Saman wants to claim divorce from his wife Anula on the grounds of constructive malicious desertion. However, Saman cannot institute a divorce action because based on the facts provided, it was Saman who deserted the marital home by leaving for studies in Australia for 3 years. For constructive malicious desertion, the deserting spouse must stay in the home while the innocent spouse leaves, which is not the case here. While Saman has no valid grounds for divorce, Anula could claim divorce from Saman on the grounds of simple malicious desertion due to Saman deserting her for 3 years.

1. Bye..
Shifan Tariq
Family Law
I`m Leaving
LL.B/13/13/25 Application of skills to a given scenarioAssesment type -

2. 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 Tariq
LL.B/13/13/25

3. 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.

4. 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 Tariq
LL.B/13/13/25

5. 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 Tariq
LL.B/13/13/25

6. 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 Tariq
LL.B/13/13/25
Application skills I Problem solving

7. 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 Tariq
LL.B/13/13/25

8. 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 Tariq
LL.B/13/13/25

9. 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 Tariq
LL.B/13/13/25

10. 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 Tariq
LL.B/13/13/25

11. 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 Tariq
LL.B/13/13/25

12. 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 Tariq
LL.B/13/13/25