Spouse can claim damages from adulterer without filing for divorce: SC

• Spouse can claim damages from co-defendant or third party in an extramarital affair without seeking divorce     

By Lakmal Sooriyagoda   

In its recent judgement, the Supreme Court held that a party in a divorce case can pursue a claim against a co-defendant (the adulterer—a third party outside the marriage) for damages, without simultaneously seeking dissolution of the marriage in the same action.   

With Justice Preethi Padman Surasena and Justice Achala Wengappuli agreeing, Justice Priyantha Fernando observed that there is no misjoinder of causes of action by claiming damages for injuria by the defendant as the marriage between the plaintiff wife and the defendant husband has been broken down due to the adulterous conduct of the co-defendant and the plaintiff wife.   

The Supreme Court delivered this judgement in response to an appeal filed by the co-defendant, challenging the legality of judgements by the Hatton District Court and the Kandy High Court of Civil Appeals, which ruled in favour of the husband by dismissing the wife’s action and ordering the co-defendant to pay the husband Rs. 500,000 in damages.  

Accordingly, the Supreme Court held that the defendant is entitled to file action for damages against the co-defendant without praying for divorce from the plaintiff, due to the loss of consortium caused by the co-defendant by committing adultery with the plaintiff.   

In this case, the wife sought divorce on the grounds of desertion by the husband. It was the position of the husband that the marriage has broken down not due to him deserting the wife, but because of the adulterous conduct of the wife and the co-defendant.   

On that basis, the husband sought to add the co-defendant as a party and claimed damages from the co-defendant. However, although the husband prayed for a dismissal of the wife’s claim for divorce, he did not pray for divorce on the ground of adultery between the wife and the co-defendant as he has alleged.   

The wife filed action in the District Court of Hatton against the husband for divorce on the ground of malicious desertion by the husband. In his amended answer, the husband while denying the malicious desertion on his part prayed for a dismissal of the wife’s action, and alleged that the wife was committing adultery with the Co-defendant and claimed damages from the co-defendant for breaking down his marriage. It was the position of the husband that the wife has filed this action in order to obtain a divorce, as she is living in adultery with the co-defendant. However, the husband did not pray for divorce from the wife based on the alleged adultery.   

After trial, the District Judge entered judgement in favour of the husband, dismissing the wife’s action. The District Court also ordered the co-defendant to pay the defendant damages in a sum of Rs.500,000 as prayed for in the prayer to the plaint.   

In Sri Lanka adultery is not a penal offence. Adultery is a ground for divorce and the aggrieved spouse may claim damages against the co-defendant.   

Counsel P. Peramunugama with Ranganath Peiris and Jithma Anjalee appeared for the Co-Defendant. Counsel Nayanajith De Silva instructed by De   
Silva & De Silva appeared for the Defendant. Counsel Wardani Karunaratne with Hiruni Silva instructed by P. Suthanthiraraj appeared for the Plaintiff.