Statutory Law
Section 615 of the Civil Procedure Code states the law in this regard.
615.
(1) The court may, if it thinks fit, upon pronouncing a decree of divorce or separation, order for the benefit of either spouse or of the children of the marriage or of both, that the other spouse shall do any one or more of the following:-
(a) make such conveyance or settlement as the court thinks reasonable of such property or any part thereof as he may be entitled to ;
(b) pay a gross sum of money;
(c) pay annually or monthly such sums of money as the court thinks reasonable;
(d) secure the payment of such sums of money as may be ordered under paragraph (b) or paragraph (c) by the hypothecation of immovable property or by the execution of a bond with or without sureties, or by the purchase of a policy of annuity in an insurance company or other institution approved by court.
(2) The court may at any stage discharge, modify, temporarily suspend and revive or enhance an order made under subsection (1).
Here you can see, when granting permanent alimony, District Court can exercise its discretion under the section when it’s says “if it thinks fit”. And next thing is permanent alimony will be decide after granting the decree of divorce or decree of separation. As the section clearly indicate this permanent alimony is for the benefit of a spouse or benefit the children of the marriage or of both.
How the Court interpreted this section and relevant law?
See, Ranee Wellala v. D. R. Wellala - (1970) 78 NLR 505
The jurisdiction of the Court under section 615 of the Civil Procedure Code to make an order for permanent alimony becomes exercisable only at the stage when a divorce decree is being or has been made absolute (although, in practice, matters concerning the liability to pay alimony, and the nature and quantum of the payment, are investigated at an earlier stage). Accordingly, it is open to the wife to defer her application for permanent alimony to a stage subsequent to the entry of the decree absolute.
See, Rathugamage Ancy Fernando v. Ranasinghe Mudiyanselage Susantha Ranasinghe [SC/APPEAL/31/2018 decided on 10.05.2024]
In terms of section 615(1)(b) of the Civil Procedure Code, the Court may, if it thinks fit, upon pronouncing a decree of divorce, order for the benefit of either spouse that the other spouse shall pay a gross sum of money as permanent alimony. The legislature has not expressly stated matrimonial fault as a factor in awarding alimony. In terms of this section, alimony can be awarded not only in favour of the wife, but also in favour the husband. This is a clear departure from the earlier position where only the wife could claim for alimony. ..
Although the repealed section does not explicitly state that the wife must be the innocent party to be entitled to alimony, Courts have interpreted “the conduct of the parties” to mean that only the innocent party is entitled to it. The term “The court may, if it thinks fit” found in section 615 also lends support to come to that conclusion. As a result, alimony has been denied when the wife is found to be the guilty party.
Hence, in practical terms, the obligation to pay permanent alimony is tied to the concept of matrimonial fault in divorce proceedings. In Sri Lanka, under section 19(2) of the Marriage Registration Ordinance, No. 19 of 1907, as amended, a decree of divorce can be granted on proof of matrimonial fault identified in law, i.e. adultery, malicious desertion and incurable impotency. What is known in some other jurisdictions as “no-fault divorce” is not part of our law (Tennekoon v. Tennekoon [1986] 1 Sri LR 90).
In awarding permanent alimony after the grant of divorce, the Court has discretion. However, this discretion needs to be exercised judicially, not arbitrarily, leaving aside the personal beliefs, biases and prejudices of the Judge towards the marriage relationship, divorce, and alimony itself.
When permanent alimony is sought by the innocent spouse from the guilty spouse, the Court needs to consider a variety of factors. The decision regarding the quantum of alimony should depend on the unique facts and circumstances of each individual case. A similar view was expressed by me in respect of alimony pendente lite in Thamel v. Nawaratne (SC/APPEAL/153/2019, SC Minutes of 28.02.2024).
With respect, I am unable to agree with the view expressed in the judgment of the Court of Appeal in Anulawathie v. Gunapala and Another [1998] 1 Sri LR 63 at 67 which states that “the sole criterion upon which alimony should be quantified is the financial status of the defendant.” Among all the factors, perhaps the most important is the financial status, but not only the financial status of the guilty spouse but also of the innocent spouse.
In addition to the existing financial status of the parties, the Court must consider other factors such as their future earning capacity, the length of the marriage, the reason or reasons for divorce, the standard of living during the marriage, the ages and health of the parties, their station in life or social standing, other financial liabilities, custody arrangements. This is not an exhaustive list.
The underlying principle of ordering permanent alimony is to ensure sufficient support for the former wife after the divorce. It need not be intended to serve as punishment for the husband found guilty of matrimonial fault. The order for alimony should be reasonable and realistic.
It is important to note that although alimony ordered after divorce is termed “permanent alimony”, it is not truly permanent. Section 615(2) states that the Court may at any stage discharge, modify, temporarily suspend, revive or enhance such an order. Therefore, judicial time need not be unnecessarily spent on deciding the question of alimony in divorce cases. ..
(After considering the UK Matrimonial Causes Act of 1973 the Supreme Court observed as follows.)
Although the repealed section 615 contained guidelines for the exercise of discretion in awarding permanent alimony, the new section lacks any such guidelines. It may be worth considering the adoption of certain standards to guide the exercise of discretion, as this could enhance predictability and deter arbitrariness. However, it is important to ensure that this does not compromise the flexibility inherent in judicial discretion, which is particularly valuable in the determination of alimony. The legislature has declined to specify any criteria in section 615 of the Civil Procedure Code so that this judicial discretion is preserved.
See, Mangalika De Silva (nee Hemachandra) v. Prabhath Joseph De Silva [S.C. Appeal No. 122/2011 decided on 26.06.2015]
The said section was introduced to the Code by Amendment Act No. 20 of 1977. Old Section 615 of the Code had been replaced by Section 615 introduced by Act No. 20 of 1977. Section 616 and 617 of the old code has been repealed. However Section 618 remains unchanged. There is an area of discretion vested with the court as per Section 615(1). An order under this section could be made “if it thinks fit”. Section 615 (1)(a) could be resorted to, if the court thinks it be ‘ reasonable’ to make a conveyance of property. Much emphasis has to be placed on the words “if it thinks fit” and ‘reasonableness’. If the court wish to act in terms of Section 615(1)(a) it could do so if it thinks fit and make a reasonable order. This would not attract any kind of order to favour one of the two spouses. What is contemplated is the reasonableness to make an order having considered the entitlement to property of each spouse. Further such an order could be made upon pronouncing a decree for divorce or separation. As such court necessarily has to make an order for divorce on the available grounds for divorce, and thereafter decide to make such conveyance or settlement which is reasonable. It is my view that the grounds of divorce should not influence the trial Judge if he decides to act under Section 615(1)(a).
It could be argued that on one hand statutory provisions introduced to the Civil Procedure Code in this regard may cause some difficulty when reallocations of property rights between spouses are to be considered. No doubt whilst examining the decided cases the consensus of judicial opinion appears to favour the view that although express statutory provisions the common law principles of forfeiture of benefits continue to apply. …
On a perusal of all above authorities emerging from the statute and common law, tends to safeguard all property which does not bring in benefits derived from marriage. The principle of forfeiture of benefits under common law would not interfere with separate property of the offending spouse. In brief property of the innocent party which is actually given to the offending party who has benefitted or would benefit in the future on accounts of marriage, then the offending party is liable to forfeit those benefits. There is no doubt an element of reasonableness to a great extent that touch the root of the problem which is separate from grounds of divorce or separation, has to be considered and kept in mind if a decision has to be made in this regard.
See, Karunanayake v. Karunanayake – 39 NLR 275
Permanent alimony granted to a wife on the dissolution of a marriage is, as a rule, larger than alimony pending the action which is fixed by section 614 of the Civil Procedure Code at a sum not less than one-fifth of the husband's average nett income for the three years preceding the date of the order.
See, Wijeratne v. Wijeratne - 73 NLR 546
In an action for divorce, sufficient ground must be shown before the Court can award as permanent alimony a sum in excess of the amount claimed by the wife as alimony pendent lite.
See, Anulawathie v. Gunapala - [1998] 1 SLR 63
Thus, it would appear that the sole criterion upon which alimony should be quantified is the financial status of the defendant. In the instant case, no evidence had been led to establish the financial status of the 1st defendant-respondent... Having considered the fact that no evidence had been placed in regard to the financial status of the 1st defendant-respondent and in the absence of an order for alimony pendente lite it would be inappropriate to make an order for permanent alimony for the benefit of the plaintiff-appellant.
See, Rate Ralalage Gedera Anuradha Chathurangani v. Mahamarakkalage Mahindarathne [SC Appeal 95/2017 decided on 22.01.2018]
Court must be reasonable in deciding the amount of alimony.
Alimony as a personal right
See, De Alwis v. Wichremasinghe and Others - (2000) 2 Sri LR 10
Where alimony is concerned, it is purely a personal right which subsists only so far as the wife is entitled to support. It ceases on her demise. The claim to alimony being of a personal nature extinguishes with the death of the wife, and the decree for alimony ceased to be executable.
Apart from the alimony ordered the rest of the money forms part of the estate of the deceased and should be remitted to the testamentary case.
Alimony in a settlement
See, Shanmuganathan v. Namagal - (1975) 77 NLR 517
An order to pay permanent alimony by consent contained in the decree in a matrimonial action is referable to section 408 of the Civil Procedure Code and is enforceable as an order to pay money in terms of section 217A of the Civil Procedure Code. Accordingly the provisions of section 218 (h) of the Civil Procedure Code are applicable to the enforcement of such an order, based as it is on an agreement under section 408 of the Civil Procedure Code.
Execution of decrees and alimony
See, De Jonk v. De Jonk - (1969) 72 NLR 140
Section 218 (m) of the Civil Procedure Code, as amended by Act No. 24 of 1961, debars the seizure of the salary of an employee (other than a public officer or servant) in execution of an order for alimony entered against him in a. matrimonial action.
However, See in Louis v. Emmanuel - (1970) 73 NLR 42
Section 218 (m) of the Civil Procedure Code, as amended by Act No. 5 of 1964, does not deprive a wife of her right to seize the salary and allowance of her husband in execution of a decree for alimony in her favour. The exemption under section 218 (m) applies only to seizures under writs issued in execution of decrees in ordinary civil actions and cannot have application to orders for maintenance made under section 615 (2) of the Civil Procedure Code.
De Jonk v. De Jonk (72 N. L. R. 141) not followed.
See, Nadarasa v. Navamany - (1962) 64 NLR 232
Where decree for dissolution of marriage is entered at the suit of a husband, a promise by the husband to make an ex gratia payment to the wife cannot be incorporated in the degree so as to compel him to pay the sum.
Subsidiary orders
See, Buddhadasa Kaluarachchi v. Nilamani Wijewickrama and Another - (1990) 1 Sri LR 262
The Court can make subsidiary orders relating to permanent alimony, custody of the children and other settlements in terms of section 615 of the Civil Procedure Code. These orders as stated in section 615 (2) can be discharged, modified, temporarily suspended and revived or enhanced. These orders are not part of the decree nisi.
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