Sathiyanathan v. Sathiyanathan.
Present: Moseley J. and Fernando A.J.
SATHIYANATHAN v. SATHIYANATHAN.
203=—D. C. Colombo, 2,414.
Divorce—Marriage of party to action before decree absolute—Application to
enter decree absolute nunc pro tunc—Death of party—Power of Court—
Civil Procedure Code, s. 605.
Where a decree nisi is entered for the dissolution of a marriage, theCourt is not bound of its own motion to make the decree absolute afterthe expiration of the time limit.
The marriage of a party to a divorce action before the decree is madeabsolute is invalid.
An application to enter decree absolute nunc pro tunc should not beallowed where the rights of third parties are affected.
Quaere, whether the Court has power to enter decree absolute where themarriage has been dissolved by the death of a party after decree nisi.
HE plaintiff, husband, brought an action for divorce against the first
^ defendant his wife and decree nisi was entered on October 10, 1921.The second defendant, the co-respondent, married the first defendantafter the period of three months from the date of decree nisi, but beforethe decree absolute. The plaintiff died in April, 1935, and the seconddefendant on March 18,1936. The first defendant moved ■ the
District Court on September 14, 1936, to make absolute, nunc pro tunc thedecree nisi. The purpose of the application was to make valid themarriage of the second defendant with the first defendant in order thatthe latter may succeed as one of the heirs of°the second defendant. Thelearned District Judge refused the application because the marriage wasipso facto annulled by the death of the plaintiff. From this order thefirst defendant appeals.
H. V. Perera, K.C. (with him D. W. Fernando and K. Subramaniam),for first defendant, appellant.—According, to English law the guiltyparty cannot apply to have the decree nisi made absolute. In Ceyloneither party could make the application. A period of three months wasfixed by the Court and after the expiration of that time the decree nisicould be made absolute. After the expiration of that time no cause canbe shown. Hence the order to make the decree absolute is purely aministerial act. Though the decree absolute is necessary it is merely aformal matter. Under section 625 of the Civil Procedure Code, theappeal is from a decree nisi. There is no appeal from the decree absolute.Even in the absence of a decree absolute, the parties may remarry. TheCourt may make decree nisi absolute while an appeal is pending. TheCourt has the power to do so. Alternatively as soon as the decree nisi isconfirmed by the Supreme Court on appeal, the decree must be madeabsolute.
[Fernando J.—Should a decree nisi be entered in an action fornullity ?]
Different provisions apply for actions for nullity. Section 607 of theCivil Procedure Code deals with it.
Sathiyanaihan v. Sathiyanathan.
The parties can marry immediately after the decree is made absolute.
[Fernando J.—Can a party marry while an appeal is pending?]
No. Section 625 of the Code prevents it. If the appeal is dismissed,it presupposes that the decree is to be made absolute, a party may marryat any time after the dismissal of the appeal, but not as long as the appealis pending (de Silva v. de Silva ’).
So far as the parties are concerned, the matter is decided by the decreenisi as the parties cannot be intervenients under section 604, and theCourt after the expiration of the time should make the decree absolute.,s this had^pot been done at that time, the marriage should be annullednunc pro tunc. *
The .judgment of Mr. Justice Dalton in Aserappa V. Aserappa ‘ indicates•that a party should move the Court to have the decree nisi made absolute,but it is obiter. Alimony pendente lite is granted till the case is pending,that is till the decree is made absolute. Section 614 deals with alimonypendente lite. No application can be made till decree absolute.
Either party can apply for the decree to be made absolute (Hulme-Kingv. de Silva “). There is nothing in the way of making the decree absolute.nunc pro tunc as no party has acquired any right. A Court cannot passsuch an order in the case of an adjudication, but it will be granted where aJpdge has forgotten some ministerial act or where no judicial discretion is,to be exercised. (10 Encyclopedia of Laws of England (2nd ed.,), p. 98.)
B. Wikramanayake (N. E. Weerasooria with him), for secondrespondent, as amicus curiae.—There is no duty cast on the District Judgeto make a decree absolute nor is there any duty for him to. make it nuncpro tunc. As there is no provision in the Civil Procedure Code, theEnglish law must be followed. Aserappa v. Aserappa* lays down theprocedure to be followed. Parties after decree nisi may live together, butthey need not remarry. The marriage continues till the decree is madeabsolute (Hyman v. Hyman11).' The status of wife continues till thatdate (Norman v. Villars“). The three months is not the limit (Silva v.Missinona'1). Divorce should never be granted as long as there is achance of reconciliation. The only' difference between English law andCeylon law is that under the former only the innocent party can applyand under the latter either party can (Aserappa v. Aserappa (supra).)
Where a party dies, the Court has no jurisdiction to pronounce anyjudgment. The action ceases (Stanhope v. Stanhope *).
Section 839 does not give all the powers suggested by the appellants.There is no authority to show that a decree could be made absolute eitherex mero motu or nunc pro tunc.
In England it has been held that if a party marries before the decree ismade absolute, that marriage is void (Rogers, otherwise Briscoe v. Halm-show "). Hence the first defendant’s second marriage is void and she hasno right of succession to the property of the second defendant. She ismaking this application to enable her to obtain the rights of succession.
(1904) P. 403 at 406.
« (1877) 2 Ex. 359.
7 (1924) 26 N. L. R. 113.
(1886) 54 L. T. 906.
7 (1926) 29 JV. L. R. 378 at 379.
(1935) 37 N. L. R. 372 at 374.a (1936) 38 N. L. R. 63.
(1935) 37 N. E. R. 372.
(1864) 11 L. T. 21.
FERNANDO A.J.—Sathiyanathan v. Sathiyanathan.
H. V. Pe.re.ra, in reply.—The position of the parties is fixed by thedecree nisi (Pender v. Mildmayl).
Stanhope v. Stanhope ‘ can be distinguished. There the husbandobtained a decree nisi for the dissolution of marriage and before theexpiry of the time he died. The widow would receive a benefit under thewill of the husband and the petitioner applied leave to revive the divorcesuit to prevent the widow from enjoying the benefit. In the present casethe facts are different.
The rights that will be acquired are merely incidental. They are notpart of the action. The rights of third parties should not be taken intoconsideration.
Cur. adv. vult.
October 20, 1937. Fernando A.J.—
The plaintiff in this action prayed for the dissolution of his marriagewith the first defendant-appellant, and the second defendant was joinedin the action as co-respondent. A decree nisi was entered on October10, 1921, to be made absolute at the expiration of three months from thatdate, but no decree absolute was in fact entered.
Counsel for the appellant states that after three months from the date -of the decree nisi, that is to say, on October 6, 1922, the first defendantmarried the second defendant. The second defendant is now dead, and aquestion has arisen whether the first defendant is entitled to succeed asone of the heirs of his estate. The application of the first defendant iscontested by the other heirs of the second defendant who are representedin these proceedings by the Counsel who have been allowed to appear inthis appeal as amicus curiae.
It was contended by Mr. H. V. Perera that on the expiration of threemonths from the date of the decree nisi, the District Court should haveentered decree absolute ex mero motu even if there was no application forthat purpose by any of the parties to the action, and the appellant’sapplication to the Court was that a decree absolute should now be enterednunc pro tunc.
The learned District Judge refused the application for the reason thatthe plaintiff had died before the application, and that the marriagebetween the plaintiff and the first defendant had already been dissolved.It is admitted that the plaintiff died in September, 1935, and the applicationby the first defendant was made on September 14, 1936. It is alsoadmitted that the application that the decree absolute be entered nuncpro tunc has been made because of the death of the plaintiff in September,
Mr. Perera" contended that under section 605 of the Civil Procedure Codeit was the duty of the Court to enter ah order absolute. Section 605 is inthese terms : “ whenever a decree nisi has been made, and no sufficientcause has been shown why the same should not be made absolute as inthe last preceding section provided within the time therein limited suchdecree nisi shall on the expiration of such time be made absolute. ”
In de Silva v. de SUvaz, Garvin J. ordered that, the decree nisi entered inthat action should be made absolute in spite of an appeal that had been
* (1937) 3AUE.R. 402.* (1886) 54 X. T. 906.3 (1926) 29 N. X. R. 378
244FERNANDO A.J.—SathiyafCathan v. Sathiyanathan.
filed against an order made in the decree nisi directing one of the partiesto make a certain settlement of property. The appeal against the orderdirecting a settlement, he thought, could not affect the question of thedissolution of the marriage. In the course of his judgment, Garvin J.uses these words : “ at the expiration of three months, in the absenceof any objection, the Court is required to make the decree so enteredabsolute Lyall Grant J. in the same case said that if the reasons setout in se.ction 604 of the Code are not brought forward, the decree is madeabsolute as a matter of course, and went on to state that the CivilProcedure Code appeared to contemplate a decree nisi being madeabsolute, even though an appeal may be pending against it. In the caseof Aserappa v. Aserappa1 Dalton J. observed that the practice of theCourt of entering decrees absolute in matrimonial cases as a matter ofcourse after the lapse of the prescribed period without the Court beingmoved thereto by either party was not justified by any provision of theCivil Procedure Code. “ This ” he states, “ is the English practice, and Isee nothing contrary to it in our Court. One can visualize a case withoutany difficulty in which the successful party might not wish to have thedecree made absolute immediately the time limited expired. Cases arenot unknown, if they are rare, of husbands and wives coming togetheragain after a decree nisi has been entered. ” Maartensz J. in a separatejudgment stated that he was unable to agree with the contention thatthe District Judge should have made the decree absolute on theexpiration of three months from the date of the decree nisi, and if I maysay- so with all respect, he appears to have agreed with the opinion QfDalton J. that the person who requires the Court to move should movethe Court and that the Court is not required to act of its own motion inmaking the decree absolute.
In Hulme-King v. ds Silva3 which is the same case as de Silva v. de Silvatheir Lordships of the Privy Council observed that it had been held inCeylon that there was nothing either in the law or the practice to preventthe application for a decree absolute being made by the innocent or bythe guilty'spouse and Lord Maugham proceeds to say that their Lordshipssee no reason for differing from the view, and indeed they were notinvited to hold the contrary. In this respect, the practice in Ceylondiffered in their Lordships’ opinion from the English law, and they cameto the conclusion which is expressed in these words : “ if the conditionshave been complied with (that is to say, if no cause has been shown, andthe fixed period has elapsed) the Court is bound to make the decreeabsolute, and it has been held that in Ceylon, there is nothing either inthe law or the practice to prevent the application being made by theinnocent or by the guilty spouse.” This judgment to my mind whileexpressly stating that either spouse may make the application, appearsto contemplate the position that while the Court is bound to make thedecree absolute, there should be for that purpose an application by one ofthe parties to the action. In these circumstances I do not think there isanything in the authorities which will enable us to disagree with theopinion expressed in Aserappa v. Aserappa1 that there is nothing in
* (1935 ) 37 N. L. R. 372.* 38 N. L. Rr63.3 (1926) 29 -V. L. R. 378.
FERNANDO AJ.—Sathiyanathan v. Sathiyanathan.
our Code which requires that the Court should act of its own motion inrmaking the decree absolute. I would repeat the observation of Dalton J.that the person who requires the Court to move should move the Court’for that purpose. I would add that there was no good reason why thefirst defendant should not have applied that the decree nisi be madeabsolute before her marriage if she desired to conserve any rights thatmay accrue to her as a result of that marriage. I presume that all theformalities required by law for her marriage with the first defendant wereduly observed, and the further requirement that the decree nisi shouldhave been made absolute could have been observed by her without anydifficulty.
Section 625 of the Civil Procedure Code provides' that it shall be lawfulfor the respective parties to the marriage to marry again upon the decreenisi being made absolute. That section also refers to a case where adecree of nullity has been entered, and the words of the section appear tome to provide that in a case where a decree of nullity has been entered theparties may marry again when three months have expired from the dateof the decree without any appeal therefrom, or if there is an appeal uponthe confirmation, of the decree of nullity by the Appeal Court. The words,“ any such decree ” in that section appear to my mind to refer to thedecree of nullity and not to the decree nisi, because with regard to adecree nisi, it is expressly provided that the parties may marry again onthe decree being made absolute. The proviso to that section contemplatestwo cases : (1) the case of an appeal to Her Majesty in Council, and (2) to acase where in appeal the order of the District Court refusing to dissolvethe marriage has been set aside, and the Court of Appeal orders that themarriage be dissolved. The section is, perhaps, not very happily wordedbut in view of the requirement in section 605 that a decree nisi should bemade absolute on the conditions set .out in that section, I do not thinkthe party to a marriage in respect of which a decree nisi has been enteredis entitled in any circumstances to marry again until the decree nisi hasbeen made absolute.
There seems to me to be another difficulty in the way of the appellant.Her application now is that the order making the decree absolute shouldbe made nunc pro tunc. Such orders are sometimes made by Courts oflaw, but in practice such an order will not be made in a case where theinterests of other parties may be affected by the order. If as I venture tothink it was not lawful for the first defendant to marry again till her marriagewith the plaintiff had been dissolved, either by order absolute or by thedeath-of the plaintiff, then in the testamentary proceedings with regardto the estate of the second defendant, she would not be a person who isentitled to succeed as a widow of the second defendant. The heirs of thesecond defendant would be such- persons as are entitled in law to succeedto his estate on the footing that he was not legally married. On thedeath of the second defendant, certain rights would devolve on his heirson that footing, and the rights claimed by Mr. Weerasooria’s clients willclearly be affected by an order dissolving the marriage between theplaintiff and the first defendant, as such order is made to date previous tothe death of the plaintiff. The question would also arise whether the
Nesadvray v. Amarasinghe.
Court would have power to enter such an order in a case where themarriage has already been dissolved by the death of the plaintiff. In myopinion, the learned District Judge was right in refusing the application,and L would accordingly dismiss the appeal.
Moseley J.—I agreed.
SATHIYANATHAN v. SATHIYANATHAN