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NLR - Vol.46- P361

NLR - Vol.46, Page No - 361

1945 Present: Keuneman S.P.J. and Rose J.
NAVARATNAM, Appellant, and NAVARATNAM, Respondent.
356-D. C. Jaffna, 72.
Divorce-Appeal-Requirement of nonce of tendering security-Immunity of wife, when appellant-Sufficiency of notice todispense
with security- Husband's suit for declaration that marriage was void-Husband domiciled in Ceylon-Wife of Indiandomiciland
continuously resident in India- Jurisdiction of Ceylon Court-Prescription-Plaintiff's delay in filing action-RightofCourt
not to pronounce judgment in favour of plaintiffs Civil Procedure Code, ss. 597, 602, 604, 607,756-PrescriptionOrdinance,
s. 15.

Where, in a matrimonial action, petition of appeal was filed and on the same day the defendant-appellantbywrittennotice
moved that security for costs be dispensed with as she was the wife of the plaintiff-respondent ,-

Held, that the appellant had not contravened the provisions of section 756 of the Civil Procedure Code relating to noticeof
tender of security. The requirement in section 756 of the Civil Procedure Code that the appellant must give notice oftender
of security does not preclude him or her from giving notice that security should be dispensed with under some rule of lawor
established practice.

The plaintiff, who was of Ceylon domicil, suedthedefendant,whountilhermarriagehadanIndiandomicil,fora
declaration that the marriage solemnized between them on March 12, 1936, was null and void on the ground thatthedefendant
gave birth to a child about three months after the marriage and thattheplaintiffwasunawarethatthedefendantwas
pregnant and that the plaintiff before the marriage never had access to the defendant.

The marriage took place in India and the defendant remained in India and never came to Ceylon.

The action was instituted in the District Court of Jaffna on August 17, 1943.

Held, (i.) that the Ceylon Court had jurisdiction in the action as the marriage, which was voidable and not voidinnature,
should be regarded as good until a decree for nullity was entered, and the domicil of the wifeshouldberegardedasthe
domicil of the husband up to the date of decree

(ii.) that the plaintiff's action was not prescribed as it was an action for " divorce", within the meaning of section 15of
the Prescription Ordinance (Cap. 55)

(iii.) that the action was in substance an action for dissolution of marriage within the terms of section 597oftheCivil
Procedure Code and therefore the Court had discretion, under section 602 oftheCivilProcedureCode,nottopronounce
judgment in favour of the plaintiff if he had been guilty of unreasonable delay in presenting his plaint.

APPEAL from a judgment of the District Judge of Jaffna. The facts are statedinthehead-note.TheDistrictJudgegave
judgment for the plaintiff. It was contended for the defendant, in appeal, (1) that as this wasanactionfornullityof
marriage the defendant could not be regarded as having acquired the Ceylon domicil ofherhusbandandtheCeylonCourt,
therefore, had no jurisdiction, (2) that theplaintiff'sactionwasprescribedundersection10ofthePrescription
Ordinance (Cap. 55), (3) that as the plaintiff had been guilty of unreasonable delayinpresentinghisplainttheCourt
should not have pronounced judgment in his favour.

H. V. Perera, K.C. (with him H. W. Thambiah and V. Arulambalam), for the plaintiff, respondent, took a preliminaryobjection
to the hearing of the appeal on the ground that no notice of security had been given "forthwith".-Withthepetitionof
appeal a notice was tendered and subsequently served on the respondent stating that the appellantwouldaskthecourtto
exempt her from giving security for costs. So far from being a notice that she wouldbetenderingsecurityforcostsit
directly stated the contrary. The settlement subsequently arrived at as to the security to be' givencouldnotaffectthe
question, as an appeal that had abated could not be revived by consent or agreement ofparties.Thegivingofnoticeof
tendering security was an essential requirement and the failure to do so was fatal. Vide De Silva v. Seenathumma et al.1.

N Nadarajah, K.C. (with him. N. Kumarasingham and G. T. Samarawickreme), forthedefendant,appellant.-Therearecertain
classes of persons who are exempt from the duty to give security for costs ofappeal.Theyareinsolvents,paupers,and
wives who are parties to matrimonial actions. Section 756 of the Civil Procedure Code has no application tothem.Therule
that a wife who is a party to a divorce suit need not give security for costs of appeal is a corollary totherulethata
husband is liable to provide the costs of contest for his wife-Silva v. Silva 2Abeygunasekera v. Abeygunasekera 3.Inthe
case of Joseph v. Elizabeth 4 the objection that the wife had not given security for costs ofappealwastakenandover-
ruled.

H. V. Perera, K.C., in reply.-The cases cited by Counsel for appellant deal with giving security for costs and donottouch
the question of giving notice of tendering security. An imperative provision of statute law must be obeyedunlessexemption
is conferred by some other provision of statute law. A mere rule of court would not have that effect.

N. Nadarajah, K.C., for the defendant, appellant.-In regard to the merits of the appeal the District Court of Jaffnahadno
jurisdiction to hear this case. The appellant was neverresidentwithinitsjurisdictionandwasbeforethemarriage
domiciled in India. As the respondent alleges the marriage was void he cannot be heard tosaythatbythatmarriageshe
attracted to herself a Ceylon domicil. Under Roman Dutch law a declaration of nullity on the ground ofante-nuptialstuprum
is given on the footing that there never was a legal marriage at all- Van Zyl's Judicial Practice, Vol. II., p. 695 Nelv.
Nel5. There is in that system of law no difference between a marriage that is absolutely prohibited andthereforevoidand
that which is void because of previous stuprum-Nathan's Common Law of S. Africa, Vol. I., pp. 100, 282. Thesamedifficulty
has arisen in England and has been considered-Cheshire's Private International Law, p. 253Niboyet v. Niboyet1 Easterbrook
v. Easterbrooh2Salvesen v. Administrator of Austrian Property 3.

The respondent has been guilty of undue delay in bringing the action and is on that ground not entitledtoadecree.Vide
section 602 of Civil Procedure Code. The marriage took place in March, 1936, and the action was brought in August,1943.He
was cross-examined as to the reason for the delay and his explanation will not bear scrutiny.

Further, the action was barred by prescription. Section 10 of the Prescription Ordinance would apply and the action wouldbe
barred on the expiration of three years after the cause of action arose. The respondent states that he was aware ofallthe
facts by July, 1936. Section 15 exempts from the operation of the Ordinance proceedings in suits fordivorce.Thisisnot
such a suit, but one for nullity. Distinction is drawn in section596,CivilProcedureCode,betweenvariouskindsof
matrimonial actions.

H. V. Perera, K.C., for the plaintiff, respondent.-In the Roman-Dutch law the term void includes both voidandvoidable.A
marriage that may be declared null and void on account of previous stuprum is not entirely void as thehusbandmaycondone
or overlook the offence. The marriage remains good till the husband seeks dissolution of it. Such a case isonaparwith
suits for nullity on the ground of impotence. In such cases the English Courts have held thatresortmustbehadtothe
courts of the domicil. Vide Salvesen v. Administrator of Austrian Property (supra).

Prescription does not apply to suits for nullity. The term " divorce in section 15 is usedinawidesenseandincludes
suits for nullity. It is an Ordinance of 1872 and at that time the word divorce was used with a wide meaning. VideStephen's
Commentaries, Bk. 3, p. 296. It was only by the Divorce Act of 1857 that dissolution of marriagewaspermittedongrounds
that arose after the marriage. Before that the term divorce was applied to actions of divorce a mensa et thoro and suitsfor
nullity. Even in 1872 the term " divorce " was used in a wide sense and not restricted to any particular class of action.

As to undue delay, the issues raised the question whether it was a fatal bar and would rightly be answered inthenegative.
At the most it would be a discretionary bar. Section 602 has no applicationtoactionsfornullity.Theschemeofthe
chapter shows that the sections immediately following section 597 are only applicabletoactionsfordivorceavinculo.
Undue delay is, therefore, no ground for refusing a declaration of nullity. Should a husband condone apreviousstuprumhe
would be refused a decree because of the substantive Roman-Dutch law. The Court would not need to call inaidaprocedural
section.

August 31, 1945. KEUNEMAN S.P.J.-

The plaintiff brought this action against the defendant for a declaration that the marriage solemnized between them onMarch
12, 1936, was null and void, on the ground that the defendant gave birth to a child about threemonthsafterthemarriage
and that the plaintiff was unaware that the defendant was pregnant and thattheplantiffbeforethemarriageneverhad
access to the defendant. After trial the District Judge entered judgment for the plaintiff,andthedefendantappeals.A
preliminary objection was raised against the appeal, to the effect that the defendant had failedtogivenoticeforthwith
after the appeal that she would tender security for the appeal. What actually happened is as follows:

In the proceedings before trial the defendant moved that the plaintiff be ordered to deposit asumofmoneyascoststo
enable the defendant to conduct her case. On March 28, 1944, the District Judge .ordered plaintiff to pay Rs.150ascosts
to the defendant, and this sum was duly deposited in court on April3,1944.Afterthetrialjudgmentwasenteredon
September 26, 1944. The petition of appeal was filed on October 9, 1944, and on the same day thedefendantbyherwritten
notice moved that security for costs be dispensedwithasthedefendant,appellant,wasthewifeoftheplaintiff,
respondent. As regards this latter application the District Judge ordered notice for October 17, 1944. On thatdateparties
were represented and a settlement was arrived at. Of consent it was ordered that the appellant should give securityinRs.-
50 for costs.

Mr. Perera for the respondent argued that in the motion the defendant, appellant, did not give notice that shewouldtender
security but merely moved that security be dispensed with. He contended that there hadbeenafailuretocomplywitha
positive requirement of section 756 of the Civil Procedure Code, and that the appeal must accordingly be dismissed.

Mr. Nadarajah for the appellant, depended on the principles enunciated in the cases of Silva v. Silva1,Abeygunasekerav.
Abeygunasekera 2 and Joseph v. Alexander Elizabeth 3. In the first of these cases it was held that " TheEnglishrulemust
be followed The rule is that the husband, besides being generally liable to pay his own costs, is alsoasageneralrule,
whether the wife be successful or not and whether she be petitioner or respondent, liable to pay his wife's costs, and heis
also liable to pay into court or give security for an amount fixed by the Registrar as sufficient in hisjudgmenttocover
the .wife's costs in connection with, the hearing of the case ". The reason for the liability was statedtobethatunder
the old law " the marriage gave all the property to the husband and the wife had no other means of obtaining justice ".

The second of the cases mentioned adopted this same view, in spite of the fact that there was no statutory authority tothis
effect in Ceylon. In the third of these cases the matter was carried one stage further and it was heldthat"acourtin
these proceedings could not insist upon the wife giving security for the husband's costs in appeal ", An objectiontakento
the appeal on the ground that the wife had not given security for the husband's costs in appeal was dismissed.

Mr. Nadarajah further argued that the previous order made in the present case, that the husbandshoulddepositthewife's
costs of the trial, showed that the wife was qualified to claim exemption from giving security in appeal.

Mr. Perera did not dispute the authority of these cases, but he insisted that in any event the wife was requiredbysection
756 to give notice that she will tender security, and that she was not permitted to omit that notice althoughshecouldat
the same time claim exemption from giving security in appeal. Suchaconstruction,tomymind,appearsartificialand
unreasonable, and I do not think the requirement in section 756 that the appellant mustgivenoticethathewilltender
security precludes him from giving notice that security should be dispensed with undersomerule,oflaworestablished
practice. In this case the notice to dispense with security was given forthwith, and I do not agree thattheappellanthas
contravened the provisions of section 756 of the Civil Procedure Code. The case of Joseph v. Alexander Elizabeth(supra)is
in my opinion an authority to the contrary. The preliminary objection is accordingly dismissed.

As regards the merits of the appeal, it has not been argued that the plaintiff was not entitled to obtainadecreeonthe
grounds set out in his plaint. The case of Sivakolunthu v. Rasamma 1[ 24 N. L. R. 89.] has been accepted as layingdownthe
correct law applicable to Ceylon. The facts are also not in dispute in this appeal.

Mr. Nadarajah for the appellant, however, raised three matters before us.

(1) The plaintiff in this case admittedly has a Ceylon domicil. The defendant, at any rate until her marriage, had anIndian
domicil. The marriage took place in India. On the facts it has been heldthattheplaintiffhadreasontosuspectthe
pregnancy of the defendant on the wedding night, and almost immediately after plaintiff left the defendantandreturnedto
Ceylon while the defendant remained in India ever since and never came to Ceylon. Mr. Nadarajah argued thatasthisisan
action for nullity of marriage, the defendant cannot be regarded as-having acquired thedomicilofherhusband,viz.,a
Ceylon domicil He contended that no action for nullity can be maintained in the Ceylon Courts.

In my opinion the answer to this argument is to be found in the case of Inverclyde v. Inverclyde 2[L.R.1931Probate29]
which was based upon dicta of the House of Lords in Salvesen v. Administrator of AustrianProperty3[L.R.1927A.C.
641.]. The case had reference to a decree annulling a marriage on the ground of impotence It washeldthatsuchadecree
dealt with a marriage which till the date of the decree was voidable only and not void. In substance it was a decree forthe
dissolution of the marriage,andwasthustobedistinguishedfromdecreesannullingmarriagesforillegalityor
informality. In his judgment Bateson J. said-

" The argument for the respondent was this :-

A suit for nullity on the ground of impotence is quite different from othersuitsfornullity,e.g.,onthegroundof
informality or illegality such as bigamy, absence of parental consent, or some requirement in the ceremony.Nullityonthe
ground of impotence is a suit to avoid a marriage and is in essence a suit to dissolve it. The marriage is voidableandnot
void, as in other cases of nullity. The marriage remains a marriage until one of the spouses seeks to get rid of the tie.In
other cases such as bigamy there has never been a marriage at all. Domicil of the parties, at any rate since 1895,hasbeen
an essential of jurisdiction in a suit to dissolve a marriage in divorce andmustequallybesoinanullitysuitto
dissolve a marriage on the ground of impotence .... The Court of the domicil is the only competent court tograntadecree
affecting status Again the marriage cannot be impeached after the death of one of the spouses. Nullityforimpotenceisa
matter ,in which the spouses alone are concerned .... This is the argument for therespondentandinmyjudgmentitis
sound."

Bateson J. was of opinion that the House of Lords in Salvesen v. Administrator ofAustrianProperty(supra)hasputthe
matter beyond doubt, and the dicta quoted by him support his conclusion thatthecourtofthedomicilhasatleasta
competent, if not an exclusive jurisdiction.

There can, I think, be no doubt that the claim in the present action for a decree of nullity is in itsnatureakintothe
claim for nullity on the ground of impotence, and not to a claim for nullity on the groundofbigamy.Inmyopinionthe
marriage must be regarded as good until the decree for nullity is entered, and the domicil of the wife mustberegardedas
the domicil of the husband up to the date of the decree. The Ceylon Court, therefore, had jurisdictionintheaction.Mr.
Nadarajah's argument on this point fails.

His further argument that the evidence does not establish that the plaintiff was residentwithinthejurisdictionofthe
District Court of Jaffna was not persisted in. There is sufficient evidence to establish that fact, and whethersection597
or 607 of the Civil Procedure Code applies the Jaffna Court had jurisdiction in the matter.

(2) Mr. Nadarajah next argued that the plaintiff's action was prescribed under the Prescription Ordinance, Cap.55,section
10. At the latest the plaintiff was aware in July, 1936, of the birth of the child to the defendant. The presentactionwas
not instituted till August 17, 1943, more than 7 years after, and if prescription runs there is no question thattheaction
is prescribed. Under section 15, however, it is laid down that nothing contained in the Ordinance '' shall be taken toapply
to any proceedings in any action for divorce ". The question, therefore, arises as towhetherthepresentactioncanbe
regarded as an action for " divorce ". In this connection it hastoberememberedthatthePrescriptionOrdinancewas
enacted in 1871 and section 16 of that Ordinance is in the same terms as section 15 of the present Ordinance. In myjudgment
we must investigate the meaning of the word " divorce " as it was understood in 1871. In interpreting the term " divorce "I
think we may consider the meaning of that term in England in 1871. I quote from Stephen's Commentaries, Bk 3, p.296:"We
are next to consider the manner in which a marriage may be dissolved or declared to be a nullity. Dissolution may be.either
by death or divorce. Prior to the Divorce Act (20 and 21 Vict c 85) passed in the year 1857 there were two kindsofdivorce
obtainable by suit in the Ecclesiastical Courtsthe one a mensaetthoro,theotheravinculomatrimonii.Thefirst
species, or separation from bed and board, was pronounced in cases wheretherewasnoillegalityintheunioninthe
commencement but where from some supervenient cause it has become improper for the partiestolivetogether,asforthe
cause of intolerable cruelty in the husband, adultery in either of the parties, and in someothercasesmentionedinthe
books .... The sentence for this divorce though it effected a judicialseparationdidnotbastardizetheissueofthe
marriage, or enable either of the parties to contract a fresh union ....

As for divorce a vinculo, this was a declaration by the Ecclesiastical Court that the marriage was a nullity, as havingbeen
absolutely unlawful from the beginning. It consequently bastardized the issue and enabled the parties severallytocontract
another marriage at their pleasure. It was always founded on some canonical disability and it could never bepronouncedfor
any cause whatever supervenient to the marriage, not even for adultery itself."

But though divorce a vinculo for adultery could not be obtained in the regular course of law either in the ecclesiasticalor
the secular courts, yet it was very frequently granted by a private Act of Parliament to a husband but not to a wife.

Prior to 1857 then the term " divorce " was applicable to suits for separation amensaetthoroandalsotosuitsfor
nullity of marriage.

The Act of 1857 made several changesThe jurisdiction of the Ecclesiastical Court was removed and the jurisdictionformerly
exercised by that court was vested in the Court for Divorce and Matrimonial Purposes. Under section 7nodecreethereafter
could be entered for divorce a mensa et thoro but that was replaced by a decree for a judicial separation. Undersection27
it was open to a husband to present a petition praying that his marriage be dissolved on the ground that hiswifehasbeen
guilty of adultery. It was also open to a wife to bring asimilaractionwheretheadulteryofthehusbandbadbeen
accompanied by certain other matters.

In my opinion the term "divorce" was after 1857 still applicable to actions for nullity of marriage as wellastothenew
type of action based on causes which arose after the marriage. It may be (I do not say it is) a matter of doubtwhetherthe
term " divorce " applied to suits for judicial separation after 1857 But in my opinion the term " divorce " in section 15of
the Prescription Ordinance applied to cases where a decree of nullity of marriage was prayedfor.Thesidenotetothat
section '' This Ordinance not to affect Crown or causes matrimonial " appears to support thisview.Itisinterestingto
note that the phrase " causes suits and matters matrimonial " appears to apply tothejurisdictionoftheEcclesiastical
Court before 1857 (see section 6 of the Act of 1857).

Our attention has been directed to section 596 of our Civil Procedure Code where a distinction appears tobedrawnbetween
actions for divorce a vinculo matrimonii and actions for separation a mensa, et thoro or declaration of nullity ofmarriage.
But the Civil Procedure Code was first enacted in 1889, and I do not think we can take it into accountininterpretingthe
Prescription Ordinance of 1871 or Chapter 55. For these reasons I hold that the Prescription Ordinance does not apply tothe
present action.

(3) Mr. Nadarajah next argued that the plaintiff had been guilty of unreasonable delay in presenting his plaint and thatthe
Court should not have pronounced judgment in his favour He depended on section 602 of the Code. Unfortunatelyinthiscase
the only issue framed in respect of this matter runs as follows: -

"5. Is the plaintiff's delay in bringing the action a fatal bar to this suit? '' The District Judgehascorrectlyanswered
that issue in the negative but has not considered the question whether inhisdiscretionheshouldrefusetopronounce
judgment in favour of the plaintiff because of unreasonable delay in presenting the plaint. The defendant cannot avoidblame
for having left the issue in this form.

Mr. Perera for the respondent argued that section 602 has no application toanactionforadeclarationofnullityof
marriage. He pointed out that under section 597 of the Code of Civil Procedure a husband orwifemaypresentaplaint"
praying that his or her marriage may be dissolved on any ground for which marriage may, by the law applicable in thisIsland
to his or her case, be dissolved ". Therefollowimmediately-afterserveralsectionsincludingsection602whichare
applicable to that type of action. Thereafter follows section 607 which relates to a plaint praying that the marriage maybe
declared null and void: and there is nothing specific in the Code which makes section 602 applicable to actionsfornullity
of marriage under section 607. Mr. Perera argues that section 597 relates only to actions for dissolution onthegroundof
adultery or other cause which supervenes after the marriage, and that the section does not apply whereitisclaimedthat
the marriage was bad ab initio. At first sight this argument appears convincing, but I do not think upon examinationitcan
be sustained. Section 597 uses very wide language, viz., " any ground for which the marriage .... maybedissolved".Can
this 'action be regarded as an action for the dissolution of the marriage? I think itcan.Thedecisioninthecaseof
Inverclyde v. Inverclyde (supra) indicates that this type of action is in substance an action for dissolution, andthatthe
marriage will be regarded as subsisting until a declaration of nullity is entered. There are no doubt, otheractions,e.g.,
those based on bigamy, where it may be taken that the marriage never subsisted, and differentconsiderationsmayapplyto
those actions for nullity: see White otherwise Bennett v. White1[1937 Prob. 111.]. I hold thatthepresentactionmaybe
regarded as coming within the terms of section 597 of the Code, and that section 602 applies to this action.

I may add in this connection that section 602 is the section which gives statutory authority to the Court todenyadecree
to the plaintiff when it has been found that the plaintiff had been an accessory to or has connived attheconductofthe
defendant, or has condoned the same, or where the plaint has been presented in collusion with the defendant. Theprovisoto
the section goes further and gives the Court a discretion to refuse a decree on variousgrounds,includingthegroundof
unreasonable delay in presenting or prosecuting the plaint. In an action of the kind we are dealingwithhere,Ithinka
finding of connivance or condonation or collusion is essentially a ground onwhichthedecreeshouldbedeniedtothe
plaintiff, and the grounds stated in the proviso are grounds on which the Court may well exercise its discretion againstthe
plaintiff. I think this supports the contention that the present action falls within the scope of section597oftheCode
and that the following sections are applicable to this kind of action.

I do not think it is necessary in this case to consider the argument thatinanyeventsection602andthesubsequent
sections may impliedly be made applicable to actions falling under section 607 only and not under section 597.

It follows from this holding that section 604 also applies to this action and that the decreeenteredshouldhavebeena
decree nisi not to be made absolute till after the expiration of not less than three monthsfromthepronouncingthereof.
The District. Judge has, however, entered decree absolute in the first instance. This in my opinion is incorrect.

The facts which relate to this matter are as follows:

The plaintiff in July, 1936, when he knew of the birth of the child had no employment. He secured employmentforthefirst
time in September, 1937, and was till then unable to take steps. He wrote totheBangaloreChurchforacertificateof
marriage but received a reply that no such marriage was registered. Till 1941 he couldnotgetthemarriagecertificate.
Later, on the advice of a firm of lawyers in Madras, he applied to the registrar-general ofBirths,DeathsandMarriages,
Madras, and after a long delay he obtained the marriage certificate on March 5, 1943.

It is true that this explanation is not very satisfactory and shows a surprising lackofinitiativeonthepartofthe
plaintiff. But at the same time the District Judge was not invited to regard this delay as unreasonable, and has in factnot
done so, and I do not think it is possible for us to hold that the delay was in factunreasonableand,further,thatthe
District Judge was bound to exercise his discretion against the granting of the decree. I do notthinkanyusefulpurpose
will be served by sending the case back to the District Judge in respect of this matter.

In the circumstances I hold that the defendant has failed to show that the decree should be refused to the plaintiffonthe
ground of unreasonable delay.

The appeal accordingly fails. I, however, alter the decree entered into a decree nisi nottobemadeabsoluteuntilthe
expiration of not less than three months after the date of this judgment. In all thecircumstancesIdonotthinkthere
should be any order for costs in this, action. I delete the order that the defendant should pay the plaintiffthecostsof
the action. There will be no order in respect of the costs of appeal.

ROSE J.-I agree.
Appeal dismissed.





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