SILVA

VS.

REGISTRAR GENERAL AND OTHERS

COURT OF APPEAL
GOONERATNE, J.
DR. FERNANDO, J.
CA/Rll/3/2016
DC PUTTALAM 2621/D
FEBRUARY 27, 2020

Revision and/or restitutio in integrum-Application to set aside ex parte decree absolute of divorce-Non-service of summons or decree nisi or absolute-Death of plaintiff at the time of application-Fraud- Exceptional circumstances-Alternative remedies-Delay

The petitioner had been living in separation from her husband since 2005. In 2009, her husband instituted divorce action against her in the District Court of Puttalam, giving the petitioner's address as "Pinwatte, Panadura." The case was fixed for ex parte trial after the Panadura Fiscal reported to court that summons had been served on the petitioner by pointed- out service. The ex parte decree nisi of divorce was entered against the petitioner on 09.09.2011, which was also reported to have been served on her at her Pinwatte address by the Panadura Fiscal. Thereafter the decree nisi was made absolute on 19.04.2012. The petitioner's husband

died on 06.05.2013. In August 2013, the petitioner instituted action in the District Court of Puttalam under section 839 of the Civil Procedure Code seeking inter alia a declaration that the decree absolute entered in the divorce case is void ab initio on the ground that the summons and ex parte decree nisi had not been served on her. She stated that ever since her separation she had been living at different addresses in Nugegoda and that she had never resided in Pinwatte, Panadura at any time. She claimed that she only got to know about the divorce case at her husband's funeral from his relatives and that the decree of divorce had been obtained by fraud. On 23.05.2014 the District Court made order holding that it has no jurisdiction to vacate the decree of divorce after the death of the plaintiff, and that the proper forum for this was the Court of Appeal or the Civil Appellate High Court. The petitioner did not appeal against this order but on 03.02.2016 preferred an application in revision and/or restitutio in integrum to the Court of Appeal against the decree absolute in the divorce action.

Held :

1. The remedy of restitutio in integrum has taken deep root in the practice and procedure of our courts. Applications for relief by way of restitution from judgments of the original courts can be broadly classified under two heads: (a) where a judgment has been obtained by fraud or where there has been a subsequent discovery of fresh evidence; and (b) where a judgment has been entered by consent but there has been an absence of real consent such as in cases of fraud, fear, excess of authority and mistake.

2. It is true that a divorce action before the District Court is a personal action based on matrimonial fault and thus if either of the parties dies before any decree of divorce is passed, the personal cause of action would die with them. However, the situation is different where the party to the divorce proceedings who obtained an ex parte decree of divorce without the knowledge of or notice to the other spouse dies, and where direct legal consequences affecting the status and proprietary rights of the surviving party flow from such adverse ex parte decree of divorce.

3. Where a surviving spouse who suffers from the pernicious legal consequences of an ex parte decree of divorce complains that her deceased husband had obtained a decree of divorce without her knowledgeor notice to her, she is entitled to make an application to

set aside the ex parte decree. In such an exercise, the legal heirs of the deceased spouse are entitled to be joined as necessary parties.

4. The petitioner has tendered documentary evidence to prove that the ex parte decree of divorce had been obtained by her deceased husband without her knowledge or notice to her. The respondents have not produced any documents to contradict the documents produ