Christina V. Cecilin Fernando

1962 Present : L. B. de Silva, J., and G. P. A. Silva, J.

T. CHRISTINA and 3 others, Appellants, and S. CECILIN FERNANDO,
Respondent

S. C. 38/60 (Inty.)-D. C. Kalutara, 3648/T

Divorce-Decree nisi by default made absolute without notice to opposite party- Liability to collateral attack by third parties-Effect of a decree entered by a Court of competent jurisdiction-Civil Procedure Code, s. 85-Evidence Ordinance, ss. 41, 44.

It is not open to any person to attack collaterally a decree absolute for divorce, except on the grounds set out in sections 41 and 44 of the Evidence Ordinance.

The respondent applied for letters of administration to the estate of her deceased husband F. The objectors-appellants, claiming to be the lawful heirs of the deceased, opposed the application of the respondent on the ground that she was not legally married to the deceased. The basis of their claim was that the respondent was previously married to one M and that, in the action for divorce instituted by the respondent against M, the decree nisi by default after due service of summons was made absolute without service of notice of the decree nisi on M. It was contended that the decree absolute was void and of no effect on account of non-compliance with an imperative provision of section 85 of the Civil Procedure Code.

Held, that the decree absolute for divorce had been entered by a Court of competent jurisdiction and, however erroneous or irregular it may have been as between the parties to the action for divorce, was not open to collateral attack by third parties in other proceedings.

APPEAL from a judgment of the District Court, Kalutara.

H. W. Jayewardene, Q. C., with M. L. de Silva and S. S. Basnayake, for Objectors-Appellants.

H. V. Perera, Q. C., with U. A. Perera, for Petitioner-Respondent.

Cur. adv. vult.

November 1, 1962. L. B. DE SILVA, J.-

The Petitioner-Respondent S. Cecilin Fernando applied for letters of administration to the estate of the deceased H. Liveris Fernando as the widow of the deceased. The Objectors-appellants, claiming to be the lawful

heirs of the deceased, opposed the application of the petitioner-respondent on the ground that she was not legally married to the deceased. The basis of this claim was that she had previously married one P. A. Marthelis. She sued Marthelis for a divorce and obtained a decree nisi by default after due service of summons in D. C. Kalutara Case No. 26,390. This Decree Nisi was thereafter made absolute without service of notice of the Decree Nisi on the defendant.

The Appellants are attacking the Decree Absolute for divorce as a nullity in these testamentary proceedings. The petitioner-respondent married the deceased after she obtained the Decree-Absolute for divorce and the marriage was duly registered. The Appellants contend that the petitioner's marriage to the deceased was a bigamous marriage, as she was at the time of this marriage, the legally married wife of P. A. Marthelis.

It has been held in Annammah v. Subramaniam1[(1950) 51 N. L. R. 547.] that the provisions of section 85 of the Civil Procedure Code apply to a Decree Nisi for Divorce and the service of notice of the Decree Nisi on the defendant was an impera­tive provision of the law. It was also held in that case in Appeal, that summons had not been served on the defendant. On these two grounds, the Court held that the Decree Nisi and Decree Absolute were both void and of no effect. The application to set aside the decree was made in the same case.

On this authority we hold that the provisions of section 85 of the Civil Procedure Code apply to a Decree Nisi for default in a Divorce action and the failure to serve notice of Decree Nisi on the defendant in the case was a non-compliance with an imperative provision of the law. The above-decision would be binding if the defendant made an application in the Divorce Case to set aside the Decre

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