Peiris v. Peiris
Peiris v. Peiris
COURT OF APPEAL
SOZA. J. AND RANASINGHE, J.
CA (S.C.) APPLICATION NO. 802/77—D.C. COLOMBO D/2203/SPL.
SEPTEMBER 26, 1973.
Administration of Justice (Amendment) Law, No. 25 of 1975, sections 26,626 (1), 670—Action for declaration of nullity of marriage—Whetherlimited to grounds set outl in the Marriage Registration Ordinance—Procedural and not substantive law—Roman Dutch Law relating tonullity still applicable—Civil Procedure Code, section 607 (2)—Ct»il
Procedure (Special Provisions) Law. No. 19 of 1977, sections 4(1), 5(1)
Applicability of Cwil Procedure Code to pending actions after amendingLaw No. 19 of 19 77.
Sri Lanka Law Reports (1978-79) 2 S.L.R.
The plain.iff filed action in the District Court seeking a decree declaringher marriage with the defendant null and void on the grounds of lackof consent and duress. The defendant did not file answer and the trialwas held ex-parte. After trial the learned District Judge dismissed theaction holding inter alia, that the grounds on which nullity of marriagewere being sought did not fall with those set out in the MarriageRegistration Ordinance as contemplated by section 626 (1) of theAdministration of Justice (Amendment) Law, No. 25 of 1975.
That when section 626(1) of the Administration of JusticeLaw empowered the District Court to enter a decree of nullity ofmarriage on any ground set oult in the Marriage Registration Ordinance,this did not expressly exclude the other grounds recognized by theRoman Dutch Law as being adequate to found a suit for nullity ofmarriage. The Court could still exercise its matrimonial jurisdiction inits fullest ampulitude although the procedural provisions in regard tothe grounds of nullity, unlike the wide language of section 607 (2» ofthe Civil Procedure Code, covered only those set out in the MarriageRegistration Ordinance.
That in any event after the coming into force of the Civil Proce-dure (Special Provisions) Law, No. 19 of 1977, the matter could bedealt with on the basis that section 607 of the Civil Procedure Codewas operative at the date of trial inasmuch as section 4(1> of this Lawenacted that the Civil Procedure Code shall be deemed to be and tohave been in operation as if the same had not been repealed, and section5(1) stated inter alia, that every action, pending in any civil Court onthe day immediately preceding 29th November, 1977, shall be continuedand proceeded with to final judgment as if such action had been insti-tuted under the provisions of the Civil Procedure Code.
Cases referred to
(1) Gunatilleke v. Millie Nona, (1937) 33 N.L.R. 291.
APPLICATION in revision from the District Court, Colombo.
N. S. A. Goonetilleke, for the petitioner.
No appearance for the respondent.
. .Cur. adv. vult.
October 03, 1978.
This is a suit where the plaintiff seeks a decree declaring hermarriage with the defendant null and void. She has founded hersuit on two main grounds, namely, lack of consent and duress.The defendant did not file answer and the case went to trial exparte. The learned District Judge dismissed this action holdingagainst the plaintiff on the question of consent and also that thegrounds on which nullity of marriage was being sought did notfall within those set out in the Marriage Registration Ordinance.
On 19th August, 1977, when the learned District Judge madeJhis order the Administration of Justice (Amendment) Law, No. 25of 1975, was in force. In regard to suits for declaration of nullityof marriage there was action 626 of this law. Subsection (1) ofthis section provided as follows:
** A marriage may be dissolved or declared null and voidif the Court is satisfied that any of the grounds for dissolutionor nullity set out in the Marriage Registration Ordinance hasbeen proved to exist. ”
Peiris v. Peiris (Soza, J.)
In terms of this section a declaration of nullity of marriagecould be sought on such grounds as are set out in the MarriageRegistration Ordinance. Under this Ordinance the provisionsempowering a Court to pronounce on the validity of a marriageare—
Section 15, where either party to the marriage is below
the prescribed age;
Section 16, where the parties to the marriage are
within the prohibited degrees of relationship;
(hi) Section 18, where either of the parties has contracted aprior marriage not yet legally dissolved or declaredvoid;
fiv) Section 46, where the parties knowingly and wilfullyintermarry under the provisions of the Ordinance inany place other than that prescribed by the Ordinanceor under a false name or names, or except in cases ofdeath-bed marriages under section 40, withoutcertificate of notice duly issued, or knowingly or wil-fully consent to or acquiesce in the solemnization ofthe marriage by a person who is not authorized tosolemnize the marriage.
Prior to the enactment of the Administration of Justice(Amendment) Law, No. 25 of 1975, section 607 (2) of the CivilProcedure Code provided that a decree of nullity could be made"on any ground which renders the marriage contract between theparties void by the law applicable in Ceylon The law applicableto this question was the Roman Dutch Law—see, for instance,the case of Gunatilleke v. Millie Nona (1).
The Administration of Justice (Amendment) Law, No. 25 of1975, it must be remembered, enacted procedure and not subs-tantive Law. Section 626(1) empowers the District Court toenter a decree of nullity of marriage on any ground set out inthe Marriage Registration Ordinance. But this sub-section doesnot expressly exclude the other grounds recognised by the Ro-man Dutch Law as being adequate to found a suit for nullity ofmarriage. Further, section 26 of the Administration of JusticeLaw, No. 44 of 1973, confers on the appropriate District Courtjurisdiction in all matrimonial matters. An action for nullity ofmarriage is a matrimonial' matter—see the definition given insection 674 of the Administration of Justice (Amendment) Law,'No. 25 of 1975. The District Court is thus empowered to adminis-ter the entire matrimonial law of the land and this includes the
Sri Lanka Law Reports (1978-79) 2 S.L.R.
Roman Dutch Law relating to nullity of marriage. Althoughsection 626(1) of the Administration of Justice (Amendment)Law makes no procedural provisions in regard to grounds ofnullity other than those set out in the Marriage RegistrationOrdinance, still this will not hamstring the Court from exercisingits matrimonial jurisdiction in its fullest amplitude. The lawwill not fail for want of a procedure. Section 670 of the Admin-istration of Justice (Amendment) Law saves the inherent powersof the Court to make such orders as may be necessary for theends of justice. We are of the view that the provisions ofsection 826 (1) of this law do not exclude the Roman Dutch Lawrelating to nullity of marriage despite the absence of the widelanguage of section 607 of the Civil Procedure Code and of spe-cific procedural provisions.
Today however, the matter will have to be iewed from theangle that the Civil Procedure Code (by the Civil Procedure(Special Provisions) Law, No. 19 of 1977) is deemed never to havebeen repealed. Section 4(1) of this law states that the provisionsof the Civil Procedure Code shall for all purposes be deemed tohe and to have been in operation as if the same had not beenrepealed and continue to be the law governing the procedure andpractice in civil courts Section 5 (1) of this law states that everyaction, application or other matter pending in any civil court,original or appellate, on the day immediately preceding theappointed date (29th November, 1977) shall be continued andproceeded with to final judgment, completion and execution asif such action, application or other matter had been instituted ormade under the provisions of the Civil Procedure Code. Underthese provisions therefore we can deal with this matter on thebasis that section 607 of the Civil Procedure Code was operativeat the date of the trial. By this section a decree for nullity ofmarriage can be pronounced on any ground which renders amarriage contract between parties void by the law applicablein Ceylon. Under the Roman Dutch Law which is applicable tothis question duress, mistake, fraud and immaturity are groundson which nullity of marriage can be sought—see Lee : RomanDutch Law, 5th Edition page 93.
The learned District Judge did not proceed to consider theground of duress because he felt himself bound by hisinterpretation of provisions of section 626 of the Administrationof Justice (Amendment) Law, No. 25 of 1975. On the evidence"that has been led we are of opinion that the plaintiff is entitled toa decree nisi in her favour. We therefore set aside the judgementand decree of the learned District Judge dated 19th August, 19'. 7
Moosajees Lfd. v. Insurance Corporation
and send the case back for the learned District Judge to enterdecree nisi in favour of the plaintiff and to take necessary stepsthereafter.
KANASINGHE, J.—I agreeApplication allowed.
Peiris v. Peiris