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Shifan Tariq

Family Law

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LL.B/13/13/25 Application of skills to a given scenarioAssesment type -

Divorce Legal separation of a man and woman to terminate their marriage relationship.

•Therefore it requires a matrimonial fault to claim divorce.

•Marriage Registration Ordinance (1907) & the Civil Procedure Code constitute the general law on divorce.

•The provisions of the ordinance firmly establish divorce as fault-based and case law has reaffirmed this concept

What is

Shifan TariqLL.B/13/13/25

Grounds for Divorce

• Marriage contract is also same as the normal civil contract and it should be maintained accordance with the conditions and warranties.

• Both partners should strive to maintain the concept of “uberrimae fidei” .In doing so if there is a breach of a condition (not a warranty) by either party; necessarily on:

1. Adultery

2. Malicious Desertion

3. Incurable impotency

S.19(1)MRO

it will form the grounds for divorce.

Malicious

• Malicious Desertion(MD) is the deliberate, definite & final repudiation of obligations of the marriage.

( Silva V Misinona)

• A claim may be proved through balance of probabilities.

Two Kinds of MD exists:

• Simple malicious desertion- The deserting spouse leaves the matrimonial home.

• Constructive malicious desertion – The deserting spouse stays in the home while the innocent spouse leaves.

Desertion Shifan TariqLL.B/13/13/25

Malicious • Therefore simply leaving the matrimonial

home will not give rise to a malicious desertion. There should be an intention together with the conduct

• What is meant by intention?

Intention to repudiate the marital relationship should be proved. (Rajeswaranee v Suntherarasa)

Desertion Shifan TariqLL.B/13/13/25

Facts of the Scenario

• Anula & Saman are legally married in Dec- 2010.

• From there they lived together for 6 months.

• Saman had left the matrimonial home in pursue of his masters to Australia in June 2011.

• His contact with home severed & he is known to be living in adultery in Australia.

• Saman seems to have been away from the matrimonial home for 3 years before returning home in 2014.

Shifan TariqLL.B/13/13/25

Application skills I Problem solving

Legal Issues in the Scenario

• Saman wants to claim divorce from Anula.

• On grounds of Constructive Malicious Desertion.

• Plaintiff - Saman & Defendant - Anula

• The Scenario provides that his leaving the matrimonial home was not to desert the wife , but for studies.

• But later on Saman seems to have changed his mind.

• Is Constructive Malicious Desertion possible ?

Shifan TariqLL.B/13/13/25

Can Saman institute action!

• If some one needs get divorce under malicious desertion in Rajeswararanee V Suntherasa it was established that intention to repudiate the marital relationship should be proved by the plaintiff.

• In this case Saman is the plaintiff & is insisting a divorce.

( But he is deemed to be the deserter)

• For a Constructive MD, the deserter must stay at the home.

What can I do!

Shifan TariqLL.B/13/13/25

Can Saman institute action!

• The Scenario seems to suggest that it was Saman who has deserted & left the home.

• So he cannot institute a Constructive MD action.

• Or either a Simple MD action even though it provides for the deserter to have left the home.

• To file a divorce he must provide fault of the defendant(Anula). We are not to find any fault on Anula.

Get Lost Gud Bye

Shifan TariqLL.B/13/13/25

Can Saman institute action!

• Infact, Saman has another justiciable option(without fault):

• Divorce based on Civil Procedure Code, s. 608 (2) (b) – either spouse can petition on a mensa et thoro(from bed and board) for 7 years by itself as ground for divorce.

• They have been distanced only for 3 years(2010-2014). But even if they have separated for 7 years , the current law ; citing proposition to the case of :

• Tennakoon V Tennakoon(1984) holds that separation alone is an insufficient ground for divorce & one of the three grounds under MRO s.19(1) be accompanied with it.

Shifan TariqLL.B/13/13/25

Conclusion

• Saman cannot institute any form of divorce action or does he have any remedy.

• But the entire Scenario can be successfully manipulated by Anula for her benefit if she wishes for a divorce.

• She can claim a divorce from Saman for Simple Malicious Desertion; on deserting her for 3 yrs ( he only

returned home for asking a divorce), his alleged adultery practices & also for his initial divorce plaint.

• Anula being the - Plaintiff & Saman- Defendant

Shifan TariqLL.B/13/13/25

Conclusion

• She is thus entitled to two remedies

1.Repudiation of marriage

2.Maintenance.

• However, due to this Saman is free to seek a new marriage as a subsequent remedy.

• But at the cost of paying maintenance.

Shifan TariqLL.B/13/13/25