yet is a necessary evil. However, if the policy of the law were to
be adjusted the pain could be minimized, and hatred between spouses themselves and parents
and their children reduced.

Different social, political, religious and cultural policies affect the choice of principle
governing the divorce law in a given legal system.

1.i Historical background of the Sri Lankan divorce law

Studying the history of Sri Lanka we find that prior to Western influence traditional socio-
cultural values of different racial groups were duly recognized and reflected in the customary laws.
Western laws were based on completely different systems of cultural and social values, and
through their introduction into the customary laws the ideology of marriage and related issues was
transformed radically and irreversibly. The Christian concept of holy matrimony replaced the
hitherto uncomplicated traditions governing marriage, and the simple relationship between man
and wife thus became an indissoluble union for life.

The replacement of the different customary laws by Western concepts of law, which were
based on conflicting jurisprudential foundations, was contrary to the norms of natural justice.
Natural justice requires that, ‘human law should not be the tyrannical imposition upon the
community of an alien code but an expression of the community's own mind'. 9

8 Article 27 (12).
9 Putting Asunder - The report of a group appointed by the Archbishop of Canterbury, London, 1966, Chapter 2,
para 14.

6
 Prior to Western domination of the Island, customs among both low-country and Kandyan
Sinhalese appear to have been similar, subject to slight sociological differences; thus marriages
were dissolved according to recognized custom and usage. 10

Concurrently, the Tamil inhabitants were governed according to their own native customs
and usages. These “Customs of the Malabar inhabitants of the Province of Jaffna ” were codified
by the Dutch, and this Code was applied in matters which involved persons covered by that
definition.11 During the Dutch administration, Tesawalamai law was under the constant influence of
Roman - Dutch law principles, and several changes in the customary law were thus affected by
legislation as well.12

Notwithstanding other marriage related issues which gained legislative recognition in the
British era,13 dissolution of marriages among the Tamils of Sri Lanka does not appear to have
been subjected to extensive legislative scrutiny. It may be assumed that uncertainty of customs
with regard to divorce among Tamils, and fluctuation of usages adopted by those who inhabited
different parts of the country may have caused the omission. Unavailability of evidence prevents a
clear view. However, there may have been divorces, though they were rare. 14

Muslim divorce was governed by Islamic principles, subject to variations prevailing in different
schools of thought.

It was under these circumstances that the Marriage Registration Ordinance was enacted in
1907. As the preamble of this Ordinance expressly states, Kandyans and Muslims were excluded
from its purview. Tamil inhabitants however were not excluded. Consequently, in absence of
specific legislative provisions with regard to dissolution of marriage, Tamils were subjected to the
provisions of the Ordinance.

10 The unwritten customs of the Kandyan Sinhalese were incorporated in the later laws.
See Hayley, F.A. – A Treatise on the Laws and Customs of the Sinhalese or Kandyan Law, Anthony Bertolacci –
A View of the Agricultural, Commercial and Financial Interests of Ceylon , London, 1817, See Appendix, Percival
A.R. – An Account of the Island of Ceylon , 2nd ed, 1805 London.
11 Ramanathan, T. - The Laws and Customs of the Inhabitants of the Province of Jaffna ,(1st ed.1962) 3rd ed. 1963,
Colombo, Ch.II, Nadaraja, T. – The Legal Systen Of Ceylon in its Historical Setting, 1971, p.183.
12 Tambiah, H.W. - The Laws and Customs of the Tamils of Ceylon, Colombo, 1954, p.24.
13 For example see Jaffna Matrimonial Rights and Inheritance Ordinance No.1 of 1911.
14 Balasingham, K. – Laws of Ceylon, London, Sweet and Maxwell, 1933, p.664.
Mutukisna, H.F.– The Thesawalame, or The Laws and Customs of Jaffna . Colombo, 1862, p.191.

7
 1.ii Introduction of fault-based grounds to Sri Lankan divorce law

The concept of matrimonial fault was introduced to Sri Lanka (then Ceylon) by the Dutch. 15
A divorce law based on matrimonial fault was introduced in 1907 via the Marriage Registration
Ordinance by the British. 16 Accordingly, divorce was granted only on proof of any of the offences
recognized in law, i.e. adultery, malicious desertion or incurable impotence at the time of marriage.

Even though the registration of a marriage was regulated by several Ordinances 17, the
grounds for divorce were retained in the Marriage Registration Ordinance. The provisions of Civil
Procedure which were introduced by the British, were also extended to divorce proceedings.

Consequently, the informal concept of marriage was transformed into a strict and
complicated issue. According to imposed regulations, divorce was based on the doctrine of
matrimonial offence, 18 which was alien to both the Sinhalese and the Tamils.

The criteria for accepting a foreign law, and the reasons for retaining it in the existing social
environment, need analysis.
The imposition of the concept of matrimonial fault has not succeeded in abolishing the
traditional values recognized in Kandyan law. Retention of some of the basic features of
indigenous divorce tradition, despite forceful insertion of the elements of fault, is evident in the

15 There is a difference of opinion with regard to the extent of application of the Dutch law in Ceylon. One view is that
Dutch laws applied only to the Dutch settlers and their native servants, to the Sinhalese and Tamils living within
Dutch enclaves, and also to those who had embraced Christianity. See Jayawardene, A.St.V. – The Roman-
Dutch law as it prevails in Ceylon, Colombo, 1901, p. 2-11, Cooray, L.J.M. - An Introduction to the Legal System
of Sri Lanka, 2nd ed, 1992, p. 4.
16 The Marriage Registration Ordinance of 1907 excluded Muslims, who were governed by Islamic law, and
Kandyan Sinhalese, whose marriages were contracted under the Kandyan law.
17 Regulation No. 7 of 1815 facilitated the marriage of Native Protestants.
Reg. No. 9 of 1822 regulated the registration of marriages and births of “the Natives of the Maritime Settlement of
this Island, as well as of Natives of India residing in the said Maritime Settlement.”
Change of registration policy made by Ord. No. 13 of 1863 and Ord. No. 13 of 1863 offered further concessions
with regard to registration. Ord. No. 15 of 1877 vested jurisdiction of marriage registration in Govt. Agents,
Provincial Registrars of Marriages and Govt. Agents and their Office Assistants. All previous Ordinances were
amended by Ord. No. 2 of 1895, which was enacted to ‘consolidate and amend the law relating to the registration
of marriage other than the marriage of Kandyans or of Muhammedans’. Ordinance No. 19 of 1907 was
introduced to consolidate and amend the law relating to marriages other than the marriage of Kandyans or
Muslims and it prescribes the law presently in force.
18 It should be noted that England adopted a strict policy of divorce at the time when the British administration
introduced statutory provisions with regard to divorce in Sri Lanka. Until 1857, matrimonial jurisdiction in England
was exercised by the Ecclesiastical Courts and 'respondent’s adultery’ was the sole ground for divorce.

8
Kandyan Marriage and Divorce Act.19 Legislative recognition of the inability of spouses to live
happily together as husband and wife, and mutual consent side by side with fault-based grounds,
reflect the continuation of the principle of breakdown of marriage.

On the other hand, the majority population of Sinhala Buddhists never accepted marriage as
a sacrament. Marriage was recognized as a legal contract involving close personal relationships,
and resulting in irreversible consequences such as the rearing of children. Similarly, despite the
religious observances that are largely associated with marriage rituals among Hindus, marriage
itself is not perceived as a sacrament by an average Sri Lankan Tamil 20. It is apparent therefore,
that the Christian concept of marriage has not been established or accepted by non-Christian
society.

Accordingly, it becomes obvious that the Roman-Dutch concept of divorce, which is

designed to preserve the sanctity of marriage, was never endorsed fully by Sri Lankan society. It
may be asserted therefore that the fault-based divorce law has always been recognized as a
foreign concept, which was forced on the people by the Western powers and was largely
influenced by the ideas of the Christian church. Some of the witnesses, who gave evidence before
the Commission of Marriage and Divorce,21 were of the view that these laws had found only partial
acceptance, even amongst the Christians. They were of the view that these laws did not suit the
ways of life and thinking of the vast majority of the people of this country. 22

A clear majority of the Commission endorsed this view and recommended that, although
marriage should always be recognized as a permanent union, provision should be made enabling
spouses to obtain divorce where subsequent events prove a breakdown of marriage. It becomes
clear that a large majority of persons interviewed23 accept the unsuitability of the fault principle in
the sphere of divorce in Sri Lanka. It should also be noted that the Western concept of fault was
never accepted in Muslim law.

19 No.44 of 1952.
20
This is based on informal discussions had with several Tamils.
21 See Ceylon Sessional Papers XVI, 1959, para 183.
22 Ibid.
23 The Women’s Charter (Sri Lanka) recommends that the state shall recognize ‘breakdown of marriage’ as the
basis for divorce. See para. 8 (i). The proposals forwarded to the Government by a committee consisting of Prof.
S. Goonesekera, Prof. S.de Soysa, Ms. Dhara S.Wijayatilake and Ms. Dilhara Amerasinghe also suggested that
divorce should be based on irretrievable breakdown of marriage. (unpublished) See pp 1-2. Lawyers, teachers,
doctors, Christian priests and divorced persons were randomly selected and interviewed for research purposes,
and 99% were of the view that divorce should be granted on irretrievable breakdown of marriage.

9
 Having considered the limits of acceptance of the Western concept of divorce in the Island,
attention should now be focused on the basis of recognition of fault-based grounds both under
general law as well as under Kandyan law.

1.ii. (a) Adultery

Presently, adultery is one of the recognized grounds for divorce both under the Marriage
Registration Ordinance and the Kandyan Marriage and Divorce Act. In order to assess the validity
of retention of adultery as a ground in itself, the basis of recognition of the offence in Sri Lanka
should be evaluated.

In the pre-colonial era, a husband's right to kill the adulterer if detected in the act, was
recognized, and the authorities did not take any action against the murderer husband, nor against
the guilty wife.24 Further, adultery is one of the five basic prohibitions according to Buddhism,
which is the majority religion in Sri Lanka. It is prohibited in Hinduism as well. The prohibition is
based on the behaviour itself and not on the harm done to society. However, adultery itself was
not known as a ground for dissolution of marriage. 25 Dissolution of marriage depended exclusively
on the wishes of the parties. It was never known as a crime or as a ground to dissolve a marriage
in the customary law of the Island. Hence, the introduction or continuance of adultery in Sri Lankan
divorce law cannot be rationalized in a historical perspective.

Even though the concept of matrimonial fault was introduced by the Dutch administration, it
was not meant to appertain to the entire population of the country, but focused on a specific
section of the population, i.e. the people who professed Christianity. 26

At the time when the British identified the need to codify the law relating to marriage and
divorce, two different laws based on conflicting ideologies were recognized amongst the
Sinhalese. Those Sinhalese, who did not profess Christianity, continued to observe the customary
laws with regard to marriage and related issues, while those who converted were governed by the
Western concepts of law.

24 D’Oyly, J. – A Sketch of the Constitution of the Kandyan Kingdom, Sri Lanka, (1929), 2nd ed. 1975, p.51.
25 Knox, R. - An Historical Relation of Ceylon, - Part III, Chap VII.
Hayley, F.A. - Sinhalese Laws and Customs, p.114.
26 Karonchihamy v. Angohamy (1904) 8 NLR 1 at pp. 16,24,and 26.

10
 The British preferred the Roman-Dutch law, mainly because of its precision, to the vague
customary law. Hence legislative recognition was accorded to the fault-based divorce law based
on Christian philosophy, thus recognising adultery as a ground for divorce.

Much later,27 the Kandyan Marriage and Divorce Act28 was enacted, to which the concept of
matrimonial fault was introduced through adultery and desertion.

Since codification of the law relating to marriage and divorce, adultery was applied as a
ground for divorce among low-country Sinhalese and Tamils, irrespective of their religion. In
application, adultery has been largely influenced by English and Roman-Dutch law principles.29 It
is apparent therefore that, except for a few scattered exceptions, the Sri Lankan Courts have
moved in accordance with the English30 and South African31 decisions in the interpretation of
adultery as a matrimonial fault.32

1.ii.(b) Desertion

As in the case of adultery, no acceptable historical basis is detectable in the recognition of

desertion as a ground for divorce in the statute law of Sri Lanka.

In the interpretation of this undefined term, the Courts of Sri Lanka appear to have been
largely influenced by Roman-Dutch authorities and English case law.33

In contrast to malicious desertion recognized in the general law, the Kandyan Marriage and
Divorce Act34 requires a specific period of physical separation immediately prior to litigation. This

27 Kandyan Marriage and Divorce Act was enacted forty five years after the Marriage Registration Ordinance was
introduced.
28 Act No. 44 of 1952.
29 This will be discussed in detail in Chapter 2.
30 Churchman v. Churchman (1945) 2 All ER 190.
Ginesi v. Ginesi (1948) 1 All ER 373.
Galler v. Galler (1954) 2 WLR 395.
Bater v. Bater (1950) 2 All ER 458.
31 Ricketts v. Ricketts (1922) CPD 335.
Truter v. Truter and Another 1938 NPD 250.
Van Deventer v. Van Deventer 1962 (3) SA 969.
Steytler v. Steytler (1907) 17 C.T.R 925.
32 Jayasinghe v. Jayasinghe (1954) 55 NLR 410, Dharmasena v. Navaratne (1967) 72 NLR 491, and Gunasekera v.
Gunasekera (1970) 79 CLW 71 may be cited as examples where the influence of English and South African case
law was expressly recognized.
33 This will be discussed in detail in Chapter 2.
34 No. 44 of 1952.

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provision appears to have been largely influenced by the English law applicable at the time of the
enactment of the Act.35

1.ii.(c) Incurable impotence

Incurable impotence is recognized as a ground for divorce as well as for nullity under the
Marriage Registraton Ordinance. The Kandyan Marriage and Divorce Act makes no reference to
this specific incapacity in any of its provisions. Even in Roman-Dutch law, where sexual
intercourse and procreation of children are two causae finales of marriage, incurable impotence at
the time of marriage was a ground for nullity, but not for divorce. However, in Roman-Dutch law, a
marriage could be annulled on the basis of breach of an implied pre-requisite on the part of one
party to the contract. Hence, the recognition of sexual impotence as a ground for divorce under the
general law of Sri Lanka seems paradoxical, since the fault-based law was originally adopted from
Roman-Dutch law itself. Nevertheless, incurable impotence has been recognized as one of the
grounds for divorce, under the general law of Sri Lanka since 1907.

It has been medically established that impotence can be caused for either physical or
psychological reasons, and it is intended to examine in a subsequent Chapter whether such a
disability should be included in the fault-based law.36

None of the fault-based grounds for divorce recognized under both the existing general and
Kandyan law appear to be found in customary law and these grounds do not conform to the values
or principles acknowledged in indigenous law. The introduction of all three grounds was a direct
result of Western influence which the country experienced centuries ago. The prime motive behind
the enforcement of the fault-based law was probably the fostering of Christian principles. No other
link could be ascertained between the present law and the customary law as far as grounds for
divorce are concerned.

This anomalous state becomes apparent in the Kandyan Marriage and Divorce Act,
particularly with regard to adultery where a baseless discrimination between a Kandyan husband

35 See for instance Matrimonial Causes Act (England), 1950, S.1 (1) where desertion for a minimum period of three
years immediately preceding the presentation of the plaint was a prerequisite for divorce.
36 This issue will be analyzed in detail in Chapter 2.

12
and wife is created37. This distinction has made a mockery of the Kandyan law, which is supposed
to be the codified version of the pristine Sinhalese law.

1.iii Incongruity of the concept of matrimonial fault in Sri Lankan law

The pre-supposed link between the right to terminate the marriage and innocence on the
part of one spouse and guilt on the part of the other, provides the basis for the fault-based divorce
law. The main objective of the fault concept is to provide relief where a wrong has been done
against an innocent spouse. 38

The principle that underlies the grounds recognized as matrimonial faults was identified
further as being fundamentally incompatible with the undertakings entered into at marriage; and
the commission of these acts by one party, which amounts to grave misconduct, was recognized
as the rationale for the right to terminate the marriage tie. 39 It was believed that commitment to
moral obligations, though it carried a high possibility of unfavourable implications to one party,
preserved the wider interest of the community. 40 The conservative, duty-based concept of the
marriage relationship is endorsed in the theological explanation of Dwight,41 where he states “It is
incomparably better that individuals should suffer than that an institution, which is the basis of all
human good, should be shaken, or endangered.” Obviously, this classification intends to preserve
the best interest of society.

The virtues of specific, fault-based grounds should not be overlooked. The most commonly
raised argument in favour of the fault-based divorce law is the certainty guaranteed in the clearly
stated, comprehensible grounds.42

37 See Section 32 (a) where adultery per se on the part of the wife forms a ground for divorce while section 32 (b)
requires proof of incest or gross cruelty in addition to adultery by the husband.
38 Report of the Royal Commission on Marriage and Divorce (The Morton Com.) 1956, para 69.
39 Ibid. para 56.
40 Sir William Scott in Evans v. Evans (1790) 1 Hagg.Const.35 at 36-7.
41 Timothy Dwight – Theology, Explained and Defended in a Series of Sermons, 5th ed. (1828) cited by Max
Rheinstein in - Marriage Stability, Divorce and the Law, Chicago, 1972, p.28.
42 Scottish Law Commission - Divorce – The Grounds Considered, May 1967 – cmnd 3256, para 4.
Report of the Law Commission of England - Reform of the Grounds of Divorce –The Fields of Choice, November
1966, para 24 (b), (c).

13
 On the one hand it may be argued that the Court is presented with a clear issue to try. The
question whether a matrimonial offence has been committed or not is a specific conclusion rather
than a declaration on the vague question whether a marriage has irretrievably broken down or not.
On the other hand, the parties can have a fairly clear idea of the prospects of obtaining a divorce.
It is believed further that the doctrine of fault acts as a deterrent against marital misconduct, and
provides a disincentive at least to serious breaches of matrimonial obligations. It is presumed that
the recognition of specific grounds indicates to married persons that certain conduct on their part
entails the risk of the dissolution of their marriage.

Another significant virtue of the fault-based divorce law is the assurance it is presumed to
offer with regard to the right to dissolve the marriage. According to the concept of matrimonial
fault, the right to divorce lies exclusively with the innocent spouse. Theoretically, it prevents a
guilty party from taking advantage of his or her own wrongful behaviour.

Another argument in favour of the fault-based law is the deterrence it is supposed to provide
against illicit unions, that the specification of grounds for divorce under the fault theory provides an
external buttress to the stability of marriage, and thus prevents illicit unions. 43 This argument is
based on the assumption that a married person is discouraged from forming an illicit union, since
he or she is aware that it is not possible to marry the third person and have legitimate children,
unless the innocent spouse divorces him or her.

These arguments are somewhat convincing. It is doubtful however whether any of them
justify the introduction of the fault theory to the Sri Lankan law in place of a more liberalized
divorce law or whether they can still be considered as relevant in the present social context. It
should also be noted that three decades have passed since the English themselves have moved
away from fault.

It is evident that the enforcement of a foreign divorce law based on Christian concepts and
values, in place of indigenous tradition, is artificial and cannot be justified. It was indeed a
tyrannical imposition of Christian concepts through legislation.

43 Report of the Law Commission of England - Reform of the grounds of divorce-Fields of Choice, Nov. 1966, para
24 (e).

14
1.iv The dislocation between law and reality

The doctrine of fault confines divorce to specific grounds, and a petition should be based on
one of the grounds recognized in the statute. Accordingly, couples whose marriages are shattered
due to various other reasons are compelled to base petitions on recognized offences, which their
spouses have not committed. In several cases it appears that neither party is guilty of any of these
specific offences, though their marriage is irreversibly broken. The fault-based law does not
provide relief by way of divorce, however necessary it may be for the parties or whatever
distressful results it may provoke, unless the petition attributes the blame on the defendant. Thus a
party, who seeks to dissolve his or her marriage, is compelled to make a choice between any of
the faults that are prescribed in the statute.

It has been observed by socio-legal analysts that the option for divorce is mostly influenced
by the social mores of the petitioner, which includes his or her religion, social class, sex and age
and not by principles recognized in the law.44

In most divorce cases, parties enter in to what Rheinstein45 calls 'a democratic compromise'
where they agree to obtain divorce through collusive agreements and false litigation. It is often
found that the so-called defendant agrees not to contest the claims made against him by the
petitioner. This is common in Sri Lanka, and is discernible in the large number of uncontested
divorce cases that have already been decided, and the large number of ex-parte proceedings
pending in Courts. It demonstrates how the stringent statutory provisions are being misused to
obtain the desired ends.

Accordingly, divorce is obtained by mutual consent which is a violation of the concepts of

collusion and connivance, recognized in the common law as bars to divorce46. Through the
rhetoric abilities of the legal representatives, parties often get away with decrees nisi subsequent
to extra-legal agreements entered into between themselves.

The artificiality of this procedure is vividly described thus:

44 Davis and Murch – Grounds for Divorce, Oxford, 1988, pp.71-75.

45 Max Rheinstein - Marriage Stability, Divorce and the Law, P.247.
46 See Ponnambalam, S. – Law and the Marriage Relationship in Sri Lanka, Colombo, 1987, 2nd ed., Pp.380 and
395.

15
 "It can encourage spouses to commit offences on purpose, or to twist the
conduct of their partners into the semblance of offences, or to act together in
collusion to get what they want. When parties have agreed to live
separately, they can still establish desertion if they play their cards correctly:
provided that lawyers can be found to draft the few carefully phrased letters,
the case will eventually go through undefended… If the offence is proved
and any collusion successfully concealed, the Court is bound to grant a
decree without further inquiry into the actual state of the marriage.” 47

Even though uncontested divorce proceedings cannot be favoured on any grounds, it

appears to have become the popular choice of most divorcing couples. Two main causes may be
identified as key reasons. On the one hand, spouses agree to petition for divorce on false charges
since the law does not recognize the failure of the marriage. On the other hand, the uncontested
divorce procedure involves less time and cost, compared to the lengthy process in contested
cases. Consequently, access to divorce is gained through co-operation of the spouses, and the
deficiencies of the existing law have allowed divorce by mutual consent under the guise of
matrimonial offence.

Condonation, connivance and collusion, which once stood against divorce enhancing the
concept of fault, are abolished. 48 Whatever may be the legislative purpose for the abolition, it
certainly provokes collusive agreements between spouses. The abolition in fact allows the parties
to work together to ‘obtain’ divorce.

Moreover, it may be asserted that the abolition of the bars, i.e. condonation, connivance and
collusion, actually makes it easy to obtain divorce. For instance, in an application for divorce on
desertion, the petitioner should also prove that the defendant deserted him or her without any
reasonable cause. Since collusion does not stand against a decree of divorce, the parties can
agree on their divorce, i.e. not to contest the petitioner's claim. If the defendant does not prove
good cause on his part as agreed, the petitioner can obtain a decree without great difficulty.

The preceding analysis reflects how the rigid statutory requirements are twisted to
accommodate real life situations. It reveals the inability of the existing law to focus on the actual

47 Putting Asunder, para 42 (c) p.30.

48 See Civil Procedure Code, amending Act No. 20 of 1977.

16
causes of matrimonial failure. The worst damage under this procedure is done to society when the
decision of the dissolution of marriage is completely taken out of the purview of the Court. Since
the Court is not required to look beyond the offence alleged in the plaint, no obligation whatsoever
to evaluate the situation is left upon the Court. This reveals that, even though the decree is
‘granted’ to the petitioner, in reality both parties ‘work for’ it. Undoubtedly this contradicts the basic
requirements of the concept of fault, which compels the pronouncement of guilt of one party as
against the other. It demonstrates the extent to which the doctrine of fault requires the distortion of
facts in order to obtain divorce.

Even though the fault-based law is designed to punish the offender and to protect the
innocent spouse, it is clearly evident that in marriage breakdown one party cannot be singled out
as the offender. In most instances, distinction cannot possibly be made based on the guilt or
innocence of the parties. Except on rare occasions, both parties are responsible for the ultimate
break-up. Even though one spouse's contribution to the break-up could be comparably less than
the other’s, distinction on the basis of guilt is legally impracticable and humanly unreasonable. The
sociological and psychological reasons which surround the breakdown of marriage make it even
harder. It obviously raises doubts on the fault concept as the basis for divorce.

It is quite evident that the fault-based legal process does not provide for a complex variety
of social circumstances. It concentrates only on the offence alleged in the plaint, and not on the
actual causes behind it. In the majority of cases, the grounds stated in the plaint are a choice of
facts made by the counsel, which does not necessarily reflect the reasons for the actual
breakdown. Yet a wide variety of reasons are hidden behind the so-called grounds, which are
actually presented during the proceedings.

Most judges, who recognise the inadequacy of the law, construe it so as to accommodate
as far as possible real life situations.49 Counsel, who are aware of the limited scope of the law,
either petition on one of the ‘symptoms’ of the broken relationships, or where no legally recognized

49 Several judges were interviewed for research purposes. More than 95% of those interviewed recognise that the
actual causes are not reflected or only partially reflected in the plaint. Of those interviewed, 90% are of the view
that judges can and should find out the real causes for the ultimate breakdown. Others believe that, even though
a change is needed in the divorce law, it is for the legislature to bring in the changes but not for the judge to
create law at the trial level.

17
symptom can be found, they tend to create a ground depending on the circumstances of each
case.50

Accordingly the fault-based law does nothing to stop or minimize divorce. It makes the
process harder and distressful. The law further creates a gulf between the reality and what is
actually presented to the Courts through the fault-finding process. Far-reaching and more
damaging results are incurred through the fault-based divorce law. It is believed to encourage
prostitution and more seriously, extra-marital unions.

The recent case of Abeysundara v. Abeysundara51 provides an example for the inadequacy
of the existing fault-based divorce law. The defendant was not allowed to divorce his wife under
the fault-based law, and despite his long-time affair with another woman, the law did not accept
that his first marriage was broken irretrievably. He sought to contract a second marriage by
converting to Islam. The Court declared his second marriage null and void and convicted him of
bigamy.

Kruger v. Kruger, 52 the first South African decision to have been reported under the Divorce
Act 70 of 1979, provides yet another example. The plaintiff sought to dissolve his marriage of forty
years. He and the defendant were married in 1940. Sometime between 1949 and 1951 an intimate
relationship began between the plaintiff and a Mrs. Heyward. Since 1953, the plaintiff had been
living with Mrs. Heyward. The defendant always remained faithful, and had turned down numerous
requests made by the plaintiff to divorce him. In order to safeguard her rights in respect of
maintenance for their son, she obtained a decree of separation a mensa et thoro. The strict
provisions of the law prevented the plaintiff, who was the guilty party in the eyes of the fault-based
law, from obtaining a divorce and thus marrying Mrs. Heyward. Hence, the plaintiff and
Mrs.Heyward lived together for almost 27 years in open adultery, before he obtained a divorce a
vinculo matrimonii under the new Act,53 on the ground of irretrievable breakdown of marriage.

Even though the defendant always wanted the plaintiff to return to her, the plaintiff had no
intention of going back and starting their marriage relationship afresh. The marriage was

50 The legal practitioners who were interviewed agreed that they had no option but to create the plaint to fit into the
limited scope of the statute law.
51 SC Appeal No. 70/96, SC Minutes of 16.12.1997.
52 1980 (3) SA 283.
53 Divorce Act No. 70 of 1979 (South Africa).

18
irretrievably broken. Yet the fault-based law did not recognise this. However, contrary to what Sir
William Scott held54 centuries ago, the strict principles could neither preserve the marriage nor
could they ensure that the spouses remain good husbands and good wives.

Such situations raise doubts as to the validity of the arguments raised in favour of the
concept of fault; specifically the claim that a strict divorce law preserves the sanctity of marriage. It
is indeed true that, when the law makes divorce impossible, the empty shell of a marriage will
remain. It does not however reflect the true status of a marriage relationship, nor does it ensure
that every couple that remains legally married leads a happy and contented life together. A
stringent divorce law covers the bitter reality, and prevents the parties from seeking more effective
remedial measures. Evidently, it is not the offence itself, which drives the parties to find a
permanent way out, but the failure in effecting a compromise. 55

One may argue in the broadest sense that, if there were no fault, there would be no such
failure. It should be admitted however, that while one marriage relationship may be irretrievably
damaged by the adultery of one spouse, another might not. It has been widely accepted that
behaviour which the law recognizes as offences are symptoms rather than causes of marriage
breakdown, and the fault-based law offers an easy way out of a troubled relationship. 56 As Finlay
observes, ‘the finding of fault has become an attempt to establish causation rather than guilt’.57

On the one hand, fault-based law does not offer relief to a spouse unless he or she is
absolutely innocent. A marriage becomes indissoluble where, for instance, both spouses commit
adultery. According to Hahlo, 58 the prospects of mending such a marriage are far less hopeful than
a marriage where only one spouse has committed an offence. Moreover, such circumstances
demonstrate the unhealthy relationship between the spouses. More seriously, they explain the
damage such a marriage could cause to the children involved, and to the community at large.
Accordingly it proves the incapacity of the fault-based divorce law.

54 Sir William Scott held: “ When people understand that they must live together, except for the very few reasons
known to the law, they learn to soften by mutual accommodation that yoke which they know they cannot shake
off; they become good husbands and good wives from the necessity of remaining good husbands and good
wives; for necessity is a powerful master in teaching the duties which it imposes.” See: Evans v. Evans (1799)
1 Hagg.Const. 35 at p.36-37.
55 Putting Asunder, para 40 (a).
56 Ibid.
57 Finlay, H.A. – Relevant but Inevitable: The Retreat of Matrimonial Fault, 38 MLR 153, at 156.
58 Hahlo, H.R. - The South African Law of Husband and Wife, Juta, 1953, 5th ed. p.362.

19
 On the other hand, granting a decree in favour of the petitioner would eventually hold the
guilty spouse solely responsible for the dissolution of marriage. This procedure, which indirectly
pronounces the innocence of the petitioner, cannot be recognized as identifying the complex
situation in respect of a breakdown of marriage from a realistic point of view. The adversarial
procedure prevents the Court from analyzing the situation in a manner which would do justice to
both parties. It compels the Court to pronounce one party guilty in order to grant divorce on
matrimonial fault. Pronouncement of guilt exclusively on one party, where actually both have
contributed to the breakdown, would not only do injustice to the defendant but such a process
necessarily creates a rift between the spouses.

The above analysis confirms that a serious gap exists between the present statute law and
the law in action, which needs to be remedied. Even though the law is written on the concept of
fault, in practice it is moving towards breakdown of marriage.

1.v The punitive aspect of the fault theory and the stigma attached to it

The Christian doctrine visualizes the institution of marriage as a lifelong union sanctified by
God, which could not be terminated by man. The element of indissolubility or near indissolubility
thus ascribed to the concept of marriage has necessarily influenced the entire system of family
law.

As a direct result of ecclesiastical influence on the statute law, dissolution of marriage was
allowed with limitations. Divorce was confined to specific matrimonial offences, which were
recognized as grave forms of marital misconduct. Accordingly, divorce was restricted and was
employed only as a deterrent.

A closer look at the concept of marriage discloses that divorce was expected to operate as
a punishment. The concept of indissolubility, or near indissolubility, was expected to preserve the
sanctity of marriage. It prescribed the duties and responsibilities of both spouses towards each
other, and also towards the children of the marriage, and spouses were bound to be faithful to
each other. Where either party deliberately acted against these requirements, and if such

20
behaviour could be interpreted as any one of the prescribed ‘offences’ recognized in law, the
innocent spouse could choose to divorce the guilty partner. Where the guilt of the defendant was
proved cogently, divorce was granted to the petitioner and the defendant was thus punished.

The question whether divorce could indeed be considered a punishment should be

addressed. It is an accepted norm that law and punishment are closely linked. The scope of the
divorce law however should be distinguished from other areas of law. As Mortlock59 observes,
divorce law deals with “those who have been defeated and weakened by family breakdown.” It
should be noted that the law of marriage and divorce deals with sensitive human problems. Both
sociological and psychological reasons are concealed in such issues even though they may have,
for reasons of legal requirement, been presented as other grounds. It may therefore on rare
occasions “be better to let individuals suffer rather than an institution”60. Yet this is not acceptable
as the guiding criterion for a law which is expected to regulate human relations. Divorce cannot be
compared with punishment in criminal liability. It could be argued that, though punishment may to
a considerable extent control criminal offences, divorce for obvious reasons cannot be used to
curb marriage breakdown or to promote marital happiness.

Although the Marriage Registration Ordinance confines divorce as a punishment for the
offender to three grounds i.e. adultery, desertion and impotence, it has been shown that many acts
of adultery and desertion are symptoms rather than causes for marital breakdown. 61 It is evident
however that actual problems, which cause failure in marital relations, go far beyond the statutorily
recognized grounds. The sensitivity and varied nature of human relations cannot possibly be
enveloped within the hard covers of statute law. Under the fault-based law, the true causes for the
failure in a marriage are never explored. Consequently, one spouse is forced to be the guilty party,
on whom the law casts the blame, and divorce is expected to relieve the other party of the burden
of being married to an offender.

Sociologists view ‘family’ as “a community in itself: a small relatively permanent group of

people, related to each other in the most intimate way, bound together by the most personal
aspects of life; who experience amongst themselves the whole range of human emotions; who

59 Bill Mortlock - The Inside of Divorce: A Critical Examination of the System, 1972, London, at p.19.
60 Timothy Dwight – Theology, Explained and Defended in a Series of Sermons, 5th ed. (1828) cited by Max
Rheinstein in – Marriage Stability, Divorce and the Law, p.28.
61 Cretney, S. M. - Principles of Family Law, 3rd ed, London, Sweet & Maxwell, 1979, at p.541.

21
have to strive continually to resolve those claims and counter claims which stem from mutual but
often conflicting needs…”62

The process, which dissolves a social group which has been so closely and intimately
bound together, should essentially concentrate on the repercussions this will necessarily have for
all its members. Apart from the contracting parties, marriage involves children and other third
parties; and so does divorce.

The statute law fails to recognize divorce in this context. Throughout the whole process,
divorce law encourages hostility, bitterness and hatred not only between the parties, but also
between children and parents. The process itself aggravates hatred and humiliation, and reduces
the whole family to disrepute. Whether the divorce is granted or refused, the procedure affects the
relationship between the parties involved. It appears therefore that fault-based law not only
punishes the spouse who is proved to be guilty, but all those who are involved, directly or
indirectly, including the so-called innocent spouse and the children. It should be noted that children
are the worst effected, socially, psychologically and sometimes economically. Apparently sufficient
attention has not been paid to the damage done to the children who are forced to be the
unoffending victims of the circumstances.

The above analysis confirms the failure of the concept of fault as the basis for divorce law.
Despite its inability to provide a rational judgement on the state of a marriage relationship, it
attaches an unhealthy stigma to the persons concerned. Even though no law can erase the pain
and loss which are bound to be caused by divorce, it could at least ease the hatred and humiliation
involved.

----------

62 Ronald Fletcher - The Family and Marriage in Britain, Harmondsworth Pelican Books. 1966, (3rd ed.1973) Pp.
26- 27.

22
 CHAPTER 2

FAULT-BASED GROUNDS FOR DIVORCE

The doctrine of matrimonial fault as the underlying basis of divorce confines the right of
action to specific behaviour that is recognized in law as being fundamentally incompatible with the
undertakings entered into at marriage; the commission of these acts by one party to the marriage
gives the other an option to have the marriage terminated by divorce. 63Accordingly, divorce is
granted as a reward for marital virtue for one party and a penalty for marital delinquency on the
other.

The moral basis underlying the fault theory is that it is right to allow the innocent party to
divorce the other, when the latter has done something contrary to the commitments required in a
marriage. Accordingly, divorce is a legal remedy available to an injured and guiltless petitioner who
can establish that the respondent has committed an offence recognized by the law. This allows an
innocent spouse who comes to Court to be no longer bound to the other, who has failed to fulfil his
duties.

2.i Features and effects of the doctrine of fault

The doctrine of fault concentrates exclusively on the respondent's behaviour. The existing
adversarial system does not require of the Court to scrutinize whether the marriage in question
actually deserves to be dissolved, irrespective of the offence alleged. Under the fault system, one
spouse is forced to accuse the other of an offence, even though in reality there may not be such
an offence. Neither the procedure nor the substantive law evaluates the ill-effects of dissolution of
marriage in the interests of the children or the society at large.

63 Report of the Royal (Morton) Commission, cmd.9678, para 56.

23
 The fault theory does not allow the Court to accept that both spouses could be
responsible for the cessation of the marital tie.64 The Courts are bound to pronounce one party
guilty although the judgement may not reflect impartial justice. The procedure not only imposes
further liability on the spouse who is alleged to be guilty, but it totally ignores the contributory factor
of the so called innocent spouse, who more often than not shares the responsibility for the
breakdown of marriage.

It may be asserted therefore that under the fault-based divorce law the distinction between
guilt and innocence appears wholly incongruous.

Contrary to the doctrine of breakdown of marriage, the concept of fault restricts the
capacity to petition for divorce, and the ancillary matters depend mainly on the finding of guilt or
innocence. For instance if a person is found guilty, it affects the award of maintenance and even
his or her standing in society.65 The criteria which determine the costs and compensation are not
geared to the needs of the parties, but to the finding of innocence or guilt. 66 The underlying
concept of the Roman-Dutch common law is the principle of culpa compensatio which requires the
beneficiary to be free from guilt, and entrusts Courts with the duty to ensure the innocence of the
petitioner; also that no person is benefited from his own wrong-doing.

2.ii The link between the doctrine of fault and bars to divorce

Both absolute and discretionary bars are essential prerequisites of a fault-based divorce law.
They ensure the relief of divorce only to an innocent spouse, and vest discretion in the Courts to
refuse a decree where it does not appear that the dissolution of a marriage is in the best interest of the
spouses, their children or for reasons of public policy.

The provisions of the Civil Procedure Code67 that encompassed absolute and discretionary
bars were repealed in 1975.68 Even though specific changes were introduced to the Civil Procedure

64 This feature is further reflected in the Roman-Dutch law rule of culpa compensatio which is recognized in the
accusatorial system.
65 Wachtel v. Wachtel (1973) 1 WLR 366 at p.371.
66 Jennifer Craven-Griffiths – Can we find a way to face the future, 1989, 19 Fam. p.425.
67 No. 2 of 1889, Sections 600,601,602 (1) proviso and 602 (2).
68 By the Administration of Justice Law No. 25 of 1975.

24
Code,69 notably in matrimonial actions, these bars were not reintroduced into the divorce law of Sri
Lanka.

Prior to the abolition of the bars, the Court was not allowed to grant a decree of divorce if
the petitioner condoned the alleged offence, or collusion or connivance was proved. This concept
was based on the principle of culpa compensatio. 70

While retaining the doctrine of fault and thereby insisting on finding the defendant guilty,
the general law abolished the provisions which ensured the innocence of the petitioner. 71 The
abolition has created a serious void in the law. 72

It may be assumed that applicability of the defences is a sine qua non in a jurisdiction,
which continues to require proof of matrimonial fault; for this is the only means by which the
plaintiff has a right of action, which legitimately derives from the fault of the defendant. 73 However,
it may also be claimed that the abolition of bars has drastically affected the rights of the defendant,
since those were the only defences available to a spouse who opposed the divorce on the
credibility of the petition.

Whatever the basis for the repeal of these bars, the inevitable consequence is the
availability of divorce on proof of matrimonial fault per se. It may be asserted further that, even
though these bars are no longer recognized statutorily, they will remain an integral part of the
common law as long as the doctrine of fault provides the basis for it. 74

69 Civil Procedure Code (Amendment) No. 20 of 1977.

70 Ponnambalam, S. - A critical look at the grounds of divorce in Sri Lanka, Law Com. Law Bulletin, 1981, vol. II
p.12-16 at p.14.
71 Administration of Justice Law (Amendment) No. 25 of 1977.
72 In Sediris Singho v.Somawathi (1978-79) 2 SLR140, the Court of Appeal was compelled to grant a decree in
favour of the petitioner-appellant notwithstanding the fact that the petitioner-appellant himself was guilty of
adultery, since the petitioner’s adultery does not bar his right to obtain a dissolution.
73 Ponnambalam, S. - A Critical Look at the Grounds of Divorce in Sri Lanka, Law Com: Law Bulletin, 1981 vol. II
p.14.
74 Ibid. See further Ponnambalam, S. – Law and the Marriage Relationship in Sri Lanka, P. 380.

25
2.iii Fault-based grounds for divorce under general law

The doctrine of matrimonial fault dominates the general law of divorce, which is a
combination of two colonial systems, i.e. English law and Roman-Dutch law. The influence of
English and South African legal decisions is clearly evident in the development of the law of
divorce.75

The Marriage Registration Ordinance76 enacts that no marriage shall be dissolved during
the lifetime of the parties, except by judgment of divorce a vinculo matrimonii pronounced in some
competent Court, and it lays down the grounds for divorce as being adultery subsequent to
marriage, malicious desertion, and incurable impotence.

2.iii (A) Adultery

In family law jurisprudence, where divorce is based on the doctrine of matrimonial fault,
adultery is recognized as the arch sin a married person can commit, and “an act of the greatest
moral turpitude and one which endangers the existence of the family.”77 Accordingly, adultery
being recognized as a serious form of marital delinquency, provides a strong ground for divorce,
even though it is not considered as an offence in itself, except in a few legal systems. 78

The respondent’s adultery remains a ground for divorce under the general law of Sri
Lanka,79 and has been identified as consensual sexual intercourse by a married person, whether
husband or wife, with another, married or single. 80The concept of matrimonial fault has been
incorporated in Sri Lankan law in consequence of the influence of English and Roman-Dutch law.

75 Report of the Commission on Marriage and Divorce in Sri Lanka, Ceylon Sessional Papers XVI, 1959, para 33.
76 Section 19 (1).
77 Goldin J. in Potgieter v. Potgieter and Vorster v. Vorster, (1970) 3 SA 289.
78 Adultery was a punishable offence in several European countries and in England too. However it has been a long
time since it has lost recognition both as an offence and as a ground for divorce. India and several Islamic states
still recognize it as an offence.
79 Marriage Registration Ordinance, Section 19.
80 Ceylon Sessional Papers, XVI – 1959.

26
Hence it is necessary to examine the recognition of adultery as a ground for divorce in English
and Roman-Dutch law.81

Adultery is identified in English law as

“Consensual sexual intercourse between a married person and a person

of the opposite sex, who is not the other spouse, during the subsistence of
the marriage”.82

Voet defines adultery thus:

“…violation of the couch of another, that is to say the defiling of the mother
of another’s household…”,
“...may be between married man and unmarried woman, and unmarried
man and married woman.”83

Adultery is seen in South Africa as

“Voluntary sexual intercourse between a spouse and a person other than the
offender’s husband or wife.”84

There have been doubts over the legal definition of adultery. It presupposes fornicatio
carnalis, which means a carnal union between a man and a woman. It was judicially recognized
that to constitute adultery some penetration of the woman by the man must have taken place. 85
Distinguishing attempted adultery from actual adultery, Kaminski J. stated that, even though the
petitioner does not have to prove that the complete act of sexual intercourse in fact took place
between the respondent and the co-respondent, there must be evidence of some penetration. 86

81 This will be dealt with in brief, since it is extensively covered in other works (See for e.g. Bromley, P.M.-
FamilyLaw, Cretney, S. M. – Principles of Family Law, Hahlo, H.R. - South African Law of Husband and Wife.
82 Rayden – Practice and Law of Divorce, 10th ed. p.172.
83 Voet – Commentary on the Pandects, Paris ed. of 1829 – Percival Gane translation 7 (Books XLVI-L), p.382 –
383.
84 Hahlo, H. R. - The South African Law of Husband and Wife, p. 366, citing Brouwer 2.18.2, Voet 24.2.5 and Holl
Cons I No.334.
85 Thompson v. Thompson 1938 (2) All ER 727.
86 Dennis v. Dennis, 1955 (2) All ER 51, at p.55. See further Sapsford v. Sapsford, (1954) 2 All ER 373.

27
 It has been argued on this basis, that artificial insemination, even if it was performed upon
the woman without the knowledge of her husband, does not amount to adultery, since the scientific
procedure does not involve any penetration.87

Proving adultery

Adultery involves mens rea as well as the physical factor. There must be voluntary or
consensual sexual intercourse between a married person and another of the opposite sex, 88 who
is not the offender’s spouse. Even though it has been judicially recognized that the petitioner is not
required to prove the motive89 and the actual mental state of the respondent at the time of the
alleged adulterous behaviour, the conscience of the Court has to be satisfied that the respondent’s
adulterous behaviour was either voluntary or consensual.

Thus, adultery cannot be established when the respondent was raped, or her consent was
obtained by undue force or fear, or if it can be established that he or she was not mentally capable
of giving consent to indulging in adulterous behaviour. 90 Further, a charge of adultery fails where
the respondent successfully satisfies the Court that his or her mental capacity at the time was
such, that he did not know the nature or the gravity of his conduct. 91 Involuntary intoxication can
also mitigate against adultery under certain circumstances.92

Adultery may be proved in a variety of ways. Even though it is not necessary to prove the
direct fact, and on most occasions93 the fact is inferred as a necessary conclusion, the Court must
be satisfied that there was something more than a mere opportunity before it will affix guilt.94 The

87 Cretney, S. M. - Principles of Family Law, p.106.

88 The second element arouses doubt whether a sexual relationship between persons of the same sex amounts to
adultery, or if not whether it should be considered as a separate matrimonial offence, since it might endanger the
stability of the family unit.
89 Woolf v. Woolf (1931), p.134, 145 cited in Rayden – Law and Practice of Divorce, Butterworths, London, 10th ed.
1967, p.173.
90 Cretney, S. M. – Principles of Family Law, p.105.
Long v. Long (1890) 15 P.D.24.
91 Bromley, P. M. - Family Law, Butterworths, London, 6th ed,1981, p.196.
S. v. S. (1961) 3 All ER 133.
92 Cretney, S. M. – Principles of Family Law, p.106.
Bromley, P. M. – Family Law, p.196.
It has been recognized that voluntary intoxication does not nullify the mens rea of adultery.
93 Rayden – Law and Practice of Divorce, p.178.
94 Cox v. Cox (1958) 1 All ER 569.
Fernham v. Fernham (1925) LTR 543.

28
conjunction of inclination with evidence of opportunity affords strong prima facie evidence, but it
does not constitute an irrefutable presumption.95

Proof of adultery depends heavily on inferences and circumstances.96 Documents such as

hotel record books, medical confirmation of venereal disease and proof of adultery in other
proceedings are often produced as evidence 97.

Apparently, admissions of guilt are commonly used to prove the commission of adultery.
However, the Courts do not rely exclusively on uncorroborated confessions. 98 For instance in
Eliyatamby v. Gabriel,99 the case against the first defendant was basically founded on letters,
which were considered relevant evidence 100 despite the confessions contained in them.

Medical evidence, which confirms that the defendant has contracted venereal disease,
may be used to prove adultery where it can be established that such disease was not contracted
from the plaintiff.101 The defendant however may rebut such an inference, if it can be proved that
the disease was contracted before marriage. 102 Finding of adultery in previous proceedings 103 as
well as bigamy104 and rape105 have also been recognized as prima - facie evidence of adultery.

Obviously, proof of adultery demands clear evidence, and thus the petitioner’s evidence
needs to be corroborated by independent testimony.106 The petitioner’s evidence may be

95 Dennis v. Dennis (1955) 2 All ER 51.

96 Ross v. Ross 1930 AC 7.
97 Evidence of visits to a brothel also raises a presumption of adultery. See England v. England (1952) 2 All ER 874
98 Thayne Forbes - Divorce Law, London, (1972 ) 2nd ed. p.180.
See Dharmasena v. Navaratne (1967) 72 NLR 491. It should be noted that the admissions are accepted as
genuine where the confession is made by a spouse who is anxious for forgiveness, or by a defendant wife, who
has everything to lose by such a confession. See further Todd v. Todd (1943) 44 NLR 497 where genuineness of
the respondent’s admission was emphasized.
99 (1923) 25 NLR 373.
100 Ibid. Bertram C.J. at pp.375-377.
101 Morgan Evans – Law of Divorce in South Africa, Johannesburg, 1920, at p. 78.
102 Thayne Forbes – Divorce Law, at p.38.
103 For instance a declaration of illegitimacy of a child born to a married woman may be produced as evidence to
establish adultery on her part. Adultery could also be established by an order of maintenance issued on the
defendant who was proved to be the father of an illegitimate child, provided that the child was not conceived
before the marriage between the respondent and the plaintiff took place. See further Rayden – Law and Practice
of Divorce, p.188.
104 Morgan Evans – Law of Divorce in South Africa, p.77.
105 Montgomery v. Montgomery 1956 (2) SA 282, Jean Campbell v. Jean Campbell (1986) 85 SALJ 74.
106 Senat v. Senat (1965) 2 All ER 505, at 507 508, Moor v. Hewitt (1947) KB 831/(1947) 2 All ER 270, Jayasinghe
v. Jayasinghe (1954) 55 NLR 410, Persona v. Babonchi Baas (1948) 49 NLR 442.

29
corroborated by that of other witnesses or accompanying circumstances, which are in favour of the
inference.107

The statute law of Sri Lanka is silent on the quantum of proof, whether the plaintiff’s case
has to be proved beyond reasonable doubt, or whether the Court would be satisfied considering a
balance of probability. Throughout the years, different views have been taken on the standard
required for proof of adultery. The Sri Lankan Courts have been influenced by British law in the
interpretation of Section 602 of the Civil Procedure Code. 108

The burden of proof has been judicially recognized thus:

“..,. In civil proceedings the burden remains throughout the entire case where
the pleadings originally place it. It never shifts. The burden of adducing
evidence constantly shifts. But in regard to the burden of proof the party
whether plaintiff or defendant, who substantially asserts the affirmative of the
issue has the burden of proof.” 109

There were different views on the standard of proof. The same strict standard, which was
required for criminal offences, was also applied earlier when adultery was considered as a quasi-
criminal offence.110

A different view was taken in Davies v. Davies,111 where the Court distinguished between
the civil and criminal standard of proof as follows:

“… A suit for divorce is a civil and not a criminal proceeding. One would expect,
therefore, to find that in the ordinary way the rules of civil procedure and not the

107 Moor v. Hewitt (1947) 2 All ER 270.

108 Reliance on English decisions may be justified for two main reasons.
One reason may be found in relation to Section 100 of the Evidence Ordinance which states that ‘whenever in a
judicial proceeding a question of evidence arises, not provided for by this ordinance or by any other law in force in
Ceylon, such questions will be determined in accordance with the English law of evidence for the time being’.
On the other hand it may be justified on the ground of similarity of the two statutory provisions i.e. Section 602 of
the Civil Procedure Code and Section 178 (2) of the Supreme Court of the Judicature Act (1925) of England as
substituted by the Matrimonial Causes Act of 1937.
109 The King v. Vidanalage Abraham Appu (1939) 40 NLR 505 at p.510.
110 Churchman v. Churchman 1945 (2) All ER 190, at p.195.
See further: Walt (or Thomas) v.Thomas 1947 (1) All ER 582, Ross v. Elison (or Ross) (1930) AC 1,
Ginessi v. Ginessi 1948 (1) All ER 373.
111 1950 (1) All ER 40.

30
 rules of criminal procedure would apply to divorce suits……...The same
stringency is not necessarily called for in divorce suits, or at any rate in divorce
suits on the ground of desertion, where the Court is concerned not to punish
anyone, but to give statutory relief from a marriage that has broken down.” 112

The issue of quantum of proof was discussed in Gower v. Gower,113 where Bucknill L. J.
held that a divorce action based on adultery, which is necessarily a civil action, may be proved
even on circumstantial evidence, provided that the evidence is “inconsistent with any reasonable
hypothesis other than the guilt of the accused.” 114 Criticizing the Judgment in Ginesi v. Ginesi,
Denning L. J. stated that the Court did not regard adultery as a “criminal charge to be proved
beyond reasonable doubt.” 115

In Bastable v. Bastable and Sanders,116 the decision of the trial judge with regard to
adultery was inferred on minimal circumstantial evidence. Following judicial precedent, Willmer L.
J. found direction in the judgment of Denning L. J. in Bater v. Bater,117 where it was held that the
Court should require a degree of probability proportionate to the subject matter . Following this
direction it was established, that adultery needs to be proved on a balance of probability, but with
clearer evidence than what is required for other matrimonial offences.

The South African law prior to the introduction of its non-fault-based divorce has always
insisted on clear evidence of adultery.118 In Truter v. Truter,119 Selke J. emphasized the gravity and
probable consequences of adultery for both the respondent and the co-respondent, and the
consequent necessity of evidence clearer than an intention or an opportunity to commit adultery. In
Gates v. Gates,120 it was held that “the standard or quantum of proof required is the civil standard

112 Ibid. Lord Denning at p.42 [referring to Mordaunt v. Moncreiffe (1874) 30 L.T.649]. Even though the decision in
Ginessi v. Ginessi [1948(1) All ER 373] was distinguished, the Court did not provide any basis for distinguishing
adultery from cruelty and desertion which are also matrimonial offences that provide a basis for dissolution of
marriage. The Court did not want to overrule the decision in Ginessi v. Ginessi, nor did it want to dramatically
change the existing recognition of adultery as a matrimonial offence. However, the emphasis on the necessity to
proceed with divorce actions in accordance with the rules of civil procedure as opposed to rules of criminal
procedure was obvious.
113 1950 (1) All ER 804.
114 Ibid at p. 805.
115 Ibid. at p. 806.
116 1968 (3) All ER 701.
117 1950 (2) All ER 458, at p. 459.
118 Steytler v. Steytler (1907) 17 CTR 925.
Ricketts v. Ricketts (1922) CPD 335.
Truter v. Truter and Another 1938 NPD 250.
119 1938 NPD 250.
120 (1939) AD 150, at p. 154 – 155.

31
of preponderance of probabilities, and not the criminal standard of proof beyond reasonable
doubt.”121 In Van Deventer v. Van Deventer,122 Miller J. affirmed that inference might be reached
upon the circumstances of desire, willingness and opportunity to commit adultery, provided that
such circumstances are cogent enough to satisfy the Court. It was held that adultery needs “a
slightly more onerous burden than proof on a preponderance of probabilities” 123

Accordingly, it may be asserted that the South African law required proof on the
preponderance of probability with due caution, to establish adultery.

The position of Sri Lankan law was analyzed in Jayasinghe v. Jayasinghe.124 The case
against the defendant was based entirely on circumstantial evidence. Emphasizing the
requirements of Section 602 of the Civil Procedure Code, Gratiaen J. held that “satisfied on the
evidence,” which has been taken over from Section 178 of the Supreme Court of Judicature Act of
1925, necessitates “proof beyond reasonable doubt”. 125 The Supreme Court went on to hold in
Dharmasena v. Navaratne ,126 where divorce was granted by the trial Court mainly on a confession
made by the defendant wife immediately after the alleged incident, that adultery needs to be
proved beyond reasonable doubt.

Up to this point in time Sri Lankan Courts demanded proof beyond reasonable doubt with
regard to adultery as a matrimonial offence, as is required to support a conviction in a criminal
Court. This resembled the standard recognized by the early English Courts.

However, the Supreme Court took a different view with regard to proof of adultery in
Gunasekera v. Gunesekara. 127 The Court held that, according to a view that has gained ground
since the decision in Blyth v. Blyth,128 the standard of proof in all such cases must be by a
preponderance of probability, but that the degree of probability must be commensurate with the
gravity of the issues involved. Rejecting the idea that adultery should be considered as a criminal
offence, Justice Weeramantri emphasized that proof of adultery should never be treated lightly,

121 Watermayer J. at p.154 -155.

122 1962 (3) SA 969.
123 Ibid.
124 (1954) 55 NLR 410.
125 Ibid at p. 414.
126 (1967) 72 NLR 491.
127 (1970) 79 CLW 71.
128 1966 (1) All ER 124.

32
and stressed the importance of placing adequate weight on the gravity of the offence as well as
the probable consequences.129 A similar view was expressed in Alarmalammal v. Nadarajah. 130

Since the decision in Gunasekera v. Gunesekera131, the Sri Lankan Courts have moved
away from the highest standard with regard to proof of adultery. However, a proportionately high
standard of probability is always insisted upon.

A reversal of this progressive move however could be detected in the judgement of the
Court of Appeal in Punchinilame v. Kusumawathie132 which is as follows:

“ The degree of proof has to be commensurate with the gravity of the offence. What the
law requires is evidence of proof of sexual intercourse between the 1 st and 2nd defendants. The
general standard of adultery is proof beyond reasonable doubt as is required to support a
conviction in a criminal Court.”133

Justice Ranarajah was following the decision in Jayasinghe v. Jayasinghe,134 and did not
consider the views expressed by the Supreme Court in Gunasekera v. Gunesekera.135 This
omission raises doubts whether the Court of Appeal in fact intended to adhere to the higher
standard of proof with regard to adultery, or merely omitted to refer to the later decisions.
Whatever has influenced the judgment, the interests of contemporary society have not been
considered, where matrimonial fault is rapidly losing its validity as the basis of divorce.

According to Ponnambalam, the varying degrees of proof are regarded as a necessity

“not by the nature of the divorce action which is sui generis but rather by the object sought to be
achieved and the policy considerations which sustain the action, which in turn is founded on the
general social policy of a given legal system.” 136

129 (1970) 69 CLW 71 at p.72.

130 (1972) 76 NLR 56.
131 (1970) 79 CLW 71.
132 C.A. No 483/ 91, (Unreported) decided on 27.5.96, Bar Association (Sri Lanka) News Letter – October 1996.
133 Ibid. Justice Ranarajah.
134 (1954) 55 NLR 410.
135 (1970) 79 CLW 71.
136 Ponnambalam, S. - Law and the Marriage Relationship in Sri Lanka, at p. 317.

33
 In Ginesi v. Ginesi,137 where the requirement of proof beyond reasonable doubt was
enunciated in clear terms, the focus was clearly on the quasi-criminal nature of the offence of
adultery. The Courts sought to preserve morality through a high standard of proof. 138

It may be asserted that the argument based on the ‘gravity of the offence’ does not hold
good, since adultery is usually a symptom rather than a cause of marital breakdown. A higher
standard of proof could not be expected to preserve the sanctity of marriage, nor does it act as a
guard against marriage breakdown. 139

A strict standard of proof has also been favoured on the basis of potential legal and social
consequences attached to the offence of adultery. One of the main considerations is the
declaration of illegitimacy of an innocent person that could follow the finding of adultery. The
Courts should consider the bitter consequences that invariably affect an innocent child who is
recognized in law as illegitimate. The proper approach however would be the equation of the
status of an extra-marital child to a child born in wedlock or the abolition of the concept of
illegitimacy, rather than insisting on a strict standard of proof on the charge of adultery. Unless the
proper procedural measures towards that end are taken through legislative and judicial law
making, it is unlikely to generate the desired outcome through a high degree of proof in divorce
actions.

A different consideration of public policy requires, that just as the punishment varies with
the gravity of the offence, so ought the proof. J.A.Coutts points out that the requirement of the
higher standard was a measure of mercy “thrown to those who were potentially liable to
punishment at the suit of the crown.”140 Even though such consideration of public policy may
validly be applied for criminal offences, which are considered offences committed against the state
or society, it does not hold reason or validity in proceedings taken by one individual for the
purpose of obtaining redress against another. 141 It may be asserted further, that even though this
reason could have applied centuries ago when adultery was seen in the light of a quasi–criminal
offence by the Ecclesiastical Courts, such a consideration cannot be expected from contemporary
society. The ultimate recognition of the reality that a strict standard of proof does not contribute to

137 1948 (1) All ER 373.

138 Coutts, J.A. – The Standard of Proof of Adultery, Vol. 65 L.Q.R. 220, at p. 222.
139 Cretney, S. M. - Law Reform (Miscellaneous Provisions) Act. 1970 - (1970) 33 M.L.R. 534, at p.541.
140 Coutts, J.A. – The Standard of Proof of Adultery, (1949) Vol. 65 L.Q.R. 220 at p. 224.
141 Ibid. at p. 224.

34
preserve the sanctity of marriage, or to uphold its public repute in any observable way, should alter
the standard of proof.

Moreover, it may be argued that it would be illogical for a Court to adopt double standards
on proof of matrimonial offences, i.e. to accept adultery only if it is proved beyond reasonable
doubt, and yet to be satisfied with cruelty by a lesser degree. 142 It is indeed the duty of the Court to
communicate the intention of the legislature, which decides on policy. The distinction between
adultery vis a vis other offences cannot be justified, since the other grounds also bear an impact
on the sanctity of marriage, and none the less are recognized by the same statute.

Involvement of the co-defendant

In an application for divorce based on adultery, the plaintiff is bound to make the alleged
adulterer a co-defendant to the action, unless upon application he is excused by the Court from so
doing under the following circumstances:143

I. the defendant is leading the life of a prostitute, and the plaintiff knows of no person
with whom the adultery has been committed;

II. the name of the alleged adulterer is unknown to the plaintiff, although he has made
due efforts to discover it;

III. the alleged adulterer is dead.

Consequently, a plaint will be rejected unless it is clear and explicit that the plaintiff could
be excused on any of the grounds stipulated therein. 144

Where, however, the defendant wife has committed adultery with several persons, the
husband is under no obligation to make these persons parties to the action, unless adultery

142 Coutts, J.A. – The Standard of Proof of Adultery , (1949) Vol. 65 L.Q.R. 220 at p.228.
143 Section 598 of the Civil Procedure Code. See further Joslin Nona v. Samaranayake, (1948) 49 NLR 381 and
Ziegan v.Ziegan, (1891) 1 SCR 3. In Annakedde v.Myappen [(1932) 33 NLR 198], the Court held that the alleged
adulterer should be made a party even in a claim in reconvention.
144 Amarasekera v. Amarasekera (1925) VI CLR 119.

35
committed with any one of them is cause of the action. 145 Moreover, where the only adultery put in
issue is the adultery alleged between the two defendants it is not open to the judge, on finding that
the allegations has not been established, to base his decree on adultery with a person unknown
without an allegation made to that effect and an issue raised upon it. 146

Prior to the amendments made to the Civil Procedure Code, only a male co- respondent was
required to be made a party, and the provisions in Section 598 did not enable a woman seeking
divorce to join an alleged adulteress as the co-respondent. Consequently the wife had neither the
duty nor a comparable right to name the woman with whom her husband had committed
adultery.147

This unwarranted discrimination has been remedied by the introduction of Section 599 A, 148
which states that the provisions of Sections 598 and 599 shall, mutatis mutandis, apply to a
petitioner wife as well, where adultery of the husband is a cause of the action.

Damages: a claim against a third party

The doctrine of matrimonial fault, which recognizes adultery as the most serious offence a
married person can commit against the spouse, necessarily encompasses the concept of
damages.149 Where it is recognized that a husband has rights in the body and services of his
wife,150 adultery with another’s wife is regarded as an injuria against the husband entailing

145 Basnayake J. in Karunatillake v. Karunatillake (1951) 52 NLR 300 at 302.

146 Blok v. Blok (1940) 42 NLR 70.
147 The distinction could not be justified since the participation of the alleged co-respondent involves both the right to
defend oneself and the duty to bear the responsibility and consequences of one’s own actions, neither of which
could be denied on the basis of gender. However, De Sampayo J. has held in Alloe Nona v. Manuel Perera
[(1920) 2 CLR 182 at p.183] that it is not justifiable to allow to place a woman in the position of a co-defendant. It
raises doubts as to whether it is justifiable to continue with this ideology in contemporary society, where the
status of women is no longer inferior to that of men.
148 By Act No. 20 of 1977.
149 The law on damages is discussed briefly, since this is extensively dealt with in other works.
See Amerasinghe, C.F. – Aspects of the Actio Injuriarum in Roman-Dutch Law, Colombo, 1966; Ponnambalam,
S. – Law and the Marriage Relationship in Sri Lanka; de Soysa S. – Marriage Breakdown and the Duty of
Support, Colombo, 1985 – Goonasekera, S. – “ûÔ÷ÀßèÙ ùÛõÚ×”, Gunasena - Colombo,1980.
150 Ewer v. Ewer and Charlton, (1920)123 LT 240 at p.241.

36
damages for wounded feelings.151 Accordingly, a plaintiff may claim damages basically on two
grounds, 152 i.e.
(a) For the injury or contumelia inflicted upon the plaintiff.153 Accordingly, sentimental
damages sustained as a result of the contumelia or insult may be claimed against a
co-respondent.154

(b) For the loss of consortium,155 i.e. the damage caused by the prolonged loss of love,
companionship and assistance of the other spouse. 156

In Alles v. Alles,157 the Privy Council held that in Sri Lanka the award of damages against
the respondent is basically governed by the following considerations:

(a) The actual value of the wife to the husband.

(b) Compensation to the husband for the injury to his feelings, the blow to his marital
honour and the loss of his matrimonial and family life.158

The objectives sought through the award of damages against a co-respondent vary with
the jurisprudence in each legal system. This variation can be justified since sentimental damage is
difficult to assess and essentially involves sociological factors.

It is statutorily recognized that the Court is empowered to withhold even nominal damages
under certain circumstances.159

151 Amerasingh, C.F. – Aspects of the Actio Injuriarum in Roman-Dutch Law, pp.68-75.
152 Viviers v. Kilan (1927) AD 449.
153 Hahlo, H.R. -The South African Law of Husband and Wife, p. 385.
154 Amerasinghe, C.F. - Aspects of the Actio Injuriarum in Roman-Dutch Law, p.136.
155 It has been judicially recognized that the concept of consortium has been listed so as to include companionship,
love, affection, comfort, mutual services and sexual intercourse. See Diemer v. Soloman (1982) 4 SA 13.
156 Hahlo, H.R. - The South African Law of Husband and Wife, p.385.
157 (1950) 51 NLR 416. This was followed by the Privy Council in Dean v. Anthonisz (1953) 54 NLR 538.
158 The Privy Council again upheld this assertion in Perera v. Halvatura (1957) 59 NLR 233.
159 Proviso to Section 612 (1) of the Civil Procedure Code.

37
2.iii (B) Malicious desertion

The concept of malicious desertion, which is believed to have originated in Roman-Dutch

law, 160 is recognized as a ground for divorce under the general law of Sri Lanka.161 Early English
law sanctioned a similar concept known as wilful desertion, 162 which was later replaced by
malicious desertion in the Matrimonial Causes Act of 1937. 163

Since it is not defined statutorily, the Courts appear to act with hesitation on analyzing the
term.164

It is recognized in Roman-Dutch law that malicious desertion means a desertion of one

party by another for a length of time without any cause, or intention of returning. 165 Curlewis J.
observed in Walters v. Walters,166 that separation or abandonment does not amount to malicious
desertion, where the plaintiff has provided sufficient cause for the other spouse to desert.

English law defines desertion as ‘an active withdrawal from the existing state of
cohabitation,’167 which would necessarily demonstrate a deliberate purpose of abandoning the
conjugal society, though such abandonment need not be for any specific period. 168 Accordingly
the abandonment should have been deliberate, without reasonable excuse and against the
deserted spouse’s consent.169 Evidently the Court has emphasized the importance of
differentiating between desertion, which would cause dissolution of marriage, and gross neglect or
chronic discord.170 These questions have to be decided according to the circumstances of each
case. 171

160 Bertram C.J in Silva v. Missinon (1924) 26 NLR 113, at p 115-116.

161 Section 19 of the Marriage Registration Ordinance No.19 of 1907.
162 Bale C.J. in James v. James (1901) NPD 265-266.
Castle v. Castle, (1918) NPD 306.
163 See Section 2.
164 Ledimo v. Ledimo 1940 OPD 65.
165 Simon Van Leeuwen - Censura Forensis – Part 1, Book 1,Commentaries on Roman-Dutch Law, Schreiner
translation, Juta 1883, p.120.
166 (1911) T.P.D. 42.
167 Pape v. Pape (1887) 20 QBD 76.
The Queen v. Leresche (1891) 2 QBD 418.
Fitzgerald v. Fitzgerald, (1869) Law Rep. 1 P & D 697.
168 The Queen v. Leresche (1891) 2 QBD 418.at p.420.
169 Pape v. Pape (1887) 20 QBD 76.
The Queen v. Leresche (1891) 2 QBD 418.
Fitzgerald v. Fitzgerald, Law Rep.1. P& D 697.
170 Denning L.J. in Hopes v. Hopes (1948) 2 All ER 920 at p.925.
171 Cohen v. Cohen (1940) 2 All ER 331, at p.339.

38
 English law focused mainly on the intention of the deserting spouse to bring the marital
relationship permanently to an end,172 which could be proved by the circumstances of each case.
The Courts had to be satisfied that the circumstances corroborate the intention of the deserting
spouse to abandon the conjugal society permanently. Physical separation therefore was a
rebuttable presumption, and desertion could not be established exclusively on physical
separation.173

Sri Lankan law, which is largely influenced by English and South African decisions, has
identified malicious desertion as a complete cessation of cohabitation by one spouse with the
intention to desert the other permanently, 174 without any justifiable cause175 and against the other
spouse’s wish.176

In Silva v. Missinona,177 the Supreme Court of Sri Lanka recognized malicious desertion
as a “very definite and unmistakable thing”.178

Manifestly, malicious desertion consists of two principal elements, these being

(a) Factum, i.e. an actual departure from the matrimonial home, or non-
fulfilment of the conjugal obligations, and
(b) Animus, which is expressed by a fixed determination to bring the marriage
relationship to an end.
Since the causal connection between these elements creates the offence, it is necessary
to scrutinize and evaluate the entire situation which caused the ultimate desertion. Hence it has
been the practice to evaluate all the circumstances and arrive at a decision. 179

172 Perry v. Perry (1952) 1 AllER 564.

173 Naylor v. Naylor (1961) 2 All ER 129.
Hopes v. Hopes (1948) 2 All ER 920.
Smith v. Smith (1939) 4 All ER 533.
Wilkes v. Wilkes (1943) 1 All ER 433.
Angel v. Angel (1946) 2 All ER 635.
174 Attanayake v. Attanayake (1937) 8 CLW 4.
175 Silva v. Carlinahamy (1922) 23 NLR 344.
Ramalingam v. Ramalingam (1933) 35 NLR 174.
176 Ramalingam v. Ramalingam (1933) 35 NLR 174.
177 (1924) 26 NLR 113.
178 Ibid. Bertram C.J. at p.117.
179 Rajeswararani v. Suntharasa (1962) 64 NLR 366.

39
The ‘Factum’

Factum means physical separation or non-fulfilment of conjugal obligations. On the basis

of factum, malicious desertion may be categorized as simple desertion and constructive desertion.

The factum of simple desertion may be established either by actual or physical

separation, or by proof of denial of marital privileges on the part of the deserting spouse.

Actual separation can occur mainly in two forms, i.e. when one party leaves the
matrimonial home without consent of his or her spouse, such party is presumed in law to have
deserted the latter. Under such circumstances, desertion is considered to have continued from the
time when such party left the matrimonial home until he or she actually returns, or genuinely offers
to return.180

Desertion could also occur where spouses have consensually separated temporarily for a
justifiable reason, but thereafter continue to remain separate with intent to cease cohabitation. The
justifiable separation turns into malicious desertion with the change of intent, and the spouse who
changed his or her state of mind is presumed to have deserted the other. The desertion however
commences when the intent shifted from the state of bona fide to that of mala fide.181

The recognition of the denial of marital privileges as a form of malicious desertion

originated in Roman-Dutch law. As Voet182 states, “A spouse who, persistently and without good
reason refuses to allow the other spouse of the marital privileges, is guilty of malicious desertion.”

This is based on the recognition that procreation is a basic right and duty of marriage, and
it amounts to desertion where the right is denied by one party to the other without a reasonable
cause. Sri Lankan Courts have decided that where there was no consummation of the marriage
owing to the wilful refusal of one party to copulate, the other is entitled to divorce on the ground of
malicious desertion. 183

180 The Queen v. Leresche and another (1891) 2 QB 420.

Silva v. Missinona (1924) 26 NLR 113.
181 Rajeswararani v. Sunthararasa, (1962) 64 NLR 366. The Court focused on the change of mind and not on the
exact point in time when it happened.
182 Voet, – Commentary on the Pandects, 24.2.7
183 Wijeratne v. Wijeratne (1946) 47 NLR 324.

40
 However, a refusal of sexual intercourse would amount to desertion only if the privilege is
denied without a justifiable reason,184 and as long as cohabitation is continued, a mere refusal of
sexual intercourse by one spouse does not constitute desertion. 185 Imposition of an unreasonable
condition in this regard has not been considered a justifiable excuse, 186 on the basis that the
conduct of the spouse who imposes the condition would be no different from an outright refusal of
marital privileges.187 This concept has been interpreted widely so as to include refusal to have
intercourse without contraceptives as an unreasonable condition. 188

It may be assumed however, that as the Courts do not apply rigid rules in this regard, the
issue whether the refusal in question amounts to a mere refusal or a denial of marital privileges
would be considered in the light of the varied circumstances of each case, i.e. the age and health
of the spouses, the number of children the couple already have and their capacity to care for more.

Constructive malicious desertion

The doctrine of constructive malicious desertion evolved in English law as a result of

judicial construction.

This concept was recognized on the justifiable presumption that the party, who behaved in
a manner that compelled the other spouse to leave the matrimonial home, is deemed to have
intended the consequences of his behaviour.189 Thus the main focus is not on the party who
actually left, but on the party who is responsible for the ‘state of things’, which made it impossible
for the other to continue to live in the matrimonial home. It was held in Sickert v. Sickert190 that, as
long as the essential ingredient of desertion, namely cessation of cohabitation accompanied by an
intention to terminate the marital relationship, is proved, it is immaterial who actually left the
matrimonial home.191

184 The age and health of the spouses, and their capacity to care for more children, are among the reasons
considered as acceptable excuses. See Hahlo, H.R. - The South African Law of Husband and Wife, 4th ed. p.
398.
185 Weatherley v. Weatherley (1947) 1 All ER 563.
186 Wyndham-Quin v. Wyndham-Quin (1978) 1 SA 461.
187 Ibid.
See further Annual Survey of South African Law, 1978, pp. 94 -95.
188 W. v. H. (1965) 3 SA 740.
189 Hosegood v. Hosegood (1950) 66 TLR 735.
190 (1899) 15 TLR 506.
191 Ibid.

41
 Accordingly, the party who asserts constructive malicious desertion on the part of his or her
spouse, should establish that

(a) the defendant’s conduct was such that the plaintiff could not have reasonably been
expected to continue to live with the defendant; and
(b) the defendant’s intention to bring the marriage permanently to an end could be
deduced from his or her behaviour. 192

A plaintiff is not expected to prove the causal nexus between the behaviour and the
intention on the part of the defendant. However, the Court would not make a finding of constructive
desertion unless it is proved, that the defendant’s conduct was grave and equivalent to an intent to
desert.

Accordingly, it may be asserted that the concept of constructive desertion is based on the
presumed intention drawn from the behaviour of the spouse who is alleged to have constructed
the desertion. It was clearly expressed in Van Rooyen v. Van Rooyen, 193 that the plaintiff does not
have to prove physical expulsion and that it was sufficient to prove that it was the defendant’s
conduct which caused the plaintiff to leave.

Desertion under the same roof

Judicial construction has widened the meaning of malicious desertion to include a complete
cessation of cohabitation under the same roof. The withdrawal from the common life, which is
fundamental to married life, is the basic element of the offence. Consequently one is not precluded
from asserting desertion by the mere fact that the spouses were residing in the same premises. If
the conscience of the Court can be satisfied that the parties no longer cohabit as husband and
wife in a ‘common household’, and they intend to live separately, desertion can still be established,
notwithstanding their place of residence.

192 Buchler v. Buchler (1947) 1 All ER 319.

193 (1927) CPD 266.

42
 Boundaries of the offence of desertion were widened initially in Powell v. Powell,194 where it
was held that desertion could still occur, although both parties were living under the same roof, but
in separate tenements. The judiciary went further in Smith v. Smith195 to hold, that desertion does
not necessarily require the parties to live in separate tenements.

In both instances, the focus was on the question whether the parties have in fact been living
together as husband and wife, and the fact of their residence under the same roof was not
accorded more significance than a rebuttable presumption of a common life. As Sir Henry Duke 196
observed, the significance lies not in the physical separation but in the withdrawal from a ‘state of
things’.

The requirement of the common household, which distinguishes mere separation from
desertion, was described in Hopes v. Hopes197 thus:

“That line is drawn at the point where the parties are living separately
and apart. In cases where they are living under the same roof, that point is
reached when they cease to be one household and become two households or in
other words, when they are no longer residing with one another or cohabiting with
one another.”198

‘animus deserendi ’

‘Malicious intent’ on the part of the alleged deserter to bring the marriage to an end is an
integral part of the offence of desertion. A wilful, deliberate and final abandonment of the
matrimonial home becomes malicious unless a legal justification of such abandonment is proved
to the satisfaction of the Court.199 Malicious desertion implies a ‘deliberate, wholly unreasonable,
definite and final repudiation of the obligations of the marriage state,’ 200 and it ‘involves a wilful and

194 (1922) 128 LT 26.

195 (1939) 4 All ER 533.
196 In Pulford v. Pulford (1923) 128 LT 256.
197 (1948) 2 All ER 920.
198 Ibid. at p.925.
199 Ramalingam v. Ramalingam (1933) 35 NLR 174.
200 Silva v. Missinona (1924) 26 NLR 13.

43
deliberate abandonment of the conjugal society.’201 However, from the moment when animus
deserendi supervenes, even a consensual separation changes into malicious desertion. 202 The
difference between bona fide separation and malicious desertion lies in the intent of the defendant,
and not in the physical separation.

Intention on the part of the deserting spouse to leave the other and live separately from him
or her without any reasonable cause, 203 sine animo revertendi could be cited as an important
feature of malicious desertion. 204 Dove-Wilson J. emphasized the required proof of ‘settled
determination’ on the part of one spouse to desert the other, which would thus ‘defeat the very end
of marriage’.205

In Q v. Leresch, Lopes J.206 emphasized the importance of the deliberate purpose on the
part of the defendant to abandon the conjugal society. This provision has since been followed in
South Africa207 as well as in Sri Lanka. The required standard in Sri Lankan law can be identified
in Silva v. Missinona,208where sine animo revertendi of the alleged deserter was insisted on.209

Prof. Goodhart210 has identified three alternative approaches on the proof of animus.

1. The search for the true intention of the defendant.

Malicious intent is identified in the true intention to desert and the defendant’s right to prove
his bona fide intent is given high recognition. According to this approach a defendant is not held
guilty unless it is proved that he intended the drastic consequences of his behaviour. The damage
done to the petitioner or the actual condition of the marriage relationship is not considered as vital.

201 Basnayake C.J. in Rajeswararani v. Sunthararasa (1962) 64 NLR 366, at p.369. See further Goonewardene v.
Wickramasinghe (1932) 34 NLR 5.
202 Halsbury’s Laws of England, 4th ed, para 58.
203 Walters v.Walters (1911) T.P.D. 42.
Van Vuuren v. Van Vuuren 1940 N.P.D. 170.
204 Fitzgerald v. Fitzgerald (1869) L.R., 1 P & D, 694 as cited in Van Vuuren v. Van Vuuren, 1940 N.P.D. 170 at p.
175.
205 Van Vuuren v. Van Vuuren 1940 N.P.D. 170.
206 (1891) 2 Q.B.D. 420.
207 Justice Lopes’s words were quoted by Wragg J. in his judgement in Boyer v. Boyer (1894) XV Natal Law
Rep. 124; at p.126.
208 (1922) 26 NLR 113.
209 See also Rajesvararani v. Sunthararasa (1962) 64 NLR 366, Basnayake C.J. at p.369.
210 Goodhart, A.L. – Cruelty, Desertion and Insanity in Matrimonial Law, 79 L.Q.R. 98 at p.112.

44
 Even though this high standard of proof is feasible to a certain extent in simple desertion, it
cannot be regarded as an appropriate standard in constructive malicious desertion.

2. Under the second approach the intention is established by the presumption that ‘a person
intends the probable consequences of his act.’ The petitioner is not in fact bound to prove the
malicious intent on the part of the defendant, since it is presumed that the latter ought to have
foreseen the consequences of his own behaviour.

The presumption could be rebutted by strong evidence through which the defendant
should convince the Court that, even though he ought to have foreseen the consequences of his
behaviour, he did not, in fact, intend to bring the marriage to an end.

The intention of the defendant is looked at from a subjective standpoint and divorce is
granted on the probability of evidence, which explains the moral capacity of the defendant
concerned.

3. According to the third approach, the wrongful intent on the part of the defendant is inferred
without variation. Once the behaviour of the defendant is established as a final repudiation of the
marriage relationship, the Court irrefutably presumes that he intended the consequences of his
conduct.

It is clear that this construction of the law favours the petitioner, whereas the defendant is
denied an opportunity to explain his actual intent. The Court focuses only on the injury done to the
petitioner.

This interpretation does not appear to reflect either the doctrine of fault or the breakdown of
marriage. If the contention was based on the concept of fault, the mental element of the offender
should have been considered. If, on the other hand, divorce is granted as a relief to parties of a
broken marriage, the actual state of the marriage should be verified, without placing undue weight
on the party who is unconditionally presumed to be guilty.

45
 Moreover, this raises doubts whether the defendant is still presumed to have intended the
consequences of his behaviour, even where the injury was caused by an act which was not
directly connected to the plaintiff.211

‘Animus deserendi’ in constructive malicious desertion

In constructive desertion, the defendant must be shown to have been guilty of conduct
equivalent to driving the other spouse away from the matrimonial home, and to have done so with
the intention of bringing the matrimonial consortium to an end. 212

A practical difference exists in the proof of the mental element between constructive and
simple desertion. The quantum of proof of animus is higher in constructive desertion than in simple
desertion. In constructive desertion, the plaintiff who has in fact left the matrimonial home, is
bound to prove that even though he or she left, it was the defendant who deliberately intended to
put an end to the marriage through his immoral or wrongful behaviour. According to judicial
construction, “the Court must be satisfied that the conduct of the husband (defendant) was such as
to show a clear intention on his part to drive the wife away.”213

Since constructive desertion may be identified as a justifiable fiction based on reasonable

assumption of the facts of the offence, 214 the judicial foresight should reach beyond the statutory
limits. Hence before arriving at a decision, the Court should be satisfied that it was the behaviour
of the defendant which forced the petitioner out, and that it is justifiable to presume that he
intended the consequences.

As Lord Asquith stated in Buchler v. Buchler215 “…. To say that the petitioner must
establish conduct by the respondent which has made it practically impossible for the parties to live
properly together or which ‘drove the petitioner out’ is to propound a criterion too vague to be very
helpful.”216

211 Ibid. at p.112. Suppose the defendant hurts a third party, which disturbs the plaintiff, is the defendant still
presumed to have intended the consequences of his behaviour ?
212 Buchler v. Buchler (1947) 1 All ER 319.
213 Boyd v. Boyd (1938) 4 All ER 181, at p.182.
214 Goodhart, A.L. - Constructive Desertion, (1955) 71 L.Q.R. 32 at p.34.
215 (1947) 1 All ER 319.
216 Ibid. at p. 326.

46
 The majority of cases fall between these limits, necessarily imposing on the Courts the
duty of ascertaining whether the behaviour manifests the required animus.

There are two schools of thought on establishing animus in constructive malicious desertion. 217

1. According to one school, the defendant is not to be found guilty, however bad his
conduct, unless it is proved that he had in fact an intention to bring the married life to an
end.218

This school has come under criticism on the basis that it allows a guilty spouse to
defend himself or herself, on the assertion that he or she did not intend the other spouse to
leave; despite the unbearable situation he or she has created. 219

2. The other school says that even if the husband’s conduct is so bad or so unreasonable
that his wife is forced to leave him, he must be presumed to intend her to leave, and he is
guilty of constructive desertion, however much he may in fact desire her to remain. 220 The
presumption however is refutable by strong evidence.

This theory was subjected to criticism on the grounds that it does not emphasize the true
animus which is an essential requirement of the offence, and that it may influence the indirect
introduction of other grounds which are not recognized in law as grounds for divorce, i.e. habitual
drunkenness, habitual crime etc.221 Lord Denning was of the view that since “presumption of
intention is not a proposition of law but only a proposition of ordinary good sense” the Court should
not apply it mandatorily.222

In Lang v. Lang,223 where both these schools were considered, the House of Lords
applied the hypothetical test of the ‘reasonable man’. One of the main issues to be decided was
whether the doctrine of constructive desertion encompasses a course of conduct which any

217 Lord Denning in Hosegood v. Hosegood (1950) Vol. IXVI, TLR 735.
218 This view was expressed in the earlier case of Boyd v. Boyd (1938) 4 All ER 181 by Bucknill J. at p.182, and also
in Bartholomew v. Bartholomew (1952) 2 TLR 934.
219 Goodhart, A.L. - Constructive Desertion, (1955) 71 L.Q.R. 32.
220 Goodhart, A.L. – Cruelty, Desertion, and Insanity in Matrimonial Law – (1963) 79 LQR. 98.
Hosegood v. Hosegood, (1950) Vol. LXVI TLR 735, at 738.
This principle could also be found in Sickert v. Sickert (1899) 15 TLR 506 and Edwards v. Edwards (1948) 64
TLR 61.
221 Hosegood v. Hosegood (1950) IXVI TLR 735.
222 Ibid. at p.738.
223 1955 AC 402.

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reasonable man would regard as calculated to bring about such a result in the absence of an
express, as opposed to a constructive intent to bring the matrimonial consortium to an end. 224 It
was unanimously accepted by the House of Lords that the presumption of animus deserendi
should not be applied irrefutably.225

A third school has been proposed by Rossen,226 who observes that neither of the earlier
mentioned schools concentrates on the actual situation the law seeks to remedy. According to this
analysis, what the Court should really look for is not the state of mind of the alleged deserter, but
the circumstances experienced by the petitioner. It has been emphasized further that the solution
to this problem lies in the answer to the question whether the complainant had a just cause for
leaving. Even though Rossen does not deny the importance of intent, it is believed that more
weight should be placed on the acts themselves than on the consequences. 227

Dias, who favours intended consequences as opposed to intended acts, states thus:
“… all that suffices is that one party should do an act, which he as a reasonable person
ought to realize would inevitably drive the other out. An intention to drive out is imputed
objectively.”228

Sri Lankan Courts adopt the first two schools of thought regarding proof of animus. The
first school was applied in Rajeswararani v. Sunthararasa. 229 In Canekeratne v. Canekeratne230the
initial separation was consensual. The Court, applying the same approach, held that under such
circumstances animus deserendi should be clearly established.

It appears that the Court of Appeal has favoured the second approach in Punchinilame v.
Kusumawathie231 where it was held, that a person who behaves in such a manner as to subject
the other spouse to mental cruelty commits constructive desertion. As Ranaraja J. observed “…A
baseless charge by the husband against his wife of adultery in a divorce case is a sufficient reason

224 Ibid. at p.409.

225 Ibid. at p.427.
226 Rossen - Matrimonial Offences, 2nd ed. at p. 48, cited by Frank Bates – Animus deserendi in constructive
Desertion, (1970) 33 M.L.R. 144 at p. 146.
227 Ibid. at p. 50.
228 Dias, R.W.M. – Jurisprudence, London, Butterworths, (1976), 4th ed. at p. 262.
229 (1962) 64 NLR 306, Basnayake C.J. at p. 369.
230 (1961) 66 NLR 380.
231 Court of Appeal No. 483/91 (F) (unreported), Bar Association of Sri Lanka News Letter, October 1996.

48
for refusal by the wife to live with the husband…and such an unfounded allegation amounts to
mental cruelty and constructive malicious desertion..”232

Even though the Courts may adopt different approaches, it is vital to establish animus
deserendi on the part of the defendant. The Court has to be satisfied that the forsaking and
abandonment by one spouse of the other233 is so grave that no inference other than intention to
desert could justifiably be made in the circumstances. Nevertheless, the District Courts sometimes
grant divorce on desertion, even where the separation does not appear to be malicious. 234

In deciding animus deserendi the Courts may consider the general conduct of the
defendant, his expressed or implied motives, the conduct and specifically the response of the
plaintiff, social and economic conditions of both the parties, history of the marriage and the general
picture of the entire situation.

Burden of proof

In an action for divorce on the ground of malicious desertion it is necessary to prove that
the deserter brought an end to the existing state of cohabitation with the deliberate purpose of
abandoning conjugal society.235 The Court requires a strict proof of intention, though the animus
may be inferred, where it is convinced that the plaintiff was deserted without any reasonable
cause.236

The standard of proof required is preponderance of probability and the degree of

probability depends on the circumstances of each case.237 Hence, the onus lies on the petitioner to
establish that desertion on the part of the defendant was without good cause; 238 and the defendant

232 Ibid.
233 Bucknill L.J. in Hopes v. Hopes (1948) 2 All ER 920 at p.924.
234 Rajeswararani v. Sunthararasa [(1969) 64 NLR 366], Babunona v. Albin Kemps [(1962) 67 NLR 183] and
Gunawathi de Silva V. Rajapakse [(1966) 68 NLR 477] are examples where divorce was granted by the District
Court without adequate proof of animus deserendi. However, in both instances the Supreme Court emphasized
the importance of malicious intent on the part of the deserting spouse.
235 Silva v. Missinona (1924) 26 NLR 13, Goonawardana v. Wickramasinghe (1932) 34 NLR 5, Gunawathie De Silva
v. Rajapaksa (1963) 65 NLR 477.
236 Buchler v. Buchler (1947)1 All ER 319.
de Soysa, S. - An Evaluation of the Case Law relating to Desertion as a Ground for Divorce, Col. Law Rev.
Vol.5, p.153.
237 Blyth v. Blyth (1966) 1 All ER 524.
238 Van Vuuren v. Van Vuuren 1940 N.P.D.170.

49
had done so with the intention of bringing the matrimonial consortium permanently to an end. 239 A
plaintiff, who claims divorce on the ground of constructive malicious desertion on the part of the
defendant, is required to prove that he was obliged to leave the matrimonial home as a direct
consequence of the expulsive acts of the defendant. 240

Defences for desertion

Malicious desertion may be defended on several grounds.

Where it could be proved that separation was consensual and as long as it remains so,
there can be no desertion. 241 A consensual separation can turn into desertion if, and from the time
that, an animus deserendi supervenes.242 Since the existence or non-existence of consent is a
question of fact,243 it should be carefully and strictly scrutinized.

Neither does desertion prevail where there is a just cause. 244 It has also been held that
an honest and reasonable belief of the existence of a just cause might serve this purpose even
though it is based upon an error. 245 Such a situation should be judged as if the belief were true,
provided that a causal connection between the belief and the desertion can be gathered from the
facts with certainty.246

Illness of either party, whether mental or physical, may also justify separation. 247

Since animus deserendi is an integral part of desertion, it cannot be established where the
defendant’s mental capacity prevents him from forming such an intention. 248 Unsoundness of
mind would not be sufficient to form a defence. The defendant needs to prove that the defendant

239 Goodhart, A.L. – Cruelty, Desertion and Insanity in Matrimonial Law, 79 L.Q.R. 98 at p. 110.
240 Weerasuriya J. in Anulawathie v. Gunapala and Another 1998 (1) SLR 63.
241 Nutley v. Nutley (1970) 1 WLR 217.
242 Canekeratne v. Canekeratne (1961) 66 NLR 280.
243 Basley v. Basley (1958) 1 WLR 645.
244 Day v. Day (1957) 1 All ER 848 at 853.
G. v. G (1964) All ER 129.
Sinnathamby v. Annammah (1951) 55 NLR 349.
Babunona v. Albin Kemps 67 NLR 183.
245 Perry v. Perry (1964) 1 WLR 91 at 96/ (1963) 3 All ER 766 at 769.
246 Mohaud v. Mohaud (1964) 4 SA 349.
247 Perry v. Perry (1964) 1 WLR 91, (1963) 3 All ER 766.
248 Van Vuuren v. Van Vuuren (1940) NPD 170.

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was not, at the time of alleged separation, capable of entertaining a ‘malicious intent’. However,
this could be vitiated if it could be proved that, even though the defendant was insane, he was in
fact capable of forming the required animus.249 This intention must continuously exist throughout
the entire period of desertion.

A spouse, who is compelled to live separately from the petitioner due to physical inability,
does not desert the other, as animus deserendi is not involved. It has been held however that,
once desertion has begun in a manner consistent with a continuing intention to desert, the
desertion will continue in law, notwithstanding the fact that consequently physical inability to end
the desertion, such as imprisonment, prevented the deserting spouse from returning to the other
spouse.250 Since the intention at the initial separation is presumed to be continuing, it has to be
annulled by positive evidence to the contrary. 251

A defendant may be justified in deserting the plaintiff where the latter’s conduct is proved
to have caused the desertion.252 However, the Court has emphasized that such conduct should be
grave and weighty.253 Persistent refusal of sexual intercourse without any justifiable reason, 254
misconduct of the plaintiff,255 adultery of the plaintiff and a reasonable belief of adultery 256 on the
part of the plaintiff have been recognized as defences for desertion. 257

The respondent’s desertion may also be justified where the plaintiff has made an unfounded
allegation of a serious nature against him.258

249 de Soysa, S. - An Evaluation of the Case Law relating to Desertion as a Ground for Divorce, 1979 Col. Law.
Review, Vol.5, p.151.
250 Lilley v. Lilley (1959) 3 All ER 283.
251 Raydon – Practice and Law of Divorce, p. 219.
252 Buchler v. Buchler (1947) 1 All ER 319.
253 Ibid.
See further Bartholomew v. Bartholomew (1952) 2 TLR 934, Saunders v. Saunders (1965) 1 All ER 838,
Pheasant v. Pheasant (1972) 2 WLR 353.
254 Sheldon v. Sheldon (1966) 2 All ER 257.
255 Van Vuuren v. Van Vuuren (1940) N.P.D. 170.
Walters v. Walters (1911) T.P.D. 42.
Theron v. Theron (1924) AD 244.
256 Edwards v. Edwards (1948) 64 TLR 61.
257 Belief of adultery holds good only as long as the belief remains honest and justifiable.
See Hahlo, H.R. - The South African Law of Husband and Wife, p.403.
258 The Sri Lankan Courts have held that a baseless charge of adultery provides sufficient reason for refusal to
desert. See Dr. Ranaraja J. in Punchinilame v. Kusumawathie (unreported) C/A No. 483/91 (F), Bar Association
of Sri Lanka News Letter, October 1996.

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 It should be noted that notwithstanding the recognition of defences, there is no such rigid
rule in determining that certain acts definitely establish a defence while others do not. Existence or
non-existence of the elements of the offence has to be inferred from the evidence available in
each case.

Offer to return: The petitioner’s duty

One of the basic principles of the divorce law is that divorce should not be granted if there
remains any possibility of reconciliation. It applies irrespective of whether the divorce is based on
the doctrine of fault or on the breakdown of marriage. This principle is demonstrated in the offer to
return, where the plaintiff is required to give the deserting spouse an opportunity to resume
cohabitation.

Hence a petition is not entertained, where the deserted spouse refuses a genuine offer to
the deserting spouse to reconcile. 259 Where the petitioner has “made it plain to his deserting wife
that he will not receive her back, or if he has repelled all the advances which she may have made
towards a resumption of married life, he cannot explain that she has persisted without cause in her
desertion.”260

Accordingly, the deserted spouse cannot refuse reinstatement where the party who is
alleged to be the deserter genuinely desires to return, and the plaintiff was not in fact ready to
accept the defendant; in that the plaintiff becomes the deserter. 261

The Courts always look for a genuine offer and the plaintiff’s willingness to implement it. 262

There have been doubts whether a conditional offer amounts to a genuine offer to
reinstate. It has been decided that the acceptability of the conditional offer depends on the
reasonableness of the condition. 263

259 Per Evershed M.R. in Perry v. Perry (1952) 1 All ER at p.1079-1080.

This has been followed by the Sri Lankan Courts, e.g. Muthukumarasamy. V. Parameswary (1976) 78 NLR 488.
260 Lord Macmillan in Pratt v. Pratt (1939) 3 All ER 420 at p. 438.
261 Muthukumarasamy v. Parameswary (1976) 78 NLR 488 Sharvananda J. at p. 493.
262 Fraser v. Fraser (1969) 3 All ER 654.
Perry v. Perry (1952) 1 All ER 1076.
263 Muthukumarasamy v. Parameswary (1976) 78 NLR 488.
De Mel v. De Mel (1951) 54 NLR 91.

52
 Since there is no specific period statutorily required in general law, the duration of the
validity of the offer has also been disputed, 264 and is yet to be decided conclusively. There is a
suggestion that through this offer the law requires a reasonable opportunity for the resumption of
marital life.265 However, it all depends on the circumstances in each situation, and an imposition of
a time limit would be artificial. It would serve the purpose fully, if the Court, irrespective of a
specific period of time, were to scrutinize all the evidence and decide accordingly whether the offer
is genuine or fake.

Desertion is a continuing offence until it is terminated by the complete resumption of

cohabitation, coupled with the genuine intention to do so.266 Therefore both elements, i.e.
resumption of married life267 and the cessation of malicious intent,268 have to be established.

2. iii (C ) Incurable impotence

According to the law, impotence means a person is incapable of performing natural and
complete sexual intercourse.269

The recognition of impotence as a lawful ground for dissolution or annulment of marriage

has been identified as a statutory codification of the implied recognition of the basic principle of
canon law, that parties to a marriage must be capable of consummation of marriage. 270 Voet’s
inclusion of old men, old women and impotent persons among others as persons who could not
marry,271 is apparently founded on the premise that physical capacity is as much a basic
requirement of marriage as the intellectual capacity to consent. 272

264 Canekeratne v. Canekeratne (1961) 66 NLR 380.

265 de Soysa, S. – An Evaluation of the Case Law Relating to Desertion as a Ground for Divorce, 1979 Col. Law
Review, Vol.5, p.148.
266 Mummery v. Mummery (1942) 1 All ER 78.
Abercrombie v. Abercrombie (1943) 2 All ER 465.
267 Muthukumarasamy v. Parameswary (1976) 78 NLR 488.
Canekeratne v. Canekeratne (1961) 66 NLR 380.
268 Abercrombie v. Abercrombie (1943) 2 All ER 465, Dias v. Dias (1945) 46 NLR 193, Baptist v Selvarajah
(1957) 59 NLR 284, Jayasinghe v. Jayasinghe (1954) 55 NLR 417, Viswaranie v. Murugiah (1955) 60 NLR 541.
269 Hahlo, H.R. – South African Law of Husband and Wife, p.500.
270 Cretney, S.M. - Principles of Family Law, p. 63, referring to Sir Samuel Evans in Dickenson v. Dickenson (1913)
at p.198, 205.
271 Voet – Commentary on the Pandects, 23.2.28.
272 Cretney, S. M. - Principles of Family Law, p. 49.
In Van Niekerk v. Van Niekerk ([1959) 4 SA 658 at pp.662 & 663] Wessels J. stressed the importance of
procreation and rearing of children not only as one of the ends of marriage but also as the main purpose of life
itself, and held that sexual intercourse and procreation of children are two causa finales of marriage.

53
 Even though impotence is recognized as a ground for nullity of marriage in modern
systems of law, the physical aspect of marriage is not given undue emphasis. Hence sexual
incapacity existing at the time of marriage does not render the marriage void ipso jure. Instead,
such a marriage is deemed to be valid unless and until such a marriage is dissolved a vinculo
matrimonii, or annulled by a competent Court on a petition made either by the husband or the wife.

The cause of incapacity, i.e. whether the incapacity is congenital or was caused by an
accident, illness or self mutilation, or whether it is due to physical or psychological factors, such as
an insurmountable aversion to intercourse, is held to be irrelevant both in South African 273 and
English law. 274 It has been asserted further that, even if the impotence is quod hunc,275 such a
person would be declared impotent with regard to the particular marriage in question. 276

Since consummation of marriage is a question of fact, the Court has to decide whether
there has been ordinary and complete intercourse.277 It has been held further that, where the
husband does not have full penetration in the normal sense, this will be considered as non-
consummation. 278

Sri Lankan Courts are of the view that impotence may be established where it is proved,
that either spouse is incapable of a vera copula or the natural sort of coitus. Where the defendant
is not capable of more than an incipient, imperfect and unnatural coitus, and the incapacity cannot
be medically corrected, such a person is deemed to be impotent.279

Incapacity need not necessarily be physical. It might have been caused for psychological
reasons. In F v. P,280 the Court granted a decree of nullity in favour of the petitioner on the ground
of the wife’s persistent refusal to cohabit with the husband due to hysteria. . Apparently a marriage
may be declared null and void where no consummation occurred due to incapacity, arising from an
insurmountable repugnance to the act of consummation.

273 Van Nierk v. Van Nierk (1959) 4 SA 658.

274 Harthan v. Harthan (1948) 2 All ER 639.
275 Quod hunc or honc as used in certain texts means incapability with regard to a particular person or persons only.
276 Harthan v. Harthan (1948) 2 All ER 639.
277 Brandon J. in W. v. W. (1967) 1 WLR 1554.
278 Dr. Lushington in D. v. A. (1845) Eng. Rep. 1039,1Rob.Eccl. 280.
279 Fernando v. Peiris (1948) 50 NLR 40 at p.41 (38 CLW 74) The Supreme Court of Sri Lanka annulled the marriage
since it was not consummated even five years after the marriage ceremony, due to the husband’s impotence.
[Quoting Dr. Lushington in D. v. A (1845) 163 Eng.Rep.1039 and Baxter v. Baxter (1948) AC 274.]
280 (1911) 27 TLR 429.

54
 Similarly, the law recognizes that there are people who are impotent quod hanc, though
not necessarily generally impotent. Dr. Lushington J. who described, “the essence of a nullity case
based on impotence” as “non-consummation after opportunity” illustrated the concept thus:

“… who by possibility can say that such a man is necessarily impotent as to

all women? It may be so, or it may not… the probability is that a man,
impotent quod hanc, would be impotent as to all; this however would be
inference, not proof…”281

Following this clarification, it was held in G. v. M,282 that the marriage was null and void
due to husband’s impotence, for there was no verum matrimonium between the parties. 283

Sri Lankan law recognizes that a marriage may be dissolved on the ground of incurable
impotence at the time of marriage.284 In South Africa, incurable impotence at the time of marriage
is a ground for nullity of marriage. 285 Similarly, the English law of nullity, which is said to have been
influenced by Roman-Dutch law,286 recognizes incapacity to consummate the marriage as a
ground for nullity, but not for divorce.287

Proof of existence of impotence at the time of marriage is considered vital. The basis of
denial of divorce on the ground of supervening impotence is rather confusing. Where divorce is
granted on the basis of breakdown of marriage, and if a marriage is proved to have broken down
irretrievably, such a marriage needs to be dissolved if the cause for breakdown cannot be rectified.
The time when the incapacity occurred would indicate the period where the breakdown initiated.
Except for this reason, the time factor provides little or no guidance in determining the breakdown
of a marriage.

281 Dr. Lushington J. in N. v. M. (1853) 2 Rob. Ecc. 625. This was cited with approval by Lord Birkenhead in C.v.C
(1921) p.399 at 401- 402.
282 (1885) 10 AC 171 (SC).
283 Jackson, J. - The Formation and Annulment of Marriage, Butterworths, (2nd ed) 1969, at p. 317.
284 Section 19 (2) of the Marriage Registration Ordinance No.19 of 1907. Alternatively a declaration of nullity may be
pleaded on the ground of impotence under Roman-Dutch law which is the common law of Sri Lanka. See
Section 607 of the Civil Procedure Code.
See further Gunetileke v. Mille Nona (1936) 38 NLR 291.
285 Annulment of marriage on the ground of impotence has not been abolished by the Divorce Act of 1979.
See Hahlo, H.R. - South African Law of Husband and Wife, 5th ed, p.123.
286 Akbar J. in Gunatileke v. Mille Nona (1936) 38 NLR 291, citing Van Zyl.
287 Matrimonial Causes Act of 1973, Section.12 (a), Rayden – Practice and Law of Divorce, pp.131-140.
Bromley, P.M. – Family Law, p.73. See further Harthan v. Harthan (1948) 2 All ER 639.

55
 Moreover, where divorce is based on the doctrine of matrimonial fault, and where sexual
impotence is regarded as a fault, it is neither logical nor justifiable to distinguish between
impotence at the time of marriage and impotence which has occurred after marriage. If it were an
offence, it would be the same even if it occurred after marriage.

The time-based distinction may be justified if the fault recognized in law is found in the
fraudulent concealment of impotence. However, neither fraudulent concealment nor the
isrepresentation of facts is required to establish impotence, nor is bona fide recognized as a
defence in law.288 Impotence itself is the fault recognized in law, and raises doubts as to the basis
of the distinction made between ‘supervening impotence’ and ‘impotence at the time of marriage’
in a system where impotence, irrespective of its cause, is recognized as a matrimonial fault.

It has been proposed to the Commission on Marriage and Divorce289 that impotence,
which occurs either by some misfortune or disease after marriage, should be made a ground for
divorce on the basis of breakdown of marriage caused by the inability to have sexual
intercourse.290 However, this was not considered favourably.

The recommendation of the Commission was based on two main justifications. It was
thought on the one hand that, since the party who is alleged to be impotent cannot be blamed for
his or her inadequacy to perform his or her marital obligations fully, supervening impotence should
not be a ground for divorce. The Commission felt on the other hand that the law should not allow
the healthy party to desert his or her spouse who has become impotent, at a time when
companionship and affection are most needed. The Commission believed further that it is not too
much to expect a spouse to endure the hardships and misfortunes arising out of such a situation.

The Commission has not focused on the aspect of breakdown of marriage, which was
emphasized by the witnesses. Attention was directed only at the unfortunate spouse, who became
impotent after the marriage. Even though the background painted by the Commission for its
recommendations created a picture of perfect married life, it neither reflects a realistic view of
human nature, nor does it address the possible adulterous relations that could arise. Nor does it
address the mental agony, which could last the lifetime of a young wife or husband who want to

288 Hunt, P.M.A. - Error in the Contract of Marriage, (1963) Vol. LXXX, SALJ 94, at p.107.
289 Commission on Marriage and Divorce in Sri Lanka, Ceylon Sessional Papers - XVI, 1959.
290 Ibid. Para 216.

56
have children. Above all, it does not explain the rationale in recognizing impotence as a valid
ground for divorce when it had occurred at the time of marriage, and denial of divorce where
impotence occurred sometime after consummation of marriage.

As a result, the law remains the same and it prevents a healthy spouse from seeking
judicial redress by way of divorce. Even though such a condition could cause the breakdown of a
marriage irrespective of when it happened, it does not fit in with the concept of fault, which
provides the basis for the general law of divorce in Sri Lanka.

Another vital element of impotence is incurability. The law requires that the incapacity
should be irremediable, whatever may be the reason. 291The Courts have nevertheless interpreted
the term incurability in a wide context. This includes not only those cases, for which no remedy can
be found, but also those conditions which can only be cured by an operation which may prove
dangerous, or the success of which is doubtful; also where the party, who is alleged to be
impotent, refuses to submit to an operation. 292

It is established that neither the Court nor the petitioner can compel the defendant to
submit to treatment. The Court gives time for the defendant to consider whether his or her
condition is reversible, even during the hearing of the petition. 293

It has been recognized further that impotence must still exist at the date of the hearing.
Hence, relief is granted only if the impotence appears to be permanent.

Proof of impotence

Under ordinary circumstances, a marriage is presumed to have been consummated and

thus is valid. Therefore the party, who alleges impotence on the part of the other, should rebut this

291 S v. S. (1962) 2 All ER 816 (CA).

Webb and Bevan - Source Book of Family law, Butterworths, London, 1964, p 84.
292 J. v. J. (1908) 24 TLR 622.
S v. S. (1954) 3 All ER 736.
M. v. M. (1956) 3 All ER 769.
S. v. S. (1962) 2 All ER 816.
293 D v. D (1845) 163 Eng. Rep. 1039.
Karminski J. in S. v. S (1954) 3 All ER 736.

57
strong presumption to the satisfaction of the Court. 294 The onus of proof in this regard lies upon
the petitioner.295

The element of impotence does not involve mens rea. Therefore proof of fraudulent
concealment or misrepresentation of physical or psychological capability is not required. 296 Since
an offence essentially requires a mental as well as a physical factor, it is uncertain how and on what
basis incurable impotence at the time of marriage has been recognized as a matrimonial fault.
However, there must be evidence to prove some sort of physical defect or mental disability, which
prevents sexual intercourse either with all women or with one particular woman.

Incapability of consummation may be proved by medical examination of the parties, by

medical testimonies by professionals, or by testimonies upon oath by both parties as witnesses.297

If, however, the petitioner proves after a specified period of time 298 that the marriage has
not been consummated, and that non-consummation was not caused by any reason within the
petitioner’s control, then the incapacity of the respondent is inferred. The basis for the recognition
lies in the impracticability of consummation of marriage, which is an essential quality required for the
validity of marriage.299 Similarly in England, non-consummation gives rise to an inference of
incapacity.300 This inference could be rebutted by evidence to prove that the defendant is not
impotent and that non-consummation was caused for other reasons. 301

294 Rayden – Practice and Law of Divorce, p.140.

295 Davies L.J. in S. v. S. (1962) 2 All ER 816.
Gratiaen J. in Fernando v. Peiris (1948) 50 NLR 40, Lord Marriman P. in Harthan v. Harthan (1948) 2 All ER 639.
296 Hunt, P. M. A. - Error in the Contract of Marriage (1963) Vol. LXXX SALJ 94 at p.107.
297 Jackson, J. – The Formation and Annulment of Marriage, p.814.
298 The minimum period of waiting has been statutorily recognized as three years both in English and South African
Law. See S v.S (1962) 1 All ER 816 for English Law, and Burgers v. Knight (1916) 37 Natal LR 399 for South
African law. It has been asserted further that the longer the period for which that state of affairs is continued, the
stronger the case. See Jackson, J. - The Formation and Annulment of Marriage, p.315.
299 Hunt, P.M.A. – Error in the Contract of Marriage, (1963) Vol. LXXX SALJ 94 at p.107.
300 Jackson, J. – The Formation and Annulment of Marriage, p.315.
301 In Fernando v Peiris [(1948) 50 NLR 40] the Supreme Court declared that, where a strong case has been
established against the defendant, he or she should prove to the satisfaction of the Court that it was not his
impotence which caused the non-consummation but some other reason, and rebut the presumption raised
against him accordingly.

58
 Sexual impotence is established mainly by corroborative medical evidence. According to the
established requirement, the plaintiff has to prove that the alleged impotent spouse is "incapable of
vera copula or natural coitus."302

It has been the common practice in Sri Lanka to infer impotence by showing that the wife
remains a virgin or her hymen is not ruptured after a considerable period of cohabitation. On the
inference thus raised, the onus shifts to the defendant if the claim is contested, to prove that non-
cohabitation was not due to his or her incapacity but caused for some other reason.

Usually, the plaintiff's evidence is corroborated by medical evidence. One of the major issues
in Gunatileke v. Mille Nona303 was whether the defendant wife was incapable of sexual intercourse.
The plaintiff asserted that his wife was, and continues to be, sexually impotent. He brought the action
to declare the marriage null and void on the ground of her incapacity to consummate the marriage.
One of the doctors, who testified at the trial, stated that the defendant was suffering from vaginismus,
which is a nervous condition, and that there was no malformation in her body. He testified further that
at the time of his examination the defendant's hymen was intact. The second medical expert testified
that vaginismus is a condition which can be universal or with respect to only one particular person,
and he asserted accordingly that he was not in a position to testify whether the defendant suffered
symptoms of vaginismus with regard to the plaintiff.

Relying on this uncertainty, the trial judge held that the defendant was not impotent. On
appeal however, Akbar J. emphasized the importance of expert evidence in a health-related matter,304
and the evidence of both the doctors was subsequently regarded as equally important. It was decided
accordingly that the defendant was suffering from a physical condition that made her incapable of
consummating the marriage. The marriage was thus declared null and void. The decision of the Court
of Appeal was solely based on the evidence of medical experts.

Corroboration of evidence is not generally required in law, but in practice favours the
petitioner.305

302 Dr. Lushington J. in D v. A , 163 English Rep 1039. This criteria has been followed both in English and Sri Lankan
cases. Eg. Baxter v. Baxter 1948 AC 274, Fernando v. Peiris (1948) 50 NLR 40.
303 (1936) 38 NLR 291.
304 Ibid. at p. 294.
305 Burgers v. Knight (1916) 37 Natal LR 379.
Hunt v Hunt (1940) WLD 55.
Fernando v. Peiris (1948) 50 NLR 40.

59
2.iv Fault - based grounds for divorce in Muslim law

Muslims, whose lives are intimately connected to their religion Islam, have distinctive laws
with regard to marriage and divorce set out by the religion itself. Even though Muslim law is based
on Islamic principles, the statute law on marriage and divorce necessarily includes local customs
and usages.306

Canekeratne J.307 thus, described the Islamic concept of ‘dissolution of marriage’:

"A purchaser of goods has a right to rescind the contract on discovery

of some hidden fault, or on breach of a condition relating to certain defects.
These were called options of defect. Redhibitory defects…the purchaser can
bring an action for the recession of the contract and recovery of the purchase
money. The parties to a contract of marriage may agree on the terms of the
contract and if the terms are of a reasonable nature and are not opposed to the
policy of the law, they will be binding."308

Accordingly, divorce is considered as a termination of a contract and the right to terminate

one’s marriage contract is granted to both males and females subject to procedural limitations.

The fundamental principle of divorce in Muslim law is the irrevocable decision of either
party not to live with the other. The Holy Quran does not specify the grounds for divorce.
Depending on the manner and consequences of the dissolution, Muslim law recognizes four forms
of divorce, namely Talaq, Khula, Mubaraat and Fasah.309

306 Schneider A.J. in Abdul Rahiman v. Ussan Umma, (1916) 19 NLR 175 at pp.184 –185.
307 Noorul Naleefa v. Marikar Hadjiar (1947) 48 NLR 529.
308 Ibid. at p. 532.
309 Since Talaq, Khula and Mubaraat forms of divorce are not based exclusively on the doctrine of matrimonial fault,
they will be discussed in Chapter 3.

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2. iv (A) Fasah Divorce

Fasah can be distinguished from other modes of divorce on two grounds: it is the only
form of divorce where judicial authority is directly and actively involved, yet is essentially based on
the concept of fault, while other forms of divorce include grounds which go beyond the limits of
fault.

Fasah is a progressive step taken by Muslim law in securing the rights of women in the
Muslim community. The dissolution or rescission of the contract of marriage by judicial decree310 is
based on the authority of the Quran: "If a woman be prejudiced by a marriage, let it be broken
off".311 The significance of fasah divorce lies in the wife’s right to seek divorce against the consent
of her husband.

In the Muslim law of Sri Lanka, fasah is identified as a divorce initiated by the wife on the
ground of ill-treatment or on account of an act or omission on his part amounting to a fault under
the Muslim law.312

The following have been recognized as prerequisites for fasah:

(a) subsistence of a valid marriage;

(b) common life between the parties as husband and wife; and
(c) guilt on the part of the husband of an act or omission which would amount to a fault under
Muslim law.313

A Muslim wife, in terms of Section 28 of the Muslim Marriage and Divorce Act,314 is
entitled to bring an action against her husband on the ground of ill-treatment or any act or omission
on his part, which amounts to a fault.

310 Tyabji, B.F. - Principles of Muhammedan Law, Butterworths, London, 1919, 2nd ed., P. 210.
Amir Ali - Muhammedan Law, Vol. II, Culcutta, 1929, 5th ed., P. 519.
Fyzee, A.A.A. - Outlines of Muhammedan Law – Oxford, 1964, 3rd ed., P. 160.
311 Sahih-ul-Bukhar cited in Amir Ali - Outlines of Muhammedan Law, at p. 519.
312 Section 51 (1) of Ordinance No. 9 of 1934. This definition was introduced by Ordinance No. 9 of 1934.
313 Amir Ali v. Jameela Umma (1947) III MMDR 65.
314 Muslim Marriage and Divorce Act No.13 of 1951.

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The vagueness of this provision necessarily requires an analysis of the following issues:

i. whether the Section lays down the substantive law relating to divorce,
ii. whether the Muslim wife’s right to divorce is limited to these two grounds, and if
so
iii. what amounts to ill-treatment and fault under Muslim law.

The first issue was discussed at length in Nansoora v. Sithi Jariya315 with reference to the
original Muslim Marriage and Divorce Registration Ordinance. 316It was held that the Muslim
Marriage and Divorce Registration Ordinance, without varying, altering or modifying the religious
law, merely provides a procedure for the registration of marriages and divorces among Muslims in
Ceylon. The decision necessarily implied that the substantive Muslim law should be found in other
sources of Islamic law; basically in the principles and customs recognized in different schools.

It has been repeatedly held that the Mohammedan Code of 1806 was not exhaustive. 317
The Supreme Court has recognized that, even though fasah was defined in the 1929
Ordinance,318 a Muslim wife could have sought divorce on grounds other than those included in
the definition.319 The 1951 Act, which replaced the 1929 Ordinance, does not define fasah, thus
providing legitimate recognition to customary law recognized in different schools. It may be
asserted therefore that while the Act recognizes the wife’s right to seek divorce without her
husband’s consent, the ground on which she could make her claim depends on the sect to which
she belongs.

According to Ameer Ali,320 conduct on the part of the husband which makes matrimonial
life intolerable for the wife, neglect of matrimonial obligations on his part and failure to fulfil the
voluntary commitments entered into at the time of marriage, amount to faults on the part of the
husband which provide grounds for fasah divorce.321

315 (1943) III MMDR 68.

316 Ordinance No. 27 of 1929 which was amended in 1934.
317 Ageska Umma v. Abdul Carim (1880) 1 MMDR 21.
Abdul Rahiman v. Ussan Umma et al (1916) 19 NLR 178.
The King v. Miskin Umma (1925) MMDR 90.
318 Ordinance No. 27 of 1929 which was amended by Act No. 9 of 1934.
319 Noorul Naleefa v. Marikar Hadjiar (1947) 48 NLR 529.
320 Amir Ali - Mohammedan Law, Vol. II, P. 519.
321 A more detailed account of the grounds of divorce available to a Muslim wife could be found in Section 2 of The
Dissolution of Muslim Marriages (India) Act No. 8 of 1939.

62
 The Act322 does not specify the grounds for fasah. Therefore, in the analysis of this
ambiguous phrase, contrary interpretations are inevitable. According to one such view, 323 the
following are the grounds for fasah divorce recognized by the Shafei school to which the majority
of Sri Lankan Muslims belong:

1. Cruelty
2. Desertion
3. Persistent failure or inability to maintain
4. Impotence
5. Insanity or any other incurable disease.

In Noor Nazime v. Mohamed324 the Board of Quazis was of the view that a fasah divorce
could be obtained on ill-treatment or failure to provide the wife with separate maintenance, habitual
use of vile expressions towards the wife, unreasonable accusations of immoral behaviour previous
to her marriage or unfounded allegations of unfaithfulness. In addition, impotence, leprosy or any
other dire diseases as well as desertion were recognized in King v. Miskin Umma,325 Noorul
Naleefa v. Marikar Hadjiar326 and Rabia Umma v. Saibu327 as valid grounds available to a wife
according to the rules of the Shafei school.

The grounds for fasah divorce recognized in Sri Lankan Muslim law were laid out in Noorul
Naleefa v. Marikar Hadjiar328 by Canekeratne J. as follows:

(1) The husband’s conduct, which makes matrimonial life intolerable for the wife, e.g. ill-
treatment and neglect to perform the duties which the law imposes on him as obligations
resulting from marriage. 329
(2) The husband’s impotence, proved to have existed at the time of the marriage, provided that
the wife did not know of it then, and that it has not since been cured. This does not apply

322 No. 13 of 1951.

323 Marikar, J.H. - Khula Divorce in the Muslim Law, (1978) Vol. 4 Colombo Law Review, P. 105.
324 (1946) III MMDR 59.
325 (1925) 1 MMDR 90 where impotence, madness and leprosy were identified as grounds for a Muslim wife to obtain
a judicial divorce.
326 (1947) II MMDR 73 where it was held that leprosy is a ground for repudiating the contract of marriage.
327 (1914) 1 MMDR 56 where the Supreme Court accepted desertion as a ground available for a Muslim wife to
divorce her deserting husband.
328 (1947) 48 NLR 529.
329 Ibid. at a p. 534 citing Amir Ali - Mohammedan Law, Vol. II, P. 581.

63
 where she was aware of his impotence at the time of the marriage; nor where it occurred
after the marriage had been contracted and consummated. 330
(3) Inability to provide maintenance on even the lowest degree of the three recognized scales.
(4) Where the husband is afflicted with madness or leprosy. 331

The latter two grounds are similar to the ‘options of defect’ allowed to the ‘purchaser of
goods’ on the discovery of some hidden defect or actio redhibitoria.332 For the options to be
exercised, the implied and expressed terms and conditions of both the husband’s and wife’s
contract have to be in order.

There are other grounds which have gained recognition in both the Shafei sect and
various other schools. It is obvious from the aforementioned classification that fasah includes
grounds that are not strictly fault-based. For instance, mental or physical illness of the husband
does not constitute a fault or an ill-treatment in the ordinary sense of the term.

It is also evident that frequently the explanations, which have been recognized as grounds
for divorce in Muslim law, are notably different from what those terms would denote in the
formation of the general and Kandyan law. Hence these terms require rationalization.

2. iv (A) (a) Grounds for fasah

Cruelty

Cruelty in Muslim law includes all kinds of serious misbehaviour on the part of the
husband,333 i.e. that "any conduct of the husband, which causes disgrace to the wife or subjects
her to a course of annoyance and indignity, would amount to legal cruelty." 334 It has also been
held, that the general conduct of a husband towards his wife, which appears to be shameful or

330 Citing Wilson, R.K. - Digest of Anglo Mohammedan Law, pp. 153, 154.
331 Citing Wilson, R.K. - Digest of Anglo Mohammedan Law, P. 432.
332 Citing Wilson, R.K. - Digest of Anglo Mohammedan Law, p. 432, Minhaj-et-Talibin – A Manuel of Muhammadan
Law According to the School of Shafii. – Nawawi, M.A.Z.Y.I.S. (This will be referred to as Minhaj-et-Talibin) p.
299.
333 Safra v Zaheera Hasan, 1947 AIR 16.
334 Pakshinmoorthi v. Seetha Ammal, 26 Tra. L.R. 1285.

64
degrading, and which may have caused her 'intense indignity injurious to her health,'335 or is one of
studied indifference and cruelty,336 is sufficient to obtain a divorce.

Accordingly, the plaintiff wife is bound to establish that her husband's behaviour was
injurious to her physical or mental health, or she has to raise a reasonable apprehension that he
might cause injury to her physical or mental health. 337

Cruelty as a ground for divorce in Muslim law is in accordance with the early English law
standards, where it was necessary to establish that further cohabitation with her husband was
actually dangerous for the wife's physical or mental health. 338 A similar view was taken under the
general law of Sri Lanka. 339It was held340 however, that proof of cruelty, or harshness, or a display
of personal violence so as to give rise to reasonable apprehension that the life, mind or health of
the plaintiff would be endangered if separation were not decreed, was not essential. The Court
held further that, among other grounds, continual quarrels and dissentions or other equally valid
reasons, which render the living together of the spouses insupportable, would justify a judicial
separation.341

According to the principles recognized in the Shafei School in Sri Lanka, the method,
degree and standard required to constitute ‘ill-treatment’ are reasonably fair to the wife. In Sithi
Zanooba v. Mohamed Nazim,342 the husband, who had made life miserable for his wife by cruel
conduct, was held to be guilty of ill-treatment within the ruling of the Act, 343 even though physical
ill-treatment or violence was not alleged to have been involved. Following the principle laid down
by the judiciary on previous occasions, a divorce was granted in Rashida v. Usoof Dheen344to a
wife, who alleged that her husband habitually made allegations of adultery against her, on the
premise that it amounts to cruelty.

335 Pancha v. Ram Prasad, 1950 AIR 41 at 43.

336 Narayanan v. Paravathie, 1980 Mad L.J. (Cr.) 721.
337 Verma, B.R. - Muslim Marriage, Maintenance & Dissolution, Vol. III, Alahabad, 1988, 2nd ed. at p.111 citing
Kurshid Begum v. Abdul Rashid, 1927 AIR 138 and Julias v. Julias, 1932 AIR 231.
338 As analysed by Lopes J. in Russel v. Russel, 73 L.T. 295.
339 See Orr v. Orr (1920) 22 NLR 57.
340 Ibid.
341 Although a wife or husband may reasonably be expected to bear with occasional outbursts of ill-temper, yet
occasional assault, however slight, accompanied by habitual intemperance, will make cohabitation insupportable.
342 (1950) III MMDR 102.
343 Muslim Marriage & Divorce Act No. 13 of 1951.
344 (1958) IV MMDR 162.

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 Unequal treatment among wives too is recognized as a mode of cruelty in the Dissolution
of Muslim Marriages Act. 345 It has however been decided 346 that, if the husband was prevented
from treating her equally to his other wives owing to the complaining wife's or her parents' attitude,
then she does not hold the right to divorce.

Since Muslim law recognizes, from the legal point of view, the separate persona of the
wife, 347 any form of alienation of her property, including "sale, mortgage, creating a charge, etc…"
without her consent or against her will, amounts to an act against her rights, and would amount to
cruelty on the part of the husband. 348

The proof of cruelty lies with the complainant-wife. The Court would not be satisfied with
mere allegations. The evidence has to be corroborated by statements of independent and
trustworthy witnesses, or any marks of cruelty.349

It has been decided however, that a wife is not bound to prove actual habitual cruelty, but
it would be sufficient if she can satisfy the Court that it would be cruel to her to continue the
marriage.350 That would suffice to obtain her a decree. Since cruelty is an act against Islam, a
husband is not permitted to defend his acts of cruelty on the ground that his actions were ‘a result
of the wife's own conduct’.351

Non-maintenance

Maintenance (or nafaqua in Arabic) means food, raiment or lodging. 352 Maintenance of
the wife is a prime obligation of a Muslim husband. Accordingly, non-maintenance amounts to a
fault on his part.353

345 Section 2 (VIII) ‘f ’ of Dissolution of Muslim Marriages (India) Act No. 8 of 1939.
Umatul Hafiz v. Talib Hussain (1945) AIR 56 (Lahore).
346 Badrulnissa v. Mohamed Usuf (1944) AIR 23.
347 Verma, B.R. – Muslim Marriage, Maintenance & Dissolution - P. 317.
348 Ibid. P. 317.
349 Amir Ali - Mohammedan Law, Vol. II, P. 522.
350 Abdul Aziz v. Bshiran (1958) PLD (Lah.) 59 at p. 62.
351 Amir Ali - Mohammedan Law, Vol. II, P. 523.
352 Fyzee, A.A.A.– Outline of Muhammedan Law, p. 202.
353 Tyabji, B.F. - Muhammedan Law, P. 287.
Wilson, R.K. - Digest of Anglo-Muhammedan Law, p.53.
Fyzee, A.A.A.- Outline of Muhammedan Law, P. 203.

66
 In addition to this primary commitment there may also be additional obligations agreed
upon by the parties in the contract of marriage. Where, by such an agreement, a husband has
agreed to make special allowances to his wife, breach of such agreement would amount to ' non-
maintenance'.354

The limits of a Muslim husband’s obligation to maintain his wife largely depend on the
standards recognized in the sect to which he belongs. The law however, is not specific whether
'maintenance' should be up to 'a reasonable standard’ depending on the wife's social status before
marriage, or whether it should be in accordance with the husband's means.

In recognition of non-maintenance as a ground available to Muslim wives in Sri Lanka, the

Supreme Court in King v. Miskin Umma355 held that, according to the law of the Shafei sect to
which the Muslims of Ceylon belong, a wife could obtain a divorce on the ground of her husband's
inability to maintain her. It was recognized in Sithi Zanooba v Mohamed Nazim356 that
maintenance includes a suitable residence, and that suitable residence means a separate room for
the wife. It may be asserted that the obligation of maintenance does not reach beyond reasonable
limits.357

According to the accepted norms of the Shafei school, a husband's inability due to his
poverty also amounts to non-maintenance, as it is considered a breach of a prime obligation, even
though he has not committed the offence wilfully.358 Under such circumstances, if the wife desires
she is entitled to obtain a divorce.359

The wife does not however exercise an absolute right for maintenance. Her right for
maintenance is subjected to her obedience to her husband, and his free access to her at all lawful
times.360Since a Muslim wife is obliged to obey her husband’s reasonable commands, and to allow

354 Tyabi, B.F. - Muhammedan Law, p 294, Mullah – Principles of Mohammedan Law, p. 280, Fyzee, A.A.A. –
Outline of Mohammedan Law - p. 203.
355 (1925) 1 MMDR 90 at p. 98.
356 (1950) III MMDR 102.
357 Justifying the rule set out in Hedaya and Fatawa Alamgiri, Tyabji, B.F. says that when prescribing the proper
maintenance due, the rank and the circumstances of both the spouses should be considered by the judge.
See Tyabji, B.F. - Muhamedan Law, p.295.
358 Tyabji, B.F. - Muhammedan Law, p. 287.
Wilson, R.K. - Digest of Anglo-Muhammedan Law, 53.
359 Section 92 of the Mohammedan Code of 1806.
360 Verma, B.R. - Muslim Marriage, Maintenance & Dissolution, p. 328-329.
Fyzee, A.A.A.- Outlines of Muhammedan Law, p. 203. Under the Shia and Hanafi schools, a wife's right to
maintenance arises only when she attains puberty, but in the Shafi school attainment of puberty is not recognized
as a condition for maintenance. See Verma, B.R. - Muslim Marriage, Maintenance and Dissolution, p. 328-329.

67
him free access to sexual intercourse, she is not entitled to maintenance, nor could she obtain a
divorce from him on the ground of failure to maintain, unless she can prove sufficient grounds for
her refusal to obey him, or to refuse access to him.

It has also been decided that according to Muslim Law, a husband's obligation to maintain
his wife ceases on her deserting him, and as long as she refuses to come to him, and also if the
wife is rebellious to marital authority.361 If she has left him on justifiable grounds, he is obliged to
maintain her, despite her refusal to come back 362. It has been recognized in Sri Lanka as early as
1881363 that a wife's refusal to live with her husband is justifiable where he has brought a woman
into his house, and lived with her as his concubine. It was held further that, notwithstanding her
refusal to live with him under such circumstances, the husband is obliged to maintain her.
According to Cayley C.J., the husband is bound to maintain his wife, notwithstanding her refusal to
live with him as long as he carries on his adulterous behaviour under his own roof. 364

A husband's second marriage however does not provide the wife with a reasonable
ground to desert him, since Muslim men are allowed to marry up to four wives without dissolving
former marriages. It was held in Pathumma v Seeni Mohamadu365 that a Muslim wife, who refuses
to live with her husband on the ground of his subsequent marriage, is not entitled to claim
maintenance, as he is not guilty of adultery. Where however the husband has contracted a second
marriage against the prescribed limitations, he is guilty of bigamy, and the desertion on the part of
the wife under such circumstances is justifiable. 366

Muslim law allows divorce on the ground of non-maintenance only if the husband's
negligence or refusal exists at the time of application. As Amir Ali states, "the refusal to maintain in
order to entitle a woman to obtain a divorce must be a continuing offence and must not refer to
past conduct".367 Consequently, where the husband makes a bona-fide offer to maintain the wife,

361 Deen v. Neye Hafeeda (1945) III MMDR 37.

362 Apparently a husband's adultery, failure to provide a suitable residence, keeping a mistress, cruelty and ill-
treatment towards the wife, form justifiable grounds for her to desert the husband.
See Pathumma v. Seeni Mohamadu (1921) 23 NLR 277, Sithi Zanooba v. Mohamed Nazim (1950) III MMDR
102, Asia Umma v. Segu Mohamadu (1881) 1 MMDR27, Seyed Mohamed v. Mohamed Ali Lebbe (1953) 53
NLR 307.
363 Asia Umma v. Segu Mohamadu (1881) 1 MMDR 27.
364 Ibid. at p. 27.
365 (1921) 23 NLR 277.
366 A.G. v. M.T. Mohammadu, Teldeniya Magistrate Court – No. 96853, decided on 18.3.98 (unreported).
367 Amir Ali - Muhammedan Law, Vol II, P. 521.

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she is obliged to accept it unless she can prove that the husband's offer is mala-fide.368 It becomes
the duty of the judge either to grant a divorce or to refuse it, depending on the circumstances.

It may be concluded that maintaining his wife is a prime obligation on the part of the
Muslim husband, but this is subject to certain conditions to be fulfilled by the wife. Even though
non-maintenance is recognized as an offence, the law does not require proof of intention on the
part of the husband. As long as the wife submits to her husband’s requirements, he is obliged to
maintain her, and inability to do so is an offence.

Desertion

The Muslim law insists on cohabitation as a mutual obligation of both parties. Persistent
refusal to cohabit would amount to a breach of obligation and thus constitutes the offence of
desertion,369 which entitles the wife to seek fasah.

The applicant should prove continued and wilful refusal of cohabitation to establish breach
of marital duties. This raises the question whether the husband’s abandonment of his wife while
providing adequate maintenance for her, would amount to continued and wilful desertion in Muslim
law. Where the husband has abandoned the conjugal domicile without making any provision for
the wife during his absence, or if he has left her absolutely without any means of support, the wife
is entitled to apply for a divorce. 370 However, abandonment of conjugal domicile in itself does not
entitle a wife to divorce, as long as her husband provides maintenance. Hence the Muslim law of
desertion should be interpreted in the light of Islamic principles.

The law recognizes two instances of desertion, i.e.

(1) Where the husband has abandoned the conjugal domicile with the intent of not returning,
and where his action is not based on any fault of the wife, and thus his action could not be

368 Ibid.
369 Amir Ali - Muhammedan Law, Vol. II.
370 Amir Ali - Muhammedan Law, Vol. II P. 521.
See Sithi Zanooba v. Mohamed Nazim, (1950) III MMDR 102, Rabia Umma v. Saibu (1914) I MMDR 338,
Fakhruddin v. Hamidan 1953 AIR 571.

69
justifiable, this amounts to desertion in the eyes of Muslim law, even if the wife was provided with
adequate maintenance.

(2) Where the husband has left the wife on justifiable grounds and without any malicious
intent, and has been providing maintenance, his absence does not amount to desertion. If,
however, he has left the wife initially without any malicious intent, but has not provided
maintenance or has stopped providing maintenance after some time, although the wife has not
given him any cause for displeasure, this amounts to desertion.

It has also been held that a wife, who has gone to her parents' house with the consent of
her husband, could claim a divorce from him if he has not called her back, nor has provided
maintenance for her.371

On the other hand, Muslim law does not allow a wife to seek fasah where the husband's
absence from her was involuntary, as long as she receives maintenance on his behalf and his
whereabouts are known.372

Acceptability of desertion as a ground for divorce under Muslim law in Sri Lanka was
discussed in the late nineteenth century case of Ageska Umma v. Abdul Careem ,373 and was
conclusively resolved by the Supreme Court in Rabia Umma v. Saibu,374 when the Supreme Court
declared that "the Shafei law which is applicable to Moor men in this colony recognizes the right of
a wife in certain circumstances to divorce her husband on the ground of desertion".375 It was
unanimously of the view that Section 92 and 93 of the Mohammedan Code of 1806 partially
recognized the right of the wife to obtain a divorce on the ground of her husband's desertion. 376

Where the wife demands a separation on the ground of desertion, the burden rests on her
to prove the allegations made against the husband. The wife is bound to prove that she has been
deserted in any of the modes recognized under Muslim law.377

371 Fakhruddin v. Hamidan 1953 AIR 571.

372 Amir Ali - Mohammedan Law, Vol. II at p. 524, finding authority in a decision given by a Court in Algiers in 1865
recorded in Sautayra, Vol. 1, p. 265.
373 (1880) 1 MMDR 20.
374 (1914) 1 MMDR 56.
375 Ibid. Wood Renton A.C.J. at p. 340.
376 at pp. 341-342.
377 Amir Ali - Mohommedan Law, Vol. II, P. 522.

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Breach of contract

Among other grounds recognized under Muslim law, a wife is entitled to claim a divorce on
the ground of non-fulfilment of an ante-nuptial agreement by the husband. The husband commits a
fault by way of breach of contract if he recedes from his commitments or refuses to act in
conformity with them. 378 This provides a good reason for the wife to seek judicial separation.

Breach of contract as a ground for divorce is not limited to ante-nuptial contracts but holds
"also for breach of any stipulations, which may have been entered into after marriage with the
sanction of the Court between the husband and herself."379

Even though this is not expressly recognized in the Muslim Marriage and Divorce Act, 380
the breach on the part of the husband constitutes a ground for a fasah divorce in Sri Lanka, since
non-fulfilment of an agreement which is lawfully entered into amounts to a fault in Muslim law
applicable in the Island.

Apostasy

Islam takes a very strict stand on apostasy, consequent to which an apostate loses all
rights. A.A.A.Fyzee states that a Muslim husband who renounces Islam is an apostate and as
such his marriage with his Muslim wife is dissolved ipso facto.381

On the other hand apostasy of the wife to a kitabi religion382 would not dissolve the
marriage. 383 Verma confirms this, adding that apostasy to any non-kitabi religion would dissolve
the marriage. 384 This breach of Islamic principle however entitles the other party to obtain a
divorce from the apostate.385

378 Amir Ali - Mohommedan Law, Vol. II P. 523.

379 Ibid. at 524.
380 Act No. 13 of 1951.
381 Fyzee, A.A.A. – Outlines of Muhammedan Law, p.171. See also Tyabji, B.F. - Principles of Muhammedan Law,
p.195, Wilson, R.K. - A Digest of Anglo Mohammedan Law, p.78, Amir Ali – Mohommedan Law, Vol. III, p.390,
Mulla, F.D. – Principles of Mahomedan Law, p.321.
382 eg. Christianity or Judaism.
383 Amir Ali - Mohommedan Law, Vol. III, p.383-394.
384 Verma, B.R. - Muslim Marriage, Maintenance & Dissolution, p. 320.
385 Fyzee, A.A.A. - Outlines of Muhammedan Law, discusses this extensively at pp 169-177.

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Leprosy, insanity and impotence

The Muslim Marriage and Divorce Act386 specifically states that a Muslim divorce can be
grounded only on ill-treatment or fault. It should be considered whether leprosy, insanity and
impotence of the husband can be recognized as grounds for a fasah within the meaning of the Act.

In Noorul Naleefa v. Marikar Hadjiar, 387 the appellant alleged that she is entitled to a fasah
divorce on the ground of her husband's leprosy, irrespective of whether the disease was
contracted before or after their marriage. Discussing at length the applicability of leprosy, insanity
and impotence as grounds for fasah divorce in Sri Lanka, the Supreme Court drew attention to the
Mohammedan Code of 1806 in which legislative recognition was given to these grounds as validly
applicable in Ceylon.388 Recognizing that the Code of 1806 is today still a part of the substantive
Muslim law of Sri Lanka, it was held further, 389 that anyone who becomes aware that she has
married a person afflicted with madness, elephantiasis or leprosy has a right to renounce the
marriage. It was held accordingly, that a wife may renounce her husband on discovering him to be
impotent or castrated, and that a wife's right to renounce her marriage is not limited to defects
existing at the time of the marriage contract, but extends to those he may have acquired
subsequently, with the exception of impotence. It was recognized however that she could not
renounce a husband who becomes impotent sometime after cohabiting with her. 390

Obviously, a husband who contracts leprosy or who is insane, cannot be ‘guilty of a fault
due to an act or omission on his part’ under normal circumstances. Hence, the phrase ‘fault or ill
treatment’ should be considered in the context of Muslim law.391

Impotence has been identified as incapacity to consummate a marriage.392 The legal

meaning and the essential features with regard to impotence under Muslim law do not differ from

386 Section 28 of Act No. 13 of 1951.

387 (1947) 48 NLR 529.
388 Under Section 74, 77 and 78 of the Code of 1806.
389 at pp. 536, 538, 541, 542.
390 Canekeratne J. at p. 535.
391 Discussing this point, Canekeratne J. drew the attention of the Court to Section 50 of Ordinance No. 9 of 1934
which provided that ‘the repeal of Sections 64 to 102 inclusive of the Mohammedan Code of 1806, which is
effected by this Ordinance, shall not affect the Muslim law of marriage and divorce and the rights of Muslims
thereunder’. The Supreme Court was of the view that the rights of the Muslims of Ceylon with regard to marriage
and divorce are preserved intact. Hence the provisions of the Act cannot be construed to include any
circumstances which are not recognized by Sri Lankan Muslims. The laws and usages are further subjected to
limitations specified in different sects, even among the Muslims of Sri Lanka.
392 Birendra Kumar v. Hemalata 48 Cal. L.R. 283.

72
those of the English law.393 However, the underlying principle of impotence in Muslim law is
somewhat different from that of the English law. In Muslim law, failure to cohabit due to impotence
amounts to a breach of obligation under the contract of marriage. 394

Only a wife, who has attained majority, is entitled to apply for a divorce on the ground of
impotence.395 Similarly, a wife who was aware of the husband's incapacity prior to the marriage, is
barred from applying for divorce.396

It has been recognized that the burden of proof, that she was unaware of her husband's
condition, rests upon the wife.397 A wife has no right to sue for a divorce on the ground of
impotence, if the incapacity supervened after consummation of the marriage. 398 Since the delay is
no bar to an action of this kind,399 it appears that a wife can apply for a divorce as long as the
marriage remains unconsummated, and not thereafter. Similarly, the wife should prove that the
incapacity continues at the time of application and is incurable. 400

The burden of proof lies with the wife. If it can be proved that the wife is still a virgin
despite there being no physical abnormalities, it raises a strong presumption against the husband.
This presumption however may be rebutted by cogent evidence.

Adultery

Notwithstanding the recognition of polygamy in exceptional circumstances, adultery either

by husband or wife is condemned in Islam as a serious offence.401

393 Amir Ali - Mohammedan Law, Vol. II, P. 530.

394 Verma, B.R. - Muslim Marriage, Maintenance & Dissolution, p. 299.
395 Ibid. at p. 147, A guardian is not empowered to apply for a divorce on her behalf.
395 Amir Ali - Mohammedan Law, Vol. II p. 530.
Verma, B.R. - Muslim Marriage, Maintenance & Dissolution, p, 296.
Baillie - Digest of Mohammedan Law, Vol. I, P. 350. Apparently Muslim jurists are unanimous that in order to
obtain a divorce on the ground of a husband’s sexual impotence, the wife should be unaware of the husband’s
incapacity.
397 Ibrahim v Allafan 1925 AIR 24.
398 Amir Ali - Mohammedan Law, Vol. II p. 530.
Verma, B.R. - Muslim Marriage, Maintenance & Dissolution, p. 296.
399 Verma, B.R. - Muslim Marriage, Maintenance & Dissolution, p. 297.
400 Ibid. at p. 296.
401 Casim v. Beebi (1900) 1MMDR 38.
Asia Umma v.Segu Mohamadu (1881) I MMDR 27.
Pathumma v. Seeni Mohammadu (1921) 23 NLR 277.

73
 It was held in Casim v. Bibi402 that a Muslim is entitled to institute an action for divorce on
the ground of adultery. This was re-established by the supreme Court in Asia Umma v. Segu
Mohamadu, 403 where it was declared that the wife cannot be compelled to acquiesce in the
shame and disgrace that must attach to a household, in which the husband lives in open adultery
with another married woman.404

It was observed during the discussions held with some Quazis that due to the nature of
the allegation, strong proof is required. However, even an isolated act of adultery is sufficient to
form a ground for an action for divorce. Evidence of mere opportunity or access is not sufficient to
prove adultery. 405 In Cader Mohideen v. Nagoor Umma,406 where the wife was alleged to be
found in her bedroom at night with a stranger, it was held that the evidence was insufficient to
prove adultery since there was no evidence to suggest any act of adultery.

Muslim law requires strong evidence in cases of adultery, since the charge is considered
a serious breach of basic religious tenets.

2.iv (A) (b) Concluding comments on Fasah

Dissolution of marriage in Muslim law is easier and less burdensome than it is in general
law. The strict religious stipulations are complimented by less stringent statutory provisions. Even
though the obligations related to marriage, specifically the parental obligation of maintenance and
guardianship of young children, are recognized in Muslim law, such obligations do not obstruct
dissolution of a marriage, notwithstanding the law being based on religion.

Even though the phrase ‘ill-treatment or fault’ causes ambiguity, it provides the judiciary
with autonomy in construing the term, although interpretation should not expand beyond the limits
of the basic principles of Muslim law.

402 (1900) 1 MMDR 38.

403 (1881) 1 MMDR 27.
404 Ibid.
405 It should however be proved cogently that there was opportunity and desire, or access by the man to the woman,
or vice versa, coupled with intent or desire.
406 (1959) IV MMDR 188.

74
 The burden of proof of the alleged fault lies mainly with the applicant wife. It has however
been accepted that weight should be given to the evidence adduced in the case and not to the
abstract doctrine of ‘burden of proof’.407 Thus, facts in each situation are considered more
important than principles and concepts of legal procedure, which leaves the Muslim law with a
distinct identity.

There is no requirement of a minimum period of waiting prior to the application for divorce.
The divorce, however, becomes absolute only when the period of iddat,408 which a wife is obliged
to observe, is over. Thus the husband is bound to provide maintenance for the wife during this
period of seclusion.

2.v Fault – based grounds for divorce in Kandyan law

Before the codification of the law, marriages were dissolved according to customary
law.409 Under the customary Kandyan law there was no formality, and breakdown of marriage was
the basis for divorce.410 With the codification of the law, a de facto separation of the spouses could
have been considered as a de jure dissolution of marriage if the decree was granted according to
the provisions of the statute law.411

The present Kandyan law of divorce as set out in the Kandyan Marriage and Divorce Act 412
reflects features of the concept of fault recognized in English and Roman-Dutch law, as well as the
doctrine of breakdown of marriage, which was the basis of customary Sinhalese law.

407 A.S.N. Nair v. Sulochana 1881 Cr. L.J. (India).

Richard v. Richard 1955 AIR 451 at 453.
408 Iddat is a period of continence on the termination of a marriage during which a woman is supposed to live a life of
abstinence in the interest of certainty of paternity. By the completion of iddat a new marriage is rendered lawful.
See Hedaya cited in Mulla's - Principles of Mohomedan Law, P. 263, Tyabji, B.F. - Mohommedan Law, P. 30
Fyzee, A.A.A - Outline of Muhammedan Law, p. 102.
409 Modder, F. – Principles of Kandyan Law, 1914, 2nd ed. P.535.
410 Tambiah, H.W. - Sinhalese Laws and Customs, Lake House, Colombo, 1968, p.138.
411 In re Ukkubanda, (1900) 4 NLR 257.
412 No.44 of 1952.

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 The fault-based grounds of divorce were initially introduced into the Kandyan law by
Ordinance No. 13 of 1859.413 These grounds were retained with specific modifications under the
Ordinance No. 3 of 1870 and Ordinance No. 44 of 1952, which replaced the early statute.
However, the doctrine of fault was retained as a basis for divorce, through adultery and desertion.

2. v. (A) Adultery

Adultery is recognized as a ground for divorce in Kandyan law. It may be noted however,
that the husband’s adultery has been treated with noticeable laxity, compared to adultery by the
wife. While adultery itself amounts to a fault where it is committed by the wife, adultery on the part
of the husband amounts to a fault only if it is coupled with incest or gross cruelty. 414

Retention of this distinction in a legal system, where the status of women was not
considered inferior to that of men for almost one hundred and fifty years is ironical, and its
preservation is even more surprising, specifically in a pristine legal system where marital
misbehaviour of either party was not identified as a recognized ground for divorce.

The early English law might have influenced this distinction. The English law of the 19th
century distinguished between adultery by the husband and adultery by the wife. 415 However,
although this distinction has long been abolished from English law, it is still maintained in Kandyan
law, despite the obvious social changes that have occurred since the colonial period.

Some of those who gave evidence before the Commission on Marriage and Divorce 416
have justified this distinction on the basis of social policy. They were of the view that in a particular
society the wife’s status was essentially different from that of the husband. While the wife’s
responsibility was confined to the smooth management of the household and child rearing, the
husband’s duties compelled him to stay away from home. It was argued on this basis that, under
these circumstances, a husband’s adultery is pardonable, but that a wife’s adultery could bring

413 Section 31.

414 This unwarranted contrast can be seen in every statute that dealt with divorce under Kandyan law. See Section
31 of Ordinance No. 13 of 1859, Ordinance No. 3 of 1870 which replaced the earlier statute, and Section 32 (a)
and (b), and Section 33 of the present Kandyan Marriage and Divorce Act No. 44 of 1952.
415 See Matrimonial Causes Act of 1857. Even though a husband could seek relief on the sole ground of his wife’s
adultery, a wife had to establish either desertion by the husband for two years, or cruelty on his part together with
adultery. See Section 16.
416 Ceylon Sessional Papers XVI,1959.

76
illegitimate children into the family. Another argument was based on the assumption that this
distinction was based on “an essential difference in character and nature of the two sexes,” and
therefore it should be retained. 417

Even though the argument with regard to illegitimate children may be correct, its validity
where adultery is concerned is doubtful in the present social context. It cannot be accepted that
only a wife’s adultery might produce illegitimate children. The ultimate result of a husband’s
adulterous union could well be the birth of an illegitimate child to another woman. In either case,
there is a probability that the child would be a burden on society, as such children are still
discriminated against by the law.418

The distinction made on the basis, that only a wife’s adultery is alleged to bring disgrace
to the family as compared with the husband’s, cannot be accepted with regard to Kandyan society
in particular. According to Kandyan law, a woman was considered, despite her marital status, a
femme sole and was entitled to equal status in society. Difference of status was created not by her
womanhood, but by the form of marriage she had contracted. Even though, in a deega marriage,
the husband was considered the head of the household, a binna-married419 wife could expel her
husband at any time. It is clear therefore that the argument based on ‘essential differences of
character and nature of the two sexes,’ is not acceptable with regard to a social and legal system
where equal status accorded to women was unique.

On the other hand, in early Kandyan society polyandry was recognized openly, and was
exercised irrespective of cast or class. Similarly polygamy, though rare, was not prohibited. 420
‘Sanctity of marriage’ was unknown in traditional Kandyan society, where marriage could quite
easily be dissolved.

It is evident that the distinction between husband and wife, created by statute law, is alien
to traditional Kandyan law, and was not founded on any justifiable basis.

417 Ibid. Para 209.

418 Even though the Maintenance Act No.19 of 1889 does not differentiate between a legitimate and illegitimate child,
the Kandyan Law Declaration and Amendment Ordinance No.39 of 1938 in particular clearly recognizes the
difference between the two categories, and this effects inheritance to property. See Section 15.
419 Marriage under Kandyan law is of two kinds i.e. binna (or bini) in which the husband contracts to go and live in the
wife’s house or in any family residence of hers, and deega (or diga) in which the wife is conducted away from her
family to the husband’s house or to another place of lodging. See Niti Nighanduva p.17.
420 Hayley, F.A - Customary Law of the Sinhalese, P. 170,171.

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 The Commission on Marriage and Divorce, which was of the view that there was no
reason to retain the distinction in the modern Kandyan law, recommended that the distinction on
the basis of sex be withdrawn.421 Notwithstanding the recommendation, this distinction still prevails
in the Kandyan Marriage and Divorce Act.

Cruelty per se is not recognized as a ground for divorce in Kandyan law, nor is it defined
in the Act. After examining the evidence, the District Registrar exercises his discretion in deciding
whether the behaviour claimed by the applicant is sufficient proof of cruelty. 422

Incest, which means sexual intercourse of near relations coupled with adultery, makes a
ground for divorce in the case of the husband. Section 32 (b) of the Act does not describe the term
‘near relations’. However the ‘prohibited degrees of marriage’ are described in Section 5 of the
Act.423 It may be assumed that these are the relationships referred to in Section 32 (b). It is not
clear however if any other relationships that are not mentioned in Section 5 may be included in the
offence of incest prescribed in Section 32 (b). One could therefore logically raise the question,
whether Kandyan men, who are married under the Kandyan Marriage and Divorce Act, are free to
contract adulterous relationships with women who do not come within the meaning of ‘near
relations’ and if no incest is involved.

It may be argued in the light of Section 32 (b), that adultery per se on the part of the
Kandyan husband is not viewed as a serious breach of the marriage relationship. Even though
Section 32 (b) does not encourage sexual relations between near relations, it does imply that such
relations are not considered immoral in Kandyan society. Whatever the moral standard of
Kandyans was two centuries ago, Kandyans at present conform to modern norms, and not to the
primitive standard implied in Section 32 (b). By discriminating in law between the sexes, the image
of Kandyan women is undermined; yet their legal rights have been similar to that of women in
other legal systems.

421 Para 209.

422 Section 33 (8) of Act No. 44 of 1952.
423 Section 5 states that no Kandyan marriage shall be valid if either party is directly descended from the other; or if
the female party is the sister of the male party either by full or half blood, or the daughter of his brother or of his
sister by full or half blood, or a descendant from either of them, or the daughter of his wife by another father, or
his son’s or grandson’s or father’s or grandfather’s widow; or vice versa. See Section (1) (a), (b) and (c).

78
Proof of adultery

The Civil Procedure Code expressly states424 that provisions of the Code do not apply to
marriages affected by the provisions of the Kandyan Marriage and Divorce Act. Accordingly,
dissolution of a Kandyan marriage is regulated, unless it has been expressly provided for
otherwise, according to the provisions of the Kandyan Marriage and Divorce Act. 425

The Act empowers the District Registrar to hear and determine an application for
divorce426 but does not prescribe a test for proving adultery, as it does in the case of desertion and
separation. The District Registrars427 state, that in practice recognized rules of evidence are not
applied for proof of adultery, and the applicant bears the burden of proof.

The standard required in the proof of adultery varies, since the District Registrar, unlike a
judge, is not bound by precedent. Even though it does not mean that divorce is granted on the
mere allegation of adultery, the only restriction upon the discretion of the District Registrar with
regard to proof of adultery is the observance of the rules of natural justice.

Damages for adultery

Kandyan law does not lay any emphasis on the award of damages to the innocent
applicant in a divorce based on adultery. The Act does not necessitate the inclusion of the co-
respondent in the application for divorce.

This is different from the policy with regard to damages in both the Roman-Dutch and
English systems of law, where damages are granted to the innocent spouse on the basis of loss of
consortium and contumelia.428 These concepts are alien to Kandyan law, where the rights of
married women were recognized long before they were in the Western world. Hence it had not
been considered necessary to make provision for damages.

424 Section 627.

425 No. 44 of 1952.
426 Ibid. section 33 (6).
427 District Registrars and Additional District Registrars of Kandy, Matale and Kundasale were interviewed for
research purposes.
428 Fault-based divorce law of England and South Africa awarded damages on these principles prior to the
recognition of irretrievable breakdown of marriage as the basis of divorce.

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 Further, adultery does not appear to have been considered a grave offence in Kandyan
law, as it was both in English and Roman-Dutch law. It was decided in Mohammadu Thambi v.
Dingiri Menika429 that a woman’s adultery, even with a man of an inferior caste, does not involve a
forfeiture of her rights in property.

The British statutorily introduced adultery as one of the grounds for divorce in Kandyan
Law. Hence, adultery under Kandyan law should be understood in the context of the pre-colonial
period.

2. v. (B) Desertion

The Act430 provides that either spouse in a Kandyan marriage may apply for dissolution of
his or her marriage on the ground of complete and continued desertion for a period of two years by
the other spouse.431

Justice Jayawardene held, in Mohitiappu v. Kiribanda et al,432 that refusal to consummate

the marriage amounts to desertion, that marriage implies acceptance of the consequences of
marriage, and that the husband has a duty to live together and cohabit with his wife.433 The Act434
prescribes that continued desertion for two years amounts to a ground for divorce. Justice
Jayawardene’s analysis however implies meanings of desertion other than what is expressed in
the Act, and it is doubtful whether such connotations could be adopted.

Unlike in general law, where it is necessary to establish animus deserendi on the part of
the deserting spouse, Kandyan law does not appear to emphasize this intent. Instead, much
weight is accorded to the duration of separation. This is in contrast to the principles of English and
Roman-Dutch law, where the emphasis was on the animus deserendi of the deserter, and not on
the actual physical separation or its duration.

429 (1933) II C.L.W. 327.

430 No. 44 of 1952.
431 Section 32 (c).
432 (1923) 25 NLR 221.
433 Ibid. at p. 222.
434 Kandyan Marriage and Divorce Act No. 44 of 1952.

80
 This requirement of physical separation for a specific period may be criticized as an
injustice. There is a considerable risk of an innocent spouse being divorced under Section 32 (c)
or (d). For instance, a wife could divorce her husband who has been imprisoned for a continuous
period of two years,435 and this cannot be rationalized on the basis of matrimonial fault.

The Commission on Marriage and Divorce felt that it would be better to leave the decision
to the judge, to determine whether there has been a deliberate and unconscionable repudiation of
the marriage obligations, which would amount to malicious desertion in law. They recommended
that the requirement of a minimum period be withdrawn from the Act. 436 It seems doubtful that
results anticipated by the Commission could be obtained through these recommendations. 437

When read in the light of Section 33, it may be argued that a spouse, who seeks divorce,
need not wait for two years as required in Section 32 (c) and (d), but could do so on the ground
specified in Section 32 (e). According to Section 32 (e), the applicant is required to establish
separation from bed and board for a period of one year, which will be accepted as evidence of
inability to live happily together. Physical separation for a period of one year can be far more easily
established than complete and continued desertion for two years. Besides, the applicant bears
less of a burden under Section 32 (e) since ‘inability to live happily together’ is presumed by the
one-year separation. Hence the withdrawal of the minimum period specified in Section 32 (c) and
(d), while retaining Section 32 (e), as proposed by the Commission, would not be sufficient, since
such a withdrawal alone would not do justice to an innocent spouse, who had been compelled to
separate on reasonable grounds.

On the other hand, entrusting the District Registrar with the discretion to decide whether
there has been a ‘deliberate and unconscionable repudiation of the marriage obligations’ would
lead to unwarranted consequences, since the District Registrar, though he acts as the judge in
matrimonial actions, is neither a person trained in marriage counseling nor is he appointed to that
office on the credibility of his legal knowledge.

Customary Kandyan laws were codified with intent to regularize their vagueness and
uncertainty. There may have been occasions when a spouse was divorced for leaving the

435 According to the provisions set out under Section 32 (d).

436 Para 218.
437 The Commission recommended that breakdown of marriage should be the basis for divorce. See Chapter XIII,
para 25. However, it is doubtful how malicious desertion, with or without a period of separation, can be
recognized in a divorce law based on marital breakdown.

81
matrimonial home as a result of some argument or misunderstanding. It could not however be
assumed that a husband or wife, who had been living separately for a certain period of time on
reasonable grounds, would simply divorce their spouse. Such a situation is statutorily
encompassed in Section 32 (c) and (d), which provide grounds for divorce on desertion for a
period of two years. This poses the question whether these provisions express the customary law
of the Kandyans. Its inapplicability in a legal system, where marriage is not accorded with sanctity,
nor is considered a sacrament or an indissoluble union for life, favours a negative answer. The
negative argument may be strengthened by lack of legislative insistence on establishing animus
deserendi on the part of the deserter, and this prevents an innocent spouse, who may have been
forced to desert the other, from taking action to dissolve the marriage.

The drafting of Section 33 confers the right to divorce exclusively on the physically
deserted spouse. According to provisions of Section 32 (c), (d) and 33, the spouse who has
physically left the other becomes the deserter, and thus forfeits the right to divorce.

The offence of constructive malicious desertion, which has gained recognition in general
law through judicial interpretation, does not exist in Kandyan law. If the District Registrar, who
inquires into the application, were to interpret the provision unconventionally in conformity with the
principles recognized in English and Roman-Dutch law, an innocent spouse, who has been
deserted, could obtain divorce on constructive malicious desertion. However, since the Act only
emphasizes physical separation and does not require proof of animus deserendi, it is questionable
if such an interpretation is permitted in the existing context of the Act.

2.vi Maintenance on dissolution of marriages

In Kandyan law, the rationale for the award of maintenance does not appear to depend on
the cause of the dissolution. The District Registrar shall provide, in the order for divorce, that the
husband has to pay a certain sum of money periodically, or make other provisions for the
maintenance of his wife if the parties have not agreed upon terms and conditions of compensation
and maintenance.438 The final decision however depends on the wealth and social status of the
wife, the income of the husband, and the discretion of the District Registrar.

438 Section 33 (7) of the Act No. 44 of 1952.

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 It should be noted that when these provisions were included in Kandyan law they were
meant to apply to a specific group of people, whose social and cultural behaviour was never
influenced by a European administration. It should therefore be recognized that the rules of
English law do not apply per se with regard to Kandyans, specifically in matrimonial matters.

2. vii Concluding Remarks

It may be observed that the Marriage Registration Ordinance confines divorce to fault-
based grounds, thus limiting the relief. Contrastingly, a wider scope is encompassed within the
provisions of the Muslim Marriage and Divorce Act, which enables a Muslim wife to seek redress
for any form of fault or ill-treatment on the part of her husband, provided that the alleged behaviour
is recognized as a fault or ill-treatment by the sect to which the parties belong. Among the grounds
prescribed in the Kandyan Marriage and Divorce Act, the doctrine of fault is represented by two
basic grounds, i.e. adultery and desertion. However, divorce is not confined to matrimonial fault in
Kandyan law. The two non-fault grounds allow parties to obtain divorce, irrespective of the guilt of
either spouse, thus expanding the limits of divorce beyond matrimonial fault.

The preceding analysis unveils the main characteristics of and the mutual inconsistency
between the grounds for divorce recognized in the general law. Gender equality, however, may be
identified, as a significant feature in general law, whereas a contrasting discrimination is evident in
both Muslim as well as in Kandyan law. While the distinction in Muslim law between spouses may
be explained in terms of religious belief, the rationale of discrimination in Kandyan law between
spouses is unacceptable.

Codification of Kandyan law has not succeeded in bringing out the indigenous customs in
their innate character. Even though the codification has changed vague customs into an
authenticated positive law, the introduction of fault, through specific grounds, appears to have
added an unacceptable dimension to the meaning of Kandyan marriage. The fault aspect is
essentially connected to the idea of the sanctity of marriage, which was unheard of in the pre-
Christian era. Granting divorce on the ground of matrimonial fault on the part of the defendant
necessarily indicates the recognition of marriage in the context of Christian principles. It becomes

83
obvious therefore that codification had a significant impact on indigenous Kandyan law. The
reasons for the introduction of fault should be identified, and the law should be interpreted
accordingly.

On the other hand, the provisions of the Muslim Marriage and Divorce Act allow the Quazi to
interpret the element of fault according to the principles and customs of their respective sects or
schools. The rights of Muslim women have been considerably increased during the last few
decades through the Quazis’ liberal interpretations. The above Act permits a reasonable
interpretation within the limits prescribed in Islam, in order to accommodate the contemporary
social requirements.

Contrastingly, the Marriage Registration Ordinance confines divorce to three fault-based

grounds, thus limiting a wider interpretation by the judges. Thus the existing divorce law does not
satisfy the present requirements of society, has become a mere facade and not a cure for the
varying symptoms of a deteriorating marriage relationship.

---------------------

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 CHAPTER 3

NON-FAULT-BASED GROUNDS FOR DIVORCE

3.i The doctrine of breakdown of marriage

Irretrievable breakdown of marriage has been recognized as an alternative basis for

instituting a divorce. The success or failure of a marriage depends on so many imponderable
factors that it is impossible to encompass every conceivable situation within the limits of a statute.

It is not easy to define the condition termed ‘irretrievable breakdown of marriage’. Lord
Walker has analyzed it thus:

“Where the facts and circumstances affecting the lives of the parties
adversely to one another are such as to make it improbable that an ordinary
husband and wife could ever resume cohabitation”. 439

It may be asserted that a marriage is broken irretrievably when it has ceased to serve a
useful purpose 440and the parties are unlikely to resume cohabitation. 441

The breakdown of a marriage is not necessarily confined to an isolated act or an omission

by one party to the marriage, but may well have been caused by a series of acts or omissions. In
most cases it is a condition created by both parties, for which both spouses bear some
responsibility. Thus proof of a breakdown is not as easy as proof of a fault.

In this thesis it is proposed, that irretrievable breakdown of a marriage is a better alternative

than fault as a basis for divorce. However, this view has been subjected to criticism, and the
arguments need to be analyzed.

439 Report of the Royal Commission on Marriage and Divorce, (The Morton Commission) 1956, Comd. 9678,
at p. 340.
440 Putting Asunder - para 55.
441 The Seven Pillars of Divorce Reform, Law Society Gazette (England), 1965, June p. 344.

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 One such argument is that it allows the guilty spouse to take advantage of his own wrongful
behaviour. It has been contended that it would be inequitable for the innocent defendant, and
would inevitably allow the petitioner, who is responsible for the breakdown, to flout the maxim
nullus commodum capere potest de injuria sua propria, i.e. that no man can take advantage of his
own wrong.442

Even though this holds some validity as an argument, there is another aspect which has
been overlooked. It should be recognized that in most instances the very fact that there is a
petition for divorce reflects a failed marriage. Moreover, where one spouse deserts the other, or
commits adultery, this provides some evidence of a marital breakdown, at least to a certain
degree, if not irretrievably. There may be a chance of survival of such a marriage, but there is also
a probability of failure. It has been widely accepted that offences such as adultery and desertion
are symptoms rather than causes of a breakdown.443 Hence there is no equity in law if it prevents
one spouse from seeking a dissolution of marriage, because he or she has committed an offence.

Recognition of an irretrievable breakdown as the basis for a decree of divorce does not
mean that the Courts should overlook the matrimonial behaviour of the parties. Behaviour factors
could be considered on deciding ancillary matters such as maintenance, alimony and distribution
of property.444 What the concept of breakdown emphasizes is, that the decree of divorce should
not be based exclusively on the behaviour of the spouses but on the state of the marriage.

It has been argued that, where breakdown is recognized as the basis fo divorce, there
should be safeguards with regard to extraordinary situations, such as where the petitioner had not
only been responsible for ending the union, but had flouted the obligations of marriage and treated
the other party without due consideration. 445 Also, where divorce is objected to on the basis, that
dissolving the marriage would cause grave financial or other hardship to the respondent, and a
divorce will cause more hardship than the marital breakdown has already done. 446 One view is,
that in such instances the Court should uphold the public interest, and where society’s interest in

442 Putting Asunder, para 66.

443 Jennifer Levin - The Divorce Reform Act of 1969, (1970) Vol. 33, M.L.R. 632, at p. 634.
444 This has been recognized in Putting Asunder, para 32, p.128, and in Reform of the Grounds of Divorce – The
Field of Choice, the report published by the Law Commission (England) in 1966. Also see Lenore Weitzman and
Ruth Dixon – The Transformation of Marriage Through No-Fault Divorce : The Case of the United States, in -
Marriage and Cohabitation in Contemporary Societies, Butterworths,Toronto,1980, p.143 at p. 147.
445 Putting Asunder, para 66.
446 See Report of the Law Commission of England - Family Law–The Ground for Divorce, Law Commission No. 192,
paragraphs 5.72 – 5.77

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doing away with empty legal shells would be outweighed by other considerations of fundamental
importance, the Court should not hesitate to refuse a decree. 447

However, it may be asserted that such a policy contrasts with the essence of a
breakdown-based divorce system. It is true that the law should safeguard public interest, and the
divorce law in particular should address the issue of grave hardship, and provide adequate
measures for those who face difficulties after divorce. However, such situations should not stop
the Court from granting a divorce, since preventing the dissolution of a failed marriage would
neither uphold the public interest nor would it serve any other useful purpose. Financial and other
supportive measures should be provided without obstructing divorce.

3.ii Doctrine of breakdown in different jurisdictions

3.ii (A) The South African law

Under the present law of South Africa, divorce is granted on two grounds, i.e.

(a) irretrievable breakdown of a marriage and

(b) mental illness or continuous unconsciousness of either spouse.

The Divorce Act No. 70 of 1979 of South Africa provides guidelines as to when a marriage
is considered irretrievably broken. Section 4 (2) of Divorce Act No. 70 of 1979 stipulates that
‘subject to the provisions of Section 4 (1) and without excluding any facts or circumstances which
may be indicative of the irretrievable breakdown of a marriage, the Court may accept evidence to
the effect that
(a) the parties have not lived together as husband and wife for a continuous period of at least
one year immediately prior to the date of the institution of the divorce action; or
(b) that the defendant has committed adultery and that the plaintiff finds it irreconcilable with a
continued marriage relationship; or
(c) that the defendant has, in terms of a sentence of a Court been declared a habitual criminal
and is undergoing imprisonment as a result of such a sentence, as proof of the
breakdown.

447 See K v. K [(1997) 1 FLR 35] where substantial hardship caused to the wife influenced the judgment.
See further: Johnson v. Johnson (1982) 12 Fam Law 116, Rukat v.Rukat (1975) 1 All ER 343/ (1975) 2 WLR 201.

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 The phrase, ‘without excluding any facts or circumstances which may be indicative of the
irretrievable breakdown of a marriage…’ permits proof of the irretrievable breakdown of a marriage
in two alternatives:

(a) either by proof of any factual situation stated in paragraphs (a), (b), or (c) of Section 4 (2), or
(b) by evidence of any other fact/s which would satisfy the Court that the marriage has
irretrievably broken down, and that there is no reasonable prospect of the restoration of a
normal marriage relationship.

The cause of the breakdown or the doctrine of culpa compensatio448 is immaterial in the
present South African law449. It is the state of the marriage relationship that the law examines in
order to decide whether or not to grant a divorce. 450 The cause for a breakdown, be it misconduct,
the physical or mental illness of either spouse or any other reason, does not make a difference in
the decision of the Court in granting or refusing the decree of divorce.

Kruger v Kruger,451 which was the first case decided under the 1979 Act, provides a clear
example where irretrievable breakdown was recognized and accepted despite the plaintiff’s
unilateral repudiation of marriage, evidenced by his long time adulterous association with his
mistress. The Court recognized irretrievable breakdown and granted divorce, where the plaintiff’s
intention to marry his mistress, despite his wife’s desire to reunite with him, was evident. Brink J.
held that there is “ample proof that the marriage has reached a state of absolute disintegration.” 452
The Court held, that the only requirement in the Act was the objective fact of irretrievable
breakdown, whatever may be the cause thereto. 453

This decision established the doctrine of irretrievable breakdown in South African law, and
paved the way for other decisions. It lays down a clear and definite guideline how the doctrine of
irretrievable breakdown is construed in South Africa, without giving undue weight to the cause of
the breakdown.

448 Hahlo,H.R. - South African Law of Husband and Wife, 5th ed. (1993) P. 334.
449 Kruger v Kruger [1980 (3) SA 283] provides a classic example for this.
450 Sing v. Sing (1983) 1 SA 781,Baker J. at p.786.
Since neither spouse wanted to reunite as husband and wife, the Court found that there is no reasonable
prospect in restoring the marital relationship.
451 1980 (3) SA 283.
452 Ibid. at p. 286.
453 See furthre Dickinson v. Dickinson 1981 (3) SA 283, Smit v. Smit 1982 (4) SA 34, Naidoo v. Naidoo 1985 (1) SA
366, and L v. J 1985 (4) SA 371.

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 The test of irretrievable breakdown was discussed in Naidoo v. Naidoo,454 where Margo J.
held that it may be either subjective or objective; that the test is subjective because different
individuals may react differently to a given situation and that, while certain circumstances to one
person may be wholly destructive of the conjugal relationship, a less sensitive person may evoke
no such response under similar circumstances. It was held that the test is also subjective because,
although the marriage may have broken down irretrievably for the plaintiff, the defendant may wish
at all costs to preserve it. The test is objective in that, in terms of Section 4(1) of the Act, the Court
must be satisfied that irretrievable marriage breakdown in fact occurred. 455

Accordingly it may be asserted that divorce in South Africa is not subjected to specific
grounds or granted as a punishment or a reward, but is a declaration of the status of the marriage
in question.

3.ii (B) The English law

A gradual transition of the basis of the law of divorce can be detected in English law.
Dissolution of marriage was confined to the exclusive ground of matrimonial fault until 1967. It was
realized later that restriction of the right of divorce exclusively to the victims of matrimonial
offences neither reduced the number of divorces nor guaranteed the stability of a marriage. In
recognition of the failure of the fault-based divorce law, a committee was appointed to review the
divorce law of England, 456 which found inter alia that:

(i) a law which concentrates only on matrimonial offences as the sole ground for divorce fails
to ‘do justice to the complexity of motives in the two interacting persons, and it practically
drives the one to act, and the other to treat the action as a ground for a divorce petition.
Consequently, it provides an easy way out of their difficulties.’457
(ii) the existing interpretation and administration process has a tendency to adulterate the
doctrine of fault.458

454 1985 (1) SA 366.

455 Ibid. at p. 367.
456 The Committee was appointed by the Archbishop of Canterbury.
457 Putting Asunder, para 8, Appendix D, p. 144.
458 The Commission cited the example of ‘cruelty’. See Putting Asunder, para 8, Appendix D, which is based on para
49- 52 of the Report.

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(iii) the ground of insanity, which is not a matrimonial offence, is an ‘intolerable situation’
which the other spouse should not be compelled to endure. 459

Consequently, the committee recommended a fundamental change in the basis of the law,
i.e. to introduce irretrievable breakdown of a marriage as the exclusive criteria for divorce. It further
recommended, that the Court should look into “all the relevant facts in the history of the marriage
including those acts and circumstances which the existing law treats as grounds for divorce in
themselves.”460

The Committee was of the view that separation of spouses per se was not conclusive in
proof of breakdown, even though it provides important evidence as to the nature of the
relationship.461 The Report quotes a statement made by Lord Walker: 462

“A marriage cannot fairly be said to have broken down beyond hope of

reconciliation merely because the parties had consented to lead separate lives in
the past and intended to do so in the future; for consent may be withdrawn and
intention may change. ”463

The Report 464effectively moved the attention of the law-making bodies towards the need
for a more realistic divorce law that would have far reaching effects on the spouses concerned,
their children and society at large.

Subsequently, the Law Commission in 1966 presented a report on the grounds for divorce
titled ‘Reform of the Grounds of Divorce:The Fields of Choice.’465 It recognized the necessity to
look beyond the dissolution of marriage, to take effective measures in reconciliation and make an
effort to save the marriage where possible. Where there is no hope of reconciliation, the marriage

459 Putting Asunder, para 44. See further Gollins v Gollins [(1963) 2 All ER 966 / (1964) AC 644] where the Courts
have identified an intolerable situation where a ‘reasonable person,’ after taking due account of all the
circumstances, would consider that the conduct complained of is such that this spouse should not be called on to
endure.
460 Para 56.
461 Para 56.
462 Lord Walker expressed this idea as a member of the Royal (Morton) Commission.
463. Putting Asunder, Para 56.
464 Putting Asunder was acclaimed as the most competent review of the divorce problem to have been published in

this century since Royal (Gorel) Report of 1912.

465 Law Commission of England, comd.3132.

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should be dissolved with a minimum of embarrassment, humiliation and bitterness to the parties
concerned.

The Law Commission acknowledged that making divorce hard to obtain did not preserve
the stability of a marriage. The Commission accepted, that the divorce law should understand the
true condition of the marriage, but this would not be feasible as long as the Courts emphasize the
matrimonial fault. It was thus recommended that divorce should be founded on the doctrine of
irretrievable breakdown.

The Report ‘Putting Asunder’ favoured the substitution of irretrievable breakdown of

marriage in place of matrimonial fault as the lesser of two evils. The Law Commission, while
endorsing the adoption of irretrievable breakdown as the basis for divorce, refused to accept that
the state of a marriage relationship is triable in Court. 466 The Law Commission believed that it was
procedurally impractical and undesirable.467 Instead they proposed three alternative grounds on
which divorce could be granted, i.e.

(a) on proof of breakdown after a period of separation; or

(b) by mutual consent of the spouses; or
(c) on proof of a period of separation without regard to fault.

Relying on the basis that " the ending of cohabitation and a sustained failure to resume it
are the most cogent, objective and justifiable indications of breakdown…”468 the Law Commission
recommended that separation should be an additional ground. 469

The subsequent enactment of the Divorce Reform Act of 1969, where the sole ground for
divorce was irretrievable breakdown of marriage 470, can be seen as a compromise of the
recommendations in ‘Putting Asunder’ and ‘Field of Choice’. A decree of divorce however was to
be granted only if the petitioner satisfied the Court that one of the five facts or conditions set out in
Section 1 (2)471 had been met, although the causal connection between the alleged fact or
condition and the breakdown of marriage was not required. In addition to the five facts set out in
Section 1 (2), a petitioner was bound to prove that the marriage had broken down irretrievably.472

466 Reform of the Grounds of Divorce – The Field of Choice – Para 33.
467 Ibid. Para 58.
468 Ibid. Para 72.
469 Ibid. para 105.
470 The Divorce Reform Act of 1969. See Section 1.
471 The facts were that:

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 The Divorce Reform Act of 1969 was replaced by the Matrimonial Causes Act of 1973,
which also recognized473 an irretrievable breakdown of marriage as the basis for divorce.
However, the five facts recognized in the 1969 Act were retained. 474

It can be observed that the legislature did not withdraw completely from matrimonial fault.
The first three of the five facts set out in both Acts were based on matrimonial fault. The burden
and standard of proof of adultery and desertion remained unaltered.475 However, a petitioner was
required to prove, in addition to adultery, that she or he finds life with the respondent intolerable.

The legislature might have intended to introduce an additional intolerable factor along with
adultery for proving breakdown. However, it should be noted that the test of intolerability is
subjective. Hence it is questionable whether it was practicable for the Court to test the true nature
of the relationship. The Law Commission thought that the issue of marital breakdown is not triable,
and even if it is triable a Court of law is not the appropriate tribunal to adjudicate on it. 476

Section 1 (2) (b) required proof of the nature of the respondent’s behaviour, which caused
the petitioner to leave. This ‘behaviour’ might have included cruelty, insanity and rape, and
sodomy and bestiality on the part of the husband. These factors were recognized earlier. Thus it
appears that most of the old statutory grounds based on fault were included in the 1973 Act.

For instance ‘desertion’ was encompassed in Section 1 (2) (c) of the Matrimonial Causes
Act of 1973, which required the petitioner to prove that the desertion had continued for a period of
at least two years immediately preceding the presentation of the petition. Both Acts 477 have

(a) The respondent had committed adultery and the petitioner found it intolerable to live with the respondent;
(b) the respondent had behaved in such a way that the petitioner could not reasonably be expected to live with
the respondent;
(c) the respondent had deserted the petitioner for a continuous period of at least two years immediately
proceeding the presentation of the petition;
(d) the parties to the marriage had lived apart for a continuous period of at least two years immediately
proceeding the presentation of the petition and the respondent consented to a decree being granted;
(e) the parties to the marriage had lived apart for a continuous period of at least five years immediately
preceding the presentation of the petition.
472 This was judicially endorsed in Richards v. Richards (1972) 1 WLR 1073, Mouncer v. Mouncer (1972) 1 All ER
289, and Ash v. Ash (1972) Fam 135.
473 Section 1 (1) of the Matrimonial Causes Act of 1973.
474 Section 1 (2) of the Matrimonial Causes Act of 1973 recognized the same five facts, which the 1969 Act
endorsed. See supra note 471.
475 Jennifer Levin – The Divorce Reform Act of 1969, (1970) 33 MLR 632, at p. 634.
476 Reform of the Grounds of Divorce : The Field of Choice, para 58.i.
477 The Divorce Reform Act of 1969 and the Matrimonial Causes Act of 1973.

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omitted the phrase ‘without cause,’ which was an integral part of Section 1 (1) (a) of the
Matrimonial Causes Act of 1965. It should be noted however, that this exclusion has not abolished
the fault element from the offence of continued desertion. By contrast, the requirement of the
proof of continuous desertion preserved the fault element, since it implied that a period of
desertion for less than two years lacked the necessary intent required in law. Even though the
legislature may have intended to introduce irretrievable breakdown through a longer period of
continued desertion, this was not successful since the element of fault is reflected in desertion
itself.

The purpose of the Act478 was to introduce a good divorce law which would buttress rather
than undermine the stability of marriage, and to enable a broken marriage to be ended with
maximum fairness and minimum bitterness. However, it was seen as an easy way to obtain a
divorce, probably due to differences between the law and practice. 479

Only the two separation grounds set out in Section 1 (2) (d) and (e) of the Matrimonial
Causes Act of 1973 could be seen as truly non-fault. Section 1 (2) enacts that a marriage is
deemed to have irretrievably broken down if,

(1) the parties to the marriage have lived apart for a continuous period of at least two years
immediately preceding the presentation of the petition and the respondent consents to a
decree being granted (two years separation and consent); 480

(2) the parties to the marriage have lived apart for a continuous period of at least five years
immediately preceding the presentation of the petition, i.e. five years separation. 481
(Consent was not a requirement)

478 Matrimonial Causes Act of 1973.

479 For instance, the restriction imposed on the judicial interpretation by insisting on proof of definite factual situations
may have contributed to the unsatisfactoriness of the divorce law introduced by the Acts of 1969 and 1973
respectively. The Court was placed in a situation of uncertainty. On the one hand, it was duty bound to inquire,
as far as possible, into the facts alleged, and be satisfied that the marriage was broken beyond repair. On the
other hand it had no statutory duty to search for evidence of facts neither party has alleged. See Cleary v. Cleary
(1974) 1 All ER 498. As a result, the Court was compelled to refuse to grant a divorce even when it was apparent
that the marriage had broken down, but the necessary fact or fault was not established. See Buffery v Buffery
(1985) 2 FLR 365, Richards v Richards (1972) 1 WLR 1073.
480 Section 1 (2) (d).
481 Section 1 (2) (e).
Both these grounds were based on the presumption that breakdown is best evidenced by separation.
See Pheasant v. Pheasant (1972) 2 WLR 353.

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Proof of two separate facts was required under Section 1 (2) (d), i.e.

(i) that the parties have lived apart for a continuous period of at least two years immediately
preceding the presentation of the petition; and
(ii) that the respondent consents to a decree being granted.

The consent required should be given in a positive manner and can be withdrawn at any
time before the granting of a decree nisi.482 The Act483 states that where a decree nisi is granted
exclusively on the basis of the two-year separation and consent, a respondent can apply to have
the decree rescinded at any time before the decree is made absolute, as long as he or she can
show that he or she has been misled by the petitioner, either intentionally or unintentionally, on
any matter which he or she considered in giving consent. This favoured the right of free will of the
respondent.

However, it is doubtful how far a genuine consent can be ensured within an adversarial
divorce procedure. Undoubtedly there is discrimination against the less affluent party, who is
compelled to give his or her consent due to financial or other reasons. 484 On the other hand, the
two-year separation clause has been criticized on the basis that it has effectively introduced
divorce by consent.485

According to Section 1 (2) (e), a petitioner is entitled to a decree on proof of separation of

the parties for a continuous period of at least five years immediately preceding the presentation of
the petition, unless the respondent has objected on the ground of grave financial hardship or any
other ground to dissolve the marriage. 486 The consent of the respondent to the divorce was not
required nor any test of breakdown involved under this Section. Thus it allowed divorce when there
was no proof of breakdown, fault, or consent. The impact of this ground was hard on a non-
consenting spouse, since it provided for a divorce without establishing his or her fault or failure of
the marriage, and also against his or her will.487

482 Matrimonial Causes Rules of 1973 Rule 16 (2).

483 Matrimonial Causes Act of 1973.
484 The Law Commission confirmed this view. See - Looking to the Future - Mediation and the Ground for Divorce,
Report of the Law Commission of England 1993,Comd. 2424, para 6.28.
485 Davies and Murch, - Grounds for Divorce, Oxford, 1988, at p .8.
486 As provided under Section 5 of the Matrimonial Causes Act of 1973.
487 Davies and Murch – Grounds for Divorce, at p.8.

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 Both these grounds were based on the assumption that breakdown is best evidenced by
separation.488 It could not however be agreed that mere separation indicates breakdown of
marriage.

The law introduced by the Acts of 1969 and 1973 respectively can hardly be called a shift
from the doctrine of ‘fault’. It may be seen as an unsuccessful attempt to reach a compromise
between two widely divergent ends, i.e. a law based on irretrievable breakdown on the one hand
and a law based on matrimonial fault on the other. The introduction of the new concept into the
earlier existing adversarial legal system increased hostility, acrimony and trauma and largely
contributed to its unsuccessfulness.

The Matrimonial Causes Act of 1973 was not successful in introducing the concept of
irretrievable breakdown of marriage or any of its expected virtues, nor in introducing a divorce law
in line with the social reality of marital breakdown in contemporary society489. The requirement of
proof of definite fault-based grounds prevented the law from reaching these ends.

The unforeseen drawbacks evidenced by the rising rate of divorce in England and Wales
proved the need to reassess the divorce law. 490 In response, the Law Commission, after
investigating the issue afresh, published its discussion paper on grounds of divorce – ‘Facing the
Future’- in 1988,491 twenty-two years after its last publication on the subject. 492 ‘Facing the Future’
recommended irretrievable breakdown of marriage to be the sole ground for divorce. Factual
situations to prove marital breakdown were not prescribed in the Report. The Court had to be
satisfied, considering the circumstances of each case, that the marriage had irretrievably broken
down. A written statement by one or both parties to the effect, that the marriage has broken down,
followed by a period of separation or of transition, was also considered sufficient proof of
breakdown. This period was expected to provide time for reflection, and the setting-up of
arrangements for children and property.

488 This was judicially recognized in Pheasant v. Pheasant (1972) 2 WLR 353.
489 Lenore Meitzman and Ruth Dixon - The Transformation of Marriage Through No-Fault Divorce: The Case of the
United States, in -Marriage and Cohabitation in Contemporary Societies - An International and Interdisciplinary
Study, at p. 148.
490 According to Martin Richards, [Martin Richards – Divorce Numbers and Divorce Legislation, 1996 Family Law
151] number of divorces tripled between 1960 -1970.
491 Facing the Future – A discussion paper on the ground for divorce, Law Commission (England) No. 170 (1980).
492 Reform of the Grounds of Divorce–The Field of Choice, which was published in 1966.

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 The Report ‘Facing the Future’ however was not successful in effecting a change in the
statute law. Hence, the Law Commission produced yet another discussion paper in 1990, titled
‘The Ground for Divorce’.493 Emphasizing greater understanding of the needs of children whose
parents are divorced, and the importance of the active participation of various departments other
than the Courts in the sphere of legal administration,494 the Law Commission recommended that
irretrievable breakdown of the marriage should remain the sole ground for divorce. The breakdown
was to be established at the expiry of a minimum period of one year, which was to be utilized for
consideration of the practical consequences which would result from a divorce, and reflection
whether the breakdown in the marital relationship was irreparable. 495

The Law Commission was unanimous in the view, that a mere introduction of the theory of
breakdown along with fault-based grounds would not achieve the required objectives of the law,
nor would it cater to the needs of contemporary society.

The most significant breakthrough in the law of divorce came with the publication of
‘Looking to the Future: mediation and the ground for divorce’.496 With the intention of conducting
the dissolution of marriages in a less distressful and recriminatory way, the Law Commission thus
set out its objectives:

“To support the institution of marriage, to include practicable steps to

prevent the irretrievable breakdown of marriage, to ensure that the parties
understood the consequences before taking any irreversible decision; where
divorce is unavoidable to minimize the bitterness and hostility between the
parties and reduce the trauma for the children; and to keep to the minimum
the cost to the parties and the taxpayer.”497
Recognizing divorce as a process rather than a single act, and as part of a massive
transition for the parties concerned, the Family Law Act of 1996 introduced divorce after “a period
for the consideration of future arrangement and for reflection”, while retaining irretrievable
breakdown of marriage as the exclusive ground.

493 Law Commission (England) No. 192 (1990).

494 Para 3.43.
495 para 3.48 – conclusion.
496 This was first published as a consultation paper in December 1993 (cm 2424) and subsequently as the
government’s proposals in April 1995.
497 See para 4.1.

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 The Act is significant in two ways. It helps to save marriages, while recognizing that
marriages which are irretrievably broken should be dissolved if the parties require it. Unlike earlier
legislation, where divorce was essentially an adjudication by a Court, the Act encourages parties
to come to their own agreements with regard to children, property and financial arrangements.

The Family Law Act of 1996 provides that a marriage should be considered to have
broken down irretrievably if, (and only if)498

(a) a statement has been made by one (or both) of the parties that the maker of the statement
(or both of them) believes that the marriage has broken down;
(b) the statement complies with the requirement of Section 6 which requires the parties to be
aware of the purpose of the period for reflection and consideration, and that they wish to
make arrangements for the future, since they believe that their marriage is broken beyond
repair;
(c) the period for reflection and consideration fixed by Section 7, i.e. nine months, beginning
with the fourteenth day after the day on which the statement is received by the Court, has
lapsed;499
(d) the application under Section 3 is accompanied by a declaration by the party making the
application that
(i) having reflected on the breakdown, and
(ii) having considered the requirements for the future,
the applicant believes that the marriage cannot be saved.
The process neither includes proof of any facts, faults or marital misbehaviour, nor does
any spouse act as the petitioner. The only requirement is the written acceptance of either or both
parties of the true situation of their relationship. There is only an applicant (or applicants on a joint
application) who certifies the irretrievable breakdown of the marriage, and that the parties have
reached an agreement on the consequences of divorce, i.e. on the custody and maintenance of
their children, property and other financial matters.
It was recognized that the nature of the marriage relationship makes it extremely difficult
for any Court to assign the blame for the breakdown of a marriage relationship.500 Eekalaar sees
the virtue of the Family Law Act 1996 in its honesty in “recognizing the limits of legal regulation of

498 Section. 5 (1).

499 Section. 7 (3).
500 Looking to the Future, Mediation and the Ground for Divorce - Law Commission (England) – 1993, Com. 2424,
para 6.25.

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moral matters and the inherent logic of no-fault divorce….” 501 The Act replaced the divorce
process, which is mainly based on judicial interaction, with an informal procedure which focuses
on reconciliation.502

‘Looking to the Future’ marked the final abandonment of the system, which imposed a
burden on the petitioner to make allegations against the respondent. It is the ultimate departure
from the inquisitorial system, which led the way to distress, humiliation and ill-feeling among
spouses. It was expected to encourage harmony through dialogue, which was vital for the stability
of the future of their children.503

The concept of marital failure changed the basic elements in the traditional divorce law.
Fundamentally, it changed the feeling that divorce kills a marriage. Instead, divorce was
recognized as an identification of the death of a marriage. Most of all, it “eliminated the artificial
conception that one party was responsible for the breakdown”. 504

3.iii The Sri Lankan Situation

3.iii (A) Non-fault-based grounds under the general law

The divorce law stipulated in the Marriage Registration (General) Ordinance is based on
the doctrine of matrimonial fault505. A legislative attempt to affect a change in the basis of divorce
is evident in the new Section 608 (2) of the Civil Procedure Code. 506

Section 608 (2) stipulates that either spouse may

501 John Eekalaar - The Family Law Bill – The Politics of Family Law, 1996 Fam. Law 45, at p.46.
502 Simon Roberts – Decision Making for Life Apart, (1995) 58 M.L.R. 714 at p. 715.
503 It should be noted however that the Family Law Act of 1996 is not fully applied in England. The reason for non-
application appears to be the inadequacy of a judicial and administrative mechanism to implement the divorce
procedure.
504 Lenore Meitzman and Ruth Dixon - The Transformation of Marriage Through No-Fault Divorce: The Case of the
United States, in Marriage and Cohabitation in Contemporary Societies: an international and interdisciplinary
study, 145 at p. 149.
505 Section 19.
506 Introduced by Act No. 20 of 1977.

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(a) after the expiry of a period of two years from the entering of a decree of separation under
Section 608 (1) by a Family Court, whether entered before or after the 15 th day of
December 1977 or
(b) notwithstanding that no application has been made under Section 608 (1), but where
there has been a separation a mensa et thoro for a period of seven years,

apply to the Family Court by way of summary procedure for a decree of dissolution of
marriage. It states further that the Court may, upon being satisfied that the spouses have not
resumed cohabitation in any case referred to in paragraph (a), or upon the proof of the matters
stated in an application made under the circumstances referred to in paragraph (b), enter
judgement accordingly, unless an appeal against such a decree is pending.

Section 608 (2) raises two main questions:

Primarily, whether the expiry of two years from the entering of a decree of separation by a
Family Court, and separation a mensa et thoro for a period of seven years, were intended to
introduce additional grounds for divorce. Secondly, whether it has introduced the doctrine of
irretrievable breakdown into the general law, which would enable either spouse, irrespective of
guilt, to obtain a decree of divorce without establishing the other’s guilt.

The Court of Appeal in Muthuranee v Thuraisingham507 took an affirmative view with

regard to these issues. Justice Tambiah was of the opinion that the objective of the enactment of
the new Section 608 (2) (b) was to liberalize the divorce laws by introducing the concept of
breakdown of marriage into the existing fault-based divorce law.508 Thambiah J. specifically stated
that Section 608 (2) (b) does not necessitate proof of conditions required for a decree of
separation. It was confirmed in his judgement that Section 608 (2) (b) prescribes only physical
separation, and does not connote matrimonial fault. Hence it enables a husband or a wife to
petition for divorce where the marriage has irretrievably broken down, irrespective of his or her
guilt,509 and that is further confirmed by the abolition of discretionary bars. 510

507 (1984) 1 SLR. 381.

508 at p. 392.
509 at pp. 390 – 392.
510 at pp. 396 – 397.

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 A contrary view was taken in Tennakoon v Somawathie Perera (Tennekoon), 511 where it
was held that Section 608 (2) does not alter the existing basis of the divorce law, but only makes
provision for a quick and less expensive procedure to obtain relief in matrimonial cases. The
plaintiff was granted leave to appeal to the Supreme Court on two questions of law, i.e.

(i) Whether separation a mensa et thoro for a period of 7 years constitutes a valid ground for
divorce under Section 608 (2) of the Civil Procedure Code; and

(ii) If not, whether it is incumbent on the petitioner seeking a divorce under that Sub-Section
to establish a matrimonial fault on the part of the respondent, other than the separation.

Sharvananda C.J. held that Section 608 (1) specifically requires that the party applying for
a judicial separation must establish a ground on which, by the law applicable thereto, such a
separation may be granted, and that a decree for judicial separation will not be granted where the
plaintiff refuses to cohabit for reasons other than the defendant’s alleged unlawful conduct. It was
held, that Section 608 (2) should necessarily be construed in the light of Section 608 (1) and
accordingly, either spouse in Section 608 (2) refers only to an innocent spouse who, according to
law, is entitled to obtain a decree of separation a mensa et thoro. 512

Overruling the decision in Muthuranee v Thuraisingham, 513 the Supreme Court held that
the inclusion of Section 608 (2) did not introduce an additional ground for divorce into the general
law. Relying on the principle of interpretation that ‘statutes dealing with procedure should, where
possible, be limited in their construction to procedure only’, the majority of the Supreme Court took
the view that the Civil Procedure Code could not be taken to have changed the substantive law.
The Supreme Court confirmed, that the doctrine of breakdown of marriage has not been
introduced into the law of divorce, and that matrimonial relief in general law is founded exclusively
on the doctrine of fault. Consequently it was held, that it is incumbent on a spouse seeking
divorce under Section 608 (2) of the Civil Procedure Code on the ground of separation for a period
of 7 years, to establish matrimonial fault.

However, Tambiah J. in his dissenting judgment refused to accept that the provisions in
Section 608 (2) are ambiguous or imprecise and held that “…on an application of either spouse,
511 (1986) 1 SLR 90.
512 at p. 97.
513 (1984) 1 SLR 381

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whether innocent or guilty of a matrimonial offence, a decree of separation may be converted to
one of divorce after the lapse of two years. In addition, it declares that despite the absence of a
decree of separation, a de facto separation a mensa et thoro (from bed and board) for seven years
is sufficient to obtain a dissolution of marriage, on the application of either the innocent or the
guilty spouse. In the latter case, the Court in effect is only conferring de jure recognition on a de
facto state of affairs.514

Emphasizing the cardinal rule of interpretation that the Court should uphold the intention
of the legislature, Tambiah J. took the view that ‘either spouse’ simply means ‘either husband or
wife irrespective of his or her innocence or guilt’, and that the relief is not restricted to an innocent
spouse.515

Justice Tambiah516 was firmly of the view, that the legislature intended to introduce
irretrievable breakdown of marriage as evidenced by seven years separation from bed and board
as an additional ground for divorce. He further stated, that separation for seven years was
“sufficient proof that the marriage had irretrievably broken down and it was futile to continue the
form of marriage without its substance”517, and that it was the duty of the Courts to give effect to
the intention of the legislature.

Justice Tambiah also stated that, through the addition of Section 608 (2) (b), the
legislature has introduced marital failure in addition to matrimonial fault, and that it is neither new
nor strange in Sri Lanka to have laws based on both doctrines, since both Kandyan as well as
Muslim law contain grounds of divorce based on both these doctrines. 518 It was stated that
abrogation of Section 602, which required a petitioner to be free of any matrimonial fault, indicates
the departure from the doctrine of matrimonial fault as its exclusive ground, and that the legislative
purpose is demonstrated further by refraining from reintroducing that concept. It was justifiably
argued that the only sensible conclusion that could be arrived at on the decision of the legislature
to introduce Section 608 (2) (b), while refraining to re-enact Section 602, was its intention to
introduce the doctrine of irretrievable breakdown. 519

514 at p. 113.
515 See pp. 108 -110 and p. 112.
516 at p. 111.
517 at p.114.
518 at p.114.
519 at p.115-116.

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 Furthermore, it was asserted that Section 608 (2) not only introduced the doctrine of
breakdown, but also vested a discretion in the Court to refuse to grant a decree, if the Court is not
satisfied with the evidence “that the marital union is dead for all intents and purposes.”520 Tambiah
J. arrived at this conclusion on the basis of the provision in Section 608 (2), which states that ‘the
Court may, upon being satisfied that the spouses have not resumed cohabitation after the
separation alleged in the petition, enter judgment accordingly.’ It should be commented that, even
though this provision requires the Court to ascertain that the parties continue to live separately at
the time of the hearing of the petition, the wording of the statute does not clearly lay down the
doctrine of irretrievable breakdown of marriage, as has been done in the Matrimonial Causes
Act521 and Family Law Act of England522 and the Divorce Act523 of South Africa. Even though the
provision does not contain the exact words used in these Acts, a contrary interpretation cannot be
derived at, particularly in the context in which it was meant to be interpreted. It neither prescribes
separation per se as a ground for divorce, nor a requirement of fault in addition to separation. In
absence of clear legislative intent, the onus was on the Court to interpret the law, i.e. whether the
provision introduces irretrievable breakdown or not. Clearly, Justice Tambiah had taken a
purposive approach in construing the provision.

In contrast, the majority judgment was that Parliament is presumed not to intend to make
a radical change in an unconventional manner. Referring to the judgement of Lord Devlin in
National Assistance Board v Wilkinson,524 where his Lordship stated that "…. a statute is not to be
taken as affecting a fundamental alteration in the general law unless it uses words that point
unmistakably to that conclusion", the Court held that Section 608 (2) (b) does not alter the grounds
of divorce based exclusively on fault. The Court, however, did not hesitate to identify Section 608
(2) (a) as an introduction of a new ground for divorce through two-year separation.

Since judicial separation could not be converted to divorce before the introduction of Act
No. 20 of 1977, Section 608 (2) (a) did create a radical change in the law. It should be noted that
the grounds for judicial separation are neither rigid nor based solely on the doctrine of matrimonial
fault. Hence it is unclear why, and on what basis, the majority of the Supreme Court distinguished
Section 608 (2) (a) from Section 608 (2) (b).

520 at p. 119.
521 Matrimonial Causes Act of 1973.
522 Family Law Act of 1996.
523 Divorce Act of 1979.
524 (1952) 2 QB 648.

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 It may be presumed that the legislature has attempted to introduce breakdown of marriage
evidenced by separation through the Civil Procedure Code, while retaining the fault-based grounds
in the Marriage Registration Ordinance. 525 Clearly the legislative move was in response to the
needs of contemporary society. It has been recommended that marital breakdown would be a
better alternative as the basis for divorce, than matrimonial fault. 526

It should be noted that breakdown of marriage is not a concept unknown to Sri Lankan
law. Originally, Kandyan law was based mainly on the doctrine of breakdown, and Muslim law also
reflects features of this principle.527 On the other hand, it has been a long time since the British,
who introduced the fault system in Sri Lanka, have replaced fault with failure in their law. 528

It may be asserted further that the majority of the Supreme Court could have given a
broader construction on the issue whether the phrase ‘either spouse’ includes a guilty spouse as
well. As Justice Tambiah stated, 529 it could be reasonably presumed that by excluding the ‘clean
hands rule’530, the legislature has permitted any spouse, irrespective of his or her guilt, to bring an
action for divorce on the ground of separation of seven years.

On the other hand, the Supreme Court should not have overlooked the legislative intent to
grant relief to either spouse irrespective of their guilt or innocence, when the words used in Section
608 (1) are clearly distinguishable from the words in Section 608 (2). Undoubtedly Section 608 (1)
means a fault-free spouse when it refers to ‘either husband or wife’, while it could be logically
inferred that Section 608 (2) intends to grant relief to either spouse, irrespective of their guilt or
innocence.

525 No.19 of 1907.

526 The Women’s Charter (Sri Lanka) recommends that the state shall recognize ‘breakdown of marriage’ as the basis
for divorce. See para 8 (i). Both the Commission on Marriage and Divorce in 1959 ( Para 25, Chap.13) and the
four member committee, (comprising Prof.S. Goonesekera. Mrs Dhara Wijayatilake, Ms.S.de Soysa and Ms.
Dilhara Amerasinghe) that produced a report to the Ministry of Justice in 1991, also recommended the
introduction of breakdown of marriage as the basis for divorce (unpublished – p.1).
527 Khula and Mubarat Divorce are based on the doctrine of breakdown.
528 Divorce Reform Act of 1969. The breakdown principle was introduced in England as early as in 1969 through the
Divorce Reformj Act.
529 Tennakoon v.Somawathie Perera (Tennakoon) (1986) 1 SLR 90 at p. 115 – 116.
530 The ‘clean hands rule’ or the Roman-Dutch law rule of culpa compensatio requires a petitioner to be free of any
matrimonial fault.

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 The Supreme Court in Tennakoon v Somawathie Perera (Tenakoon) should have
considered all these facts in favour of a broader construction. The purpose of the legislature was
clear enough even though it tried to achieve its objective through an amendment in a procedural
code, when the breakdown principle should have been introduced through an amendment to the
Marriage Registration Ordinance. Thus the Courts should have made a positive response to the
legislative purpose, instead of giving a restrictive interpretation to Section 608 (2).

Commenting on this legislative misadventure, Ponnambalam 531 states that the legislature
could have avoided negative consequences, had it specified a criteria for ascertaining breakdown
of marriage532 and incorporated the necessary safeguards to divorce.533

On the other hand, the legislature, should have considered how other legal systems
introduced marital failure alongside fault. For instance it could have looked for guidance in Divorce
Reform Act of 1969 (England) and Matrimonial Causes Act 1973 (England). The irregular
procedure adopted by Sri Lankan Parliament has obstructed the realization of its purpose.

If the draft made the legislative intent clear, it would have permitted an interpretation in
accordance with contemporary social needs, and the Court could have given effect to the
legislative purpose particularly with the common law in the background and an unambiguous
legislative intent in the forefront, irrespective of the irregularities in the legislative procedure. Such
an interpretation would have led to a major reform in the sphere of the Sri Lankan divorce law.

A change in the basis of the divorce law has been initiated by the Law Commission of Sri
Lanka. The draft Matrimonial Causes Act534 recommends divorce to be granted on the ground of
irretrievable breakdown of marriage if the Court is satisfied, that the relationship between the
spouses ‘has reached such a state of disintegration that there is no reasonable prospect of the

531 Ponnambalam, S. - A Critical Look at the Grounds of Divorce in Sri Lanka - (1981) Vol.2 Law Com. Law Bulletin
12, at p. 14.
532 Ibid. at p.13.
533 Ponnambalam suggests that the legislature could have incorporated a clause to safeguard the interests of the
respondent to oppose the grant of a decree of divorce on the basis of grave financial or other hardship to him or
her; and /or impose a time limit before the expiry of which no party can petition for divorce; as prescribed in the
Matrimonial Causes Act 1973 of England.
534 Proposed Matrimonial Causes Act 2000.

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restoration of a normal marriage relationship between them.’535 It is further recommended that,
without excluding any facts or circumstances, the breakdown may be proved where 536

(a) the defendant has committed adultery and that the plaintiff finds it irreconcilable with a
continued marriage relationship;
(b) the defendant has maliciously deserted the plaintiff;
(c) the parties have lived in actual separation for a continuous period of at least one year,
immediately preceding the date of presenting the plaint;
(d) the defendant has acted with cruelty towards the plaintiff.

The draft Act proposes a groundbreaking change in the sphere of matrimonial law in Sri
Lanka. The objective of the draft Act appears to be a definite shift from fault to breakdown, which
is in line with contemporary thinking of society.

The proposed Act specifically states that irretrievable breakdown is the exclusive basis for
divorce, and that the Court has to satisfy itself with regard to the circumstances of each case; the
previously enumerated four reasons are only a fraction of the causes of marital failure. Hence their
inclusion as evidence of breakdown does not limit the discretion of the Court.

The Court is vested with an absolute discretion to decide whether the marriage has
broken down irretrievably. Hence, if it appears to the Court that there is a reasonable possibility of
reconciliation, the Court may attempt reconciliation. 537
However the draft Act does not include any procedural changes, but prescribes he
continuation of the existing procedure.538 While the adversary procedure prescribed in the Civil
Procedure Code might be effective for divorce proceedings based on the concept of fault, it is
doubtful whether it would sufficiently cater to a law based on irretrievable breakdown of marriage.
Hence continuation of the same adversary procedure will obstruct the purpose of the reform. 539

535 Proposed Matrimonial Causes Act, Section 2.

536 Section 2 (2).
537 Section 2 (3) of the draft Act. See further Section 16 (1) (e) and (g), where the Court is empowered to order
compulsory mediation by a family counselor or a counselor of the parties’ choice, medical treatment, counseling
and / or therapy.
538 Section 19.
539 This will be discussed in detail in Chapter 4 and 5 of this thesis.

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3.iii (B) Non–fault–based grounds in Muslim law

In Islamic jurisprudence, shiqaq or a 'breach in marriage agreement’ is recognised as the

foundation for the dissolution of marriage. 540 In recognition of the reality that in certain situations
spouses may find, that life together as 'husband and wife' could be practically intolerable, even if
specific matrimonial offences or faults are not complained of, Islamic law recognises that such
marriages should be dissolved. In fact, shariah prescribes divorce where either spouse finds it
“impossible to continue the marriage agreement and is compelled to break it off.”541

The doctrine of irretrievable breakdown forms the basis for three modes of divorce in
Islamic law, i.e. talaq, khula, and mubarat.

Talaq divorce

"A talaq is a dissolution of marriage effected by husband making a

pronouncement to the effect that the marriage is dissolved or that the marital
relations shall not anymore subsist between himself and his wife."542

Talaq grants absolute power to a Muslim husband to divorce his wife, subject to minimal
procedural obligations, without presenting any reason for so doing, and it leaves his wife no option
other than to accept the unilateral decision of her husband.

Talaq is basically categorized as:

1. Talaq-ar-rajih (revocable divorce)
which is the approved form of divorce as it conforms to the word of the Prophet and
2. Talaq-al-bain (irrevocable divorce). Not being approved by the Prophet, this is an
innovation and therefore not acceptable though it is being practised. 543

540 Abdur Rahman I. Doi - Shariah : The Islamic Law - (Ta Ha publishers, U.K, 1984) p, 172.
See further Bukhari 68: 1, 2.
541 Abdur Rahman I. Doi – Shariah: The Islamic Law, p.172.
542 Tyabji - Mohammedan Law, p. 145, paras 142 –148.
543 Verma, B.R. - Muslim Marriage, Maintenance and Dissolution, Allahabad,1971, (1988 , 2nd ed.) ch. 6, p. 183

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 Talaq-ar-rajih has been further classified into two forms namely, talaq ahsan and talaq
hasan. According to talaq ahsan the husband is required to pronounce words of talaq only once,
and talaq hasan requires three pronouncements. Both are revocable forms of talaq and hence
recognized as approved methods.

The Act544 does not specify which form of talaq is recognized in Sri Lankan Muslim Law.
However, the Supreme Court in Khan v Moomin and other545 has held, that the procedure
specified in the rules of the 2nd Schedule of the Act prescribes the ahsan form, as it has reference
only to the pronouncement of a single talaq. The decision of the Supreme Court is somewhat
surprising, particularly in the present social context. According to talaq ahsan, a husband is not
obliged to be present during the proceedings, and it denies the wife an opportunity to be
reconciled by the Quazi.546 It has been stressed that the decision of the Supreme Court in Khan v
Moomin547 undermines the protection provided by statutory provisions for Muslim Women. 548

The mode of pronouncement of talaq is not prescribed in the Act, and it has been judicially
recognized that repudiation may be effected orally or in writing. The words used however should
clearly indicate the intention to dissolve the marriage. 549

A pronouncement of talaq, which had been pronounced elsewhere, may be pronounced

later at an inquiry before a Quazi, and dissolution of marriage may be affected accordingly, by
operation of law. The Act 550 enables a husband to effect talaq, which he claims to have
pronounced earlier though he could not prove it, by making a statement to that effect during any
proceeding before the Quazi. 551 In Rahimaniyaumma v Pitche 552 where the wife sued her
husband for maintenance, the husband refused to pay on the ground that he had already divorced
her. His contention however could not be established, since there was no evidence to prove the
pronouncement of talaq. The Quazi allowed the husband to pronounce talaq at the inquiry, in the

544 Muslim Marriage and Divorce Act No. 13 of 1951.

545 (1995) 1 SLR. 107.
546 Reconciliation has been stressed in several instances. See for instance Kahn v. Sithy Sabira (1995) 1 SLR 107,
M.B.M.Meera Saibo v. Ummu Azmiya Ahmed Mohideen (1997) Case No. 3364, Board of Quazis, November
1997 (unreported).
547 (1995) 1 SLR 107.
548 Goonesekere, S.W.E. - Family Law in a Mulit-Cultural Society with Plural Legal Traditions: The Sri Lanka
Experience - ‘The International Survey of Family Law’, (1996 Bainham ed.) 461, at p.478.
549 Kadija Umma v Mohamadu Mawlana (1902) 1 MMDR 42.
550 No. 13 of 1951.
551 Section 30.
552 (1938) II MMDR 86.

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presence of his wife's brother, and held consequently that the marriage has been dissolved on that
date, by operation of law. Even though this position of the law cannot be justified on rules of
natural justice, it has to be understood on Islamic principles, where unilateral repudiation of the
wife by the husband is legally valid.

A husband is not obliged to pronounce talak directly to the wife,553 nor is he required to
give any cause for the dissolution.554 Even though divorce is considered morally and religiously
unacceptable according to Islam,555 Muslim law does not impose sufficient limitations on divorce
by the husband. On the contrary. The Act 556 specifically prevents a husband from giving any
reason for his repudiation of the wife, and the Quazi is prohibited from recording such reasons,
even if the husband had given them.557

Some Muslims558 however consider this restriction (i.e. the prohibition of giving reasons)
from a different point of view. They believe that a divorced woman, who is free to contract another
marriage, would be disadvantaged if the reasons for the dissolution of her earlier marriage were
made public. They firmly believe that the restrictions imposed on the husband as well as on the
Quazi, who registers the divorce, are definitely of benefit to the wife.

On the other hand, it has been urged559 that the right to divorce by pronouncing talaq
should be restricted to situations where there is proof of fault or marital failure. It has been argued
that this is important in guaranteeing equality between the rights of the husband and that of the
wife with regard to matrimonial rights and obligations. 560

It should be noted however that, even though the Quazi is statutorily prevented from
inquiring into the ground for divorce, he is obliged to ascertain that the marriage is irretrievably
broken down. What the Quazi is not authorized to inquire into is the cause of breakdown. Muslim

553 Mulla – Principles of Mahomedan Law, 1882 ,18th ed, p. 327.

Verma, B.R. – Muslim Marriage, Maintenance and Dissolution, part 2, Ch. 6, p. 208, para 45.
Sule Umma v Mohamado (1907) 1 MMDR 44 / 10 NLR 109.
554 Mulla – Principles of Mahomedan Law, p. 325.
555 According to Prophet's words "Of all things permitted by law, divorce is the most hateful in the sight of God".
556 Act No. 13 of 1951.
557 Rule 3 of the 2nd Schedule.
558 A cross-section of the Muslim community, including Quazis, religious leaders, scholars, ordinary persons and
several Muslim women were interviewed for research purposes.
559 Evidence gathered by the Commission on Marriage and Divorce, Ceylon Sessional Papers XVI, 1959.
560 Ibid. It was noted during the interviews with the persons mentioned in note 557 that many educated Muslims, both
men and women, agree with this argument. See Para 54.

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law does not require of husbands, who seek divorce, to prove breakdown of marriage. However
the Quazi has a moral obligation to make certain that there is a shiqaq, i.e. a breach of the
marriage agreement.

Muslim law gives absolute power to the husband to divorce his wife at his pleasure, and
even against her will or consent. Lack of provision to limit this power, by way of imposing an
obligation to prove specific grounds for divorce, promotes the misuse of this power.

Another significant feature in talaq is the recognition of the husband’s right to delegate his
powers to some other person. This authority conferred on the husband denies the wife any further
opportunity to hear the reasons for divorce, and it prevents an occasion for mediation by the
Quazi.561 A law, which prevents the intervention of any judicial authority in the process of divorce,
and permits the dissolution of the contract of marriage in the absence of one party, cannot claim to
be observant of the rules of natural justice, not at least for the benefit of the party whose basic
rights are denied.

The only conditions essentially required of a Muslim husband in order to divorce his wife
are, that he should be sane (Aqil), not be a minor (Balizh) and have his own discretion (Mukhfar).
562 It is thus stated in Hadith “All divorce is lawful except the divorce given by a person whose
intellect is overpowered.” 563

It may therefore be argued that marital failure, as opposed to fault, is the underlying
concept in talaq, subject to the male superiority as recognized in Islam. It allows a husband to
dissolve a broken marriage without giving reasons either to the Quazi or to his wife. The decision
about the condition of the marriage is unilateral, and the cause for such breakdown is immaterial. It
does not have to be a fault on the part of the wife. It may be the husband’s dislike of her, or his
desire to marry another, or any other undisclosed reason.

It may be concluded that talaq is based on the breakdown of a marriage, which is

identified in Islam as shiqaq. It should be noted however that shiqaq is not equal to irretrievable
breakdown of marriage as recognized in English or South African law, where the Court requires

561 Except as a third party who attempts to reconcile the parties through their elders.
562 Abdul.Rahman.I. Doi – Shariah: The Islamic Law, p. 174.
563 Hadith - narrated by Abu Hurairah Quoted by Doi - Shariah : The Islamic Law, at p. 174.

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proof of breakdown. In Muslim law, it is the unilateral declaration of the will of the male party to
repudiate his wife. Islam however insists on equity where the wife is concerned, and urges the
husband to be just to her. Hence the legislative provisions should be construed in the light of
Islamic principles in order to obtain a decision in conformity with Islam.

Khula divorce

It is believed that khula was introduced for amelioration of the condition of women. 564 It
may be defined as an agreement entered into between a husband and a wife, on the instance of
the wife, for her relief from the bond of marriage, in lieu of which the wife agrees to pay a
consideration out of her property to the husband, who in return effects the divorce.

This form of divorce is based on the Quaranic verse "if you have cause to fear that the two
may not be able to keep within the bounds set by God, there shall be no sin upon either of them
for what the wife may give up in order to free herself."565

However, Khula is not recognized as an absolute right of the wife. There has been some
controversy over the issue, whether Khula vests a right to divorce in the wife. One view was that,
since the wife can ransom herself or get her release by paying the required consideration, she
exercises an independent right and consequently where the husband refuses to release her, a
third party should intervene and decide the matter. 566 Hence, it has been argued that “Khula
depends on the order of the judge”, which guarantees the rights of the wife and “not on the will of
the husband.”567

The Pakistani Supreme Court, in Kurshid Bibi v Muhammad Amin,568 construing the
relevant Quranic verses and Hadith,569 held that it does not necessitate the husband's consent.
The Supreme Court held accordingly, that a wife belonging to the Hanafi School is entitled to a

564 Verma, B.R. – Muslim Marriage, Maintenance & Dissolution - p. 238.

565 Holy Quoran 2:229.
566 Marikkar, J.H. - Khula Divorce in the Muslim Law, (1978) Vol. 4 The Colombo Law Review p.105 at p. 106
referring to al -Baqara verse 229.
567 Balquis Fatima v Najmul Ikram, P.L.D. (1959) Lahore 566 (F.B.).
568 1967 PLD (S.C.) 97.
569 Specifically Sura II, Verse 22.

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Khula divorce irrespective of her husband's resistance, provided that she satisfies the Court that
their marriage has irretrievably broken and that she agrees to pay compensation.

The Supreme Court of Sri Lanka has taken a different view, and it has been held 570 that
according to the Shafie School, the participation of the husband or his agent is absolutely
necessary in khula divorce, which is basically different from fasah, where the final decision is taken
by the judge.571 Citing a previous case,572 it was held further that khula necessarily involves the
agreement of both parties and, even though it is initiated at the request of the wife, dissolution is
only completed when the husband announces the words of release, i.e. talaq.

The Supreme Court held that, a Shafie wife is not entitled to khula without the consent of
her husband. Samarawickrama J. further stated that, even though a Muslim woman should be
able to secure a divorce despite her husband's unwillingness, such an extension of the law is yet
to be considered favourably.573

Accordingly, it may be asserted, that in Sri Lanka khula could not be obtained unilaterally
as a right by the wife, but the husband himself has to affect the dissolution. Subject to differences
regarding formalities, the doctrine of irretrievable breakdown underlies khula.

The assertion by the wife on the status of a marriage is a fundamental requirement commonly
recognized with regard to khula. Thus, notwithstanding the different views expressed on the effect of
divorce, it is clear that khula is based on the doctrine of breakdown of marriage. This may be
established by way of an incurable aversion to the husband, which renders ‘life together subject to the
limits set by God’574 (in other words, ‘cohabitation with due performance of conjugal obligations’) 575
impossible, or because of the impossibility of living together with the husband. This may be due to her
actual dislike of the husband, or her reluctance to fulfil her marital duties.576 Apart from these grounds,
the breakdown of a marriage may be asserted for several other acceptable reasons.

570 Noorul Naleefa v Marikar Hadjiar (1947) 48 NLR 529, at p.634.

571 Mirza v Ansar (1971) 75 NLR 295 at pp. 297, 307.
572 Ibid.
573 Ibid. at p. 296.
574 Justice Weeramantri in Mirza v. Anzar (1971) 75 NLR 295.
575 Amir Ali - Mahomedan Law ,Vol. II, .(1929 - 5th ed) at p. 506.
Fyzee, A.A.A. -Outlines of Muhammedan Law, at p. 155.
576 Amir Ali - Mahomedan Law, Vol. II at p. 507.

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 Apparently, a wife whose marriage has in fact broken down, can ask for a khula divorce from
her husband even if she does not complain of any specific fault.Accordingly it may be argued that
‘khula’ is based on the concept of breakdown of marriage, within the meaning of Islam.

Mubarat divorce

“When a divorce is effected by mutual consent, on account of mutual aversion it is called

mubarat, which operates as a release and discharge on both sides.”577 Mubarat, which means
"freeing one another mutually,"578 is a form of divorce effected in consequence of an agreement
entered into mutually to dissolve the marriage. There is no difference in effect whether the offer
was made by the husband or by the wife.579 Once the offer is accepted and mutually agreed upon,
the divorce becomes absolute when the husband pronounces the proper words of release. 580

Different views have been expressed about the grounds on which the Muslims are entitled
to dissolve their marriage by mutual consent, i.e. Mubarat. It is evident however, that Muslim law
does not confine Mubarat to specific grounds. Spouses are free to dissolve their contract of
marriage, on mutual agreement, provided that they admit that they cannot live together as
husband and wife. It is apparent that the law does not force spouses who desire a separation to
continue to live together.

The law, which grants divorce on mutual consent, does not necessitate proof of fault or
breakdown of marriage. The basic requirement is the free will of both the parties to end the union.
The law does not limit the relief to specific causes of failure but insists on the genuine consent,
and breakdown is presumed in such circumstances. In other words, it is the breakdown admitted
by mutual consent, which allows mubarat divorce.

577 Ibid.
578 Fyzee, A.A.A. - Outlines of Muhammedan Law, p. 150.
579 Mulla - Principles of Mahomedan Law, p. 337.
580 Verma, B.R. - Muslim Marriage, Maintenance and Dissolution, para 152, p. 252.

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3. iii (C) Non-fault-based grounds in Kandyan law

The Kandyan Marriage and Divorce Act581recognises divorce on non-fault-based grounds

concurrently with fault-based grounds. The following could be identified as non-fault-based
grounds for divorce:

(1) Inability to live happily together, of which actual separation from bed and board for a period of
one year shall be the test.582
(2) Mutual consent.583

It could be construed that these grounds incorporate the doctrine of breakdown. The first
ground prescribes ‘actual separation from bed and board for a period of one year’ as the deciding
criterion for breakdown of marriage. Accordingly, marital failure is to be presumed on the simple
fact of physical separation for one year. According to the interpretation commonly practised by
District Registrars,584 the prescribed one year shall be for a continuous minimum period of twelve
months. Even though it appears that a divorce could be obtained merely on the ground of physical
separation, in practice a marriage is not dissolved unless the District Registrar is satisfied that the
separation was in fact due to the failure of the relationship, and not for any other justifiable reason.

In the second ground, the Act recognises divorce by mutual consent. It is accepted that
the consensus reached between the spouses to dissolve the marriage is evidence of the failure of
a marriage. The traditional Sinhalese law did not specify any acts or behaviour as proof of
breakdown of a marriage. The sole basis of divorce in the customary Kandyan law was the
irretrievable breakdown of a marriage, which could be proved by any evidence that was conducive
of the marital failure. Thus, consensus reached between the spouses on the dissolution of their
marriage was recognised as a solid proof of breakdown, provided that the consent was genuine
and free from fear, force or fraud.

581 No. 44 of 1952.

582 Section 32 (e).
583 Section 32 (f). It should be noted that these two grounds were recognised in the Kandyan Marriage and Divorce
Act no. 3 of 1870.
584 Several District Registrars were interviewed for research purposes and these assumptions are based on
information gathered from them.

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 As recognized in the ancient customary law as well as in the present Kandyan law, mutual
consent is justifiable as a ground for divorce, since it corresponds with the realities of marital
breakdown. Even though divorce is inevitably accompanied by heartbreak, which cannot be
prevented by any law, dissolution of marriage obtained on mutual consent minimises possible
damage to children. Thus it may be asserted that, where the procedure ensures that the consent
was given by both spouses of their own free will, ‘mutual consent’ provides an ideal ground for
divorce where the marriage in question is broken beyond repair.

It is clear that the grounds for divorce specified in Section 32 (e) and (f) present the true
status of the divorce law as it was applied in the customary Kandyan law. These two grounds are
based on the doctrine of breakdown of marriage. The concept of breakdown was the foundation of
Sinhalese divorce law and it may be asserted that this finds expression in these two grounds.

3. iv Concluding remarks

The doctrine of irretrievable breakdown of marriage is not a foreign concept to the Sri
Lankan legal system. Excepting the Marriage Registration Ordinance, which is exclusively based
on colonial legal concepts, both the Muslim Marriage and Divorce Act and the Kandyan Marriage
And Divorce Act recognize the doctrine of breakdown simultaneously with fault. Accordingly,
divorce may be obtained on proof of marital failure, subject to specific features prevalent in the two
personal laws, i.e. Muslim and Kandyan law.

In Muslim law, the breakdown concept is reflected in talaq, khul, and mubaraat divorce.
Historical writings confirm that the exclusive basis for divorce under traditional Sinhalese law was
‘breakdown of marriage’. Despite this the Kandyan law also contains fault-based grounds mostly
introduced by the British.

The Marriage Registration Ordinance, which is based on alien legal concepts, does not
recognize breakdown as a ground for divorce, nor does the adversarial procedure prescribed in
the Civil Procedure Code provide a framework that is conducive to an inquiry on the true status of
a marriage.

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 Divorce is painful and no law can prevent marital disharmony and consequent breakdown.
Hence a divorce law should provide means to afford divorce where the marriage is not viable and
should discourage spouses from seeking divorce at each and every act of marital delinquency. As
an alternative to fault, the doctrine of breakdown provides a means of dissolving a relationship
where it has failed beyond revival.

----------------

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 CHAPTER 4

DIVORCE PROCEDURE

4.i Divorce procedure under the general law

The divorce procedure, which is a pivotal point in the process of the dissolution of a marriage, is
set out in the Civil Procedure Code.585 The Civil Procedure Code, which is founded mainly on the
principles of English law, caters to the requirements of a fault-finding adversarial procedure. The same
adversarial procedure applies to other civil proceedings, but there are special provisions which apply
only to matrimonial actions.586

The procedure prescribed in the Civil Procedure Code applies to dissolution of marriages that
have been contracted under the Marriage Registration Ordinance.587 Provisions stipulated in the Civil
Procedure Code588 have no application with regard to the dissolution of marriages contracted under
the Muslim Marriage and Divorce Act589 and the Kandyan Marriage and Divorce Act590.

4. i (a) Jurisdiction of the Court

Jurisdiction has been defined as "the power of a Court to hear and determine a cause, to
adjudicate or exercise any judicial power in relation to it. ” 591

The sole original jurisdiction in respect of matrimonial matters is vested in the Family Court
under the Judicature Act592. However, matrimonial jurisdiction was diverted to the District Court under
the Administration of Justice Law.593 This was repeated under a subsequent amendment effected to

585 No. 2 of 1889.

586 These special provisions will be discussed in this Chapter.
587 No. 19 of 1907.
588 Section 627 of the Civil Procedure Code as amended by Law No. 20 of 1977.
589 No. 13 of 1951.
590 No. 44 of 1952.
591 Sharvananda J. in Ittepana v. Hemawathie (1981) 1 SLR 476.
592 Act No. 2 of 1978. See Section 24 (1) and (2). According to Section 597(2) of the Civil Procedure Code, the
provisions of the Conciliations Boards Act shall not apply to matrimonial actions.
593 No. 44 of 1973. See Section 26.

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the Judicature Act.594 Accordingly, the District Court exercises the jurisdiction in respect of dissolution
of marriages contracted under the Marriage Registration Ordinance, and is deemed as a Family Court
when exercising matrimonial jurisdiction.595 It is comparably better to have a separate tribunal which
concentrates exclusively on matrimonial disputes which usually involve intimate issues, than a
situation where the spouses are compelled to reveal such details in the District Court.

The District Court is empowered to determine applications for divorce, even if the marriage was
contracted or the cause of action arose outside Sri Lanka. 596 Accordingly, the conflicting view held by
the Privy Council in Le Mesurier v. Le Mesurier597 i.e. that the District Court of Sri Lanka is not
authorized to dissolve a marriage which was contracted outside the Island, is not applicable in law as
it stands today.

4.i (b) The plaint and answer

An application for divorce under the general law must be by way of a plaint. 598 A plaint for
divorce does not differ technically from any other plaint.599 The plaint should contain a statement of
facts, which would justify an action by the Court to try and determine the claim in respect of which the
action has been brought.600 Every plaint for a divorce a vinculo matrimonii should assert the existence
of a valid marriage, and also if there are children, give details regarding them and who at this point
has custody.

594 Amending Act No. 71 of 1981.

595 Matrimonial jurisdiction was conferred on the District Court initially by the Charter of Justice of 1833, and this was
repeated in Ordinance No. 12 of 1843, and also in Ordinance No. 6 of 1847. See Goonesekera, R.K.W. - Family
Law in Sri Lanka in ‘Law Asia Family Law Series’ vol.1, 103, at p. 170.
Provisions under Section 597 of the Civil Procedure Code read with Section 24(1) of the Judicature Act (Act
No.71 of 1981) reveals that jurisdiction on actions for dissolution of marriage, which was vested earlier in the
Family Court, is now exercised by the District Court.
596 Section 597 of the Civil Procedure Code.
See Asokan nee Kandasamy v. Asokan (1994) 1 SLR 413.
597 1895 AC 517.
598 It has been recognized that a plaint for an action for divorce must be forwarded by one of the spouses
themselves. No other person is allowed in law to initiate an action for divorce on behalf of a married person. See
Ratnavira v. Ensohamy (7 ) SCC 116 where a father on behalf of his son, who was alleged to be of unsound
mind, instituted an action for divorce. The father was acting as a curator ad litem. Despite the admission of guilt
by the respondant-wife, the Supreme Court held, inter alia, that an action for divorce could not be instituted by a
curator ad litem and that only the spouses could institute an action.
599 According to Section 40 of the Civil Procedure Code, an application for divorce should comply with the
requirements of the Civil Procedure Code. See further Section 33 of the Civil Procedure Code.
600 Section 45 of the Civil Procedure Code. See further Sections 38 and 39 of the Primary Courts Procedure Act
No.44 of 1979.

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 The plaintiff is not allowed to join another cause of action in the same plaint,601 and none
should be introduced in a matrimonial action. The Courts have taken the view that Section 40 of
the Civil Procedure Code should be read in the light of the provisions stipulated in Sections 596,
597 and 598.602 This interpretation appears to recognize the exclusive and intimate nature of
matrimonial actions, which require a personal hearing. Thus, a plaint for matrimonial relief should
confine itself to the facts relevant to the divorce. A plaintiff is however allowed to include a claim
with respect to the custody and maintenance of minor children in the plaint.

A plaint should be concluded with a demand for relief. Since the Court grants only what is
claimed,603 the plaintiff should specify his or her demands. This may include a plea to dissolve the
marriage; a claim for damages,604 custody of and maintenance for children; and a request for costs.

The defendant exercises the right to answer the allegations made against him, and thus
defend himself.605 He may deny the facts averred in the plaint, and set out the particular facts and
circumstances of the case upon which he seeks to contest the plaintiff's claim. The defendant may
also assert any points of law upon which he wishes to argue.606A claim in reconvention could also
be made.607 Alternatively, the jurisdiction of the Court could be disputed. 608

In the course of an ordinary civil action, judgements are awarded on admissions made by the
defendant himself. Nevertheless, in recognition of the intimate nature of the marital relationship, and
the conceivably unequal economic and social status of the spouses which could influence the
individual bargaining power, divorce is not granted merely on admission of guilt. 609 This ensures the
equitable administration of justice by obstructing any undue gain or redress by the more powerful of

601 Senadhipathi v. Senadhipathi (1942) 43 NLR 272.

602 Ibid. The Court was firmly of the view that, even though the Civil Procedure Code allows the inclusion of a claim
for damages in a plaint for a divorce a vinculo matrimonii or for a separation, such damages are limited
exclusively to the damages referred to in Section 598 of the Civil Procedure Code, and do not include any other
damages incurred by the parties. The majority of the Court was of the view that Section 36 of the Civil Procedure
Code, which allows the plaintiff to join several causes of action, is excluded with regard to matrimonial actions.
603 Section 34 of the Civil Procedure Code.
604 The precise amount should be stated.
605 Section 73 of the Civil Procedure Code.
606 Section 75 (d) of the Civil Procedure Code.
607 Section 603 of the Civil Procedure Code. A declaration of facts and circumstances for a claim in reconvention shall
be in the form of a plaint, which would enable the Court to pronounce a final judgement in the same action, both on
the original as well as on the cross claim. See Section 75 (e) of the Civil Procedure Code.
608 Section 76 of the Civil Procedure Code. Such an objection however shall essentially be made in a separate and
distinct plea.
609 Walter Perera – Laws of Ceylon, P.247. See further Ratnavira v. Ensohamy [(1885) 7 SCC 116] where the
judgement of the District Court was based mostly on the admission made by the defendant-wife of her adulterous
conduct. No other evidence was called to prove adultery. On appeal by the respondent-wife, the Court held that in an
action for divorce no fact is held proved exclusively by the admission of a defendant.

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the two parties.610 Thus it is evident that the provisions of Section 72611 of the Civil Procedure Code
have no application in divorce actions.

4.i (c) The reconcliation process

When a case is called for trial, 612 the District Judge should direct the case to the family
counsellor, who is required to make every effort through effective negotiation to reconcile the
parties. The reconciliation has to be effected by the free will of the spouses. 613

The family counsellors who were interviewed unanimously stated, that satisfactory results
frequently resulted from such meetings, which allow the parties an opportunity to air their personal
problems in informal surroundings. They also felt that the presence of the family counsellor, who
unlike a relative or friend is an independent third party, ensures equality between the two parties,
where otherwise it might well result in arguments between two unequal parties. 614

The failure or success of the counselling process has to be reported to the Judge. Such a
report must be confidential, and must be signed by both the parties as well as the counsellor.

Notwithstanding the reconciliation effected by the family counsellor, the litigation process
remains open to the parties. Since the bars to divorce are no longer recognized in the Civil
Procedure Code, the Court is not prevented from granting the decree, even when the alleged
offence is condoned by the plaintiff and it is certified by the family counsellor. Thus where the
plaintiff, after resumption of cohabitation as a result of the reconciliation, and after a lapse of time,
again decides to end the union permanently, he may move the Court to take the matter up for
trial.615 This situation raises an issue of legal policy.

610 See particularly the judgement of Justice Lawrie in Ratnavira v. Ensohamy (1885) 7 SCC 116 at p.117.
611 Section 72 states that if the defendant admits the claim of the plaintiff, the Court shall give judgement against the
defendant according to the admission so made.
612 As prescribed in Section 80 (1) and (2) of the Civil Procedure Code.
613 Section 26 of the Judicature Act No.2 of 1978.
614 Family counsellors attached to the District Courts in Matara and Mount Lavinia were interviewed for research
purposes. Statistics available at these Courts reveal, that at least 8% of the divorces are avoided by effective
counselling. This figure rises to 10% - 12% in rural areas. Some counsellors revealed that they often personally visit
the spouses, at their respective homes, to make the conciliation process more effective.
615 The normal procedure followed under such circumstances is to move the Court through a motion to call the plaint,
which was filed earlier, for trial.

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 If the bars to divorce are recognized, a plaintiff is not allowed to seek divorce on the same
matrimonial offence he or she has once condoned, and under such circumstances the parties will
resist attempts at reconciliation. Hence, it may be asserted that the abolition of bars has created
an atmosphere where the parties can attempt at reconciliation without jeopardizing their right to
divorce.

However, Ponnambalam states that notwithstanding the abolition of the bars from the
statute law, they do form a part of the common law of Sri Lanka. 616 According to Ponnambalam
“these defences are the only means by which the court ensures that a divorce is granted because
of the fault of one party, which gives a right of action to the innocent spouse.”617 Even though it
has been held618 that with the abolition of bars the Court ceases it’s discretion to consider
condonation, connivance and collusion, it should be recognized that the doctrine of fault
necessarily encompasses these bars. The fault-based divorce law is based on the injuria alleged
to have been caused by either party, and where there is no injury there will be no cause of action.
Moreover, the law requires the plaintiff to prove not only the defendant’s guilt, but also his own
corresponding innocence.619

Hence, the abolition of bars from the Civil Procedure Code whilst retaining the fault-based
divorce law has created an anomalous situation. On the one hand, the abolition of bars from the
statute law indicates the legislative recognition of the need for a change of policy in the divorce
law. While non-recognition of bars necessarily gives way to divorce by collusion, it encourages the
reconciliation process. It also encompasses features of the principle of breakdown of marriage. On
the other hand, the abolition of bars whilst retaining the fault-based divorce law creates a
contradiction between the substantive and procedural law, and it makes the counselling process
virtually futile. Since both the fault-based divorce law, and the existing adversarial procedure
necessarily require proof of injuria as well as innocence of the plaintiff, the abolition of bars from

616 Ponnambalam, S. - Law and the Marriage Relationship in Sri Lanka, 2nd ed, p.394-397.
617 Ibid. at p. 395.
618 In Sediris Singho v. Somawathie [1978-79 (II) SLR140] the plaintiff’s action for divorce was dismissed by the
District Court, on the ground that he himself had been living in adultery. On appeal, the Court held that inasmuch
as the former proviso to Section 602 of the Civil Procedure Code has been repealed, the fact that a plaintiff has
during the subsistence of the marriage been guilty of adultery will not be a bar to his obtaining a divorce. This was
upheld in Muthuranee v. Thuraisingham [(1948) 1 SLR 381] where Justice Tambiah held that “ The right to
oppose a granting of a decree of divorce on the ground of the plaintiff’s adultery could have occurred to the
appellant only under the proviso to section 602 of the Civil Procedure Code.” Accordingly, the Court held that the
old proviso to Section 602 of the Civil Procedure Code having been removed, the question whether the Court
would exercise its discretion in favour or against the plaintiff where there is misconduct on his part no longer
arises.
619 Ponnambalam, S. – Law and the Marriage Relationship in Sri Lanka, 2nd ed. pp. 595-597.

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the statute law alone would not encourage the reconciliation process. Hence it may be argued,
that if not for the inconsistency in the policy of law, the counselling process would have been a
fruitful mediation process as practised in many other legal systems.

The legislative recognition of the need for a change of policy in the divorce law, is apparent
in the abolition of bars to divorce as well as in the introduction of the counselling process. Yet
these measures, which have not been co-ordinated with other relevant provisions, have failed to
institute a divorce law based on the doctrine of matrimonial breakdown.

4.i (d) Issue and service of summons

In compliance with the rule audi alterem partem,620 the Civil Procedure Code includes
mandatory provisions pertaining to the issue and service of summons.621 The importance of the issue
of summons has been illustrated in Ittepana v. Hemawathie622 as follows:

"Failure to serve summons is a failure which goes to the root of the jurisdiction
of the Court to hear and determine the action against the defendant. It is only
by service of summons on the defendant that the Court gets jurisdiction over
the defendant. If a defendant is not served with summons or is otherwise
notified of the proceedings against him, judgement entered against him in
those circumstances is a nullity." 623

It is an accepted legal principle that the Court acquires a forum for the determination of any
plaint only where the due process over the issue and service of summons has been observed. An ex
parte order entered upon by the Court is void ab initio, and where absence of the other party was
caused by a non-service or improper service of summons, it should be declared null and void.624 Yet it
may be observed that improper service of summons is a major cause for ex parte proceedings.

620 This means that the Judge should hear both parties.
621 Section 55 (1) of the Civil Procedure Code.
622 (1981) 1 SLR 476.
623 Ibid. Sharvananda J. at p. 484.
624 Sharvananda J. in Ittepana v. Hemawathie (1981) 1 SLR 476 at pp 485, 486.
Beatrice Perera v. Commisioner of National Housing (1974) 77 NLR 361.
Sitthi Maleeha v. Nihal Perera et al (1994) 35 NLR 270.

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 Service of summons may be categorized as

(A) personal service and

(B) substituted service.

(A) Personal service

Initially, it is imperative that the judge should order personal service.625 It has been established
that where there are more than one defendant, service of the summons shall be made on each
one.626 The Court should ascertain that every possible measure has been taken to serve summons
personally, and this duty is paramount.627

The issue of due service of summons was raised in Andradie v. Jayasekera Perera,628 where it
was contended that the defendant should be allowed to move the Court to set aside the judgement
entered ex parte, on the ground of non-service or improper service of summons. The Court Insisted
on the necessity to prove service of summons. It was declared that the Court should be satisfied that
the summons had been issued to the correct person, and not to any other, and that the Courts should
not be satisfied with such service unless the appointed officer has adhered to the procedural
requirements.

It has been held that in order to gain assurance of proper service, the Court may "go outside
the record and admit extrinsic evidence." 629 The requirements of the Civil Procedure Code 630 have
been construed widely to emphasise the importance of the defendant’s right to appear and to be
heard.

In keeping with this objective, the fiscal is required to furnish an affidavit setting out the facts of
the service effected or of the endeavour made by the officer to effect the service. 631 This provision

625 Babun Nona v. Ariyasena et al (1957) 58 NLR 572.

626 Babun Nona v. Ariyasena et al (1957) 58 NLR 572.
Leelis Singho v. John Singho (1959) 61 NLR 209.
627 See Section 370 and 371 of the Civil Procedure Code.
See further Ittepana v. Hemawathie (1981) 1 SLR 476.
628 (1985) 2 SLR 204.
629 Sharvananda C. J. in Ittepana v. Hemawathie (1981) 1 SLR 476 at 485, 486.
630 Particularly Sections 370 and 371.
631 Section 371 of the Civil Procedure Code.

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 ensures that the officer, who is entrusted to serve summons, makes a reasonable effort in effecting
the service, since he testifies under oath that he has done so.

(B) Substituted service

The other category of service of summons is generally known as substituted service, and it
incorporates any other mode of service the Court shall order.632

The Court held in Fernando v. Fernando633 that substituted service should not be allowed,
unless the fiscal has reported his inability to effect personal service despite reasonable effort taken
by him, and unless the Court is satisfied on evidence that the defendant, against whom substituted
service is applied for, is within the Island. Furthermore, that the provisions of Section 60, which
compel personal service where summons could not be effected by post, are imperative, and that
the inability to effect personal service should be submitted by the fiscal in writing. Shaw J. in
Palaniappa Chetty v. Arnolishamy634 stated, that the Court should not be satisfied by a mere
verbal declaration made by the fiscal,635 and that he should, in his written declaration, describe in
detail the steps he had taken in the course of such service.636 Moreover, it has been decided that
an order directing substituted service must specify the last known place of abode of the
defendant.637 Thus it is clear that the substituted service should only be adopted when personal
service cannot be executed.

An ineffective service of summons may be caused by deliberately incorrect information

being provided with regard to the actual residence of the defendant. Even though misleading the
Courts amounts to an offence, service of summons has frequently been evaded by submission of
false information. Similarly, the practice of affixing the summons on the front door of the last
known place of abode of the defendant, even though commonly being adhered to as the best
alternative to personal service, has often proved unsuccessful. It has become evident however,
that this is mainly caused by malpractice in the actual service of summons, and not because of
lack of legislative provision.

632 Section 60.

633 Fernando v. Fernando et al (1903) 9 NLR 325.
634 (1920) 22 NLR 368.
635 Ibid. at p.369.
Fernando v. Fernando (1903) 9 NLR 325 followed.
636 Laynard C. J. in Fernando v. Fernando (1903) 9 NLR 325 at p. 326, 32.7
and Wendt J. at p. 330.
637 Karuppen Chetti v. Wickramasinghe (1931) 33 NLR 233.

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 Interviews held with several legal practitioners and judges 638 revealed that the Courts have
only two alternatives with regard to the service of summons:

1. either to take disciplinary measures against the responsible officer if it is proved that this officer
has intentionally restrained the service, or that failure to serve summons has been caused by the
inattentive or irresponsible conduct on the part of such an officer;

2. or on application made by the defendant, to take remedial measures and set aside the decree
entered ex parte and permit him to proceed with his defence.639

The authority of the Court to set aside an ex parte decree has been emphasized by Fernando
J. as follows:

"If there has been no due service of summons (or due notice), but the Court
nevertheless mistakenly orders an ex parte trial, then for that breach of natural justice,
Section 68 (2) provides a remedy: i.e. a defendant's default can be excused if it is
established that there were reasonable grounds for such default, and one such ground
be the failure to serve summons".640

The legal status of an ex parte decree, where it has been proved that the summons has not
been served to the defendant, was clarified by the Supreme Court in Beatrice Perera v. Commisioner
of National Housing et al. 641 It was held that where summons has not been served at all, an ex parte
judgement against the defendant is void ab initio, and the defendant can challenge its validity at any
time when the judgement so obtained is sought to be used against him either in the same
proceedings or collaterally, provided always that he has not by subsequent conduct estopped himself
by acquiescence, waiver or inaction.

Several legal practitioners were interviewed on the probability of deliberate obstruction of

service.642 They were of the view, that even though it is not possible for the Courts to be involved

638 Judges of the Dustrict Courts of Panadura, Mount-Lavinia and Matara, and nine senior practitioners were
interviewed for research purposes.
639 Section 86 (2) of the Civil Procedure Code.
640 ABN Amro Bank v. Conmix (pvt) Ltd. (1996) 2 SLR 8, at p.11.
641 (1974) 77 NLR 361.
642 Legal practitioners from Colombo, Panadura, Mount-Lavenia, and Matara were interviewed to obtain a realistic
view of the divorce process.

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in the actual process of service, evasion of service could be avoided if the Courts were to observe
the procedural requirements strictly. It is believed that social forces cause obstruction to service.
Thus the Courts should take measures to curb such unlawful behaviour by strict adherence to
legal rules.

4. i (e) The trial

The Court has to appoint a date for the trial. It is normally required that a trial is heard inter
partes in order to ensure that the defendant is provided with an opportunity to respond to the claims
made against him.643 The defendant may, of his own free will, refrain from furnishing an answer.
Nevertheless, the Court is not empowered to proceed with the case unless the defendant has been
granted sufficient time to answer.

Even though under the normal course of procedure the trial should be inter partes, there are
instances where a trial is heard ex parte. It has become evident that most divorce proceedings
under the general law are heard ex parte .The Civil Procedure Code sets out the circumstances
under which the trial may be heard ex parte, i.e. either if the defendant fails to file his answer on or
before the date fixed for the filing of the answer, or on or before the day fixed for the subsequent
filing of the answer or if he fails to appear on the day fixed for the hearing of the action. 644

However, the Court should set aside the judgement where the defendant satisfies the Court that
he had reasonable grounds for default.645 Section 86(2) appears to be interpreted broadly to
provide the defendant with an opportunity to be heard, by invalidating the earlier proceedings,
even after a decree has been granted against him. It was held in Thaiyalanayaki v. Kulanthaivelu646
that it is the duty of the Court to ensure that the defendant is given an opportunity to be heard.
Sansoni C.J. outlined this duty of the Court as a removal of a bar, which stands in the defendant’s
way.647

A defendant, who seeks to apply for an opportunity to state his answers, shall submit his
application within fourteen days of the service of the decree entered against him for default 648 and

643 Section 80 (1).

644 Section 84.
645 Section 86 (2) of the Civil Procedure Code.
646 (1965) 68 NLR 176.
647 Ibid. at p.177.
648 Section 86 (2).

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should be forwarded in the first instance to the same Court649 which made the decree, and should
satisfy the judge that he has reasonable grounds for default. 650

In Andradie v Jayasekera Perera,651 a decree entered in a divorce suit after an ex parte trial
was sought to be set-aside on the ground of fraud committed by

a. service of summons by an unauthorized person,

b. false pleadings as evidence, and
c. presenting an impostor to be present in Court in response to alleged service of notice of
decree nisi..

The Court of Appeal emphasized the importance of the participation and knowledge of the
person against whom a judgement is being granted. Thus, granting a decree absolute under the
aforesaid fraudulent circumstances was held to "produce serious disquiet regarding the machinery
involving the process of the District Court and screams for investigation."652

Under the procedural law, it is required that both the plaintiff and the defendant frame issues,
and state the case accordingly.653 This rule applies to divorce actions, notwithstanding their intimate
nature. The plaintiff has to present the issues on which he seeks the dissolution as well as other
claims, and the defendant is required to base his defence on these specific issues. The defendant
shall, on further issues, make a claim in reconvention under Section 603 of the Code. 654 On the other
hand, he may admit any issue made by the plaintiff. These submissions, whether an admission or a
denial or a claim in reconvention, have to be stated as separate issues of the case. Where the parties
are in agreement regarding any question of fact or law to be decided between them, this may also be
stated as an issue.655

649 Andradi v. Jayasekera Perera (1985) 2 SLR 204.The Court held that the correct procedure is to forward the
application in the first instance to the very Court which pronounced the decree.
See further Loku Menika v.Selenduhamy (1947) 48 NLR 353 (which was consequent to a long list of cases)
where Siva Seeliah J. affirmed that where a decree has been entered ex parte in the District Court and is sought
to be set aside on any ground, application must in the first instance be made to that very Court and that the
Court would grant extraordinary relief by way of revision or restitutio in integrum only where the finding of the
District Court is not consistent with reasons, or the proper exercise of the judge’s discretion, or where he has
misdirected himself on facts or law.
650 Fernando J. in ABN AMRO Bank v. Conmix (pvt.) Ltd. (1996) 1 SLR 8 at p.12.
651 (1985) 2 SLR 204.
652 Ibid. Siva Selliah J. at p. 207.
653 Section 596 of the Civil Procedure Code.
654 If the defendant opposes the relief sought on any ground which would have enabled him or her to sue as plaintiff
for such dissolution, Section 603 empowers the Court to give to the defendant on his or her application the same
relief to which he or she would have been entitled in case he or she had presented a plaint seeking such relief.
655 Civil Procedure Code, Section146 (1).

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 It appears that framing the issues in the aforesaid manner makes it possible for the Court to
ascertain on what basis it should find its decision. Further, it makes complicated matters of law
and fact more comprehensible to the parties, and allows opportunities for them to make relevant
amendments to the issues they have framed. In consideration of the specific and intimate features
of a divorce action, framing and examining issues is easier in theory than in practice.

As much as marriage is a relationship and an institution which creates obligations,

particularly towards children, divorce is a process which could neither be compared to a
termination of an ordinary contract, nor be determined on specific issues only. The status of the
relationship as a whole has to be evaluated before a marriage is dissolved. It is important to be
certain that the marriage in question cannot be saved. However, it is doubtful whether such an
attempt is possible under the present law, where a divorce action is merely considered as yet
another civil action. With rare exceptions, the delicate questions involving intimate issues in a
divorce thus become the subject of a roughly handled stereotype civil action once it is placed in
the hands of the law.

4.i (f) Examination of evidence

A decree for divorce a vinculo matrimonii is granted only on proof of matrimonial fault on the
part of the defendant spouse. The task of a plaintiff has been recognised as burdensome, since "...
the principle of public policy requires that the married status should as far as possible, as long as
possible and whenever possible, be maintained...."656 Sri Lankan Courts take the same stand. In
Canekeratne v. Canekeratne,657 the Supreme Court held that divorce should never be granted while
there remains a hope of reconciliation.658

Irrespective of their personal nature, divorce actions are not exempted from the purview of
the rules of law. Hence judges do not depart from the strict provisions of the law with regard to
examining and recording evidence, even with the consent of the parties. In accordance with the
fundamental principles of adversarial procedure, judgement by the Court is based upon facts

656 Per Lord Russel in Fender v. St. John-Mildmay (1983) AC 1 at 32-33.

657 (1961) 66 NLR 380.
658 See further Muthukumarasamy v. Parameshwary (1976) 78 NLR 488.

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which must be duly proven. It has been held that the paramount consideration of the judge is
ascertainment of the truth, and not the desire of a litigant to be placed at an advantage by reason
of some technicality.659

In order to reach the correct decision, the Court must hear the case. Thus, the Court has no
power to grant any relief which has not been an issue in the process, or which has not been asked
for by either party.

Moreover, a Court has no authority to grant a conditional decree for divorce. In Silva v.
Carlhinahamy,660 the plaintiff husband sued his wife for divorce on the ground of malicious desertion
and adultery. The Court was certain that adultery was a subterfuge in order to obtain the decree
easily. Nevertheless, the divorce was granted on the ground of desertion. It was argued in the
appeal, that the District Judge's finding that the desertion was malicious was incorrect, and further,
that the District Judge could have granted a conditional divorce. It was suggested on behalf of the
appellant wife, that the decree should have left a way open for reconciliation between the parties by
fixing a time during which the wife could have returned. Ennis J. 661 held firmly, that such an
application, had the appellants desired, could have been made at any time before the decree was
granted, and in the absence of an application made by the parties to that effect, the Court was not
empowered to grant a conditional divorce.662

The procedure stated above reinforces the confrontational nature of the civil law, in which
the jurisdiction of the judge is precisely defined and limited to the issues raised during the hearing
of the case. It also provides precedence for the principle, that a Court should not enter into a
judgement unless a case is heard.

Usually, the petitioner is required to be present at the trial to give evidence in person in open
Court. This practice is based on the assumption that the petitioner will appear in Court to reveal his
grievances and prove his case. It is assumed further that, since the plaint is of a personal nature,
the plaintiff is the best person to show cause for his claim. But even though the Court, in the
normal course of procedure, orders the parties to appear in person, there is no specific provision in
the Civil Procedure Code which requires the plaintiff to do so in an action for divorce. It may be

659 Girantha v. Maria (1948) 50 NLR 519.

660 (1922) 23 NLR 344.
661 Ibid. at p.345.
662 See further Pathmawathie v. Jayasekera (1997) 1 SLR 248, Weerasekera J. at p. 250.

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argued that, in the absence of a specific provision, personal appearance is not necessary if the
defendant’s guilt can be proved by other cogent evidence. This lack of provision creates a serious
lacuna in the divorce process.

The exemption of the petitioner from giving evidence in person was discussed at length in
Ratnayake v. Karunawathie.663 It was submitted on behalf of the appellants, that at the trial
evidence has to be led by respective parties in conformity with Section 151 of the Civil Procedure
Code, and accordingly evidence contained in an affidavit is not admissible. In response to that
argument, it was contended by the plaintiff-respondent that it was not permissible for the
appellants to canvass the facts in the affidavit, which were not the subject matter of cross-
examination, at a later stage.

It was held that, according to Section 179 of the Code, the Court is permitted, if there are
sufficient reasons, to order at any time that particular facts be proved by affidavit, instead of by the
testimony of witnesses given viva voce before it.664 Similarly, the affidavit of any witness may be
read at the hearing of the action on such conditions as the Court shall think reasonable. 665

Accordingly it may be asserted, that the Court could permit a departure from the general
course of procedure with regard to examination of evidence, provided that a sufficiently grave
reason is presented, and provided further that the Court records such reasons. However, it cannot
make such an order where "either party bona fide desires the production of a witness before the Court
for cross examination viva voce, and that such witness can be so produced."666

4.i (g) The decree

A remarkable feature in the formulation of the divorce law is the interval stipulated between the
decree nisi and absolute. The provisions of Sections 604 and 605 of the Civil Procedure Code of Sri
Lanka necessitate that a divorce order should initially be embodied in a decree nisi. The Court is
empowered to make the decree absolute only after the expiration of a minimum period of three

663 (1993) 3 SLR 541.

664 It is not in every instance that a Court is permitted to depart from the provisions contained in Sections 151 and
167. There must be a grave cause and this must be recorded. See Ratnayake v. Karunawathie 1983 (2) SLR
541.
665 Ibid. De Silva J. at p.547.
666 Proviso to Section 179.

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months, unless the decree of divorce has been objected to,667 or the Court extends the period under
specific circumstances.668

Thus, in the absence of any objection or direction by the Court prescribing a longer period,
either spouse may, after the expiration of three months from the date on which the decree nisi has
been pronounced, apply for the Court to make the decree absolute.

The power to make orders directing the time limit between a decree nisi and a decree absolute,
and the manner of presenting objections, is vested in the District Court, which acts as the Family
Court.669 The amended provisions should be commended on the discretion granted to the primary
Courts, since it is the primary Courts which investigate and examine first-hand evidence, and
consequently carry out an in depth study of the facts and circumstances of the particular case. Such a
Court is in the best position to take a decision, and to assess the necessity or futility of an extension.

The Courts have interpreted the basis of Section 604 of the Civil Procedure Code which states,
that the duty imposed on the Courts to make the decree nisi absolute is an essential requirement, at
least until three months have expired from the date of the pronouncement of the decree nisi.670 One of
the main purposes of the time gap is to provide an opportunity for the spouses to effect a
reconciliation.671 It is believed that this interval provides sufficient time for the Courts to deliberate
whether there is hope of a reconciliation, before pronouncing the final decree. The time between the
decree nisi and decree absolute also provides672 a precautionary measure against decrees being
obtained by collusion or by suppression of material facts.673 This provision has special relevance to
spouses in undefended cases, where the defendant spouse, on receipt of the order of the decree nisi,
could claim that he or she had not been served summons, or that the decree nisi had been obtained
by suppression of relevant material facts, due production of which would have diverted or altered the

667 Section 604 and 605 of the Civil Procedure Code. It was held in Silva v. Carlinahamy [(1922)23 NLR 344] that the
Court has no jurisdiction to enter a conditional decree in the event of guilty spouse not returning to the other spouse
within a period fixed in the decree.
668 H. W. Senanayake J. in Kaluarachchi v Wijewickrama (1990) 1 SLR 262 at p. 266.
See further Silva v. Missinona (1924) 26 NLR 113.
669 See Section 604 of the Civil Procedure Code. Prior to its amendment by Law No. 20 of 1977 (legislative enactments,
Cap 101) this power was exercised exclusively by the Supreme Court.
670 See Silva v. Missinona (1924) 26 NLR 113, Kaluarachchi v. Wijewickrama (1990)1 SLR 262.
671 Silva v. Missinona (1924) 26 NLR 113.
672 Both before and after the amendments made by Law No. 20 of 1977.
673 Section 604.

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decision of the Court. It was held in Sathiyanathan v. Sathiyanathan,674 that a decree nisi should not
be made absolute in a case where the interests of other parties are likely to be affected by the order.

There has been a controversy on who is allowed to move the Court to pronounce the decree
absolute. The popular argument was, that the interested party should move the Court. The position
was widened in Hulme King v. de Silva675 to include the guilty party. On the other hand it has been
suggested, that where there is no objection the Court could, on its own motion, order a decree
absolute. It was argued in Aserappa v. Aserappa676 that the decrees absolute are entered as a matter
of course after the lapse of the prescribed period without the Court being moved thereto by either
party. The Supreme Court rejected this contention. Dalton J. observed that according to the provisions
of the Civil Procedure Code, “the person who requires to move the Court should move the Court, and
not that the Court should act on its own motion in making the decree absolute”. 677 Dalton J. held
further that this was the English practice, and the Civil Procedure Code has nothing contrary to it. 678

The position of Sri Lankan law was clarified in Sathiyanathan v. Sathiyanathan679:

".... While the Court is bound to make the decree absolute, there should be for
that purpose an application by one of the parties to the action... there is
nothing in the Code which requires that the Court should act of its own motion
in making the decree absolute".680

Accordingly, it becomes clear that the Courts of Sri Lanka are not authorized to act on their own
motion and enter the decree absolute.

This contention is followed by the question as to who then is permitted to move the Court to
enter the decree absolute. The Privy Council clarified the position in Hulme-King v. de Silva,681 and
held, that there is nothing in the written or unwritten law to prevent either the innocent or the guilty

674 (1937) 29 NLR 241, Fernando A .J. at p. 245.

675 (1936) 38 NLR 63.
676 (1935) 37 NLR 372.
677 at p. 374.
678 Also see Sathiyanathan v. Sathiyanathan (1937) 29 NLR 241.
de Silva v. de Silva (1926) 29 NLR 378.
In the appeal this decision of the Supreme Court was accepted by the Privy Council (in Hulme King v. de Silva)
679 (1937) 29 NLR 241.
680 ibid. Fernando A.J. at p. 245.
681 (1936) 38 NLR 63.

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spouse to make an application under Section 604 or 605 of the Civil Procedure Code, for the decree
to be made absolute.

Provisions of the Civil Procedure Code have been construed in such a manner as to disclaim
any deviation between the innocent and the guilty spouse with regard to the right to move the
Court.682 In the recent case of Kaluarachchi v. Wijewickrama and another,683 this provision was re-
affirmed when it was held, that an application for a decree absolute can be made either by the
innocent or the guilty party, and that there is no residuary discretion vested in the Court to decline
such a move.

This two-stage process, i.e. the granting of a decree nisi and absolute, creates doubt on the
point when a marriage is actually terminated. The date on which the decree absolute is actually
granted holds much importance in deciding the exact date of the termination of a marriage. The
provision stipulated in Section 605 of the Civil Procedure Code does not authorize the Court to grant a
decree retrospectively. Hence the decisive date is when the decree was actually awarded, and not the
date on which it should have been.684

According to English law, a marriage comes to an end only when the decree is finally made
absolute, and until such a date the marriage subsists.685 Sri Lankan Courts have taken a similar
approach. In Rajaratnam v. Chinnakone,686 where the exact date on which the marriage was finally
dissolved was one of the crucial issues, the Court held that "the entry of decree nisi for dissolution of a
marriage does not terminate the status of the parties as husband and wife".687Thus, Sri Lankan law is
in this regard in conformity with the view, that a marriage remains valid until the decree absolute is
granted.688

The crucial question, which naturally follows from this interpretation, is the position of the
judgement if neither party applied to the Court. The position of English law was clarified in the

682 This view was upheld in Aserappa v. Aserappa (1935) 37 NLR 372.
Sathiyanathan v. Sathiyanathan (1937) 29 NLR 241.
Rajaratnam v. Chinnakone (1968) 71 LR 241.
683 (1990) 1 SLR 262.
684 Aserappa v.Aserappa (1935) 37 NLR 372.
685 Hyman v. Hyman and Goldman (1904) p,403. Cited in Rayden on Divorce , 10th ed. at p. 852.
686 (1968) 71 NLR 241.
This view was in affirmation of the earlier decisions in de Silva v. de Silva [Hulme-King v de Silva (1936) 38 NLR 63],
Aserappa v. Aserappa (1935) 37 NLR 372.
687 (1961) 71 NLR 241, H.N.G. Fernando C.J. at p. 242.
688 This contention is reinforced by Section 625, which enables a divorced person to contract a second marriage only
after the decree nisi is made absolute.

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Matrimonial Causes Act of 1973. 689 According to English law, if neither party applies even within a
period of twelve months from the decree nisi, the Court, on its own motion, could either rescind the
decree nisi or make it absolute. However, Sri Lankan Courts have taken a different view in this
regard. Since the procedural requirements of Sri Lankan law make it imperative that either party
should move the Court, and a contrary interpretation has not been given since the decisions in
Sathiyanathan v. Sathiyanathan690 and Aserappa v. Aserappa691, the Court is not empowered to grant
a decree absolute without such a move. Consequently, the decree nisi becomes ineffective in the
absence of such a motion by the parties.692

Alimony, maintenance, damages and costs may be claimed in one and the same course of
action.693 If either party is dissatisfied with the decision of the trial judge, such a party may appeal as
provided in Section 624 of the Civil Procedure Code.694

4.ii The divorce procedure applicable to Muslims of Sri Lanka

Sharia law recognizes an exclusive procedure for the dissolution of marriage. Even though
some common principles are recognized, the procedural law varies according to the customs and
practices adopted by different schools and sects, among which considerable deviations can be
identified.

The procedure applicable in Sri Lanka at present is a codification of customs and practices,
which have been recognized by the Sri Lankan Muslims over the centuries. The Quazis who were
interviewed695 were of the view that, even though there may be differences in the practices and
customs, the law is based solely on the word of God, and substantive Islamic law is to be found in
the Quran, Hadith and Sunna.696

689 Rule 65 of the Matrimonial Causes Act of 1973.

690 (1937) 29 NLR 241.
691 (1935) 37 NLR 372.
692 Rajaratnam v. Chinnakone (1968) 71 NLR 241.
693 These awards are not discussed in detail, due to the limited scope of this study.
694 The appeal process will not be discussed in detail due to word constraints.
695 Quazis and Marriage Registrars of the judicial area of Panadura, Thotawatta, Pallimulla and Sarikkalimulla, and
several Muslim lawyers, were interviewed for research purposes, and this assumption is based on the views
expressed by them during such interviews.
696 These are the main sources of Islam. Quran is the sacred book containing the Prophet Muhamed’s oral
revelations, written in Arabic. Hadiths contains the oral teachings of the Holy Prophet, his actions, works and daily
practices. Sunna is the practice deduced from the teachings. See Fyzee - Outlines of Muhammedan Law, at p.26
– 28.

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 The Marriage and Divorce (Muslim) Act No. 13 of 1951 697 stipulates the procedure
applicable to Sri Lankan Muslims in the process of divorce. While prescribing the general rules
commonly applied to all Muslims, the Act expressly provides that the status and the mutual rights
and obligations of the parties shall be determined according to Muslim law governing the sect to
which the parties belong.698

4.ii (A) The Quazi Court procedure

The Quazi Court consists of the Quazi, three assessors and sometimes two police
constables. No office staff is present as in a District Court.699 It was observed during several Quazi
Court sessions that prohibition on legal representation 700 gives the process an informal
atmosphere. Unlike in District Courts, where the proceedings are held in open court, only those
who are involved in a particular case are called into the room where the proceedings are held. This
ensures privacy most needed in divorce proceedings.

The exclusive jurisdiction of dissolution of a marriage among Muslims is vested with the
Quazi.701 Although the Quazi acts as a judge in divorce cases and other related matters, it is not
essential that he should be qualified in the study of law. A minute made by the Registrar General
in 1936 with regard to the qualifications required by a Quazi, is worth quoting:

"The essential qualification of a Kathi702 is not a theoretical knowledge of Muslim

theology and law, but experience, intelligence and a good knowledge of Muslim
customs prevailing in the country. He should have a good grasp of the facts and be
able to conduct an inquiry on correct lines of procedure. He should be in a position to
reconcile parties and adjudicate upon questions of maintenance and should above all

697 Hereafter referred to as 'the Act'.

698 Section 98 (2).
699 The Quazi Court sessions were observed on several occasions for research purposes. Generally the sessions are
held in government school buildings. Since the Quazi himself is usually employed elsewhere, and the Court
premises are unavailable on weekdays, Court sessions are held on Saturdays.
700 Section 74 of the Act states that no attorney-at-law shall be entitled or permitted to appear on behalf of any party
or witness in any proceedings before a Quazi under the Act.
701 This office was earlier known as Kathi and later turned to Quazi. The institution of Quazi has been introduced to
Muslim law of Ceylon by the Ordinance No 27 of 1929, as recommended by the Government Select Committee
on Muslim Law of Marriage and Divorce in 1926. The Judicial Service Commission presently makes the
appointments of Quazis.
702 Earlier English version of Quazi.

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 be a man of some status in the community with good general educational
qualifications”.703

The primary duty of the Quazi is to actively involve in reconciliation and it differs from the
duties of a District Judge who is not bound by law to make attempts to reconcile parties.

The Quazi's jurisdiction is limited to a specified geographical area, and he is empowered to

determine divorce applications if the female party is a resident within that territory 704. The
husband’s domicile has no relevance in this respect. The validity of a divorce action largely
depends on the jurisdiction of the Quazi. In Sithy Maliha v. Mohamed Fassy,705 where the
petitioner wife resided within the jurisdiction of the Quazi of Colombo North and talak was uttered
before the Quazi of Kinniya, the Board of Quazis held, that the proceedings were null and void due
to lack of jurisdiction. Moreover, "resident" means something more than a temporary stay. Hence it
is required that the wife should be a permanent resident in the area of the Quazi.706 The burden is
on the petitioner to prove her residence. 707

The emphasis on jurisdiction is linked to the duty cast upon the Quazi to reconcile the
parties. It is believed that when the female party is a resident of the same area as that of the
Quazi, the Quazi can easily get the assistance of her relatives, and that since the Quazi is a
respected member of the area, he can successfully involve in the reconciliation.

Irrespective of the mode of divorce, the primary obligation of the Quazi is to make a genuine
effort to reconcile the parties through negotiation, 708and failure would amount to a material

703 A minute made by Mr. J.W.C. Rock, Registrar General in 1936, cited in the paper presented by Justice Ameer
Ismail at the conference conducted for the Quazis Island-wide by the Judicial Service Commission in November
2000.
704 However the question of lack of jurisdiction does not occur in the following instances:
(i) Where the presiding Quazi is a special Quazi who has been appointed under the provisions of Section
14 or Section 67 of the Act. or
(ii) Where the Quazi who exercises the territorial jurisdiction has, on acceptable grounds, forwarded the
matter to another Quazi. For instance, when the Quazi who exercises jurisdiction is related to either of
the spouses, he does not become involved in the matter, but forwards the case to be decided by another
Quazi.
Under such circumstances, the Quazi who exercises jurisdiction shall ask in writing for another Quazi to decide
the matter. Apparently, the accepted practice is to state the reasons for the request in the letter itself.
705 (1971) VI MMDR 34.
706 Kanappa Chettiar V. Saibo 2 C L R. 37 (SC) This was followed in Hashim V. Sithi Fathima (1951) III MMDR 133
(Board of Quazis).
707 Hashim V. Sithi Fathima (1951) III MMDR 133, at 134.
708 Rule 1 of the Second Schedule and Rule 10 of the Third Schedule emphasize the importance of a Quazi's
obligation in making due effort to effect a reconciliation.

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irregularity and thus annul a judgment.709 Only if every attempt at reconciliation fails, the Quazi can
proceed to arbitration. 710 However, the Quazis are not authorized by law to constitute themselves as
arbitrators without holding a due inquiry, and it has been repeatedly held that such acts on their part
would be ultra vires.711 It was observed during divorce proceedings 712 that the Quazi involves
relatives of the spouses and elders in the process of reconciliation. Sometimes the matter is referred
to outsiders such as respected elders in the area; or the Quazi may ask for assistance from Muslim
priests.

Proceedings are informal, and interruptions from the opposing party are common. On such
occasions, the Quazi and assessors interfere and bring the Court to order. The Quazi may, if he
thinks necessary, stop proceedings on justifiable grounds and postpone the hearing to a future
date. He has to record such a postponement, giving the reasons. 713

4.ii (A) (a) Talak procedure

The talak procedure as practised in Sri Lanka is laid down in the Second Schedule of the
Act.714 Accordingly, the husband who intends to pronounce talak shall give written notice of his
intention to the Quazi of the area where the wife resides.

If the parties are not reconciled within thirty days of the husband’s notification to the Quazi
of his intention to pronounce talak, he should pronounce talak in the presence of the Quazi and
two witnesses, at a time when the wife is free from menstruation, which is known as tuhr.715 The

709 Abdul Rahuman Lebbe Shahul Hamid v. Mohamed Lebbe Saliha Umma (1937) II MMDR 38.
710 The difference between arbitration and reconciliation should be identified. According to Bruce Houlder ( Q.C. Bar
of England and Wales - A discussion paper – November 2001, unpublished) reconciliation involves an impartial
third party persuading the parties towards a solution, while the process of arbitration involves a neutral third party
hearing both sides of the case and delivering a judgement.
711 Asiaummah V. Zainudeen, (1944) III MMDR 16.
Abdul Carim Alim V. Umma Salana (1944) III MMDR 19.
712 Held at Sarikkalimulla Quazi Court on 29.12.2001.
713 Section 43 of the Act specifies that the Board of Quazis may call for and examine the record of any proceedings
before a Quazi, for the purpose of satisfying itself as to the legality or propriety of any order passed therein, or as
to the regularity of the proceedings.
714 Section 27 of the Act No. 13 of 1951.
715 The Quazi is required to record the notice as well as the pronouncement of talak. This vital requirement has been
confirmed in Bathul Inaya v. Abdul Salam [(1976) VI MMDR 64] where it was held, that it is imperative to record
the pronouncement of talak, and non-compliance amounts to an irregularity, which would make the divorce
ineffective.

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pronouncement should be duly recorded and affirmed by the Quazi716. However, the Quazi shall
not record the alleged reasons or grounds which caused the husband to pronounce talak.717 It was
observed that the Quazi inquires into the dispute, and with the assistance of the assessors
attempts to convince the parties to effect a reconciliation. If the parties are reconciled, the
pronouncement of talak is quashed.718 Only on failure of such attempts does a Quazi enter his
pronouncement of talak in the record, and this is done in the presence of two witnesses.719

The wife’s presence is not essential during the pronouncement of talak. However, if the wife
was not present, the Quazi must notify her that talaq has been pronounced. The question of the
validity of talaq, which has not been communicated to the wife, was analyzed by the Board of
Quazi’s in Allah Piche Kappalneiyina V. Ahamadu Lebbai Avvakuddy. 720 It was held that non-
communication alone to the wife does not invalidate the divorce. The decision was based on the
premise that divorce and communication of divorce are two different matters, and that one does
not depend on the other for its validity.721

Since the Act states that a Quazi is required to give notice of the pronouncing of talak to the
wife, the above judgement appears to be contrary to the statutory provisions. In keeping with the
statutory requirements it was decided in Essa Jabardeen v. Kolism Beebee722 that the Quazi is not
authorized to dispense with the requirement of notifying the wife.

However, the Quazi is not obliged to make sure that the notice has in fact reached her. The
usual practice is to send the notice by post to the given address, or to give notice with the
assistance of the Grama Niladhari723 of the area. If the wife has gone abroad, the notice should be
posted to the overseas address, but if her whereabouts are not known, clearly no notification can
be sent.

716 Rule 2 of the Second Schedule.

717 Rule 3 of the Second Schedule.
718 Ummul Fukura v. Hassanul Abdeen (1973) VI MMDR 48.
719 Rule 2 of the Second Schedule. Once talak is pronounced, the applicant and two witnesses hold each other’s
hands and pray to Allah, asking his pardon for engaging in an act which is most hated by him. Usually the Quazi
says the prayer which is repeated by the parties and their witnesses.
720 (1937) II MMDR 50.
721 Ibid. at p. 51.
This view was reaffirmed by the Board of Quazis in Abdul Rahuman Mohamed Subayar v. Samsi Lebbe Marikkar
Aynool Pathumma (1938) II MMDR 55, and Seyadu Ahamed v. Ruwaida Umma (1949) III MMDR 99. It was
based on the decision in Fur Sund Hussen v.Juan Beebee (1978)4 Culcutta 588.
See further Sarabai v. Rabiabai (1905) 30 Bombay 537.
722 (1976) VI MMDR 65.
723 Grama niladhari is the lowest administrative officer at the village level.

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 Even though this practice is against the rules of natural justice and the procedure adopted
by some other Muslim countries,724 it has become recognized practice that the repudiation occurs
on the utterance of talak, and non-communication does not invalidate the divorce, if it is otherwise
valid.

Another controversial issue is the mode of talak prescribed in the Second Schedule of the
Act. The procedure laid down in the Second Schedule has been interpreted in two different ways.
One view is, that the procedure prescribes the hasan form of talak, 725 and this contention is based
on the premise, that the provisions specifically state the requirement that the husband should be
present before the Quazi on three occasions in order to pronounce talaq, unless a reconciliation
has been effected between the spouses.726 Those who favour this interpretation assert, that it
provides the Quazi more than one occasion to attempt to effect reconciliation between the
spouses, and that the hasan727 form involves more time, during which the wife is entitled to
maintenance, whereas under the ahsan728 form she can claim only the iddat maintenance.729

In Nansoora v. Sithi Jaria,730 the husband had pronounced talak in June 1939, and
thereafter the spouses lived separately until they reconciled in December 1943. In September
1944 the wife applied for a fasah divorce. The Quazi, after hearing both parties, entered a decree
granting fasah divorce. The husband appealed to the Board of Quazis, where one of the main
issues was the validity of talak uttered in June 1939. The Board of Quazis held, that the talak
pronounced by the appellant on his wife in June 1939 became complete and irrevocable at the end
of the period of iddat at that time, and was still valid, thus recognising the ahsan form of talak.731

724 In Egypt and Tunisia, divorce does not take effect if the notice has not reached the wife.
725 These two forms were discussed earlier in Chapter 3. See p.113.
726 In Khan v. Moomin and others, [1995 (1) SLR 107] the Quazi and the majority of the Board of Quazis have efused
to grant divorce on this basis.
727 Talaq hasan consists of three pronouncements of talaq made during three successive periods of purity, and the
divorce becomes irrevocable upon the third pronouncement being made.
728 This form of divorce consists of a single pronouncement of talaq made during a period of purity. The divorce is
revocable during iddat, but becomes irrevocable on completion of the period of iddat. See Saleem Marsoof –
Quazi Court system in Sri Lanka and its impact on Muslim Women – MWRAF – 2001, pp. 50 – 52.
729 In the ahsan form, divorce is effected immediately on the expiry of iddat and frequently the wife is left without
support. On the other hand, in the hasan form, the process of dissolution continues for a minimum period of three
months, and sometimes longer, during which time the wife can claim her maintenance from the husband, and
irrespective of the time taken for the dissolution, the wife is entitled to iddat maintenance as well.
730 (1945) III MMDR 40.
731 Ibid. at p.44, See further Abdul Rahuman v. Samsu Naeema ( 1947) III MMDR 71, Hussain v.Sithy Aysha (1946)
III MMDR 49.

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 The procedure under the present Act was discussed at length in Khan v. Moomin and
others.732 The Board of Quazis decided that the husband’s presence, on two consecutive
pronouncements after the initial pronouncement of talak, was mandatory. This contention was
justified on the premise that it gives the Quazi more opportunities to attempt a reconciliation.
However, the Supreme Court emphasized that the Second Schedule prescribes the Ahsan form of
talak, as it refers only to the pronouncement of a single talak.733

Accordingly, a valid divorce could be affected by a single pronouncement of talak, if it was

pronounced in the presence of the wife and two other witnesses, and no reconciliation had taken
place between the spouses. Thus, the provisions of the Act require the presence of the husband
on a second occasion only, if the talak was pronounced in the absence of the wife; and only if the
wife was absent on the second occasion is the husband required to be present on a third
occasion. If the wife was not present when the first talak was uttered, but was present on the
second date fixed by the Quazi, then the husband is required to pronounce talak on her for the
second time, and she is obliged to observe iddat, commencing from that date. If no reconciliation
was effected during the period of iddat, the divorce becomes irrevocable.

In response to the arguments levelled against the ahsan form, some Muslims734 stress that
the longer period involved under the hasan procedure causes more agony to the wife. They urge
that, even though the Act prescribes thirty days on the lapse of which the husband is expected to
pronounce the subsequent talak, in practice this process takes more time. Although the husband is
bound to maintain the wife during this period, it is only done out of duty but not with affection. In
the case of non-maintenance, she will have to take legal action. The situation becomes worse if
the husband has contracted a second marriage during this period, since he might postpone the
subsequent pronouncements.

A Muslim husband is allowed to divorce his wife by making a statement, during any
proceedings before a Quazi, to the effect that he had pronounced talaq earlier, and as provided in
Section 30 such a statement is deemed to be a valid pronouncement of talaq. 735 It may be argued

732 1995 (1) SLR 107.

733 Ibid. Ismail J. at p.112.
734 Several Muslims including lawyers, both practitioners as well as non-practitioners, Muslim priests, scholars and
ordinary men and women were interviewed for research purposes.
735 Section 30 of the Muslim Marriage and Divorce Act.
See further Segu Abdul Cader Meera Lebbe Marikar v. Mohamed Pathuma Nachchia (1938) II MMDR 62, Haji
Ismail v. Subaida Haji Ismail (1966) V MMDR 34.

139
that this provision specifically recognizes the unlimited power conferred upon a male Muslim in
regulating his marital relationship. For instance a husband can simply abstain from maintaining his
wife, and if the wife takes legal action against him, he is only required to state at the inquiry that he
has repudiated her. That declaration itself is considered as a pronouncement of talak, and when it
is registered on the expiration of iddat, or if the wife is pregnant, on delivery of the child the divorce
becomes absolute.

Accordingly it may be concluded, that male superiority is deeply rooted in the system of
Muslim law despite Quranic pronouncements which attempted to alleviate the pre-Islamic status of
family law and to improve the position of women. This superiority is amply demonstrated in talak
procedure which exempts the husband from giving any reason for repudiating his wife, 736 and the
Muslim wife is not granted the right to challenge the credibility of her husband’s claims if he has
made any. It should be noted however that the Second Schedule only prescribes the procedure to
be adhered to, and this should always be construed in the light of Islamic principles.

4.ii (A) (b) Divorce by the wife

In contrast to the pre-Islamic era, the position of women was later elevated in Islam, and
certain rights were sanctioned, especially with regard to marriage, divorce and maintenance.
Although the position of women improved, they did not obtain equal status with men. The
superiority of the male has always been maintained. This discrimination is manifested in Sri
Lankan Muslim law, and this is clearly evident in the sphere of divorce. The grounds, as well as
the procedures available to a Muslim wife, are strikingly different from those applicable to a Muslim
husband.

Prior to the enactment of the Act of 1951, the Quazi had no authority to grant khul or
mubarath737 divorce.738 The provisions introduced under Section 28 (2) 739 of the Act of 1951

736 Rule 3 of the Second Schedule. This was discussed earlier in Chapter 3, see p. 113.
737 Both khul and mubarath were discussed in Chapter 3.
738 Habeeb Mohamed v. Kathija Umma (1949) III MMDR 94.
Marliya v. Usman (1948) III MMDR 91.
Mohamed v. Inul Manzoona (1958) IV MMDR 143.
739 Section 28 (2) allows a wife to effect a divorce from her husband, without his consent, on the ground of ill-
treatment or on account of any act or omission on his part which amounts to a fault under the Muslim law
governing the sect to which the parties belong.

140
extend the powers of the Quazi to grant divorce, on the instance of the wife, on grounds which do
not amount to ill-treatment or fault as prescribed in Section 28 (1).

The procedure for divorce by the wife is prescribed in the Third Schedule of the Act. A wife
who seeks a fasah divorce is required to make an application to the Quazi of the area in which she
resides740. The notice of this application is served on the husband with the assistance of either the
Grama seva niladhari of the area, or the police.741 Since there are no fiscal officers, the Quazi is
involved in serving the notice, and this is distinctive compared to the divorce procedure under
general law, where the judge is not directly involved in the service of summons.

If the Quazi is satisfied that the defendant is not in Sri Lanka, and under the circumstances
it is not possible to serve notice on the husband, he may opt to serve the notice on the husband's
nearest relative. Even though in Muslim law marriage is considered as a civil contract between two
parties, the communal interest in upholding the institute of ‘family’ is demonstrated throughout the
divorce process. Quazis confirm, that positive results are often obtained through the involvement
of the relatives and religious leaders, and there are instances where they have reconciled the
parties. This contrasts with the general law where no such measure is adopted in preserving the
marriage.

If no such relative is known to be in Sri Lanka, the Quazi is authorized in law to dispense
with the necessity of personal service. 742 Where, on the other hand, the Quazi is satisfied that the
defendant husband has no fixed abode, or his whereabouts could not be located, and it is not
possible to serve the notice on the husband even though he is in the country, the Quazi may order
that a copy of the notice be displayed in a conspicuous place at each of the Jumma Mosques of
the area for which the Quazi has been appointed, and also at the houses of the husband’s nearest
relatives whose addresses are known.743 Unlike in general law, where the District judge is not

740 Rule 1. An application may be made to a Quazi who has been specially appointed by the Judicial Services
Commission under the provisions of Section 14 of the Act. The Judicial Services Commission is empowered to
appoint special Quazis by gazette notification whenever a necessity arises, and such special Quazis may be
appointed either for the whole of Sri Lanka or for any specific area. Printed applications for filing a divorce case
are available free of charge at the Quazi's office. It was observed however, that in certain areas the Quazi did not
posses printed application forms; in that case the applicant made her allegations verbally and the Quazi recorded
it in writing. Sometimes the applicant herself produces a written application.
741 Section 75 of the Act prescribes that the grama seva niladhari and every police officer is bound to aid and assist
the Quazi in the exercise of the powers and jurisdiction or the performance of the duties conferred or imposed on
them by the Act.
742 Rule 3 of the Third Schedule.
743 Rules 3 and 4 of the Third Schedule.

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statutorily responsible in the service of summons, the obligation of the Quazi to cause notice is
imperative, and affects the validity of the judgment. 744

Before the proceedings commence, the Quazi empanels three Muslim assessors to assist
him in the hearing of the application.745 Appointment of assessors is required only under the Third
Schedule; thus it is clear that assessors are not involved in talak divorces. Participation of
assessors is mandatory in fasah, khul and mubarath and failure to comply with this requirement
vitiates the whole proceeding. 746 The Act however provides, that it is not necessary for the Quazi
to empanel assessors in the following instances:

(a) Where the Quazi dealing with an application is a special Quazi appointed under Section 14
of the Act; or
(b) Where the area in which an application is to be heard is one where, owing to the sparseness
of the Muslim population or for any other reason, the Minister has by notification in the
Gazette given direction that applications for divorce may be heard without the assistance of
Muslim assessors.747

On the day fixed for trial, the parties with their witnesses have to appear in Court. If the
husband does not appear on the date of the hearing, and unless the Quazi has dispensed with the
notice under Rule 3, it is necessary to prove on oath or affirmation that the notice has been duly
served or posted, as prescribed under Rule 4 of the Act.748 Thus, the Quazi must make sure that
the defendant is aware of the proceedings that have been instituted against him.749 This
requirement ensures the adherence to one of the basic rules of natural justice: audi alterem
partem.

The Quazi is obliged to endeavour by all lawful means and with the consent of the parties,
to bring them to an amicable settlement. 750 It was observed that parties are advised by the Quazi

744 See Anver v. Noor Rifa (1978) VI MMDR 83, where the order of the Quazi was set aside on non-compliance with
the mandatory provisions in the Third Schedule.
745 Rule 7 and 57 of the Third Schedule.
746 Fareed v. Jesima (1967) V MMDR 63.
747 Proviso to Rule 7 of the Third Schedule.
748 Rule 6 of the Third Schedule.
749 It was decided in Rasan Marikar v. Samsudeen Marikar, [(1940) II MMDR 108], that the absence of sworn
evidence of service of notice becomes fatal to the case where it has occasioned a failure of justice.
750 Rule 10 of the Third Schedule.
It was held in Mohamed Siddeek v. Sithie Saida [(1966) V MMDR 44] that failure on the part of the Quazi to
attempt to reconcile parties amounts to a serious irregularity.

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of their religious obligations and their responsibilities towards their children. It was obvious from
the attempts made by the Quazis that it was not just an adherence to a legal obligation, but a
fulfilment of a moral one; one might even say, a religious duty which bears testimony to one's faith,
and not to the letter of the law.

The Quizi is required not only to effect reconciliation, but also to place on record his
endeavours in this direction.751 The Quazis who were interviewed confirmed, that their duty
extends beyond reconciliation. With the consent of the parties, it is incumbent on them to discover
the real cause of the problem and, if possible to remove it and prevent a recurrence. It was learnt
that sometimes the Quazis make arrangements for the spouses to live in a separate house from
their parents, where the cause of the trouble seemed to be undue interference by either parents or
parents in law. On occasions they have found employment for the husband, where a lack of
employment and consequential inability to maintain the wife was the root of the problem. If,
however, the parties do not agree to a settlement, the Quazi and the assessors will proceed to
hear evidence and to determine the application. 752

Where a reconciliation fails, the couple’s desire to proceed with the case should be recorded
by the Quazi, and a date for the hearing should be fixed. There have been instances where the
Quazi examined the witnesses on the day that the parties appeared in the Court for the first time,
instead of fixing another date for the hearing. 753 However, it has been accepted that sufficient time
should be allowed for the parties to produce their respective witnesses. This decision reinforces
the requirement of fixing the trial for a future date. 754

Examination of evidence is an uncomplicated process in a Quazi Court, and the witnesses

need not necessarily be Muslim.755 Once the witnesses take an oath, the Quazi cautions them on
the adverse consequences of giving false evidence. Stringent rules of evidence do not apply in the
examination of witnesses in Quazi Courts. 756

See further M.A.M.Naseera v. A.C.M.Buhari et al, (1937) II MMDR 32, Hasim v. Sithi Fathima. (1937) III MMDR
133, Anver v. Noor Rifa (1978) VI MMDR 83.
751 Anver v. Noor Rifa (1978) VI MMDR 83, Abdul Rahuman Lebbe Shahul Hamid v. Mohamed Lebbe Saliha Umma
(1937) II MMDR 38.
752 Rule 10 of the Third Schedule.
753 Junaideen v. Noorsabia (1973) VI MMDR 49.
754 Faleel v. Heya Rukkiya (1946) III MMDR 51.
755 Sameen v. Noor Saffiya (1966) V MMDR 6.
756 Written submissions are not encouraged in Quazi Courts. The accepted practice is to give evidence orally in the
language in which the witness is fluent. If the Quazi is unable to understand that language, it should be translated
into the language which the Quazi is able to understand. In Nurul Islam v. Gnei Zeena [(1956) IV MMDR 118], a

143
 The Quazi should allow a party to lead all relevant evidence that he desires to lead. 757 It is
equally important to allow parties to examine or cross examine parties or witnesses whose
evidence had already been held. In Jamaldeen v. Noor Nalima758 the Board set aside the
judgement made by the Quazi and remitted the case back for further hearing as the parties had
not the opportunity to cross examine the witnesses.

The defendant husband is not bound to have his defence corroborated. By contrast,
corroboration of the wife’s evidence by at least two other witnesses is mandatory, 759and non-
compliance with this essential requirement vitiates the whole proceeding. 760

The Quazis, who have been interviewed, clarified the discrimination sanctioned in law with
regard to the weight given to the evidence by the male in contrast to that of the female party. They
were of the view that, in Muslim society, women are not considered as proficient as men in
producing submissions, especially in a public place like a Court; they are not as aggressive as
men, and not competent to face adverse comments or allegations. Thus, they need to be
supported by others. The Quazis believe that the provisions, which require corroboration, provide
support and assistance to the less capable party, and that they are not at all discriminatory against
the female spouse. 761

The necessity of corroboration however does not arise, when the defendant husband
himself admits the complaint made against him. In Balkis Umma v. Zainudeen Buhar762 the
husband had admitted his guilt, and declared that he had no objection against a divorce sought by
the applicant. The Board stated that there is no corroboration more powerful than an affirmative
statement made by the respondent, and granted a divorce. A previous Board of Quazis in Abdeen

Pakistani, who did not know Sinhalese, Tamil or sufficient English, submitted a written statement of his evidence
in English in an action for fasah divorce. It was held that the acceptance by the Quazi of a written statement
instead of oral testimony was improper, and the correct procedure would have been for the appellant to give
evidence in his own language, and then to have it translated into the language of the Court.
757 Buhari v. Seyadu Pathuma (1947) III MMDR 66.
758 (1943) III MMDR 9.
759 Abdul Rahim v.Jezima (1972) VI MMDR 42 , Mohamed Caseem Mohamed Zubair v. Abdul Careem Umma
Raseena (1938) II MMDR 82, M. A. M. Naseera v. A. C. M. Buhari and another (1937) II MMDR 32, Sahabdeen
v. Ummu Raleeha (1943) III MMDR 10. This stand was taken in the following cases as well, even though the
Board did not mention the names.
See Mohamed v. Inul Manzoona (1958) IV MMDR 143 , Shariffdeen v. Umma Zarahira (1955) IV MMDR 94,
Naur Lebbe v. Sara Umma (1946) III MMDR 55.
760 Abdul Rahim v. Jezima (1972) VI MMDR 42, at p. 43.
761 Rule 11 of the Third Schedule.
762 (1973) VI MMDR 46.

144
v. Johara763 took the same view when it held, that two witnesses could regard an admission by the
husband as a substitute for the requirement of legal proof.764

This is in contrast to the position of general law where divorce is not granted merely on
admission of guilt. This limitation is expected to provide equitable administration of justice between
the parties and prevent collusive agreements to obtain divorce easily. However, this argument
cannot be held valid in Muslim law, where the basis of divorce is different to that of general law.
Particularly the issue of collusion does not arise since Muslim law also recognizes divorce on
mutual consent.

The manner of recording the evidence depends on the nature of the evidence and the
method adopted by the Quazi. Unlike in the District Court, there is no defined form of recording,
but it is vital that all the evidence is recorded, and it should illustrate the process and disclose the
facts. It is also important that the Quazi should observe due care in the writing of the record, and
extensive deletions and alterations should be avoided. 765

In deciding the case, the Quazi should allow the assessors to express their ideas. Any
difference of opinion with an assessor, or refusal of an assessor to express an opinion, should be
recorded by the Quazi. In the case of Samsudeen Mohamed Thaha v. Mohamed Ali Johara
Umma,766 the Board of Quazis expressed their dissatisfaction with the Quazi's rejection of the
assessors’ proposals. Even though the Quazi is authorized to disagree with the opinion of the
assessors, he is obliged to record such contrary opinion as well as his own conclusions.

Moreover, the Quazi is bound to follow the elementary rules of evidence, and accordingly
take the vital facts into consideration, and disregard irrelevant matters which have no bearing on

763 (1944) III MMDR 17.

764 The husband's declaration however, should amount to an admission of the allegations made by the wife, and a
mere statement or the declaration of his consent to divorce does not give the Quazi the power to grant divorce.
See Mohamed v. Inul Manzoona, (1958) IV MMDR 143.
765 Buhari v. Seyadu Pathuma, (1947) III MMDR 66.
Affirmation of evidence by the witnesses is prescribed under Rule 11 of the Third Schedule. One of the grounds
of appeal in Abdul Hameed v. Naina Mohamed Subaitha[(1937) II MMDR 24] was that the Quazi failed to get the
record of evidence signed by some of the witnesses. It was held that in the interest of justice and proper
procedure, the evidence should be properly affirmed, and failing to do so would vitiate the whole proceeding.
766 (1927) II MMDR 24.

145
the issue to be tried by him.767 His judgment should accordingly be warranted by the evidence on
record, should be free from bias and demonstrate proper judicial temperament.

When the divorce is granted the Quazi must record it. He shall not, however, register the
divorce unless thirty days have elapsed, and no appeal has been made against his order; or, if
there has been an appeal and consequently the Board has allowed a divorce; or in the eventuality
that a further appeal has been made and the Court of Appeal has allowed the divorce. 768 Where
no appeal has been made to the Board of Quazis, the Quazi must register the divorce. Once the
divorce is registered, the Quazi has to send a copy of the divorce register before the fifth day of
the following month to the District Registrar. 769

4. ii (B) Appeal against an order of the Quazi

If either party is dissatisfied with the order or part of the order of the Quazi, such a party is
allowed to make an application of appeal to the Board of Quazis. An appeal cannot be lodged
where a case has been settled, and the parties have signed the record in agreement of the terms
and conditions.770

The appeal must be in writing and signed by the appellant, 771 and should be submitted
within thirty days from the date on which the order was made. 772 The appellant must give notice of
such an appeal to the Quazi against whose order the appeal is made. 773 The Board is not
absolutely precluded from entertaining an appeal lodged out of time. 774 This issue was raised in

767 Naina Marikar v Johara Umma (1966) V MMDR 37.

768 Rule 15 of the Third Schedule. In Ameer v. Ummul Hayer [(1969) V MMDR 96] the Board of Quazis confirmed the
Quazi’s duty to observe this rule scrupulously, and refused to register the divorce till the time for appeal is over.
769 Section 58 (1) of the Act.
770 Ahamado Meera Tamby Seyado Mohammad V. Alla pichay Yoohani Umma, (1938) II MMDR 92.
771 Salli V. Beebee, (1943) III MMDR 11.
Salih v. Sithi Mazeena (1967) V MMDR 66.
Omar Pillai v. Sithi Saida (1967) V MMDR 70.
Following the decision of the Supreme Court in Medhananda Terunnanse v. Dhammananda Thero et al (XLVI
NLR 117) The Board held in Mohamed v. Noor Nasima (1946) III MMDR 48 that the personal presentation of the
petition by the appellant himself amounts to sufficient compliance with the requirements of Regulation 22, in
absence of the signature on the application.
772 Rule 1 (b) of the Fifth Schedule.
Omar Pillai v. Sithi Saida (1967) V MMDR 70.
773 Rule 8 (a) of the Fifth Schedule.
774 See Proviso to rule 1 of the Fifth Schedule.

146
the case of Avvakutti V. Hameedu Lebbai 775 where the appeal was filed out of time. The Board
held776 that Section 63 of the Act enables it to entertain an appeal made out of time if the delay
has been caused by any of the reasons recognized in the Act, i.e. illness, accident, misfortune or
any other unavoidable cause. 777

The Board of Quazis can decide whether to hear an appeal in public or in camera, and if it
decides to hear such evidence this may be tendered by either party to the appeal. No assessors
are involved in the hearing of an appeal by the Board of Quazis, and the majority decision of the
members of the Board who are present at the hearing is deemed to be the decision of the
Board.778 The proceeding of the appeal and the order of the Board must be recorded and signed
by all three members present at the hearing of the appeal. 779 Notice of the order made by the
Board of Quazis must be given to the appellant as well as to the respondent. 780 Following the
hearing of the appeal the Court may confirm the order made by the Quazi, or the Board of Quazis,
or reverse, alter, amend or modify such an order. 781 Alternatively, the Court may order a fresh
inquiry to be held by the Quazi, or further evidence to be examined by the Quazi.

If the divorce is allowed, the Quazi shall register the divorce,782 whereby it becomes
irrevocable. However, the aggreived party may appeal to the Supreme Court

775 (1955) IV MMDR 72.

776 Referring to the proviso to Rule 1 of the Fifth Schedule.
777 The Board admitted nevertheless that no material whatsoever had been produced to explain the appellant’s delay
in filing the appeal, and thus expressed their inability to act under the provisions of Section 63 of the Act. The
Board emphasized the cardinal rule of justice recognized under Section 44 (2) of the Act, which states that no
order under this Section shall be made by the Board of Quazis to the prejudice of any person unless he had an
opportunity of being heard, either in person or by his representative, and sought to secure the rights of the
appellant, through the revisory powers conferred upon the Board, under Sections 43 and 44 of the Act.
778 Section 15 (c).
779 Rule 3 (1) of the Fifth Schedule.
780 Rule 3 (2) of the Fifth Schedule.
781 Rule 7 of the Fifth Schedule.
782 Rule 15 of the Third Schedule.

147
4. iii Divorce procedure in Kandyan law

The Kandyans, irrespective of gender differences, are guaranteed by law to have the
freedom to terminate the marriage contract with the minimum of procedural requirements.

As provided in the Kandyan Marriage and Divorce Act 783, the District Registrar determines
matters relating to a Kandyan divorce. 784 The office of the District Registrar deals with
administrative matters of every district and the officers who hold such offices are skilled, qualified
in administration but not necessarily in law. Notwithstanding the fact that the District Registrar
deals with legal matters,785 his authority is neither subjected to the purview of the Judicial Service
Commission nor to the Ministry of Justice. 786

4. iii (a) Divorce application

An application for a divorce must be in writing 787 and should contain primarily the names and
addresses of the applicant and his or her spouse respectively, the date, place and nature of the
marriage, (i.e. whether the marriage was contracted in the form of binna or diga), the number of
surviving children, their ages, details of their addresses 788 and who the present custodians are.

The application has to be made to the District Registrar for the District in which the applicant
resides.789 Where the applicant resides outside the Kandyan Province, the application has to be
made to the District Registrar responsible for the District in which the respondent resides or in
which the marriage was registered.790 If the application is made jointly on the ground of mutual
consent, it may be submitted to the District Registrar responsible for the District in which one of the

783 No.44 of 1952.

784 Section 39 (5).
Every Government Agent, The Additional District Registrar, Additional Government Agent, Assistant Government
Agent, Additional Government Agent, Additional Assistant Government Agent and Office Assistant to a
Government Agent of the District are authorized to perform the duties of the District Registrar with regard to
divorce. See Section 39(2) and (5).
785 Under the Kandyan Marriage and Divorce Act divorce is purely a legal matter, although it was a personal matter
under the customary law.
786 The authority of the District Registrar is subjected to the purview of the Registrar General, and functions under
the Ministry of Local Government.
787 Printed application forms are available in the office of the District Registrar.
788 Both addresses have to be provided where the parties live separately, in order to determine the jurisdiction of he
District Registrar.
789 Section 33(1).
790 Ibid.

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parties resides, or to the District Registrar for the District where the marriage was registered if both
parties reside outside the Kandyan Province. 791 The application should also contain the date on
which the parties finally separated, and the reasons, which prompted the applicant to seek a
divorce.

In contrast to the adversarial nature of divorce under general law, Kandyan law considers
the spouse who seeks divorce as the applicant and the other spouse as the respondent. Where
divorce is sought mutually, both parties are considered as applicants. 792

4.iii (b) The divorce process

On receipt of the application, the District Registrar shall cause notices to be served to both
parties of the marriage.793 The District Registrar should attend on the date and at the time and
place indicated in the notice, and shall dispose of the application after such summary inquiry as he
may deem necessary, either on that date or any other date to which he may postpone the
inquiry.794

Postponements are very rare and occur where further examination of witnesses are deemed
vital, or where the District Registrar is convinced that such a postponement might resolve the
differences between the parties and re-unite them. It should be noted however that, the number of
divorce applications entertained by a District Registrar are very few, compared to the large number
of divorce cases filed each day in District Courts.795 Some District Registrars796 were of the view,

791 Section 33(2) The place of marriage does not necessarily mean the place where registration actually took place,
but the applicant should state the district in which the marriage was de jure registered. There are rare instances
where Kandyan marriages are registered outside the Kandyan Province. On such occasions, though the marriage
is actually registered somewhere else, the registration is done by a Divisional Registrar of a division of the
Kandyan Province; e.g. The Divisional Registrar of Kundasale of the Kandy district. In such an instance,
Kundasale is considered the place of registration and not the district where the marriage was in fact registered.
792 Section 33(3).
793 Such notice shall contain the ground or grounds upon which the divorce is sought, and the time, date and place
where the District Registrar will carry out his duties in the disposal of such an application. It shall also include a
statement summoning the parties to appear before the District Registrar, along with their witnesses if any, on the
date and at the time and place so indicated. See Section 33(4) a, b and c.
794 Section 33(5).
795 One District Registrar (Kundasale) disclosed that during the five-year period of her service as the District
Registrar for that division, only two divorces were granted out of six applications received. In the Kegalle division,
57 divorce applications were received during the seven-year period from 1993 to 2000, out of which 30 were
granted.
796 District Registrars. Additional District Registrars and Assistant Government Agents of Kandy, Kegalle and
Kundasale were interviewed for research purposes.

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that the simple and informal procedure applied in the divorce procedure under Kandyan law helps
considerably to hasten the proceedings.

Neither the Court sergeants (as in District Courts) nor Assessors (as in Quazi Courts) are
present during the proceedings. Except for the District Registrar, and the parties to the marriage
along with their witnesses, if any, no one is allowed to be in the Courts. Legal representation is not
acceptable and, unlike in District Courts, the press is absolutely prohibited from entering the office
of the District Registrar where the divorce proceedings are in progress. 797

The Act does not prescribe a specific procedure, and it varies according to each application
and the practices adopted by the District Registrar. Usually the contents in the application are read
out to the parties, and the District Registrar inquires as to the position of the respondent, i.e.,
whether the respondent admits the allegations made in the application or challenges them. If the
respondent admits his guilt, the District Registrar makes attempts to bring the parties to an
amicable settlement.

Although the District Registrar is not bound in law to attempt a reconciliation as a Quazi is
required to under the Muslim law, it was evident that most District Registrars do try, within their
capabilities, to effect reconciliation, and they mostly succeed in effecting a reunion. It was evident
however, that many marriages, which reach the state of seeking a dissolution, are broken
relationships which have already been subjected to reconciliation attempts by the Grama Niladhari
and the police.

It was discovered that some District Registrars employ an unusual strategy in effecting
reconciliation between the parties. When the parties appear before the District Registrar on the
date specified in the notice, and where there appears to be a possibility of reconciliation, the
Registrar simply states that, for some reason or other, the application cannot be inquired into on
that particular date, and he advises them to go back and live together as man and wife. He then
fixes a future date, which he promises will be notified later. Some experienced Registrars confirm
that this approach has on numerous occasions proved successful. They are of the view that, when

797 The office of the District Registrar, or on most occasions the Asst Government Agent who carries out the duties of
the District Registrar, is situated in old buildings which were earlier known as Kachcheris. For instance, the
District Registrar’s office in Kundasale is situated in the same office complex where the Divisional Secretariat is
situated. Except for a few well furnished offices in urban areas like Kandy and Kegalle, the office of the District
Registrar is usually a small part of an office complex.

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the parties are encouraged to reconcile and are given sufficient time to do so, they frequently
abandon the idea of divorce and make an effort to maintain their relationship. The District
Registrars admit that this ruse would not be successful with an urban population, but since most of
the parties who have married under Kandyan law are from unsophisticated rural communities, they
can more easily be convinced to reconcile.

When there appears to be no possibility of a revival of the marriage tie, the District Registrar
examines the demands of the parties. If the respondent challenges the allegations made by the
applicant, the Registrar examines each of the witnesses in turn. Stringent rules pertaining to
neither the Evidence Ordinance nor the Civil Procedure Code are applied in the examination of
evidence.798

Usually, the witnesses of the applicant are examined first, followed by those of the
respondent. However, the procedure varies with the method adopted by the District Registrar who
decides the matter. Witnesses are not examined under oath nor are they subjected to rigorous
cross-examination. The respondent is allowed to produce evidence to rebuff the evidence
produced by the applicant and vice versa. Unlike in fasah divorce under Muslim law, corroboration
of evidence is not required, and judgment is reached mainly on the strength of the evidence and
other considerations, such as the number of dependant children and problems of their
maintenance.

The Act requires that the District Registrars, who inquire into the application for dissolution
of a Kandyan marriage, keep a record of such proceedings. 799 It was observed800 that the records
kept by District Registrars are clearly distinguishable from those in the District Courts. Usually, the
records kept by the District Registrar contain the names and addresses of the parties, ground or
grounds of divorce and names of the witnesses. The actual proceedings, which include the
statements made by each party and their witnesses, are only stated briefly, and many records do
not disclose the process of examination of evidence in detail, thus making it extremely difficult to
assess the strength of the evidence led. This is in contrast to the District Court, where each detail
is meticulously noted.

798 Section 627 of the Civil Procedure Code.

799 Section 33 (13).
800 Records kept at Kundasale and Kegalle were examined for research purposes.

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 The Act does not provide guidance with regard to the burden or quantum of proof.
Judgements are granted if the officer is satisfied as to the merits of the case. It appears that
decisions depend entirely on the individual evaluation.

The parties are not compelled to tie their grievances to a specific, legally recognized ground.
It was observed that in most occasions the applicant describes the cause for divorce in the
application, and the District Registrar decides whether it comes under any of the grounds
recognized in the Act. Neither the parties nor the District Registrar seek legal advice regarding the
legal issues involved. On the one hand, non-involvement of lawyers in divorce proceedings makes
the parties free to disclose relevant facts and incidents without being influenced by legal advisors.
However, this does prevent both the registrar and the parties from obtaining proper guidance on
legal issues and it can lead to misinterpretation of legislative provisions, which might result in a
miscarriage of justice.

It was also evident that legal precedents are not followed. 801 Since legislative provisions do
not require legal knowledge as an essential qualification of the District Registrar, they cannot be
reasonably assumed to adhere to legal principles. Some officials are of the view that the nature of
divorce in Kandyan law does not warrant such formalities to be followed and each case needs to
be considered individually. Hence, adherence to precedent would affect the personal nature of an
application. On the other hand, some are of the view that adherence to precedents would
contribute to the stability in law, and would provide proper guidance to inexperienced officers, who
in turn would be prevented from entering irrational judgements. They emphasise the significant
impact which the discretion of the District Registrar could have on the judgement, and stress the
need to follow precedent.

It may be concluded that there is validity in both these arguments, but their underlying policy
considerations are not attainable within the existing administrative framework. 802

801 Many District Registrars state that, they are not in a position to spend time reading previous cases amidst their
already heavy workload. Despite this inability due to busy work schedules, and illegibility and scarcity of old
records, their contention may be argued on the possibility of misguidance such records might provide.
802 This issue will be discussed in detail in the following chapter.

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4. iii. (c) The judgment

The District Registrar, exercising his discretion, may make an order granting the divorce or
refuse dissolution of the marriage. 803 Sometimes the District Registrar also makes appropriate
orders with regard to compensation and maintenance for the parties concerned. On request by the
parties, he should embody the terms of any agreement entered into between them in his order.804

Parties, who apply for divorce jointly, usually agree on terms and conditions of
compensation, maintenance and on property matters before they seek administrative assistance to
finalize the dissolution of their marriage. The District Registrar may exercise his discretion in
obtaining financial assistance for the wife, where no such agreement has been reached. Usually,
the wealth and earning capacity of the husband, number of dependant children and their ages, and
the form of the marriage are the common factors considered by the District Registrar. 805

4. iii (d) Appeal against an order of the District Registrar

A party, who is aggrieved by the order made by the District Registrar, may appeal against
such an order to the District Court of the District in which the appellant resides. 806 The appeal
should be by way of a written petition, made by the appellant and verified by an affidavit. 807 He

803 Section 33(6) (a),(b). Parties are entitled to have copies of the decision. See Section 33 (9).
804 Section 33 (7) (i). Apparently, Kandyans frequently enter into prior agreements regarding issues of custody,
maintenance of children and property matters, but not on compensation. Most of the elderly people, who were
interviewed, were of the view that Kandyans, unlike some present day Low-country Sinhalese, do not fight for
compensation. They asserted that, if one’s spouse committed adultery the innocent spouse had to make a choice
between two options, i.e. either to forgive him and continue to live with him, or to divorce him.
805 It was observed during interviews with the officials that these factors depend heavily on assessments of individual
Registrars. The Act does not provide any guidance whether to consider the ground or grounds for divorce in
ascertaining maintenance.
The District Registrars are divided on the question, whether to grant compensation and maintenance in divorces
on all the grounds, or only in divorces where one of the recognized matrimonial faults is proven. Some officers
take the view that compensation is ascertained only where the guilt of the respondent is proved satisfactorily.
They are of the view that compensation should not be granted, where divorce is applied on the ground of ‘inability
to live happily together’, and where divorce is applied jointly on mutual consent, since both spouses bear the
responsibility for the breakdown of a marriage on such occasions. They are of the view that maintenance should
be ordered irrespective of the guilt or innocence of the parties. There are other officers who take each case
individually, and order compensation and / or maintenance, depending on the circumstances of each case,
without giving much weight to the ground on which the application is made, or the guilt or innocence of the parties
concerned. It was apparent however that the District Registrars are not fully aware of the doctrines of
matrimonial fault and breakdown of marriage, nor do they appear to take the differences between these doctrines
seriously. In the majority of cases the District Registrar appears to act as the mediator, where parties are
encouraged to reach an amicable settlement in such matters.
806 Section 34 (1).
807 Section 34 (2).

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should forward it in the first instance within thirty days of the receipt of the service, to the District
Registrar against whose order the appeal is preferred. 808

The appeal procedure is drastically different from the informal, non-adversarial approach
which corresponds to the traditional Sinhalese family system adopted in the primary phase of the
divorce proceedings.

The existing proceedings in the District Courts are modelled to cater to the requirements of
an adversarial system, where the bench as well as the bar advocate the British model. The
concept of divorce is generally identified in relation to matrimonial fault, and the adversarial system
does not appear to endorse reconciliation. The entire judicial process in the District Courts, where
judges and lawyers play a major role, obstructs the concept of breakdown of marriage, which
forms the basis of some of the grounds for divorce in Kandyan law. For instance ‘inability to live
happily together,’ which is recognized as a ground for divorce under Section 32(e) of the Act,
requires the Court to assess the status of the marriage relationship. However, it is doubtful
whether such an assessment is possible within the existing District Court procedure which
advocates the adversarial system. Thus, the incorporation of District Courts, in its existing form,
into the Kandyan divorce process does not appear to be in conformity with the jurisprudential basis
of the traditional Kandyan law.809

Under the Ordinance No. 13 of 1859 appellate jurisdiction was exercised by the District
Court. The legislature might have recognized the inappropriateness of the involvement of the
District Court, when it vested the appellate jurisdiction again in the Provincial Registrar under
Ordinance No. 3 of 1870.810 Recognition of the involvement of the Provincial Registrar in place of
the District Judge establishes the jurisprudential basis of traditional Sinhalese law. However, the
Act No.44 of 1952,811 which replaced the Act No.3 of 1870, re-vested the appellate jurisdiction in
the District Court.

808 Section 34 (2), (5).

809 It should also be noted that under the Act of 1952 the District Court was empowered to enforce, discharge, modify
or suspend an order of maintenance issued by the District Registrar. See Section 35. This power was earlier
vested in the Magistrate Court. See Section 20 of the Ordinance No. 3 of 1870. See further Surana v. Ukku
(1944) 45 N.L.R.196.
810 See Section 30 of the Ordinance No. 13 of 1859.
811 Kandyan Marriage and Divorce Act No. 44 of 1952.

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 This change may have made in accordance with the objective of the Act no.44 of 1952
which was to bring the procedure relating to the ‘registration of kandyan marriages in line with
marriages contracted under Marriage Registration Ordinance No.19 of 1907’. 812 However, the
available sources are not clear as to whether the legislature has intended to streamline the
‘Kandyan divorce procedure’ as well.

The re-introduction of the District Court into the Kandyan divorce process can also be a
consequence of the administrative changes that were recognized in the Act of 1952.813 While
recognising the Registrar General of Marriages for the Island as the Registrar General of Kandyan
Marriages, the Act did not make any reference to the Provincial Registrar, who at that time,
exercised the appellate jurisdiction in regard to Kandyan divorce. The Act recognized the position
of the District Registrar, whose administrative powers were limited to each division, but not the
position of the Provincial Registrar. As a result of this change in the administration, a lapse was
occurred between the District Registrar and the Registrar General, who was the highest officer in
the administrative higherarchy. The legislature may have interpolated the District Court in place of
the Provincial Registrar.

Either the legislature intended to streamline the Kandyan divorce procedure or it only
intended to fill the gap between the District Registrar and the Registrar General, the introduction of
the District Court into the divorce process does not appear to be an appropriate legislative move.

4. iv Concluding remarks

The process of divorce is an extremely stressful experience, and the procedure adopted in
general law adds hostility and humiliation through procedural requirements and technicalities.
Under the general law, a lack of professional counselling prior to litigation also creates a serious
void in the divorce procedure, and this contrasts with the determined effort at mediation required
under Muslim law.

In the litigation process, the most serious violation of the law is detected in the course of the
service of summons. Despite the strict limitations prescribed in law, the service does not provide

812 See Tambiah, H.W. - Sinhala Laws and Customs, 1968, Lake House, Colombo, at p. 135.
813 Kandyan Marriage and Divorce Act No.44 of 1952.

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equal opportunities to both parties. Frequently the non-service of summons, either by negligence
or subterfuge, has caused the dissolution of a marriage, which could have been saved if the
summons and notices had been duly served.

The hostile examination of evidence adds to acrimony and humiliation, while reducing the
chances of saving the marriage.

By contrast, the divorce procedure in Muslim law is of an informal nature. It is not

overshadowed by a lengthy legal battle. Throughout the whole process, maximum attention is paid
to the parties and to prevent their personal problems from becoming public knowledge. The effort
made to save the marriage, through reconciliation, is commendable.

Even though divorce procedure in Quazi Court is adversarial to a certain extent, non-
involvement of legal representatives distinguishes it from District Courts, and provides an
opportunity to the Quazi and Assessors to obtain the real reasons for the breakdown of a
marriage, without unnecessary exaggeration of the facts. The simple and unceremonious
atmosphere of the Quazi Court encourages the parties to disclose their personal grievances with
greater confidence than in an open Courtroom filled with an inquisitive general public and media
personnel. The Quazi’s personal interest in bringing the parties to an amicable settlement is
invaluable.

However, the discriminating nature of the entire talak procedure not only demonstrates the
Muslim husband’s authority over his wife but also overshadows the otherwise progressive
measures of Muslim divorce proceedings. Where the procedural requirements regarding fasah are
concerned, while they are meant to benefit the wife in actual fact they become burdensome. This
is evident in the strict standard adopted with regard to proof of evidence by the wife.

With regard to the Kandyan Divorce procedure, its informal and non-inquisitorial approach is
a unique feature. The primary jurisdiction in respect of divorce and related issues is vested in the
District Registrar. The procedure is designed to create an atmosphere, where parties are
encouraged to reach amicable settlements through a non-interfering administrative process.
Compared to general law, the Kandyan divorce procedure is simple and uncomplicated and offers
ample opportunity throughout for reconciliation. It does not encourage hostility between parties.
However, the involvement of an administrative officer in a legal process raises several issues,

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particularly with regard to his capability in affecting a reconciliation between spouses. Moreover,
appellate jurisdiction against an order of the District Registrar is vested in the District Court. In
comparison to the Muslim divorce procedure, where the Board of Quazis exercises appellate
jurisdiction, this departure appears inappropriate.

Comparing the three procedures, it seems that the original jurisprudential basis is best
preserved in the Muslim law, and that the procedure is designed to create an atmosphere where
maximum opportunity is provided to preserve the marriage. Similarly, primary divorce procedure
recognized in Kandyan law reflects the sociological and cultural values of the traditional Kandyan
society. While the successful mechanism adopted in Muslim law with regard to reconciliation is
commendable, lack of such an established methodology in Kandyan law leaves the Kandyan
divorce process incomplete. Interpolating District Courts into the system has affected the concept
of divorce as originally recognized in Kandyan law.

The divorce procedure applied in the dissolution of a marriage contracted under the
Marriage Registration Ordinance stands in sharp contrast to the other two systems. The process of
divorce under general law is a daunting experience for the parties, and one where reconciliation is
not adequately encouraged. The adversarial procedure makes the divorce process unnecessarily
confrontational. It does not assess the status of a marital relationship nor create an environment
for the parties to take sensible decisions. On the contrary, the procedure itself transforms the
spouses into bitter rivals. Moreover, the amendments 814 introduced to the Civil Procedure Code
without considering the basic concept underlying the divorce law, have created confusion among
judges as well as lawyers. As the Civil Procedure Code prescribes the divorce procedure in
general law, a point has been reached where the general law should be carefully scrutinized and
reconstructed.

---------------------------

814 These amendments have been discussed in Chapter 3 of this thesis. See pp.103 – 108.

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 CHAPTER 5

TOWARDS A REALISTIC DIVORCE LAW

The previous chapters have attempted to prove that the concept of fault as the basis of
divorce needs to be reconsidered in order to achieve a rational divorce law which is attuned to the
spirit of the times. There is no doubt that the rigours of the fault-based divorce law have neither
prevented the breakdown of marriages nor the divorce of married couples. In its failure to identify
the actual causes and reasons which motivate a couple to seek a divorce, the law has created a
lacuna between legality and reality.

The fault-based divorce law successfully conceals the actual causes for marriage
breakdown behind statutory grounds; assisted by the adversary procedure prescribed in the Civil
Procedure Code it has not succeeded in confronting the problem of a failed marriage. Hence there
is constant pressure for a law which can identify the reason behind the search for divorce, to be
followed by a procedure which ensures distributive justice.

At the same time, society should be made aware that reform of the law will not make
divorce easier. While emphasising that in the eyes of the law marriage is a union for life, and that
divorce is a de jure declaration of a de facto state of affairs, the dissolution of a marriage will be
granted only when a common life has unmistakably and irretrievably ended. The law has to be
changed substantially in order to postulate clearly that every divorce action reflects a marital
failure, and that divorce would not be granted unless this can be proved.

In this Chapter it is intended to analyse the different approaches before proposing a model
for a new divorce law -- a realistic divorce law, which would put a graceful end to a marriage which
has in fact died, yet at the same time encourage spouses to reach a compromise on arrangements
with regard to their children and property. Irretrievable breakdown of marriage will be postulated as
the proposed basis for divorce, assisted by a non-adversarial divorce procedure. Necessary

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changes with regard to Muslim law will also be recommended within the framework of the Islamic
law.

5. i Different approaches to reform of the general law

There are four possible approaches which can be identified in the reform of the divorce law:
(A) to introduce amendments to the Civil Procedure Code;
(B) to introduce separation, subject to consent, as a ground for divorce;
(C) to introduce mutual consent as a ground for divorce; and
(D) to introduce irretrievable breakdown of marriage as the sole basis for divorce.

(A) Amendment of the Civil Procedure Code

The legislature attempted to introduce divorce reform through the Civil Procedure Code, by
introducing a seven-year separation ground. 815 However, the Supreme Court did not recognize the
introduction of Section 608 (2) (b) as a new ground based on irretrievable breakdown of
marriage.816

Even though the legislature intended to introduce irretrievable breakdown of marriage into
the general law via Section 608 (2) (b), proof of irretrievable breakdown of marriage is not directly
required in this Section.

The introduction of a separation ground widens the possibility of obtaining a divorce.

However, Section 608 (2) (b) may be construed as prescribing a separation for seven years,
irrespective of both the cause for separation and the conduct of the parties afterwards. That
construction eliminates the behavioural factor from the Court’s scrutiny. The provision does not
say whether the Court should look into the behavioural factor, and if so, whether it should only be
‘conduct before the separation’, or whether it should also include ‘subsequent behaviour’.

815 Section 608 (2) (b). This was discussed in detail in Chapter 3 p. 103 – 108.
816 See Tennakoon v. Somawathie perera (Tennakoon) (1986) 1 SLR 90, which was discussed in detail in Chapter 3
of this study. The position of the Sri Lankan law was clearly interpreted in this case by the Supreme Court where
it was confirmed that Section 608 (2) (b) of the Civil Procedure Code provides only procedural measures for a
summary divorce procedure.

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 If the rationale of separation is based on the behaviour of spouses, the petitioner should be
required to satisfy the Court that the defendant’s unreasonable conduct has contributed to the
separation. In such a situation the stigma of guilt is unavoidable, and goes against the doctrine of
breakdown.

However, where the separation per se is considered, this would undoubtedly facilitate an
easy divorce. Instead, irretrievable breakdown of marriage should be the basis for divorce, and
separation should be recognized as a factor that establishes breakdown. 817

Section 608(2) (b) of the Civil Procedure Code seems to envisage a situation where
separation per se for a period of seven years offers an optional ground for divorce, in addition to
the already existing fault-based grounds. This position may be criticised for two reasons: on the
one hand, mere separation as a ground is incompatible with the underlying basis of divorce under
the general law, under which the right to divorce is granted exclusively to an innocent spouse.
Contrary to this ideology, the separation ground extends the right to divorce to a guilty party,
irrespective of the objections of a non-consenting innocent spouse. It is not ideological to
contemplate two divergent assumptions in a single legal system.

On the other hand, a petitioner is compelled to wait for seven long years before he or she
can file a petition. 818 Even though a petition based on the separation ground would not uncover the
intimate details of the history of married life, and the humiliation and degradation resulting
therefrom, it could not be reasonably assumed that a petitioner who seeks divorce would wait for
such a long period just to avoid the unpleasantness of a Courtroom confrontation.

Thus, a separation ground inserted along with fault-based grounds would not contribute to
the betterment of the divorce law. An unqualified formulation as presented in Section 608 (2) (b),
which neither promotes the concept of fault nor requires proof of breakdown of marriage, would
demean the law further into futility. Hence it may be asserted that, even if the majority of the
Supreme Court favoured the view taken by Justice Tambiah, 819 the purpose of the statute would
not be realised since the legislative intent was not clear.

817 Report of the Royal (Morton) Commission (suggestion by Lord Walker) (cmd. 9678, pp. 340-341).
818 Ibid. Also see the discussion in Reform of the Grounds of Divorce-The Fields of Choice, (Law Commission –
England, 1966) para 92.
819 In Tennakoon v. Somawathie Perera (Tennakoon) (1986) 1 SLR 90.

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 Alternatively, if the separation ground was accepted as qualifying the ‘behaviour test’, 820 it
would still differentiate between the parties with regard to their behaviour, restricting the law to
matrimonial fault.

(B) Separation subject to consent

Alternatively, introducing consensual separation as a separate ground could broaden the

divorce law. The Matrimonial Causes Act 1973 of England recognized double standards on the
period of separation, i.e. separation for two years where no objection is raised by the other
spouse821, and separation for five years where there is objection.822 However, these different
standards were to apply irrespective of the conduct of the petitioner. 823

Even if the separation appears consensual, sometimes an assertive party can influence a
weaker spouse. This would undoubtedly bring pressure on the latter. In the social and cultural
context of Sri Lanka this would not be a fair or meaningful approach to reform of the divorce law.

(C) Mutual Consent

Mutual consent of spouses may be considered as an alternative basis for divorce. This
consideration is warranted mainly on two grounds.

Mutual consent was a ground for divorce under the pristine law of Sri Lanka, and it is still
recognized in the Kandyan Marriage and Divorce Act.824 On the other hand, a considerable
percentage of undefended divorces are in effect obtained through mutual agreement, even though
such petitions are presented under the guise of fault.

Mutual consent as a ground for divorce has been recognized as a means of reducing
bitterness and rancour, which is common in adversary divorce proceedings. It encourages better

820 As Sharvananda C.J. decided in Tennakoon v. Somawathie Perera (Tennakoon), 1SLR 90.
821 Section 1 (2) (d).
822 Section 1 (2) (e).
823 Not even the mode of separation i.e. whether it was under a Court order or not, was to be taken into
consideration. See further Reform of the Grounds of Divorce-Fields of Choice, paras 80 & 100.
824 No. 44 of 1952, Section 32 (f).

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understanding and harmony between spouses, and provides a proper atmosphere to reach
agreements on post-divorce arrangements, such as the custody of children, their maintenance and
other financial matters. Also, costs on litigation are considerably reduced where both parties
present the application.

Although mutual consent could be supported on the above grounds, its validity as a ground
for divorce postulates severe setbacks because it reduces the marriage to the status of a private
contract. A marriage entails more far-reaching consequences than an ordinary contract. If divorce
is permitted on mutual consent of the spouses, it reduces the powers of the Court, and community
representation is thus minimised. The Court can no longer go into the viability of marriage, and
such a system does not essentially see a role for the Court except for the ancillary orders.
Undoubtedly this would damage the ideology of marriage and the stability of the institution of
family. Further it would promote trial marriages and easy divorces.

Moreover, there is always the probability of the economically weaker spouse being
pressurized. Hence, it could not reasonably be assumed that all agreements, which bear the seal
of mutual consent, would ensure genuine consent of the two spouses.

Thus neither ‘separation’ nor ‘mutual consent’ proves to be an effective substitute for fault
as the basis for divorce.

(D) Irretrievable breakdown of marriage as the sole basis for divorce

The principle of breakdown considers whether the marriage has in fact failed to serve its
purpose. The process of divorce focuses on the question whether there remains any probability of
reconciliation between the spouses, or whether it would be better to dissolve a marriage which has
come to an end.

The basic difference between the doctrine of fault and irretrievable breakdown should be
identified at the outset. Unlike the principle of fault, the doctrine of breakdown does not
concentrate on the ‘right to divorce’, nor does it confine the awarding of redress only to an
innocent spouse. Instead, an applicant goes to Court to obtain a declaration of the state of the

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marriage in question. The inquiry would not focus on the finding of guilt, but examine whether the
marriage has broken down irretrievably.

The Law Commission of Sri Lanka has proposed irretrievable breakdown of marriage as the
basis for divorce in the draft Matrimonial Causes Act.825 Breakdown of marriage is to be proved,
without excluding any other facts or circumstances, by evidence of adultery of the defendant which
the plaintiff finds irreconcilable with a continued marriage relationship; 826 by malicious desertion of
the defendant; 827 by actual separation of the parties continuously for a period of at least one year
immediately preceding the date of institution of the action for divorce828, or by cruelty on the part of
the defendant829. Accordingly, the Court in an examination of the status of a marriage relationship
may consider any relevant facts or circumstances in the history of that marriage, including the
specifically mentioned behaviour.

The draft Act recognizes irretrievable breakdown as the sole basis for divorce, and
emphasises that circumstances other than those specifically mentioned may be considered by the
Court as proof of marital failure. However, Section 2(2) (a), (b) and (d) maintains a clear distinction
between an ‘innocent plaintiff’ and a ‘guilty defendant’, irrespective of the change in the basic
concept of the law of divorce.

Even though adultery, desertion and cruelty may be considered manifestations of the
breakdown of a marriage, 830 retaining a distinction between spouses on the basis of behaviour
would undoubtedly foster those features of the doctrine of fault which are adversarial. Encouraged
by the existing procedure,831 the reformed law would bring the adversary features back into the
process via Section (2) 2 (a), (b) and (d) creating a fiction of false litigation between guilty
defendants and innocent victims.

It may be suggested therefore, that the reform of the law should tend only towards
breakdown of marriage and not to a mixture of the two principles i.e. the doctrine of fault and the
825 Proposed Matrimonial Causes Act 2001, Section (2) 1.
826 Section 2(2) a.
827 Section 2(2) b.
828 Section 2(2) c.
829 Section 2(2) d.
830 Both English and South African law recognize adultery and desertion as evidence of breakdown of marriage. See
Section (2) (a) and (c) of the Matrimonial Causes Act of 1973 (of England) and Divorce Act of 1979 (of South
Africa).
831 The draft Act advises the new Law to be administered within the existing procedural frame work. See Section 19.
The appropriateness of this will be discussed later in this Chapter. p.174.

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doctrine of the breakdown of marriage. Unless the underlying basis of procedural law is completely
changed to fully accommodate the doctrine of breakdown, the result would not make a substantive
change for the betterment of the law.

The change-over from matrimonial fault to marital breakdown as the basis for divorce
would necessarily require a rationalization of the concept of breakdown in practice i.e. how to
assess the failure of a marriage. This involves two fundamental issues: firstly, the law should be
clear whether irretrievable breakdown of marriage is to be determined after an inquiry or on a
statement of marital failure. As it is important to identify the reality of the situation behind an
application for divorce, the determination of the status of the marriage after an inquiry is preferred.

It has been asserted that ‘unless the marriage has irretrievably broken down, the parties
would not be before the Court’,832 and that parties are likely to be better judges of the viability of
their own marriage than a Court, ‘even with the most elaborate and searching inquest’. 833
However, the law should not deprive the weaker spouse of his or her marital status merely
because the other seeks to dissolve the marriage. Granting divorce on only the statements of the
parties would undoubtedly lead to forced divorces. On the other hand, the interest of society can
be secured through Court only if divorce is awarded after an independent assessment of the
marriage in question.

Secondly, a clarification is needed whether breakdown is to be established on a case by

case basis, or as a presumption depending on certain circumstances.

If breakdown is to be established on a case by case basis, the circumstances of each case

have to be evaluated and determined by the Court. This approach gives the Court a wider
discretion to examine evidence on an individual basis and to consider the probability of the
marriage being revived. It allows the Court to identify the individuals and permits the spouses to
prove breakdown by positive evidence, producing facts and circumstances which actually brought
the marriage to an end, rather than adhering to a presupposed agenda.

If, on the other hand, breakdown is recognized as a presumption, the Court will have to
adhere to specific circumstances, which are presumed to establish breakdown. Necessarily, the

832 Reform of the Grounds of Divorce - The Fields of Choice ( 1966) Para 71.
833 Ibid.

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‘specific circumstances’, which would influence the discretion of the Court, need to be verified in
the statute. The process calls for a rational basis with regard to the circumstances that would
presume breakdown of marriage, and exceptions would have to be formulated to be considered
by the Court. This would compel the spouse who seeks a divorce to present the Court with a fait
accompli, while the other party will have to oppose the divorce with circumstances that would
justify a denial. While this appears to be an ideal procedure, such specifications undoubtedly deny
the Court its discretion to examine the actual status of the relationship.

Breakdown by way of a presumption does not appear to allow an independent assessment

of the actual situation of a marriage relationship, whereas the doctrine of breakdown in the
context of a general rule provides a comparatively high flexibility for the judge to analyse a
situation on an individual basis. It may be asserted therefore, that the concept of breakdown
should be recognized in a wider perspective than an irrefutable presumption. At an inquiry, the
Court may consider certain facts and circumstances as positive evidence of breakdown. 834 Such
circumstances should however not be conclusive, but only directive.

The draft Matrimonial Causes Act835 proposes that, subject to specific provisions, the
existing procedure shall continue to be followed.836 Evidently, the same investigative machinery is
expected to function despite the ground breaking change anticipated in the substantive law.

It should be recognized that reform of the substantive law is conditional to certain

procedural changes. Introducing the doctrine of breakdown of marriage as the basis of divorce
while retaining the existing procedure would make divorce easier to obtain. 837

If irretrievable breakdown of marriage is to be introduced as the basis for divorce, the

procedural law should be simple and the Court should focus on the breakdown of marriage, rather
than determining guilt or innocence. 838 It should concentrate on minimizing acrimony between
spouses and damage to children, while encouraging early mediation on ancillary matters.

834 The proposed Matrimonial Causes Act suggests adultery, desertion, separation and cruelty [ see sections 2 (2),
(a), (b), (c), and (d) respectively]. Apart from these facts, other common situations such as habitual drunkenness,
continuous imprisonment, homosexuality and drug addition may also be considered.
835 Proposed by the Law Commission of Sri Lanka.
836 Section 19.
837 This was recognized inter alia by the Arch Bishop’s Committee in England.
See Putting Asunder, para 84.
838 Putting Asunder (para 84) suggests that the procedure should be like a Coroner’s inquest, where focus would be
on determining whether the marriage is actually broken beyond repair.

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 One of the reasons for the wide recognition of the doctrine of the breakdown of marriage
as the basis for divorce is the possibility it provides for the Court to get a pragmatic view of the
relationship between the spouses, instead of founding its judgement on superficialities. If,
however, a suitable atmosphere is not generated, the anticipated advantage would be lost. It is
highly unlikely that the present District Court procedure would provide the proper forum to
determine a marital relationship in the context of marital failure. Unless procedural changes are
made, even a divorce law based on irretrievable breakdown will create artificial situations where
the Courts would act contrary to the objectives of the Act and it would not be possible to realize
these objectives.

Evaluation of the status of a marriage relationship requires entirely new procedures as well
as a non-adversarial atmosphere, tolerant attitudes and broadness of vision. The reform of the
substantive law would not be plausible unless a change of attitude is generated throughout the
whole process.839

5. ii (A) A model for a reformed divorce law

In the process of creating a new era where the divorce law is concerned, a transformation in
the concept of divorce becomes a prime necessity. The following should be considered as the
basic features of the new divorce law:

(a) The law should recognize that divorce is sought because the marriage is irretrievably
broken and not merely because the other spouse has committed a matrimonial offence.

(b) The divorce process should not foster hatred and bitterness between spouses, but
encourage reconciliation. The intimate relationship of marriage should be respected, and
the emotional anxiety and trauma necessarily involved in divorce should be minimised by a
non-adversarial judicial process.

839 Changes required in the procedure are discussed in detail in the following pages.

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(c) The law should recognize the trauma caused to children by the breakdown of a marriage.
Hence child involvement in proceedings should be minimised, and the best interest of
children ensured.

It is proposed that irretrievable breakdown of marriage, which should be established on the

circumstances of each case, shall be the basis for divorce.

With the change of the basis of divorce, the scope of the procedure through which the
divorce is to be obtained should necessarily be transformed. In the absence of a genuine analysis,
which is capable of ascertaining the actual condition of a marriage relationship, it would
undoubtedly be much easier for the petitioner to prove breakdown rather than establish guilt. The
focus of the entire procedure should be on the condition of the marriage rather than on the
behaviour of one spouse. Divorce proceedings should be converted from a fault-finding mission to
an inquest into the death of a marriage relationship.

Even though the law cannot prevent divorce, it should provide adequate measures for the
parties to seek guidance to save a marriage. It is equally important to establish a procedure that
would ensure, with less conflict, appropriate channels to dissolve a relationship that has
irretrievably broken. The law should encourage the spouses to continue to function as co-parents
for the sake of their children. 840

Amendments to the divorce procedure are proposed with intent to ensure, that the
institution of marriage is neither undermined nor its stability shaken as a consequence of
procedural defects. As Eekelaar observes, “the divorce law should provide a framework within
which the negotiation process occurs and is an ultimate safety net to ensure apparent good
practice”.841

840 McCarthy, Walker, J. and Hooper, D. - Saving Marriage – A Role for Divorce Law? Family Law, June 2000, at
p.412.
841 Eekelaar- Jurisdiction in search of a mission, 1994 (57) MLR 839, at p.845,

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5. ii (B) Proposals for a non-adversarial divorce procedure

5.ii (B) (a) Jurisdiction

A Matrimonial Division of the District Court, which has the jurisdiction to hear and
determine all applications for divorce, should be established. 842 It is important that matrimonial
cases should be kept apart from other proceedings, either by instituting separate sittings of the
District Court on a specified day, or by allocating in highly populated areas a District Court
exclusively for matrimonial actions. Such matrimonial proceedings should be presided over by a
judge with considerable experience in matrimonial laws, so that his or her skills might be utilised
to the best advantage of the parties.

In this situation, any husband or wife could present a plaint to the Matrimonial Division of
the District Court within the local limits of the jurisdiction in which either of them resides, praying
that his or her marriage be dissolved on the ground that it has broken down irretrievably.

5.ii (B) (b) Application for divorce

Applications for divorce might be presented to the Court jointly or by either party. Where
the application is presented jointly, both parties could be considered as applicants, the party
presenting the document being, for the purpose of procedure, the applicant while the other party
should be considered as the respondent. The word ‘versus’, which is included at present, should
be omitted.

The following caption and format could be used for the application:

“Application for the dissolution of marriage of….. (Name of the applicant) and…. . (Name of
the respondent)843

The application should state that the marriage has irretrievably broken down, and should
be supported by a detailed analysis of the history of the marriage relationship which led to the
ultimate breakdown. It may include specific incidents which contributed to the matrimonial
disharmony, and misconduct on the part of either party too could be mentioned where necessary.
Since the decree would not be for or against either party, such declarations would not be a bar

842 The draft Matrimonial Causes Act does not specify the necessity to have a separate division for matrimonial
matters. See Section 19 of the proposed Act.
843 The Commission on Marriage and Divorce in Sri Lanka too observed the inappropriateness of a caption, which
indicates rivalry at the outset. (Report of the Commission on Marriage and Divorce, 1959, para 311 and 56 of
Chap. XIII).

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against either party. The applicant however should not attempt to highlight guilt on the part of the
respondent, nor should exaggerate the circumstances in order to obtain a quick divorce.

The application must necessarily include a statement with regard to attempts employed to
affect reconciliation. An affidavit by the individuals, officials or institutions involved in the attempt at
a reconciliation should be attached to the application, and such verification should also disclose
the reasons for the failure to achieve a reconciliation.

Arrangements with regard to minor children, if any, should be set out in detail in the plaint,
and must be mutually agreed upon. They should ensure the best interest of the children, including
provision for their residence, maintenance, and education. Both spouses should, according to their
financial capabilities, share the maintenance of the children.

The application may also contain any other agreements, including arrangements regarding
joint assets, financial provisions, maintenance, alimony and costs of proceedings.

Both the parties should sign applications which are presented jointly, and the applicant
must attest an application where it is submitted unilaterally.

5.ii (B) (c) The answer

A respondent to a divorce application may present the Court with an attested answer. This
may either deny the allegation of breakdown or affirm the assertions made by the applicant.

Where the contentions made by the applicant are denied, the respondent may state his
version of the marriage relationship and convince the Court that a considerable and genuine effort
has not been taken towards reconciliation. Even though the declaration of a breakdown of
marriage may be challenged in the answer, it shall not take the form of a cross-petition challenging
the bona fide of the applicant.

Similarly, an answer could affirm the contention of breakdown, either because of the
circumstances described in the application or because of any other causes, which the respondent
thinks have created the deterioration of the relationship. While the answer could contain details
with regard to the features of the marriage relationship and events which caused the breakdown, it
should not be a cross-petition imposing guilt on the applicant.

Thus both the application and the answer should be presented in such a manner as to give
a clear idea of the history of the marriage, of the events and circumstances which led to the break-

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up between the spouses, of the efforts taken to save the marriage and of the condition of the
marriage at the time of the presentation of the application.

5.ii (B) (d) Family Counselling

The existing family counselling process renders an important service, although it is not duly
recognized by the legal profession.

The draft Matrimonial Causes Act proposes reconciliation between the spouses by a family
counsellor attached to the Court, or by a choice made by the spouses, for the benefit of all
concerned.844 The introduction of counselling by a counsellor attached to the Court or of the
choice of the parties is laudable. Since the draft Act does not define the persons meant by
‘counsellors of choice’,845 it may be interpreted to include any person who is willing to offer
counselling as well as institutions that offer such services 846.

This provision would widen the bounds as well as the scope of resolution in matrimonial
disputes, which are centralized in the Courts. However, a follow-up of the mediation process by
the Courts is mandatory. Most importantly, there should be a change in the concept relating to
matrimonial jurisdiction, and consequently the counselling process should be made an essential
prerequisite in divorce actions.

5.ii (B) (e) The Courts

It is important that properly constituted Courts carry out investigation and determination of
divorce applications. Thus matrimonial matters, including divorce applications, should be
entertained by the Matrimonial Division of the District Court. The attitude of the Courts should,
however, be re-channelled so as to accommodate questions of marital breakdown with a wider
perspective, and it should not be adversarial.

844 See Sections 2(3) and 16 (1) (e) of the draft Act.
845 Section 16 (1) (e).
846 A member of the Law Commission of Sri Lanka, who is also involved in divorce law reform, was interviewed for
research purposes. During the interview it was revealed that the draft Act does not confine this to any particular
person, and the ‘counsellors of choice’ could be a family friend, a priest or an organisation.

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 Lawyers may represent parties and should be encouraged to be co-operative in directing
parties towards mediation, and not towards divorce.

Undue publicity should be prohibited, and only the parties involved in the case should be
permitted in Courts when the proceedings are in progress. Parties may object to the presence of
particular persons, and in this situation the judge should have the discretion to decide who should
be admitted. Depending on the circumstances, the Court may order proceedings to be heard in
camera.847

5.ii (B) (f) The trial

The inquiry into the alleged breakdown of a marriage should be conducted in an

atmosphere which is conducive to reconciliation. Thus examination of evidence should not aim to
find fault with either party. On the contrary, it should focus on ascertaining the truth with regard to
the condition of the marital relationship. The Court should take control of the proceedings and
ensure that parties are not traumatized by undue interrogations, and create a congenial
environment for the parties to reveal the actual state of their marriage relationship.

The trial should be entirely non-adversarial and should focus on reconciliation. Instead of
positioning the two parties on either side of the Court, they should be brought together to sit at one
discussion table, thus discouraging Courtroom rivalry.

The Court should have discretionary powers to order a respondent to be present in Court,
even if he does not oppose the divorce. Empowering the Courts accordingly could be most
important, especially when young children are involved. The Court should employ a foolproof
method for the servicing of summons in order to secure the presence of the required persons, and
to avoid a mishandling of the administration of justice. Insistence on obtaining signatures from the
people named in the summons would be beneficial.

Initially, the Court must satisfy itself with regard to the effort taken at reconciliation.
Persons alleged to have been involved in the reconciliation process might be questioned so as to
satisfy the Court as to the sincerity of the efforts made. Where it appears to the Court that
satisfactory effort to promote reconciliation has not been made, the Court should adjourn the
hearing and direct the parties for further attempts at reconciliation.

847 This power of the Court is guaranteed in the Constitution, in Section 106 (10) (a), (b).

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 Joint petitions should be allowed when the spouses agree on the breakdown of their
marriage, provided that this is proved to the satisfaction of the Court. A Court shall not however
grant a decree, if it appears that the parties have mutually agreed to mislead the Court on material
facts. Hence collusion would be applicable as a bar to divorce. The Court must be vigilant with
regard to possible collusive agreements between spouses, who may exploit the process in order to
obtain an easy divorce. However, parties should be encouraged to reach agreements relating to
property, maintenance, custody and other issues. Such agreements would not be considered as
collusive but as a realistic approach to solve consequences of divorce.

Condonation and connivance would cease to operate as bars against divorce.

The Court may adjourn the proceedings from time to time if necessary; for instance, where
it appears to the Court that parties should be referred to medical care or counselling.

5.ii (B) (g) The decree

The decree should in the first instance be a decree nisi, which would be followed by a
decree absolute after a period of time, preferably a period from three to six months.

An interested party might report to the Court any misrepresentation of material facts or
collusive agreements between the spouses before the decree is made absolute. The environment
of the Court should be flexible and allow such parties to make their reports in the form of a letter
addressed to the Court. On receipt of such information the Court should take steps to inquire into
the facts alleged in such a report.

The final decree on divorce should be on the status of the marriage. It should neither
focus on ascertaining the guilt of one spouse, nor be in favour of the other. In accordance with the
doctrine of breakdown, the decree should be a judicial declaration of the end of a marriage.

It is proposed that the award of alimony, maintenance and distribution of property should,
if possible, be decided mutually by the spouses. Where no such agreement has been reached, the
award may be granted at the discretion of the Court, provided that it is ordered after scrutinising
the needs, abilities and behaviour of both spouses. The award of custody should be decided
considering the best interest of the children.

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 Under the fault system, the apportionment of maintenance, property and the custody of
minor children largely depend on the determination of guilt or innocence. Under the new divorce
law there would be no reason to base ancillary relief solely on behaviour.

This does not necessarily mean however, that the Court should totally abandon the
behavioural aspect in awarding alimony, maintenance and custody of minor children. While the
conduct of the spouses may be considered, the rationale should be distributive justice. The relief
should be disentangled from the element of fault as the sole criteria.

5.ii (B) (h) Mediation as a means to settle consequences of divorce

Where no prospect of reconciliation appears possible and a divorce is inevitable, mediation

could be prescribed as a positive measure of resolving the consequences of divorce. Hence,
mediation might be proposed as a necessary prerequisite in a divorce procedure where the Court
encourages the parties to settle the consequences through negotiations.

It has been recognized that the trauma experienced by children due to the prolonged
uncertainty and hostility prevalent in the present system could be avoided, or at least reduced, by
adopting a non-adversarial procedure in an informal environment.848 Mediation through bilateral
dialogue has received wide recognition, in preference to encouraging Courtroom confrontations.
Since harmful emotional, social and psychological effects of divorce can best be avoided or at
least mitigated849 through this process, the best interests of children will be served and within a
realistic time scale, without concentrating on winning or loosing the battle.

The mediation process depends on decisions made solely by the parties, possibly with
limited professional help to provide information and advice, and to assist the parties where
necessary. This includes decisions with regard to the children’s future, reorganisation of property
and streamlining of finances. In contrast to the existing formal procedure, these decisions should
be taken concurrent to the divorce proceedings rather than later. 850

848 The Ground for Divorce, Law Commission (England) No.192 (1990) part III para 3.33.
849 Ibid, para 3.38.
850 Looking to the Future: Mediation and the Ground Divorce, Law Commission (England) (1995) cm. 2799, para
4.11.

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 The objective of mediation in the sphere of divorce and separation would be to assist
couples in improving communication between them, and to help them to work together on the
practical consequences of divorce. The joint responsibility of parents to co-operate in bringing up
their children should be strongly emphasized.851

A neutral third party, who might be appointed by either the couple on agreement, or by the
Court, could assist the mediation process by facilitating communication between the spouses, and
perhaps encourage the formulation of compromises which have, however, to be made by the
spouses themselves. 852 Thus, persons trained in counselling and particularly in mediation, would
be able to provide an expert service although the service itself might add to public funding.

Despite the many obstacles that may obstruct the process, 853 compromises after a
breakdown has been established and achieved through negotiation are more likely to be adhered
to than the conditions imposed by the Court. 854 Above all, the process would cause less trauma to
children than under the present system. Only where the efforts at mediation fails the Court may
try to bring the parties to agree on conditions which are fair and in the best interest of the children.

5.iii An assessment of divorce under the Muslim Marriage and Divorce Act

Islam does not consider divorce favourably, and marital delinquency is condemned. Thus,
divorce is allowed only as a recognized mode of release for those parties who find continuation of
a marriage unbearable, i.e. as a measure of alleviating suffering.

Islam, in a wider perspective, guarantees this measure of relief irrespective of gender

discrimination. A marked difference however is discernible in Muslim law with regard to the right of
release. Male Muslims enjoy absolute power with regard to the release of their spouses.
Notwithstanding the permission granted in Islam to both parties to be released from a discontented
relationship, the Act855 clearly differentiates in the exercise of the right to divorce between husband

851 Facing the future, Law Commission (England) No.170, para 5.6
852 Simon Roberts - Decision Making for Life Apart, (1995) 58 MLR. 714, at p.719.
853 Minimizing the involvement of lawyers in their professional capacity would be one of the major obstacles to the
introduction of mediation. As Simon Roberts (Ibid, at p.718) states, ‘it is perhaps understandable that they should
perceive any change in terms of loss of control to other professionals’.
854 Adam Pemberton – Mediation and Divorce Reform Proposals, – Family Law (1996) April, p.220.
855 Muslim Marriage and Divorce Act No.13 of 1951.

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and wife. The recognition of this absolute power of the husband has been subjected to severe
criticism even amongst Muslims.

Muslim law is based on Islam, the faith proclaimed by the Prophet Mohamed, and
although the statute law may vary in accordance with changing social requirements, it cannot be in
conflict with basic religious stipulations. Islam requires a husband to treat his wife with due respect
and he is only permitted to divorce her for good reasons. However, the Act prescribes that a
husband can divorce his wife without giving her any reason whatsoever, and the Quazi is required
to register the divorce without recording the grounds for such a repudiation. In view of the religious
expectations of a Muslim husband and of the Quazi, the legislative provisions in this regard do not
appear to be in conformity with Islam. The teaching of the Prophet does not directly sanction the
legislative recognition of male superiority with regard to divorce. In absence of clear religious
sanction, the statutory provision which prevent a husband from giving reasons for his repudiation
is rather confusing.

It is surprising to note the absence of any reference in this regard in the amendments
proposed to the Muslim Marriage and Divorce Act by the Muslim Law Research Committee, 856 and
later by the Shahabdeen Committee.857

Although no reference has been made to the withdrawal of this discrimination, it is a clear
violation of fundamental rights as guaranteed by the Constitution of Sri Lanka.858 Had the
distinction been sanctioned in Islam, the double standard could be justified under Article 10 of the
Constitution, which ensures freedom of religious observances. In absence of substantial religious
authority the imbalance could not be held valid within the purview of the Constitution of Sri Lanka.

It has been judicially recognized that the Muslim Marriage and Divorce Act does not fully
encompass the Muslim law of marriage and divorce, but only provides a procedure. 859 Hence, an
amendment to the Second Schedule of the Act would not be sufficient nor affect the Islamic
principles.860

856 Proposals for the amendment of the Muslim Marriage and Divorce Act: A Report prepared by the Muslim Law
Research Committee in 1973.
857 An unpublished report produced by a fifteen-member committee, appointed by the Minister of State for Muslim
Religious and Cultural affairs, in 1990.
858 Article 12 of the Constitution guarantees equality before the law and equal protection of the law, thus prohibiting
any form of discrimination based on gender.
859 Nansoora v. Sithi Jaria., (1945) III MMDR 40.
860 This was discussed in Chapter 4.

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 The argument that religious belief is inviolable has commonly been employed as a
defence against amendment of the statute law. However, the Holy Quaran does not object to
amending the law in order to effect equality between husbands and wives, since male superiority
in a discriminative perspective is not warranted in Islam. 861 The statute law could thus be amended
within the principles of Islam.

5.iii (A) Reform of the divorce law applicable to Muslims in Sri Lanka

Proposed reforms on the grounds for divorce:

A pragmatic point of view

There has been considerable interest among Muslims as well as non-Muslims on the
reform of divorce available to Muslim women. The focus has been centered particularly on fasah
divorce where the involvement of judicial discretion is significant.

Following a comparative analysis, the Muslim Law Research Committee has observed the
uncertainty of the present provisions relating to divorce by the wife. The Committee was critical of
Section 28 of the Act which prescribes that a Muslim wife can apply for a fasah divorce on the
ground of ‘ill-treatment or fault’ by the husband. It was contended that the final decision is destined
to depend on the Quazi, since the provision does not specify the faults, acts or omissions which
could be considered as ill-treatment according to the law of the sect to which the parties belong.

In order to prevent contradictory interpretations and in view of minimising the involvement

of Quazis, the Committee has proposed specific grounds for fasah divorce in place of the alleged
vague phraseology of the existing Section 28. Accordingly a Muslim wife may seek to dissolve her
marriage where:862

861 The Pakistani Law Commission has confirmed that what is not categorically and unconditionally prohibited by a
clear and unambiguous injunction is permissible, if the welfare of the individual or of the society demands it.
Accordingly it could be asserted that the Holy Quaran is open to rational judgement with a pure conscience where
neither the Holy Quaran nor the Sunnah provides any precise guidance in any particular situation. See The
Gazette of Pakistan, (Extra), June 20, 1956. p. 1204.
862 See the proposed Section 28 (2).

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(i) the whereabouts of the husband have not been known for a period of four years;

(ii) the husband neglected or failed to provide for the wife’s maintenance for a period of one
year;

(iii) the husband was sentenced to imprisonment for a period of four years or more;

(iv) the husband had failed to perform his marital obligations for a period of one year;

(v) the husband was impotent at the time of the marriage and continues to be so;

(vi) the husband is insane or is suffering from a chronic disease, the cure for which would be
lengthy or impossible, and which is such as to make the continuance of the marriage
relationship injurious to her;

(vii) the husband treats her with cruelty, i.e.

(a) habitually assaults her, or makes her life miserable by cruelty of conduct even if

such conduct does not amount to physical ill-treatment; or

(b) associates with women of ill-repute or leads an infamous life; or

(c) attempts to force her to lead an immoral life; or

(d) obstructs her in the observance of her religious profession or practice; or

(e) lives and cohabits with another woman who is not his wife; or

(f) if he has more wives than one, does not treat her equally in accordance with the
requirements of Muslim law.

(viii) divorce may be sought for on any other ground, which is recognized as valid for the
dissolution of marriage by fasah under the Muslim law.

The list includes instances which are not traditionally categorized as faults. Thus it
compels a rather conservative Quazi to grant divorce on instances which he would not have
considered under the present phraseology of the Act.

It should be noted however that the specification imposes an indirect limitation on the
general scope of divorce. Notwithstanding the proposed general clause under Section 28 (2) (viii),

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the preceding provisions undoubtedly limit the discretion of the Quazi. Although the instances
quoted might widen the horizon of the Quazi’s understanding, the proposal by the Muslim Law
Research Committee would limit his discretionary powers of interpretation. Besides, the redefined
basis of fasah divorce imposes an implied limitation of the Quazi’s power to inquire into the status
of the marriage. Despite the proposal to retain Rule 10 of the Third Schedule 863, the specification
allocates an absolute right on the wife, upon proof of any specified grounds, also minimising the
discretionary power of the Quazi, who exercises the authority over the parties. On many an
occasion Quazis use their statutory authority when it appears that the marriage could be saved,
despite the alleged conduct on the part of the husband. Such measures are taken within the
purview of the existing provisions of Section 28. According to the proposed amendments, proof of
any one or more of the specified grounds per se grants a wife the right to divorce, thus making it
mandatory for the Quazi to grant a divorce.

Despite fasah being restricted exclusively for fault or ill-treatment under Sharia law, draft
Section 28 (2) includes grounds that do not directly fall under the category of fault. The proposed
Section 28 (2) (i), for instance, lays down unawareness of the husband’s whereabouts for a period
of four years. There may be instances where the disappearance of the husband is involuntary, and
for which he could not be held responsible. Unless the disappearance amounts to desertion, it
does not constitute fault or ill-treatment in the ordinary sense of the term. The grounds for divorce
under Muslim law should however be analysed in an Islamic perspective, where failure to fulfil the
obligations of the marriage contract amounts to fault on the part of the husband.

On the other hand, the more serious offence of adultery is categorized as a form of cruelty
under Section 28(2)vii-(b) and (e). Notwithstanding the recognition of limited polygamy, Islam
strictly prohibits adultery. As proposed in the draft Act864, such conduct on the part of the husband
is recognized as a form of ill-treatment, but not as a separate offence. In the context where
adultery is condemned as a grave offence, the basis of the classification appears irrational.

It is clear that the classification proposed by the Muslim Law Research Committee is
intended to broaden the scope of fasah divorce. This is evident in the incorporation of non-

863 Rule 10 provides that it shall be the duty of the Quazi and of the Muslim assessors before hearing the application
to endeavour by all lawful means to bring the parties to an amicable settlement and, with the consent of the
parties, to abate or remove the real cause of trouble between them and to prevent it from recurring thereafter. It
also provides that if the parties will not agree to such a settlement, the Quazi and the Muslim assessors shall
proceed to hear evidence and to determine the application.
864 Paragraph 6:10

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traditional grounds. Moreover, the discretion given under Section 28 (2) (viii) paves the way to
other traditional grounds not included in the proposed classification.

It may be noted that the measures taken to broaden the bounds of fasah are constricted
by this specified classification. The wider interpretation warranted in the Act with regard to the
phrase ‘fault or ill-treatment’ is thus restricted to specific instances. Even though the definition
entails a considerably broader view, it may prevent divorce in instances that are not incorporated
in the proposed list.

The proposals forwarded by the Muslim Law Research Committee include significant
reforms in the sphere of khula divorce. The proposed new rule in the Third Schedule 865 authorises
the Quazi to grant a khula divorce if, and only if, the Quazi is of the opinion that the parties are
unable to lead a harmonious married life. Where his attempts at reconciliation result in failure, the
Quazi shall make order granting divorce, according to the terms of any agreement reached
between the parties. Where no such agreement is reached between the parties, he shall, after
necessary inquiry, grant divorce upon such reasonable terms as he shall therein specify. 866

The Act867 does not contain specific provision regarding mubarat divorce. With a view to
upgrade the wife’s right to obtain divorce by way of mubarat, a new rule to the Third schedule has
been proposed as follows:
‘If the parties express a mutual desire to effect divorce and the endeavour to reconcile the
parties results in failure the Quazi shall record this fact and make order granting mubarat
divorce.’868

The proposed new rule requires the Quazi to take sufficient measures to reconcile the
parties, and adhere to procedural requirements when registering the divorce.

The proposed reform would enhance the law relating to the Muslim wife’s right to divorce.
It would enable her to obtain divorce where the marriage is broken irretrievably in the context of

865 The Muslim Law Research Committee has proposed amendments to the Third Schedule of the Muslim Marriage
and Divorce Act.
866 Rule 13 to the proposed Third Schedule, See para 7.
867 Muslim Marriage and Divorce Act No.13 of 1951.
868 Rule 12 of the proposed Third Schedule.

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Islamic stipulations and prevent the husband from using his consent as an undue restraint to
demand a higher valuable consideration for the divorce.

5.iii (B) An evaluation of the procedural law relating to divorce among

Muslims

The divorce procedure in Muslim law ought to be distinguished from the matrimonial
procedure under the general law and Kandyan law. The special procedure tries to ensure that the
tenets of Muslim law are observed by Muslims.

The Quazi Court system, which exercises the primary jurisdiction in matrimonial matters,
is unique to Muslim law.

The Quazis, who were interviewed, unanimously agreed that even though they are
appointed by the Judicial Service Commission and are obliged to pronounce decisions according
to the law of the land, their spiritual obligations extend beyond the limits of the statute law. They
recognize that they are bound to discharge their statutory duty within a religious framework, and
their obligation is clearly underlined with a spiritual commitment to uphold the socio-religious
values of Islam.

The Quazi’s jurisdiction includes all matrimonial issues including nullity, divorce and
maintenance. The role of the Quazi is of a judicial nature where he is required to inquire into and
make decisions with regard to facts and law, except in talak divorce where his duties are only
administrative.

Although the Quazis and assessors are entrusted with the responsibility to give
judgements that carry legally recognized consequences, they are not necessarily qualified in law.
It has contributed to the public disregard for the proceedings, judgements and orders granted by
the Quazi Courts and to misinterpretation of the law. It was observed that some Quazis do not

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adhere to the procedure prescribed in the Second and Third Schedules of the Act, and do not
distinguish the talak procedure from that of fasah.869

It was also apparent that the Quazi’s lack of academic qualification causes
embarrassment in proceedings involving more conversant parties. There have been instances
where the parties had to enlighten the Quazis not only on statutory provisions but also on
principles of law and justice. Naturally such occurrences undermine public confidence creating an
impact on the justice system and questioning the validity of the adopted procedure.

The personality and the recognition that such individuals have in society make a
considerable impact on the compliance to their judgements. This applies particularly where the
institution in question is expected to grant just and equitable judgements by which the parties are
legally bound. It should be noted that the decisions of the Quazi Court, which was set up to secure
the lawful rights of Muslims, play a significant role in society. Undoubtedly the Quazi Court
constitutes an integral part of the judicial administration in Sri Lanka. Thus, in order to secure due
regard and submissiveness towards the judgements made by the Quazi Courts, the officers who
are directly involved in adjudication should essentially possess qualifications that are accepted and
respected by society.

It should also be noted that the condition under which the Quazi Courts operate at present
are not conducive to a proper administration of justice. 870 It was evident that even the basic
necessities are not provided.871

There are two reasons which appear to have effectively contributed to the unsatisfactory
state of the situation prevalent in many Quazi Courts in the Island. Primarily, the outdated
legislative provisions do not cater to effective administration of justice on par with the requirements
of contemporary society. For instance, the maximum penalty for misconduct of a person while the
Board of Quazis or a Quazi is sitting, is twenty rupees. Obviously the penalty is not comensurate

869 The writer observed several Quazi Court sessions for research purposes, and the above comments are made on
these observations. In talak divorces the Quazi frequently inquires from the husband the reason for the
repudiation of the wife, despite the prohibition in law. It was clearly evident that the assessors are not fully aware
of the law, and the Quazi has to explain the statutory provisions. On many occasions the assessors did not
express their views on the matter, and even if they did the Quazi did not record their observations.
870 Court sessions are held in school buildings to which any person can come. Sometimes children play in the school
playground while the proceedings are in progress, and on one occasion the writer found that stray animals, which
occupied the class room, had to be chased away before the proceedings could begin.
871 This was criticized by the Board of Quazis in Zain v. Subaitha, (1967) V MMDR 51.

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with the offence872. At the same time, the dual administration to which the Quazi Courts are
subjected, appears to be another reason for irregular management.873 Apparently the involvement
of two ministries has left the administration of Quazi Courts in an uncertain situation, and as a
result the judicial administration of these tribunals has become disreputable.

In consequence of the lack of recognition of the Quazi Courts as a proper tribunal, and the
Quazi as a judge who exercises wide statutory powers, a serious disregard has been created
towards the institution, and vice versa.

It should be noted that the Quazi Courts were instituted in 1929 to take over from the
ordinary Courts a jurisdiction previously enjoyed by these Courts, and to confer that jurisdiction on
the Quazis. Consequent to changes in statute law between 1929 and 1951, the Quazi Courts were
vested with exclusive jurisdiction in various issues regarding the Muslims of Sri Lanka. Thus the
Quazi Courts are recognized as a part of the judicial hierarchy, and fill a serious vacuum that
existed prior to 1929. However, the lack of dignity and serenity in the atmosphere of the Quazi
Courts, and the noticeable disregard and disrespect towards the Quazi, provide cause for grave
concern and require urgent and effective countermeasures.

The absolute prohibition on legal representation before the Quazi Court guarantees the
fairness of the process, since it prevents the parties from gaining undue influence through lawyers.
However, the parties are not prohibited to consult counsellors before they come to Court, and an
ignorant party who is also not legally represented in Court, may be outwitted by a well-advised
one. On such occasions the Quazi should guarantee the rights and interests of the weaker
spouse, and ensure fairness.

5.iii (C) Procedural law as a means to an end: necessary reforms

Rights are conferred in substantive law while the procedure provides the necessary
means towards that lawful end. Unless the procedural law is strong enough to pave the way

872 In Jamal Deen v. Sithi Nasiha [(1966)V MMDR 40] a witness has used violent, insulting and abusive language at
the Quazi. The Board of Quazis, expressly stated that Section 93, which prescribes the maximum penalty of
twenty rupees for such behaviour, should be amended and a term of imprisonment be imposed.
873 It should be noted that even though the Quazis are appointed by the Judicial Service Commission, the
administration of these Courts are subjected to the Ministry of Home Affairs.

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towards that end, statutory rights will become ineffective. Hence the procedural law should be
strong enough to protect the rights preserved in the substantive law.

It is intended to propose procedural reforms within the limits of sharia to standardise the
law in order to earn due recognition of the divorce process.

A very conventional interpretation of Islamic principles has been adopted by the present
Muslim Marriage and Divorce Act, thus imposing unwarranted restrictions -- particularly on women.
Gender discrimination is clearly evident with regard to the right to divorce. The distinction also
carries a significant impact on the powers and duties of the Quazi. Sharia however is flexible
enough to accommodate a more liberal construction which would preserve the rights as
guaranteed in Islam.

Islam does not encourage divorce, but permits dissolution of marriage only when the
spouses cannot live together. Nevertheless, the Muslim Marriage and Divorce Act grants absolute
rights to the husband to repudiate his wife. The Second Schedule of the Act effectively prohibits
the Quazi from examining or recording the ground for repudiation, thus leaving doubts about the
sincerity on the part of the husband and the validity of his decision from an Islamic point of view. It
is an unjust denial of the wife’s right to know the reasons for her repudiation, and it prevents her
from challenging any allegations made by the husband.

Accordingly it may be asserted that provisions requesting and empowering the Quazi to
inquire into the grounds for repudiation should replace Rule 3 of the Second Schedule 874 of the
Act. It would undoubtedly be a more appropriate construction of the prophetic teaching, and would
suppress the unjust exercise of male superiority. When the Quazi is well aware of the true cause
for shiqaq (the breach of the marriage between the parties), he will be in a better position to effect
reconciliation as prescribed in Rule 1 of the Second Schedule 875. On the other hand, the
substitution of the procedural law would undoubtedly be an effective measure in protecting the
rights of the wife.

874 Rule 3 states that the Quazi shall not record the alleged reasons for which, or the alleged grounds upon which,
the husband seeks to pronounce the talak.
875 Rule 1 makes it mandatory for a Quazi to attempt to effect a reconciliation between the spouses.

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 Another vital necessity is the effective administration of the Quazi Courts. The dual
administration, to which the Quazi Courts are subjected at present, appears to have caused
numerous hardships to Quazis both in their official capacity as well as personally. Hence it may be
assumed that bringing the administration of the Quazi Court under the purview of one ministry
would effect a considerable change in the judicial administration of these special tribunals.
Bringing the Quazi under the Ministry of Justice would earn the tribunal its due recognition and
respect, thus promoting the status of the Quazi and assessors as judges and assistants with
exclusive powers.

It is important to impose a requirement of specific minimum academic qualifications on

those who are appointed as Quazis and Muslim assessors. It is equally important that the
qualifications required be compatible with the responsibilities inherent in the sphere of judicial
administration.

The invaluable service rendered by the institution of Quazi to the Muslim community
should be recognized. Compared to the adversarial approach taken by the District Courts, the
conciliatory methods adopted by the Quazi Courts are commendable. It should also be noted that
the informal atmosphere in the Quazi Courts is more conducive to resolving family disputes.
Streamlining the administration of the Quazi Courts by introducing certain reforms identified above
would bring due recognition to the tribunal, and particularly to the methods it uses in resolving
familial conflict.

5.iv Reform of the Kandyan law: the background

The Kandyan Marriage and Divorce Act contains a combination of grounds based on
mutually incompatible principles. On the one hand it grants divorce as a just relief for an innocent
spouse against whom the other has committed an offence. On the other, it contains grounds which
permit divorce for marital failure. Divorce is also granted solely on the basis of mutual consent.
This amalgamation of contrasting concepts has created confusion in how to decide on what basis
a marriage can be dissolved according to Kandyan law.

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 Such an unlikely combination would also raise questions as to the entire divorce procedure.
The grounds based on matrimonial misconduct require sufficient examination and proof, and the
present administrative procedure is inadequate to secure this. Hence it may be argued that it is not
advisable to retain serious matrimonial offences such as adultery and desertion as grounds for
divorce within the existing procedure, which is more suitable for the assessment of the status of a
marital relationship.

It may be argued that the Kandyan law should be retained without any amendment, since it
is the only law which preserves some of the features of the original Sinhalese law. Even though
the Act876 contains grounds for divorce based on the doctrine of fault, the concept of fault has
never been part of the customary law, and the only basis for divorce known in the customary
Kandyan law was inability to live happily together, or in other words, the irretrievable breakdown of
marriage. Accordingly, it may be asserted that the divorce law contained in the Act could
successfully be reformed, while preserving the customary law.

It may be argued further that essential social differences between the two communities, i.e.
the Kandyan and non-Kandyan Sinhalese, require two laws on matrimonial matters. However,
today no such social differences can be identified, and therefore such a distinction is not justifiable.
Interviews with several Kandyans 877 revealed, that most of them prefer to register their marriages
under the Marriage Registration (General) Ordinance, and most Kandyans are aware of only one
law, i.e. the Marriage Registration (General)Ordinance. Kandyans do not see themselves as
different from the low country Sinhalese, at least not in regard to matrimonial obligations and
related issues.

Accordingly, there appears to be no valid legal basis or social need to retain the distinction
with regard to divorce between Kandyan and non-Kandyan Sinhalese. Moreover, since the present
Kandyan law does not represent the indigenous customary law in its original form, there is no
logical argument against reformation of the statutory law. Thus, the Kandyan law of divorce as
prescribed in the Act can be changed, and needs to be changed according to the requirements of
contemporary society. Since the present Kandyan law does not exclusively portray traditional law,

876 No. 44 of 1952.

877 Several Kandyans, including lawyers, teachers, District Registrars, Assistant Government Agents, and rural as
well as urban men and women were randomly selected, and interviewed for research purposes and these
assertions are based on the information gathered from them.

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reform of the statute law would not commit the offence of adulteration of heritage, as frequently
argued.

5. iv (A) Introducing ‘irretrievable breakdown of marriage’ as the exclusive basis for

divorce

A possible approach for divorce reform is to introduce irretrievable breakdown of marriage

as the sole basis for divorce. The policy of the law would be to grant a divorce if it is proved to the
satisfaction of the Court that the marital relationship has broken beyond repair. Divorce would not
be granted merely on proof of marital delinquency. It would neither be offered as a just relief for an
assumingly innocent spouse, nor as a punishment for a guilty spouse. It would recognize conduct
amounting to adultery, desertion and other offences only as symptoms of the breakdown of a
marriage for which both spouses might be responsible.

Irretrievable breakdown of marriage as the basis for divorce would be more compatible with
the traditional Sinhalese ideology of marriage and divorce. The doctrine of matrimonial fault, which
is based on the Christian concept of marriage, was never a part of the indigenous law of the
Sinhalese, but was imposed by the British during the period of colonial administration.

Since no justifiable reason could be identified to retain fault-based grounds, it might be

pertinent to abolish the fault element, while the two non-fault-based grounds, subject to necessary
amendments, may be preserved in the Act.

The two non-fault-based grounds recognized under Sections 32 (e) and (f) are ‘inability to
live happily together’ and ‘mutual consent’ respectively. Apparently Section 32 (e) represents the
concept of breakdown of marriage, which is to be tested by actual separation from bed and board
for a period of one year.

It may be presumed that ‘inability to live happily together’ has been derived from the
indigenous law. Yet no historical evidence confirms the recognition of physical separation for a
specific period as the exclusive proof of marital breakdown. The legislature may have intended to
clarify the somewhat vague concept of irretrievable breakdown of marriage or to add an element of

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fault indirectly to the non-fault ground. Alternatively, the legislature may have presumed that
adding a period of separation would ensure the retention of the fault element while in actual fact
retaining the non-fault-based ground.

‘Inability to live happily together’ has become the most popular ground for divorce in
Kandyan Law. This may be either because parties prefer a non-confrontational approach, or the
relatively short period of separation involved under Section 32 (e)878. Obviously, Section 32 (e)
provides an easier way out of a broken marriage. However, Section 32 (e) concentrates mostly on
the requirement of a one-year physical separation, rather than on the actual breakdown of the
marriage.879 The legislature may have intended to give recognition to the traditional concept of
breakdown of marriage, but the drafting has undermined the original intent by including the
requirement of physical separation.

A prescribed separation period would give an assurance to the District Registrar of the
irretrievable breakdown of a marriage, and thus compel him to grant the divorce; but it would
restrict his discretion to consider whether in fact the marriage has broken down.

Thus it is proposed that Section 32 (e) be amended to specify that separation from bed and
board for a minimum period of one year should not be accepted as the only evidence to establish
inability to live happily together and as a justification for granting a divorce; but other reasons such
as insanity, impotence, cruelty and alcoholism should also be taken into consideration. The Courts
should be empowered to grant divorce on this ground without waiting for one year where it deems
necessary.

“Mutual consent” as recognized under Section 32 (f) does not necessitate proof of
matrimonial fault or breakdown of marriage. The provision only emphasises the necessity of
consensus between the spouses on the dissolution of their marriage. It does not restrict divorce to
matrimonial delinquency or marital breakdown. Notably, the wording of Section 32 (f) does not
reflect the policy of the law.

As a ground for divorce, ‘mutual consent’ may be criticised for two reasons. On the one
hand, it promotes trial marriages and easy divorce, and on the other provides an opportunity to

878 Section 32 (e) requires separation only for a period of one year.
879 The District Registrars who were interviewed stated that in interpreting the provision they focused more on the
one year separation than on the status of the marriage.

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obtain a divorce by consent achieved by force or fraud. Denying the judge the authority in the
decision making process could be considered an additional reason for the inadequacy of mutual
consent as a ground for divorce. 880

5. iv (B) The procedure relating to dissolution of marriage under the provisions of

Kandyan law: an evaluation

The Sinhalese system of judicial administration was entirely de-centralized, and

notwithstanding the supreme judicial authority being vested in the king, judicial administration was
the exclusive right of the individual gam sabhawa or village administration. 881 These administrative
units at village level were meant to ensure easy access to justice and equal participation. Even
under the existing statutory law, the primary jurisdiction with regard to divorce lies in the District
Registrar and other officers recognized in the Act.

In divorce proceedings jurisdiction exercised by a less formal administrative body is more

likely to ensure easy access to social justice and equal participation. Moreover, it provides an
opportunity for the parties to resolve their differences in a non-adversarial process, which assures
fairness to both parties rather than creating a situation where the winner takes all.

It may be asserted that present day Kandyan law provides an acceptable model for reform
of the procedure relating to divorce in Sri Lanka. However, an analysis is required to ascertain two
main questions:

1. how far are the traditional values recognized in the customary law preserved in the present
Act; and

2. how can the existing procedural law be reconstructed in order to provide a better means to
dissolve a marriage.882

880 This applies to Kandyan law, where the District Registrar is not empowered to inquire into the status of the
marriage.
881 See Knox, R. – An Historical Relation of the Island Ceylon, Vol.II 2nd ed. (1989)[Paulusz ed.], ch.V and IX.
D’Oyly, J. – A Sketch of the Constitutoin of the Kandyan Kingdom, (1929), 2nd ed. 1975, Sri Lanka, Pp. 43,44
Percival, R. – An account of the Island of Ceylon 1803, 2nd ed, 1805, p184.
See further Wijesekera, N. – The Sinhalese, 1990, Colombo, pp. 485-489.
882 This is discussed under 5. IV. (c) of this thesis.

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 The Kandyan divorce procedure prescribed in the present Act was designed to create an
informal atmosphere where the process focuses on issues rather than the law. The traditional
concept, where dissolution of marriage was considered a matter to be resolved amongst the
spouses, is given due recognition in the procedure set out in the Act, and the District Registrar is
expected to act more as a facilitator than an adjudicator.

Yet there are certain provisions contrary to this concept in the present Act. As mentioned in
Chapters 2,3 and 4 of this study, the divorce law contained in the Kandyan Marriage and Divorce
Act prescribes an amalgamation of principles some of which are recognized both in traditional
Sinhalese as well as in English law. It appears that the incorporation of principles derived from the
English law have caused a conflict with the indigenous law.

The influence of the English law has been two-fold : the concept of matrimonial fault has
been introduced to the substantive law, and the District Court, where the judicial administration is
carried out according to the adversarial system, has been recognized as the appellate Court.

The inclusion of fault-based grounds raises procedural problems. The serious nature of the
allegations require higher standards of proof, and most of the District Registrars, who are not
qualified or trained in law, do not distinguish between fault-based and non-fault-based grounds,
and treat them equally when it comes to proof. Different measures ought to be employed when
trying to establish guilt in matrimonial delinquency than when ascertaining the state of a marriage
relationship. However, this does not happen. Proof of fault-based grounds brings in defences and
counter allegations where legal representation becomes necessary. Questions of law are
necessarily dragged into the procedure, querying the credibility of the existing set-up in
determining the issues, which need to be solved by a Court of law. Moreover, this disturbs the
entire basis of the informal divorce procedure, which is designed to create a process where issues
of the individual case in dispute are more important than legal technicalities.

The incorporation of the District Court into the Kandyan divorce process has lead to serious
confusion due to divergent policies and measures adopted by the two institutions. The approach
taken and the measures adopted by District Registrars in divorce proceedings are a complete
contrast to the method employed by a District Judge under the General Marriage Ordinance. 883

883 This was discussed in Chapter 4 of this thesis. See p 161 -163.

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There have been historical as well as sociological reasons for adopting a non-judicial approach
under Kandyan law, and the procedure was meant to be informal and conciliatory rather than
adversary. The inclusion of District Courts challenges the underlying basis of the entire divorce
process in Kandyan law.

5.iv (C) Possible approaches for reconstruction of the procedural law

There are two alternative approaches for reform of the Kandyan divorce procedure:

1. The entire divorce process, with its multiple grounds, could be brought under the purview of
the District Court; or

2. Kandyan divorce could be brought under the General law, which would be streamlined
according to the changes proposed in the preceding pages. 884

1. Submitting the entire divorce process to the purview of the District Court.

The ordinary civil procedure, which advocates adversarial measures, is applied in District
Courts. While it may be asserted that the existing provisions do not prescribe an appropriate
procedure for divorce even on the basis of matrimonial fault, 885 it is even more doubtful whether
such procedural measures would provide a realistic approach in determining the breakdown of
marriage.

Besides, the significance of the Kandyan law procedure should be recognized on its
historical and social basis. It is unrealistic to expect such an endeavour from a District Court.

2. Reconstructing Kandyan law to bring divorce under one concept – one law.

884 op cit. P. 176 -183.

885 This was discussed in detail in Chapter 4 of this thesis. See para 4.II.

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 The reform of the law would be twofold, i.e.
(a) to introduce irretrievable breakdown of marriage as the sole basis for divorce, and
(b) to submit the divorce process to a procedure streamlined to accommodate matrimonial
disputes.

(a) Irretrievable breakdown of marriage is not a new concept in Kandyan law. It has been the
basis for divorce until the concept of fault was imposed by the colonial administration. Thus,
confining divorce exclusively to breakdown of marriage would preserve the traditional features of
Kandyan law. It would provide a realistic basis for divorce.

Irretrievable breakdown of marriage should be the sole basis for a dissolution of marriage.
Marital failure may be established on evidence which could vary according to the circumstances of
each case. Proof of breakdown of marriage should not however be confined to a specified period
of separation as is presently recognized in the Act.

(b) The divorce procedure should be streamlined to accommodate the concept of breakdown on
an individual basis. Therefore the inquiry process should be reconstructed to provide a convincing
atmosphere for the parties to present their case. Since the decision making process would be on
an individual basis, with irretrievable breakdown of marriage as the sole criteria, the present
administrative process should be substituted with a special matrimonial Court procedure designed
to deal with matrimonial disputes.

The process should ensure a non-adversarial procedure where easy access and equal
participation is possible. It should also include family counselling and mediation as necessary pre-
requisites.

Accordingly there would be no difference between Kandyan law and general law with regard
to divorce. Since the reformed law would incorporate traditional values, the new law should not
provide cause for objection, even from the most conservative of Kandyans. Dissolution of marriage
would be permitted only if the marriage is in fact broken down and when a relationship is proved to
have ceased to exist.

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5. v Conclusion

There is a need for reform of the divorce law in Sri Lanka. While a uniform law should apply
to all who are presently governed by the Marriage Registration (General) Ordinance and the
Kandyan Marriage and Divorce Act, Muslim law should be streamlined according to the proposals
forwarded by the Muslim Law Research Committee.

In addition to the proposals forwarded by the Muslim Law Research Committee, the Quazis
should be trained in judicial administration and required to posses higher academic and
professional qualifications. While the necessity to enforce the proposals regarding Fasah, khula
and mubarat divorce should be recognised, the importance of interpreting the proposed Section 28
(2) VIII in a broader context should be stressed. Moreover, adultery, which is strictly prohibited in
Islam, should be made a separate ground for fasah divorce. Furthermore, it is suggested that talak
procedure should be reconstructed according to the proposals put forward in this study, and that it
should become mandatory for a husband to give reasons for repudiating his wife. The importance
of the role of Quazi Courts should be duly recognised, and adequate assistance to assure the
proper functioning of these institutions provided.

Having examined the pros and cons, it appears that to introduce the principle of breakdown
into the existing general law as an additional ground for divorce would not be an improvement. On
the contrary. But a single law, applied to Kandyans as well as to those who are presently governed
by the Marriage Registration Ordinance, might be the solution; i.e. it would consider divorce on a
realistic basis and stress the importance of marriage. Dissolution of marriage should only be
permitted if the marriage has in fact broken down, and when a relationship is proved to have
ceased to exist.

This means that a choice of principle has to be made – either action can be taken on
matrimonial offence, or the breakdown of marriage theory has to be accepted. However, it has
been found that a divorce law based on the doctrine of breakdown of marriage is more in tune with
the tenor of modern society than the present law.

Any divorce is traumatic for everyone concerned, and no law can prevent this trauma.
Nevertheless, a divorce law founded on the breakdown of marriage would place divorce in its

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proper perspective – that it is not a reward for marital virtue or punishment of marital delinquency,
but a defeat for both parties – a defeat for which both parties are responsible.

In essence this thesis reasserts the sentiments of Lord Walker when he said

“ the true significance of marriage is life-long cohabitation in the house for the
family. But when the prospect of continuing cohabitation has ceased, the true view
as to the significance of marriage seems to require that the legal tie should be
dissolved. Each empty tie adds increasing harm to the community and injury to the
idea of marriage.”886

~~~~~~~~~~~~

886 Report of the Royal (Morton) Commission, Cmd 9678, Lord Walker at p.341.

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