SOERTSZ J.—Nelson v. Foenander.
1940Present : Soertsz and Keuneman JJ.
NELSON v. FOENANDER.150 & 151—D: C., Colombo, 1,120.
Divorce—Intervention to prove collusion between the parties—Proof of collusionafter decree nisi—Civil Procedure Code, ss 604 and 606 (.Cap. 86).
A person who suspects collusion between parties for the purpose ofobtaining a divorce and who intervenes under section 606 of the CivilProcedure Code is entitled to rely on collusion that has taken place afterthe decree nisi was entered.
A PPEAL from an order of the District Judge of Colombo.
N. Nadarajah (with him M. Tiruchelvam), for plaintiff, appellant in150, and for plaintiff, respondent in 151.
R. L. Pereira, K.C. (with him C. X. Martyn), for defendant, appellantin 151, and for defendant, respondent in 150.
Cur. adv. vult.
April 15, 1940. Soertsz J.—
In this case, submissions were made to us, both on the law and on thefacts. In the first place, Counsel for the appellants sought to construesections 604 and 606 of the Civil Procedure Code so as to make bothsections applicable only to cases in which collusion or suppression ofmaterial facts has occurred before decree nisi. But, in my opinion, theplain meaning of the words of section 606 does not, at all, justify such alimitation.
' Courts exercising matrimonial jurisdiction have always been gravelyconcerned to ensure that the marriage state which, according to theearlier law, was permanent and indissoluble, should not, even in the lessstringent modern view of that status, be terminable at the option of the.parties, and elaborate precautions have been taken to make divorce ascollusion-proof as possible. To that end, section 604 of our Code of CivilProcedure enacts that a decree dissolving the marriage bond shall, in thefirst instance, be entered in the form of decree nisi, not to be madeabsolute till, at least, three months have elapsed. During this interval,opportunity is given for any person to show that the decree nisi has beenobtained by collusion or by suppression of material facts. Necessarily^the collusion or suppression contemplated in this section must have
SOERTSZ J.—Nelson v. Foenander.
reference to something done or omitted before the date of that decree.But it is obvious that there may be collusion or suppression of materialfacts even during the period between the two decrees, and that there maybe cases in which collusion becomes apparent or is suspected before thedecree nisi stage is reached, or in which pre-decree nisi collusion orsuppression of facts is suspected, or made apparent only after decree nisihas been entered.
Section 606 of the Civil Procedure Code is designed to provide for thosecontingencies. It authorises a person who suspects collusion between theparties for the purpose of obtaining a divorce, to apply to the DistrictJudge to take such steps in respect of the alleged collusion as may benecessary to enable him to make decree in accordance with'the justice ofthe case, and he is permitted to make his application at any stage of theprogress of the action on the ground that there is “ present ” collusion orthat there has been collusion at any relevant point of time. “ Progressof the action ” in the context, clearly covers the period from the institutionof the action to the entering of the decree absolute. This view is, I find,supported by some of the observations made in the course of the judgmentsdelivered in the cases of Hulse v. Hulse' ; Roger v. Roger s, and Fender v.Mtldmays.
I am, therefore, of opinion that the petitioner was entitled to intervenein this action as he did, and to rely on the collusion that, he alleges, hastaken place after decree nisi was entered.
All that remains is the question of fact, whether the plaintiff and thedefendant have resumed co-habitation. If they have, it follows that thedecree nisi that has been entered must be rescinded, for to make itabsolute despite that fact, would, in the words of the trial Judge, “ be atravesty of judicial proceeding”. It would be tantamount to dissolvinga marriage on the ground that -there has been desertion by one spouse ofthe other when, as a matter of fact, both of them are living together.Such intriguing situations belong to comic opera.
In regard to this question of fact, the trial Judge has reached a verydefinite conclusion. He was in ever so much a better position than weare on a question of this kind, for he saw and heard the witnesses whoseevidence, he says, he believes, and an appeal Court would interfere withsuch a finding only in exceptional circumstances. In this case, the directevidence is strongly supported by the circumstantial evidence, particu-larly by the fact that this so-called reconciliation appears to have takenplace at a time when the plaintiff was confronted with an application forwrit made on behalf of the defendant, to enable her to recover a sum ofRs. 260 due to her on account of accumulated alimony, and an applicationfor an order on him to pay her a sum of Rs. 150 to enable her to prosecuteher appeal.
The learned trial Judge inclines to the opinion that the reconciliation,so far as the plaintiff is concerned, is pure stratagem to which he hasresorted in order to escape from these applications made on behalf of thedefendant, and to secure her inactivity till the decree is made absolute.
•-24 L. T. S47.* 70 L. T. 699.
(1937) 3 A. E. R. 402.
HOWARD C.J.—Fernando v. Themis Appuhamy.
As for the defendant, she appears to have been floundering in a sea oftroubles about this time, and she was only too ready to clutch at any strawin a desperate attempt to save herself.
I cannot help sharing that view.
The appeals fail and must be dismissed. The plaintiff-appellant willpay the petitioner-respondents’ costs in both Courts. I make no orderfor costs in regard to the defendant’s appeal.
I wish to add that it will, perhaps, be as well if the District Judge givesdirections to the Secretary that this case be brought to his notice in theevent of either the plaintiff or the defendant suing for a divorce in thefuture.
Keuneman J.—I agree.
NELSON v. FOENANDER