036-NLR-NLR-V-49-FERNANDO-Appellanrt-and-FERNANDO-Respondent.pdf
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Fernando v. Fernando.
1948Present :Howard C. J. and Nagalingam J.
FERNANDO, Appellant, and FERNANDO, Respondent.
8. C. 284—D. C. Colombo, 814t>~
Divorce—Decree nisi entered—Petition by defendant that decree be not made absolute—
Allegation of adultery—Right of Court to entertain petition—Res judicata—
Civil Procedure Code, sections 604 and 207.
In a divorce action decree nisi was entered in favour of the plaintiff. Beforethe decree was made absolute the defendant presented a petition alleging thatthe plaintiff had been guilty of adultery at the time of the action and prayingthat the decree nisi in his favour should not be made absolute. The learnedJudge, after inquiry, held that the plaintiff had been living in adultery anddismissed his action.
Held, that the decree nisi was res judicata between the parties since theplaintiff’s adultery could have been put in issue at the trial.
Held, further, that the words, “any person” in section 604 of the CivilProcedure Code do not include a party to the suit.
IVTAflAT.injftAX J.—Fernando v. Fernando.
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-A.PP~F.AT, from a judgment of the District Judge, Colombo.
H. W. Jayewardene, with Sam Wijesinha, for the plaintiff,appellant.
E. B. Wilcramanayake., for the defendant, respondent.
Cur. adv. wit.
January 29, 1948. Naoaijwgam J.—
The plaintiff appeals from a judgment of the District Judge ofColombo dismissing the action instituted by him for divorce of his wifeon the ground of malicious desertion.
After trial, the learned Judge entered decree nisi in favour of theplaintiff. Before, however, the decree nisi could have been made absolute,the defendant filed petition alleging that the decree pronouncedin plaintiff’s favour should not be made absolute. The plaintiff con-tested the right of the defendant either to present the petition which shehad presented or to adduce evidence in support of the allegationscontained therein at that stage. The learned Judge overruled theobjection and after hearing evidence in regard to the allegation of adulteryreversed the decree nisi and dismissed the plaintiff’s action, holding itestablished that the plaintiff had been living in adultery.
Before proceeding to consider the questions argued on appeal, itwould be satisfactory to set out briefly the salient facts of the case. Theparties were married on March 5,1936. The wife returned to her mother’shouse about three months later, namely, on June 2, 1936, and has eversince lived in separation from the plaintiff. On August 1, 1937, theplaintiff made an application for a Writ of Habeas Corpus for restorationof his wife. At the inquiry the wife alleged that she had found that thehusband was keeping a woman called Ado Nona and that thereforeshe was not prepared to go and live with him. The plaintiff appears tohave made a second application for a Writ of Habeas Corpus and on thatoccasion the wife said she was prepared to go with the husband if heprovided her with a home which would be shared by nobody else. Thehusband agreed to do so and his evidence, which has been accepted bythe trial Judge, is that after renting out a separate house he went andinvited the wife but she refused to accompany him.
Thereafter he commenced divorce proceedings. The wife in her answerdid not plead that the husband was living in adultery, although it is to beremembered that as early as 1937 in the first Habeas Corpus Applicationshe had made an allegation of adultery against him. No issue in regardto it was raised even ore tenus at the trial. No application was madefor a postponement of the trial to enable such a plea to be raised. Thewife, however, in giving evidence expressly stated that she had seen thehusband commit adultery with Alo Nona already-referred to and thatshe had heard that the husband was keeping another woman by thename of Gunawathie. She further deposed that she could producewitnesses to prove the fact of the husband living in adultery with
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NAGAX.INGAM J.—Fernando v. Fernando.
Gunawathie. Even then no application was made for an adjournmentto enable her to do so. She also added that she had given instructionsto her Proctor about both Alo Nona and Gunawathie prior to trial,but she gave no explanation as to why no plea based on adultery was putforward on her behalf.
With reference to the allegation of adultery made in the witness boxby the wife, the Judge in the course of his judgment observed
“ The defendant has stated that the plaintiff is now living inadultery. This has not been pleaded. It was not put to the plaintiffand-beyond the ipse dixit of the defendant, there is no prooof. ”
The question that now arises for determination is whether it was opento the defendant to have moved the Court to try the issue of adulteryafter the pronouncement of the decree nisi and before the date for makingit absolute. Counsel for the defendant conceded that in the ordinaryrun of cases a party would not be permitted to raise a new issue afterjudgment, but he contends that in regard to matrimonial actions thespecial provisions to be found in the Civil Procedure Code enable a partyto pursue such a course without objection. Reliance is placed for thisproposition on section 604 of the Civil Procedure Code which providesthat during the period between the entering of the decree nisi and itsbeing made absolute any person would be at liberty to show cause againstthe decree being made absolute, and it is contended that the words“ any person ” are wide enough to include a party to the suit. Counseldoes not, however, go to the length of arguing that this provision wouldenable a party who had raised a specific issue before judgment and onwhich issue he or she had failed, to invite the Court thereafter to arriveat a different conclusion by placing other and further material before it,He, however, limits his contention to issues which were not raisedbetween the parties prior to judgment. The basis for this distinction israther difficult to follow. Says Counsel that the reason why in theformer case the party would be debarred is that the principle of resjudicata would apply, whereas in the latter it would not ; the doctrine ofres judicata is, however, wide enough to cover both classes of cases.
Section 207, Civil Procedure Code, expressly declares in the explanationto it that every right which can be put in issue between the partieswhether it be actually so put in issue or not, becomes on the passing ofthe final decree a res adjudicata. A common instance of this principle isfurnished by an action for declaration of title to land where a plaintiffafter unsuccessfully seeking to vindicate his right on the basis of docu-mentary title, finds himself confronted by a plea of res judicata on hisattempting to claim the land in a subsequent action, basing his right onprescription. See also the judgment of Wendt J. in BaJban Appu v.Ghineioardene et al. 1 In English Law, too, the principle is identical. Inthe case of Netoington v. Levy 2 Blackburn J. observed at page 193 :—
“ I incline to think that the doctrine of res judicata applies to allmatters which existed at the time of the giving of the judgment andwhich the party had an opportunity of bringing before the Court.”
1 (1907) 10 N. L. R. 167.
•L. R. (1870) C. P. 180.
NAGALDvGAM J.—Fernando v. Fernando.
in
I do not, therefore, think that the distinction sought to be drawn bylearned Counsel for the defendant can be sustained.
The question, however, remains whether apart from the allegeddistinction the words “ any person ” can include a party to the suit.There can be little doubt that ordinarily the term cannot be said to besubject to any limitation or qualification and that it is a term of verywide import. But equally, there can be little doubt that in particularinstances its generality may be restricted by the subject-matter or thecontext. In the present instance, the section proceeds to say that to thepetition presented by “ any person ” the plaintiff and the defendantsshall if reasonably possible be made respondents. It would be noticedthat the words “ the plaintiff ” and “ defendants ” are joined by theconjunctive “ and ” and not by the disjunctive “ or ”, so that the plaintiffand the defendants would all have to figure as respondents and cannotin any circumstances assume the character of a petitioner, for such aparty could not at the same time be a respondent. It is, however, saidthat by the use of the phrase “ if reasonably possible ” the Legislatureintended to include the case of one of the parties to the suit as by the useof this phrase the Legislature has recognised that it would not be possibleto make the petitioner a respondent. I do not think that this is themeaning to be attached to the phrase in this context, for if that was theintention, more apt and direct language could have been used.
Section 604 of our Code is substantially the same as section 7 of theEnglish Matrimonial Causes Act, 1860 (23 & 24 Viet. Cap. 144) where,too, the words “ any person ” occur. This has been subsequentlyrepealed by the Supreme Court of Judicature (Consolidation) Act, 1925(15 & 16 George V. Cap. 49) which substantially re-enacts this provisionin section 183 thereof, where, again, the words “ any person ” are retained.
In construing the English provision, the English Courts have con-sistently refused to interpret the words “ any person ” as including aparty to the suit. In Stoate v. Stoate1 the respondent against whom adecree nisi for dissolution of marriage had been pronounced was heldnot entitled to show cause against the decree being made absolute. InHarries v. Harries and Gregory2 a co-respondent who had entered appear-ance in a divorce suit but did not defend the action was not permitted tointervene after the decree nisi to show cause against the decree beingmade absolute. In fact, even on the ground of the discovery of freshevidence after trial, a party to the suit has not been permitted tointervene after decree nisi. See Hcnvarth v. Howarth 3 where a husbandwho unsuccessfully contested the action of the wife was denied the rightto intervene on his allegation that he had discovered fresh evidence afterthe entering of the decree nisi. Furthermore, where the Court wassatisfied that the intervention of a member of the public was at theinstance of one of the parties it refused to recognise it (Forster v. Forsterand Berridge4 and Clements v. Clements and Thomas s).
In the lower Court the principal reason for construing the words “ anyperson ” as including a party to the suit appears to have been that as
1 (1861) 2 Sto. dk Tr. 384.» (1884) 9 P. D. 218.
* (1901) 86 L, T. 262.‘ (1863) 3 Sid. <fc Tr. 151.
(1864) 2 Sw. A Tr. 394.
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NAQALENGAM J.—Fernando v. Fernando.
there is no official here corresponding to the King’s Proctor in Englandany other construction would leave a party with no remedy, while inEngland such, a party would have been able to move the King’s Proctorto intervene. But even in England, instances are not unknown where theKing’s Proctor though moved by a party refuses to act in the matter.What, then, is the position of such a party ? Is the party in thosecircumstances entitled to apply to the Court for relief direct * Thisquestion has been answered in the negative in the case of Pattenden v.Pattenden1 where, after decree nisi had been pronounced on the husband’spetition, the Queen’B Proctor intervened on information furnished by thewife but subsequently withdrew his intervention, the Court refused toentertain an application by the wife in person. I do not thereforethink that the absence of an official corresponding to the Bang’sProctor in Ceylon can be said to compel one to hlod that a party to thesuit can be included in the term “ any person ” in the context in whichit appears in section 604 of the Civil Procedure Code.
This question is not without authority in our own Courts, though,no doubt, it did not arise in the specific form it arises in this case. InJjwcy Nona v. Bandara 2 in regard to the question whether a decree nisientered under section 604 is a final decision within the meaning of theAppeals (Privy Council) Ordinance, 1909, Schneider J. said :
“ The language of section 604 indicates that the decree nisi is a finaldecision of this Court in regard to parties to that decree and that theperiod of three months during which it is not to be made absolute is-provided with a view to enable others than the parties to the actionto show cause against the decree being made absolute,”
I therefore reach the view that by reason of the principle of res judicataand on a proper construction of section 604 of the Civil Procedure Codethe defendant should not have been permitted, after the passing of thedecree nisi, to set up the defence that the plaintiff, was guilty of adultery.
It is also to be observed that this is not a case where it could even besaid that the defendant became aware of the facts she sought to laybefore Court only after the conclusion of the trial. She had knowledgeof those facts anterior to the date of trial, and for reasons of her ownshe chose to withhold them. In view of the conclusions reached by meon this question, it is hardly necessary to enter upon a discussion of theadequacy of the evidence lod to establish the adultery of the plaintiff.Suffice it to say that the best evidence was not placed before Court, andthe alleged adultery of the plaintiff is not free from doubt.
I would therefore set aside the order of the District Judge and directthat the decree nisi be made absolute. As this is an action by thehusband against the wife, I make no order as to costs either of appeal orof the proceedings in the lower Court.
Howard C.J.—I agree.
Appeal allowed.a (1923) 5 Ceylon Law Recorder 17.
19 L.T. 612.