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 to dispense with security- Husband's suit for declaration that marriage was void-Husband domiciled in Ceylon-Wife of Indian domicil and continuously resident in India- Jurisdiction of Ceylon Court-Prescription-Plaintiff's delay in filing action-Right of Court not to pronounce judgment in favour of plaintiffs Civil Procedure Code, ss. 597, 602, 604, 607, 756-Prescription Ordinance, s. 15.

Where, in a matrimonial action, petition of appeal was filed and on the same day the defendant-appellant by written notice 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 notice of tender of security. The requirement in section 756 of the Civil Procedure Code that the appellant must give notice of tender of security does not preclude him or her from giving notice that security should be dispensed with under some rule of law or established practice.

The plaintiff, who was of Ceylon domicil, sued the defendant, who until her marriage had an Indian domicil, for a declaration that the marriage solemnized between them on March 12, 1936, was null and void on the ground that the defendant gave birth to a child about three months after the marriage and that the plaintiff was unaware that the defendant was 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 void in nature, should be regarded as good until a decree for nullity was entered, and the domicil of the wife should be regarded as the 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 15 of the Prescription Ordinance (Cap. 55);

(iii.) that the action was in substance an action for dissolution of marriage within the terms of section 597 of the Civil Procedure Code and therefore the Court had discretion, under section 602 of the Civil Procedure Code, not to pronounce 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 stated in the head-note. The District Judge gave judgment for the plaintiff. It was contended for the defendant, in appeal, (1) that

as this was an action for nullity of marriage the defendant could not be regarded as having acquired the Ceylon domicil of her husband and the Ceylon Court, therefore, had no jurisdiction, (2) that the plaintiff's action was prescribed under section 10 of the Prescription Ordinance (Cap. 55), (3) that as the plaintiff had been guilty of unreasonable delay in presenting his plaint the Court 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 preliminary objection to the hearing of the appeal on the ground that no notice of security had been given " forthwith ".-With the petition of appeal a notice was tendered and subsequently served on the respondent stating that the appellant would ask the court to exempt her from giving security for costs. So far from being a notice that she would be tendering security for costs it directly stated the contrary. The settlement subsequently arrived at as to the security to be' given could not affe