024-SLLR-SLLR-1985-V1-MILTON-v.-BABY-NONA-AND-OTHERS.pdf
MILTON
v.
.BABY NONA AND OTHERS
SUPREME COURT.
WIMALARATNE, J.. ABDUL CADER. J AND TAMB1AH. J.
S.C. APPEAL No. 27/84 – C.A. / L.A. (S.C.) 6/84-CA. 316/78 (FJ- D.C.GAMPAHA 1123/T.
MARCH 11, 12 AND 28. 1985.
Adoption – Adoption of Children Ordinance – Sections 2 (2), 13. 6-Adoption ofChBdren Rules – Effect of adoption order – Can adoption order made on the jointapplication of two persons whose marriage is declared a nullity be subject to collateralattack?
One Mudiyanse married Baby Nona in 1931 but deserted her after one year and wasnot thereafter heard of and thought by her to be dead. On 22.1.1954 Baby Nonamarried Peter Appuhamy and in the marriage certificate her civil status is described as'separated wife* of Mudiyanse. On a joint application by Pater Appuhamy and BabyNona as husband and wife the Court of Requests of that time made an Adoption Orderin respect of the child Milton then four years old as the qualifications in regard to ageand residence were fulfilled and there was prima fade evidence of marriage. PeterAppuhamy and Baby Nona were named as the adopters in the Order. Peter Appuhamydied intestate on 2.2.1972 and Baby Nona instituted the present testamentaryproceedings in respect of his estate claiming letters of administration as widow – theonly other heir being the adopted child Milton. The 2nd to 4th respondents objected toletters being granted to Baby Nona and contended that Baby Nona was not lawfullymarried to Peter Appuhamy and that Milton was not their child. The District Judgehowever granted letters to Baby Nona. In appeal the Supreme Court set aside the orderof the District Judge as Baby Nona had not obtained a divorce from Mudiyanse and thelatter was still alive but left it open to Milton to apply for letters at the resumed inquiry.Milton then applied for letters as lawfully adopted son and heir of the deceased PeterAppuhamy. The 2nd to 4th respondents challenged the validity of the adoption orderon the ground that Peter Appuhamy and Baby Nona were not lawfully married and theirapplication for adoption was bad. The District Judge upheld the validity of the adoptionorder and directed the issue of letters of administration to Milton. In appeal before theCourt of Appeal it was argued for Milton that a collateral attack on the adoption orderwas not permissible and the marriage between Peter Appuhamy and Baby Nona being aputative marriage the principle that the natural children of a putative marriage arelegitimate should be extended to cover an adopted child. The Court of Appeal howeverheld that as the marriage between Peter Appuhamy and Baby Nona was a nullity theadoption order was also a nullity as only spouses were entitled to make a jointapplication or adoption under s. 2 (2) of the Adoption Ordinance. The order of theDistrict Judge was set aside and the application of Milton for letters was dismissed.
rtvKI —
The error here of entering an adoption order on the joint application of two personswhose marriage has been declared a nullity is one committed within jurisdiction and bya competent court. Such an order is voidable and not void and therefore collateralattack of the order in different proceedings by third parties is not permissible. *
The District Judge was right in issuing letters of administration to Milton.
Cases referred to:
Re Skinner (an Infant) [1948) 1 AUER 917. 918.
Hrictay Nath Roy v. Ram Chandra Bama Sarma AIR 1921 Calcutta 34 (F.B.).
{3) Re (Infants) Adoption Orders: (Validity) [1977] 2 ALL ER 777.
F. v. F. [1970] 1 All ER 200.
P. v. PandJ{1971] 1 All ER 616.
Christina and Three Others v. Cecitin Fernando (1962] 65 NLR 274.
|7| Permanent Trustee Company of New South Wales Ltd. v. Council of theMunicipality of Campbelltown and Another 105. Commonwealth Law Reports401.
APPEAL from judgment of the Court of Appeal.
H. L de Silva. P. C. with A. L M. de Silva lor 1 st respondent-appellant.
J.W. Subasinghe, P. C. with S. Gunasekera. and Miss. S. M. S. Edirisinghe, for 2nd,3rd and 4th respondent-respondents.
Cur. adv. vuit.
May 8,1985.
TAMBIAH, J.
This case depends on the interpretation of s. 2 (2) of the Adoption ofChildren Ordinance (Cap. 61), which reads as follows :
‘No Adoption Order shall be made authorising two or morepersons to adopt a child : Provided, however, that the Court may,on application made in'that behalf by two spouses jointly, make anAdoption Order authorising the two spouses jointly to adopt achild'.,
S. 13 (2) of the Ordinance provides for the making of rules by theJudges of the Supreme Court prescribing the manner in whichapplications to the Court are to be made and the procedure to be
followed in the hearing of such applications. The Court havingjurisdiction to make an adoption order is the Court of Requests havingjurisdiction in the place at which the applicant, or the child in respectgf whom the application is made, resides (s. 13(1)). For the purposeof any application, the court shall, subject to any rules made under thissection, appoint some person or body of persons to act as guardianad litem of the child upon the hearing of the application with the dutyof safeguarding the interests of the child before the Court (s. 13 (4)).
The Adoption of Children Rules (Subsidiary Legislation 1956, Vol.2, Ch. 61) provides :.
When a guardian ad litem has been appointed, the duplicate ofthe application shall be served on him (Rule 5 (1)). The Court shallfix a time for the hearing of the application and shall notice, amongstothers, the child in respect of whom the application is made and theguardian ad litem, of the day so appointed (Rule 5 (2)).
It shall be the duty of the guardian ad litem to investigate as fullyas possible all the circumstances of the child and the applicant, andall other matters relevant to the proposed adoption, with a view tosafeguard the interests of the child before the Court (Rule 7).
The effect of the adoption order is stated in s. 6 (1):
'Upon an adoption order being made, all rights, duties,obligations and liabilities of the parent or parents, guardian orguardians of the adopted child in relation to the future custody,maintenance and education of the adopted child including all rightsto appoint a guardian or to consent to the marriage of the child, orto give notice forbidding the issue of a certificate for thesolemnisation of such marriage shall be extinguished ; and all suchrights, duties, obligations and liabilities shall vest in and beexercisable by and enforceable against the adopter as though the.adopted child was a child born to the adopter in lawfulwedlock'
In England, there are identical provisions (Adoption of Children Act,1926, and the rules made by the Lord Chancellor under the Act) andLord Greene, M. R. in Re Skinner (an Infant^(1) commenting on thoseprovisions observed (p. 918):
'It is to be observed that the effect of the adoption order isserious and fundamental. It divests the infant of its legal rightsagainst its natural parents. It deprives the natural parents of theirlegal rights in respect of the infant and confers on the infant legalrights against the adopting parties as though they were the naturalparents. It is obvious that the legislature, in view of the seriouseffect on a child of an adoption' order; has taken the appropriatemethod of ensuring that the interests of the child shall be protected.The child is to be a party to the application on which the order is tobe made and a guardian ad litem is to be appointed, charged withthe duty of making all investigations relevant to the welfare of thechild in connection with the proposed adoption. The adoption order,therefore, when made, is not a mere order operating inter partesand affecting only the status of the new adopters. It is essentially athing which alters the status of the infant who is the person primarilyaffected and interested. The adopting parents, of course, getvarious advantages. They get what is no doubt, the valuablesentimental advantage of being able to bring up a child. They get theadvantage that the child, by the adoption order, incurs certainobligations towards them as though they were the natural parents.Nevertheless, the person primarily affected by the order isundoubtedly the child. The order does not affect the status of thetwo parties, except in the sense that they acquire the liabilities of anatural parent and the rights of a natural parent*.
Bearing in mind that an adoption order is essentially a thing whichalters the status of the infant who is the person primarily affected, Iapproach the problem that has arisen in this case. The facts arethese:
Baby Nona, the petitioner-respondent-respondent, had married oneMudiyanse in 1931. Mudiyanse had deserted Baby Nona one yearafter marriage and since then she had not heard of him and thought hewas dead. On 22.01.1954 she married one Peter Appuhamy and themarriage was registered. In the marriage certificate, her civil statushas been described as ‘separated wife" of Mudiyanse. The 2ndrespondent, a brother of Mudiyanse. has stated in evidence thateverybody in the village accepted them as husband and wife. Theymade a joint application, as husband and wife, to the Court of.Requests, Colombo, to adopt Mitton, the 1strespondent-respondent-appellant in this case, and the Court made theAdoption Order on 03:07.1954. Milton was Peter Appuhamy'ssister's son and on the date of the adoption order, he was about fouryears old. The Court directed the adoption to be entered in theAdoption Register which has to be kept under the Ordinance and thiswas done. The Certificate of Adoption issuedhby the Registrar-Generalsets out the name of Milton as the adopted child and the names of theadopters as Peter Appuhamy and his 'wife' Baby Nona.
Peter Appuhamy died intestate on 02.02.1972 and Baby Nonainstituted testamentary proceedings on 27.03.1972 in respect of theestate of Peter Appuhamy. She claimed letters on administration onthe basis that she was the widow of the deceased and also disclosedthe appellant as being the only child.
The 2nd to the 4th respondents-appellants-respondents objected tothe issue of letters on the ground that Baby Nona was not lawfullymarried to the deceased and further, that the appellant was not a childof the union between her and the deceased, and counterclaimedletters as brothers of the deceased. After inquiry, the learned DistrictJudge held that Baby Nona was entitled to letters as widow of thedeceased. The 2nd to the 4th respondents appealed to the SupremeCourt and the Supreme Court by its judgment of 31.08.1976 setaside the order of the District Judge, holding that as .Baby Nona hadmarried Mudiyanse in 1931 and that at the time she purported tomarry the deceased in 1954, Mudiyanse was alive, and as there wasno evidence that she, although living in separation from Mudiyanse,was divorced from him, she was not the widow of the deceased and assuch, not entitled to letters of administration. The Supreme Courtthereafter remitted the case to the District Court to ascertain who wasentitled to letters and the Court also observed that 'it will be open tothe 1 st respondent (the present appellant) the adopted child, if he sodesires, to make an application for letters of administration at theresumed inquiry.'
On 27.09.1977, the appellant applied for letters of administrationon the basis that he was the lawfully adopted son of the deceased andthe sole heir to the estate. The 2nd to the 4th respondents objected
and denied that the appellant was the lawfully adopted son of thedeceased and further stated that as the marriage between Baby Nonaand the deceased was invalid in law, they were not entitled to make ajoint application for adoption, and counterclaimed letters forthemselves as brothers of the deceased. The main issue at tlfbresumed inquiry was whether the adoption order was valid in view ofthe fact that the marriage between the deceased and Baby Nona (bothof whom are joint adopters) was held to be invalid. The learned DistrictJudge upheld the adoption order and directed that letters ofadministration be issued to the appellant as the adopted son of thedeceased.
The 2nd to the 4th respondents appealed tq the Court of Appeal. Itwas argued for the present appellant, (1) that it was not open to the2nd to the) 4th respondents to attack the validity of the adoptioncollaterally in these proceedings, (2) that the marriage was registeredand the parties had contracted the marriage in the honest belief thatthere was no legal impediment to their getting married; it was aputative marriage. The principle that the natural children of a putativemarriage are considered to be legitimate should be extended to coverthe case of an adopted child.
The Court of Appeal by its judgment dated 09.02.1984 held thatunder s. 2 (2), a Court has no power to entertain a joint application toadopt a child unless it be by the husband and wife, and that a court isnot competent to make a joint adoption order except in favour of ahusband and wife. The parties never stood to each other in therelationship of husband and wife. S. 2 (2) is a mandatory provision andthe adoption order has been made in violation of s. 2 (2) and thereforea nullity ; it is open to the 2nd to the 4th respondents to show that theorder is a nullity in the instant proceedings. The Court of Appeal furtherheld that as the adoption order is void and of no legal effect, theprinciple that the'natural children of a putative marriage are consideredto be legitimate would have no application to the circumstances of thiscase, and that the extension of the principle to cover the case of anadopted child did not arise for consideration. The Court of Appeal setaside the order of the learned District Judge, dismissed the applicationfor letters of administration and remitted the case to the District Courtfor a consideration of the application of Jthe 2nd to the 4threspondents for letters of-administration.
Though the Court of Appeal granted leave to the appellant to appeal
to this Court from its decisions on both matters, learned President's
Counsel for the appellant did not seek to canvass the finding of the
Court of Appeal on the 2nd matter.
•
While learned President’s Counsel for the appellant contends that exfacie, the adoption orcjer is a valid order and cannot be attackedcollaterally in these testamentary proceedings, learned President'sCounsel for jthe 2nd to the 4th respondents contends that s. 2 (2) is amandatory provision, and that a contravention of the section rendersthe adoption order a nullity and therefore can be attacked collaterally.
In Hriday Nath Roy v. Ram Chandra Bama Sarma (2) Mookerjee, A.C. J. observed (pp. 36, 37):
"'Since jurisdiction is the power to hear and determine, it doesnot depend either upon the regularity of the exercise of that poweror upon the correctness of the decision pronounced, for the powerto decide necessarily carries with it the power to decide wrongly as
well as rightly.A court has jurisdiction to decide wrong as
well as right. If it decides wrong, the wronged party can only takethe course prescribed by law for setting matters right; and if thatcourse is not taken, the decision, however wrong, cannot be
disturbed There is a clear distinction between the
jurisdiction to try and determine the matter, and the erroneousaction of such Court in the exercise of that jurisdiction. The formerinvolves the power to act at all. while the latter involves the authorityto act in the particular way in which the Court does act. Theboundary between an error of judgment and the usurpation ofpower is this : the former is reversible by an Appellate Court within a- certain fixed time and is therefore only voidable, the latter is anabsolute nullity. When parties are before the Court and present to ita controversy which the Court has authority to decide, a decisionnot necessarily correct but appropriate to that question is anexercise of judicial power or jurisdiction. So far as the jurisdiction.itself is concerned, it is wholly immaterial whether the decision uponthe particular question be correct or incorrect. Were it held that theCourt had jurisdiction to render only correct decisions, then eachtime it made an erroneous ruling or decision, the Court would bewithout jurisdiction and the ruling itself void. Such is not the law,and it matters not what may be the particular question presented foradjudication, whether it relates to the jurisdiction of the Court itself
„ . .. . • ■
or affects the substantive rights of parties litigating, it cannot be held
that the ruling or decision itself is without jurisdiction or is beyondthe jurisdiction of the Court. The decision may be erroneous, but jtcannot be held to be void for want of jurisdiction. A Court may havethe right and power to determine the status of a thing and yet mayexercise its authority erroneously ; after jurisdiction attaches in anycase, all that follows is exercise of jurisdiction, and continuance ofjurisdiction is not dependant upon the correctness of the
determinationIt is plain that however erroneous the order
may be, it is not an order made by a Court without jurisdiction ; it is.on the other hand, an order made by a Court of competentjurisdiction acting with material irregularity in the .exercise of itsjurisdiction. The order cannot consequently be deemed null andvoid. The party aggrieved may directly impugn the order, and may,in an appropriation proceeding, invoke the aid of a superior tribunalto set aside the order. …:.. but till it has been so vacated, it isoperative between the parties and cannot be ignored or challengedcollaterally in a different proceeding.'
In Re Skinner (an Infant} (supra),on 19.07.1937, S gave birth to achild. On 12.11,1941, she went through a ceremony of marriagewith C. On 06.06.1942, S and C presented a petition in the CountyCourt for an adoption order in respect of the infant under s. 51 (3) ofthe Adoption of Children Act, 1926, which reads-
"Where an application for an adoption order is made by twospouses jointly, the Court may make the order authorising the twospouses jointly to adopt, but save as aforesaid no adoption ordershall be made authorising more than one person to adopt an infant.'
The adoption order was made on 16.07.1942. On 09.09.1947, Cwas convicted of bigamously marrying S and sent to prison! Ondischarge, he left S and refused to support the child. On 13.11.1947,S complained to Edmonton Petty Sessions that she was the mother ofthe infant and that C was the guardian and she was desirous of havingthe legal custody of the infant. The Justices gave the legal custody ofthe child to S and adjudged C to be the guardian of the child andordered C to pay 10s. a week for the child’s maintenance. C appealedand Vaisey, J. discharged the maintenance order on the ground thatthe adoption order was invalid. He took the view that as S had statedbefore the Justices that C had bigamously married her, she could not
be heard to assert the validity of the adoption order, because by thatstatement she was asserting a state of facts, which, if it existed,>yould have deprived the County Court, under S. 1 (3) of the Adoptionof Children Act, 1926. of the jurisdiction to make the adoption order.The Court of Appeal, on an appeal from the order of Vaisey J.. heldthat the justices had jurisdiction to make the maintenance order on thebasis that the adoption order was valid.
Lord Greene, M. R. said (pp. 918, 919, 920):
“The adoption order was made on July 16, 1942. It was made onreading the petition which contains allegations that the parties arespouses and on reading the affidavits. The Court heard the solicitorfor the petitioners, and it heard Mr. Brace as guardian ad litem. Theorder recites that the judge was satisfied that the allegations in thepetition were true. He was satisfied with the undertaking of WilliamJames Carter and Margaret Rose Carter, described as his wife, as tothe provision to be made for the infant that it should be adopted. Itwas further stated that all the requirements of the Adoption ofChildren Act, 1926, had been complied with. He, therefore, madethe order authorising the adoption and directing the adoption to be
entered in the register which has to be kept under the Act
That solemn and important order was made in accordance with thedirections of the Act and rules, after careful and responsibleinvestigation into the question of the benefit to the infant by anofficer of the local authority as the guardian ad litem, and onevidence which, on the face of it, was adequate arid sufficient to
found jurisdictionThe adoption order had never been set
aside or pronounced to be void by any competent Court
think myself the more probable view is that the justices took what, inmy opinion, is the correct view, viz., that they had no jurisdiction todisregard the order of the county court judge so long as that order
stoodIt is not for us to consider here by what procedure, if
any, the adoption order could be got rid of on the ground that it wasmade without jurisdiction. It may be that the only remedy iscertiorari. It may be that either of the petitioners or the infant couldget leave to appeal to this court out of time, if they were out of
time. . Assuming that the order can be challenged by
appropriate process, it was not competant, in my opinion, for thejustices to challenge it.'
Sommerville, L J. said (p.921):
'I agree that the justices had jurisdiction to make the order whichthey did. viz., an order on the basis that the adoption order wa%valid. The foundation of the submission of Counsel for the defendantis that under the terms of s. 1 (3) of the Adoption of Children Act,1926, where an order is made on the basis that the two personsasking for it are spouses and it subsequently turns out that they arenot spouses, the order is invalid without any further declaration byany competant court and can, or must be, disregarded by any courtin which these facts are proved. I think, if one considers this Act as awhole, there is an argument on which l-do nqt desire to express anopinion as I have not formed one, that, notwithstanding thosecircumstances, the order originally made on the basis that the twowere spouses will remain an effective order of which the adoptediryfant can take advantage and under which he or she can maintainhis or her rights. Putting it in another way, a man who has inducedthe court by false representation to give him the right and impose onhim the obligations which he has under the Statute cannotthereafter, possibly to the detriment of the infant adopted, say. 'Itold you what was untrue and, therefore, this order is invalid." I takethe view that an order of this kind is one which courts must treat asvalid unless it is set aside by appropriate procedure. …… This.
in my view, is a valid order and must be regarded as such untilproceedings are taken, if they can be taken, and succeed, expresslydirected to set it aside or getting some declaration as to itsinvalidity*
In Re (Infants) (Adoption Orders: ValidityH3) Mrs. S first marriedMr. F and two children were born respectively on 18.8.1967 and24.02.1969, The marriage was dissolved by decree absolute on06.12.1972. On 13.10.1973, Mr. and Mrs. S got married at theRegistrar's Office, the husband describing himself as a bachelor. On30.4.1974, Mr. and Mrs. S got two adoption orders to adopt the twochildren, their father F giving his consent to the proposed adoption. Atthe time Mr. S married Mrs. S, he was married to another woman buthe believed he had been divorced ; in fact his first marriage was notdissolved until a decree absolute was made on 14.6.1974, so thatthe second marriage was bigamous and therefore void. Consequently,on the date when the adoption orders were made, the adopters werenot .’spouses' within the meaning of the Adoption Act, 1958. S. 1 (2)which reads : 'An adoption order may be made on the application of
two spouses authorising them jointly to adopt an infant; but anadoption order shall not in any other case be made authorising more#than one person to adopt an infant *
In August 1974. the adopters discovered that their marriage wasbigamous and in July 1975. Mrs. S petitioned for a decree of nullity ofher marriage to Mr. S and the purported marriage was annulled by adecree absolute dated 25.02.1976 and three days later Mr. and Mrs.S went through another, and a valid, ceremony of marriage.
Wishing to regularise the status of their children, Mr. and Mrs. Sapplied to the County*Court for directions as to the status and effect ofthe adoption orders of 30.4.1974. The Court took the view that it hadnb power to grant a declaration or to determine the validity of thoseorders and that it was a matter for the higher Court. Mr and Mrs. Sthen applied to the Court of Appeal for leave to appeal out of time toset aside the adoption orders. Mr. and Mrs. S intended to apply fornew adoption orders in respect of. Mrs. S's children. The Court ofAppeal held that the adoption orders of 30.4.1974 are good bn theirface and. therefore, valid until set aside by a competent Court; thatthe proposed appeal is misconceived and dismissed the application forleave to appeal out of time.
The judgment of the Court considered the decision in Re Skinner (anInfant) (supra) and stated (pp. 780, 781, 782, 783, 784) –
"The result of that decision is that an adoption order made by acompetent Court in favour of two persons in the erroneous beliefthat they were lawfully married, that is that they were 'spouses’, isnot a nullity and must be acted on as if it were valid until set aside by
a competent CourtThe decision of this Court in Re Skinner
(an Infant) that the adoption order was not a nullity and that theMagistrate's Court was obliged to treat it as valid until it was setaside is in accordance with the view expressed by Diplock, J^inO'Connor v. Isaacs where he said : 'The order in itself shows thatthere was no jurisdiction. It is an order that is bad on its face, andwhere an order is bad on the face of it, it ceases to have theadvantage which orders, although made without jurisdiction butgood on their face, have, namely, that they are valid and are to betreated as valid until they have been set aside. Authority for that
proposition is to be found in a number of cases'On this
analysis, the adoption o'rders in Re Skinner (an Infant) and in the
present case, all of which were good on their 'faces, were validorders,' unless and until they were set aside by a competent
CourtA decree of divorce purporting to have been
made by a Magistrate's Court, or any order purporting to have beenmade by a court without any jurisdiction over the subject matter,would be bad on its face and therefore a nullity. … The fact of thematter is that in such situations the Court, in exercising its powers tomake adoption orders, has found, expressly or by implication, as afact on the evidence before it, that the adopters were spouses.Such an error of fact would be a ground of appeal against the
adoption order at'the suit of an aggrieved partyThe result,
therefore, is that the adoption orders of 30.04.74 are good on theirface and, therefore, valid until set aside by a competent Court. Ifthey (adopters) or any other relevant party wishes to have the ordersset aside, an appeal out of time would be one way of achieving, ortrying to achieve, that objective. It seems, although we are notdeciding the point, that proceedings in the High Court for a# declaration that orders are valid might.^be a possiblealternative'
The above two English cases support the proposition that anadoption order made in favour of persons bigamously married is validunless and until it is set aside by a competent Court.
Words similar to those used in s. 1 (2) of the Adoption Act, 1958,are to be found in s. 33 {1) (a) of the Matrimonial Causes Act. 1958.which reads : "The Court shall not make absolute a decree for divorceunless it is satisfied as respects every child who is under 16 thatarrangements for his care and upbringing have been made and aresatisfactory or are the best that can be devised in the circumstances,”
In F. v. F. (4) the wife, in 1967, filed a petition Tor divorce on theground of the husband's adultery. The petition set out that there werethree children of the family and.the wife prayed for their custody andfor maintenance for herself and for them. After the petition had beenfiled, the wife gave birth to a child S, but the petition was not amendedto deal with her. the suit was undefended and in July 1967, a decreenisi for divorce was pronounced in the wife's favour. The trial Judgeheard evidence relating only to the three children named in the petitionand was satisfied as to the arrangements made for their welfare. InOctober 1967, the decree absolute was made, the Court still havingno information about the birth of S. In March 1969, the respondent
husband went through a ceremony of marriage with the womannamed in the petition. They had two children born before theceremony. In April 1969, the petitioner filed an affidavit asking for'maintenance for all four children. On a summons by the petitioner toamend her petition to deal with S and asking the Court to examine thearrangements made for S's welfare so that the decree might validly bemade absolute in compliance with s. 33, the summons was dismissedby Court. The Court held that though clearly there has been a failure tocomply with the requirements of s. 33, such failure rendered thedecree absolute 'voidable* and not 'void'. Some of the considerationsthat weighed with Sir Jocelyn Simon P were that if Parliament intendedthat a failure to comply with the provisions of the section rendered adecree absolute void, nothing would have been simpler than so tohave stipulated, and also that to hold that non-compliance with s. 33renders the decree absolute void, would sometimes cause hardship toinnocent 3rd parties ; e.g., a husband petitioner might without anyfault be ignorant of the relevant child's birth ; and, if he had re-marriedon the faith of an apparently valid decree absolute, his after-taken wifeand their children might suffer.
The view, expressed by Sir Jocelyn Simon P was adopted by theCourt of Appeal in P. v. P.and J. (5).
In Christina and Three Others v. Cecilin Fernando (6), therespondent applied for letters of administration to the estate of herdeceased husband. The appellants, claiming to be the lawful heirs ofthe deceased, opposed the application of the respondent on theground that she was not legally married to .the deceased. The basis oftheir claim was that the respondent was previously married to one Mand that in the action for divorce instituted by her against M, thedecree nisi by default after due service of summons was madeabsolute without service of notice of the decree nisi on M. Therespondent married the deceased after she obtained the decreeabsolute for divorce and the marriage was duly registered.
The appellants contended that the decree absolute for divorce wasab initio null and void and of no legal effect whatsoever on account ofnon-compliance with the imperative provisions of s. 85 of the CivilProcedure Code. The respondent contended that the decree absolutewas only voidable at the instance of the defendant in directproceedings and it is not open to collateral attack in other proceedingsat the instance of 3rd parties.
The Supreme Court held that the decree for divorce had beenentered by a Court of competent jurisdiction and, however erroneousor irregular it may have been as between the parties to the action fordivorce, was not open to collateral attack by third parties in othesproceedings.
L. B. de Silva, J. said (p. 277) :
“It must be noted that in the cases cited so far, the finding that theDecree was a nullity, was made in the same case, on the applicationof a party affected. Such an order may be made by the Court thatentered the decree, by an Appellate Court, in Revision, by a writ ofcertiorari or by separate action between the forties concerned, forthat purpose. 3ut we are required to consider if such an order ordecree is open to collateral attack in other proceedings at theinstance of third parties. If such an order or decree was void ab initioand had no legal consequences it could undoubtedly be challengedcollaterally in other proceedings even by third parties, as no one canpossibly claim any rights from such an order or decree."
In Permanent Trustee Company of New South Wales Ltd. v. Councilof the Municipality of Campbelltown and Another (7) the Municipalityserved a notice on the Company under s. 224 (3) of the LocalGovernment Act (N.S.W.) of its intention to take over a strip of land onthe ground that it was a road left in subdivision of private lands and itwas doubtful whether it was a public road or not. S. 224 (3) statedthat where any road has been left in subdivision of private lands beforecommencement of the Local Government Act, 1906, and there existsany doubt as to whether’or not it is a public road, the Council mayserve on the owner of the land comprising the road, notice of intentionto take over the land. If the owner .has any objection, he could appealto the District Court Judge. If no appeal is preferred or if on appeal thejudge so orders, the Council may notify in the Gazette that such road isa public road, and thereupon the road shall be a public road and shallvest in the Council. The Company appealed and the appeal wasdismissed. It then obtained from the Supreme Court of New SouthWales an order nisi directed to the Municipality to show cause why awrit of prohibition should not issue restraining the District Court Judgeand the Municipality from proceeding further and why a writ ofcertiorari should not issue to quash the proceedings on the groundthat the land was not a road within the meaning of s. 224 (3), that the
said land was not a road left in a subdivision of private lands before thecommencement of the 1906 Act. and that the Council's notice wasgiven for a purpose not sanctioned by s. 224 (3). The order nisi wasdischarged.
*
Fullagar, J. said (pp. 407, 408):
"The substantive power given to the Council…. is a power tonotify in the Gazette that any particular land is a public road ….The power is given subject to three conditions. The first is that theland is a. road which has been left in subdivision of private landsbefore the commencement of the Local Government Act, 1906.The second is that there exists a doubt as to whether or not it is apublic road. The third is that notice shall have been served on theowner of the land of the Council's intention to take over theland …. What then has the Judge to decide ? Surely the very thinghe has to decide is whether the three conditions of the exercise ofthe Council's powers are fulfilled …. The three conditions areconditions of the Council's power; they are not conditions of thejudge’s jurisdiction. Their existence is not a collateral matter which ajudge cannot finally determine ; it is the very matter which he isgiven jurisdiction finally to dertermine.'
• t
Menzies, J. said (p. 414):
'The grounds upon which it was, contended that the District Courtjudge had no jurisdiction were in short that St. George's Parade wasnot a road ; that it was not a road left in the subdivisions of privatelands; and in any event that it was so clear that it is not a publicroad that no doubt existed as to whether it is so or not. Theargument was that correct findings as to these matters by theDistrict Court Judge was essential to his jurisdiction so that in theevent of error he was subject to control by the Supreme Court bymeans of one or other of the prerogative writs. I am not prepared toaccept the basis of this argument because it seems to me that thejurisdiction of the District Court Judge cannot be made to dependupon his correctly deciding the matters which the section commitsto his decision.'
In the present case, the application to adopt the appellant wasmade by the deceased Peter Appuhamy 'and his wife*, Baby Nona.Their marriage was registered. It was not an application made, say, byPeter Appuhamy and his brother or sister. The Court which had the
power to hear and determine the application and to make an adoptionorder under the Ordinance was the Court of Requests. The applicationwas presented to the Court of Requests, Colombo. If the subjectmatter of the adoption order is regarded as the application for anadoption order, then, the subject matter was within the jurisdiction bfthe Court of Requests, Colombo. It is not as if the application wasmade to a Magistrate's Court which had no jurisdiction in the matter,and the adoption order was made by it. The adoption order dated03.07.1954 was made by the.Court of Requests, Colombo, and onits direction, the adoption was entered in the Adoption Register. Onthe face of it, the adoption order is good, and, therefore, valid until setaside by a competent Court and this has not been done. The learnedDistrict Judge was therefore right in granting the letters ofadministration to the appellant on the basis that the adoption order
was valid.
!
Learned President's Counsel for the respondents contends that atthe time the adoption order was made, Peter Appuhamy and BabyNona were not 'spouses' within the meaning of s. 2 (2) of theOrdinance, as they were bigamously married ; "that a husband and wiferelationship is a necessary antecedent to the ability of the Court tomake an adoption order, a condition precedent to the exercise of itsjurisdiction to make an adoption order; and that a joint adoption orderin favour of two persons, who are not ‘spouses', is a violation of s.2 (2), which is an imperative provision, and renders the adoption ordera nullity.
erroneously decide that the adopters are 'spouses" or that theadopter or the child has the required age and residence and make theadoption order. In the result, the adoption order itself may be anerroneous order, but, it cannot be said that it is an order made withoutjurisdiction. It is an order made by a Court of competent jurisdictionacting wrongly in the exercise of its jurisdiction. The order becomesvoidable and not void. As was correctly pointed out by learnedPresident's Counsel for the appellant, the Court has to be satisfied notonly that the adopters are spouses but also that the adopter is over 25years, is more than 21 years older than the child, and resident in thiscountry. Suppose the Court made the adoption order in an erroneousbelief as to the age and residence – it turns out later that when theadoption order was made, the adopter was 24 years, was less than21 years older than the child and was resident abroad – does it meanthat non-compliance with the age and residence requirements resultsin the adoption order being a nullity ? It is inconceivable that thelegislature could have intended such a consequence.
The adoption order being voidable and not void, it could only be setaside in direct proceedings and is not open to collateral attack in otherproceedings. The appellant was about 4 years old at the time of theadoption and was an innocent party to the adoption proceedings.What the 2nd to the 4th respondents, who are 3rd parties to theadoption proceedings, are seeking to do. is to impugn the adoptionorder almost 23 years later and in these testamentary proceedings,which are collateral proceedings. This, they cannot do.
The appeal is allowed with costs. I set aside the judgment of theCourt of Appeal dated 09th February, 1984, and affirm the order ofthe learned District Judge issuing letters of administration to theappellant.
WIMALARATNE, J.
I am in entire agreement with the conclusion reached by my brotherTambiah. J., as well as with the reasons for his conclusion.
Section 4 of the Adoption of Children Ordinance imposes a duty onthe Court, before making an adoption order to be satisfied, inter alia,that the order will be for the welfare of the child. Before the Courtmakes an order it considers, in practice, a report from a ProbationOfficer, which report is submitted after a careful investigation. It mustbe presumed that that has been so in this case as well.
Section 6 of the Ordinance deals with the effect of do adoptionorder. An adoption order has the effect of changing the status of achild. This child has been accepted as the adopted Son of PeterAppuhamy and Baby Nona ever since 1954. Even if an adoption ordercould be attacked in collateral proceedings, which I. do not for amoment concede, a Court would be extremely slow to disturb abeneficial status which a person has enjoyed for so long a period.
I would allow this appeal with costs.
ABDUL CADER, J – I agred.
Appeal allowed.