GABVIN S.P.J.—Annakedde v. Myappen.
1932Present: Garvin S.P.J. and Maartensz A.J.
ANNAKEDDE v. MYAPPEN.
147—D. C. (Jnty.) Nuwara Eliya, 1,211.
Divorce—Action by wife—Husband claims divorce on ground of adultery ofwife—Adulterer should be made a party—Ceylon domicil.
Where in an action for dissolution of marriage brought by a wife onthe ground of malicious desertion by the husband, the latter claimed adivorce on the ground of the adultery of the wife, the alleged adulterer.should be made a party to the proceedings.
The nature of evidence required to establish a Ceylon domicil considered.
PPEAL from an order of the District Judge of Nuwara Eliya. Thefac.ts appear from the judgment.
H. Y. Perera, for the plaintiff, appellant.
Choltsy, for the defendant, respondent.
January 25, 1932. Garvin S.P.J.—
This was a petition by a wife for a divorce a vinculo matrimonii on theground of malicious desertion. The husband filed answer denying themarriage and stating incidentally in the course of his answer that theplaintiff had " misconducted " herself with one Nagen. In due courseissues were framed and the, trial took place on November 27, 1930. Theevidence in the case was mainly directed to establish that the marriagewas valid and lawful in view of the defendant's denial that there wassuch v, marriage. The case was then postponed. In the interval thedefendant moved to amend his answer. In the amendment which heproposed to make, he pleaded specifically that the plaintiff had committedadultery with one Nagen and added an alternative prayer praying theCourt, should it find that a legal marriage had taken place between theparties, to grant the defendant a divorce a vinculo matrimonii on theground of the alleged adultery. Nagen was not made a party. Thefailure on the part of the husband to do so was brought to the notice ofthe Court. Despite this, it was contended that the pleading was inorder and the trial proceeded. At the conclusion of the evidence,judgment was i*eserved. It would seem that while he was consideringhis judgment the Learned District Judge's mind was affected with adoubt as to his jurisdiction to decree a divorce on the ground that therewas no evidence that the husband was domiciled in Ceylon. He setdown the case for hearing once again and a further trial took place onthis question of domicile. The defendant appears to have identifiedhimself with the view that he was not domiciled in Ceylon and finallythe District Judge delivered a judgment holding that the husband wasnot domiciled in Ceylon but in India and accordingly dismissed theplaintiff's action. The first question for us is whether his decision onthe question of jurisdiction is correct.
GAJRVIN S.P.J.—Annakcdde «. Myappcn.1917
It is sufficient to say that so far as the law is concerned, there seemsto be little doubt that the jurisdiction to grant a divorce a vinculomatrimonii depends upon the domicile of the husband. If, therefore,in this instance, the learned District Judge is correct in his finding uponthe material before him that the husband's true domicile was India andnot Ceylon he was right in holding that he had no jurisdiction. It hasbeen urged, however, that upon the material before him the learnedDistrict Judge was wrong in his finding of fact.
The defendant was a motor car driver employed in Ceylon. Hecame to Ceylon when he was a child of about 6 years of age with hismother who apparently was employed upon a Ceylon estate. There heremained and it was there he received his education. He has neverbeen to India. He married in Ceylon and in the twenty-two years ofhis life since his arrival here as a little child he has known no other homethan Ceylon. In addition there is his own statement in a certaindeclaration made for the purpose of registration as a qualified voterthat he had a Ceylon domicile. An endeavour has been made to dis-count the value of this declaration upon the ground that it was drawnup by a prospective candidate, but it would have served the purpose ofthis candidate equally well if be had claimed the right of registration onbehalf of this would-be voter upon the ground of his residence in Ceylon.
There is no reason to suppose, having regard to the facts above statedby me, that the defendant did not claim to be domiciled in Ceylon, since-it is quite obvious that he knew no other home. We have thereforehis life history and in addition his own declaration at a time prior to thisaction that Ceylon was his domicile. Moreover, it is not altogetherwithout significance that he himself never took the plea that the Courthad no jurisdiction because he was not domiciled in Ceylon. As againstthis, we have a statement made by him in the course of the inquirywhich was held when this point emerged that he wished some day to-return to India and some general reference to interests in India. Sofar as one can judge from the specific evidence in the case, his everyinterest is in Ceylon.
Upon this evidence, I should have had no hesitation in holding thatthe husband's domicile is Ceylon. That being so the Court unquestionablyhad jurisdiction to entertain the wife’s petition for a divorce and alsothe husband’s cross-petition for a divorce upon the ground alleged ofadultery by his wife.
It is to be noted that the defendant has entered no appeal from theorder of the learned District Judge. His attitude, however, is that thefindings of the learned District Judge, for he has found upon the other'questions of fact on which the parties were at issue, should be acceptedas correct and that relief should be given to him upon the assumptionthat these findings are correct. In an appropriate case it might havebeen possible perhaps to act in accordance with this suggestion uponsuitable terms as to costs, but we are not satisfied that this is such acase. The whole history of the case, the various separate inquiriesinto which it has been broken up, > and the determination of so importanta question as the wife's adultery in the absence of Nagen. are featuresin the case which do not stimulate confidence in the conclusions of fact
*1200MACDONELL C.J.—Jandiris v. Dene Bento.
which have been arrived at. Nagen should unquestionably have beenmade a party in view of the husband's cross-petition for divorce and no-decision upon the question can be considered satisfactory which has.been arrived at in a proceeding to which he has not been made a party.
I- refrain from further comment for the obvious reason that I am of•opinion that the case should go back foe a trial de novo. The one questionwhich must be taken as settled is that the Court has jurisdiction to•entertain the wife’s petition as well as the husband's cross-petition fordivorce. For the rest, the judgment and all the findings will be setaside and the whole matter set at large, so that all the questions at'issue between the parties may be determined in the course of a trial, itbeing understood that Nagen should be made a party to the cross-petition and given due notice of the proceedings, so that he might if soadvised present his answer to the Court.
The appellant is entitled to the costs of the appeal. There will be noorder as to the costs of the abortive trial in the Court below.
Maartensz A.J.—I agree.
ANNAKEDDE v. MYAPPEN