EPASINGHE

Vs.

TILLEKERATNE

COURT OF APPEAL
GOONERARTNE, J.
SAMAYAWARDHENA, J.
CA/Rl/12/2016
DC PANADURA 3464/D
MAY 22, 2019

Decree of divorce-Fraud-Abuse of the process of court-Death of a party after the fraud-Restitutio in integrum-Nullity

The petitioner filed this application for restitutio in integrum seeking to set aside the ex parte decree of divorce obtained by her deceased husband on the basis that summons and decree nisi had never been served on her. The main contention of the respondent before the Court of Appeal was that the petitioner should get the ex parte decree vacated in the District Court before coming to the Court of Appeal.

Held:

1. The petitioner convincingly proved before the Court of Appeal that she was abroad during the time of the alleged service of summons and the decree nisi on her in Sri Lanka. No judgment can be allowed to stand if it has been obtained by fraud. The decree of divorce has been obtained fraudulently and therefore it is a nullity.

2. On the facts of this case, the application for restitutio in integrum filed by the petitioner in the Court of Appeal is correct.

Cases referred to:

1. lttepana v. Hemawa