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. Hemawathie [1981] 1 Sri LR 476
2. Sitthi Maleeha v. Nihal Ignatius Perera [1994] 3 Sri LR 270
3. Joyce Perera v. Lal Perera [2002] 3 Sri LR 8
4. Leelawathie v. Jayaneris [2001] 2 Sri LR 231
5. Kusumawathie v. Wijesinghe [2001] 3 Sri LR 238
6. Paulis v. Joseph [2005] 3 Sri LR 162
7. Andradie v. Jayasekera Perera [1985] 2 Sri LR 204
8. Biso Manika v. Cyril De Alwis [1982] 1 Sri LR 368
9. Sebastian Fernando v. Katana Multi-Purpose Co-operative Society Ltd [1990] 1 Sri LR 342
10. Velun Singho v. Suppiah [2007] 1 Sri LR 370
11. Suppramaniam v. Erampakurukal (1922) 23 NLR 417 at 435
12. Maduluwawe Sobitha Thero v. Joslin [2005] 3 Sri LR 25 at 28
13. Sirisena v. Kobbekaduwa, Minister of Agriculture and Lands (1974) 80 NLR 1
14. Lazarus Estates Ltd v. Bearely (1956) 1 All ER 341 at 345
15. Dember v. Abdul Hafeel (1947) 49 NLR 62 at 66

APPLICATION for restitutio in integrum from the Judgment of the District Court of Panadura.

Duleeka lmbuldeniya for the Petitioner.

Charith Galhena for the Respondent.

cur. adv. vult.

May 29, 2019

SAMAYAWARDHENA, J.

The petitioner filed this application for restitutio in integrum seeking to set aside the decree of divorce granted by the District Court of Panadura in Case No. 3464/D.

The divorce action had been filed by the deceased husband against the petitioner and the divorce had been obtained ex parte on the basis that summons was served on her. According to the journal entry No.1 of the District Court case record, summons has been ordered to be issued on 05.01.2006 returnable on 16.01.2006. The same journal entry further reveals that the plaintiff has hurriedly filed the divorce action and obtained a short date for summons returnable stating that the petitioner has come

to Sri Lanka from abroad for a one-month holiday. According to journal entry No.2 dated 16.01.2006, the summons has been served on the petitioner by personal service. Then according to the journal entry dated 08.05.2006, ex parte decree nisi has also been served on the petitioner by personal service on 26.04.2006.

The petitioner has convincingly proved before this Court by producing her two passports marked P8(c) and P8(d) that she was not in Sri Lanka at the time the summons and decree nisi were alleged to have been personally served on her by the Fiscal. That is the best evidence to prove the falsity of the Fiscal report.

After obtaining the divorce by fraud, the deceased husband had married the respondent to this application even before the decree nisi was made absolute.

lt is significant to note that notwithstanding that the respondent has been represented by counsel before this Court, the respondent has not filed objections to this application controverting those facts. Hence those facts remain unchallenged.

No