Baby Nona v. Milton
MILTON AND 3 OTHERS
COURT OF APPEAL
ATUKORALE. J (PRESIDENT) AND T. D. G. DE ALWIS, J.
C.A 315/78 (F) ; D.C. GAMPAHA -1123/T.
NOVEMBER 7. 1983.
Testamentary action – Issue of letters of administration – Adoption Ordinance,section 2 (2) – Definition of term 'spouse' – Requirement that joint applicationshould be by 'spouses', whether mandatory – Whether adoption order can bechallenged in collateral proceedings.
On the death of one Peter Appuhamy, the petitioner-respondent applied for lettersof administration on the basis that she was the widow of the deceased. The 2nd to4th respondents objected to the issue of letters on the ground that the petitionerwas not lawfully married to the deceased. After inquiry the District Court held thatthe petitioner was entitled to letters as the widow of the deceased. In appeal, theSupreme Court set aside the order of the learned District Judge and held that thepetitioner was not the widow of the deceased and as such was not entitled toletters of administration. The case was remitted to the District Court to ascertainwho was entitled to letters. The 1 st respondent then applied for letters on the basisthat he was the adopted son of the deceased. The 2nd to 4th respondents objectedonce again and challenged the adoption order. The learned District Judge upheldthe adoption order and directed that letters be issued to the 1st respondent as theadopted son of the deceased. The contesting respondents appealed from thisorder.
The word 'spouses' in the proviso to section 2 (2) of the Adoption Ordinanceread with section 17 means husband and wife.
Section 2 (2) is a mandatory provision of law. A court has no power to entertaina joint application to adopt a child unless it be by husband and wife. Similarly, acourt is not competent to make a joint adoption order except in favour of a husbandand wife.
The petitioner and the deceased never stood to each other in the relationship ofhusband and wife, and therefore the adoption order was in contravention of section2 (2) of the Adoption Ordinance and is of no legal effect.
It is not necessary that an adoption order be set aside in the very proceedings inwhich it was made.
Cases referred to
Fernando v. Fernando (1968) (70 N.L.R. 534).
Macfoyv. United Africa Co. Ltd. (1961) 1 AIIE.R. 1169.
Sri Lanka Law Reports
 1 S.L.R
APPEAL from an order of the District Court of Gampaha.
J. W Subasmghe, S. A. with Miss. E M. S. Edirisinghe for the 2nd. 3rd and 4threspondent -'appellants.
P. A D. Samarasekera with A. L. N. de Silva for the 1st respondent-respondent.Petitioner-respondent absent and unrepresented.*
Cur. adv. vult.
February 9. 1984.
ATUKORALE, J. (President)
This is a testamentary action in respect of the estate of one PeterAppuhamy who died intestate on 2.2.1972. It was originallyinstituted by one Baby Nona (the petitioner) who claimed letters ofadministration on the basis that she was the widow of thedeceased. The 1st respondent is one Milton who, the petitioneralleged in her petition, was the only child of the union. The 2nd, 3rdand 4th respondents (hereinafter referred to as the contestingrespondents) objected to the issue of letters on the ground that thepetitioner was not lawfully married to the deceased. They alsodenied that the 1st respondent was a child of the deceased andthemselves claimed letters as brothers of the deceased. Afterinquiry the learned District Judge held that the petitioner wasentitled to letters as widow of the deceased. The contestingrespondents appealed from this order and the Supreme Court by itsjudgment of 31.8.1976 set aside the order of the learned DistrictJudge. The court held that as the petitioner had married oneMudiyanse in 1931 and that at the time she purported to marry thedeceased in 1954 Mudiyanse was alive and as there was noevidence that she (though living in separation from Mudiyanse) wasdivorced from him, the petitioner was not the widow of thedeceased and as such she was not entitled to letters ofadministration. The court therefore remitted the case to the DistrictCourt to ascertain who was entitled to letters. The court alsoobserved that 'it will be open to the 1 st respondent, the adoptedchild, if he so desires, to make an application for letters at theresumed inquiry".
On 27.9.1977 the 1 st respondent applied for letters on the basisthat he was the lawfully adopted son of the deceased and the soleheir to the estate. The contesting respondents objected again and
Baby Nona v. Milton /Atukorale, J.)
dented that he*was the lawfully adopted son. They further averredthat as the marriage of the petitioner and the deceased was notvalid in law, they were not entitled to make a joint application foradoption. They qjaimed letters for themselves as brothers of thedeceased.
At the resumed inquiry no oral evidence appears to have beenled. Written submissions were tendered on behalf of the parties.The main issue that arose for determination was whether theadoption order, P2, was valid in view of the fact that the marriagebetween the deceased and the petitioner (both of whom were jointadopters) was held to be invalid. The learned District Judge upheldthe adoption order and directed that letters be issued to the 1 strespondent as the adopted son of the deceased. The presentappeal of the contesting respondents is from this order.
P2 is the impugned adoption order. It has been made by theappropriate court on 3.7.1954. The 1 st respondent is the adoptedchild. The adopters are the deceased and the petitioner whosemarriage was registered on 22.1.1954-vide P1. It is not in disputethat this adoption order has been made in pursuance of theprovisions of the Adoption of Children Ordinance (Chap. 61, Vol. 3,L.E ). It is the contention of learned Senior Attorney for thecontesting respondents that this adoption order is void and of nolegal force for the reason that it has been made by court in violationof the mandatory provisions of S. 2 (2) of the aforesaid Ordinance,which reads as follows :
"(2) No adoption order shall be made authorizing two or morepersons to adopt a child :
Provided, however, that the court may, on application made in
that behalf by two spouses jointly, make an adoption order
authorizing the two spouses jointly to adopt a child.'
Learned Senior Attorney submitted that the finding of theSupreme Court in this case is that the marriage between thedeceased and the petitioner is a nullity. They therefore did not atany time stand in the relationship of spouses and were thus notentitled to make a joint application fbr adoption nor was the courtcompetent to make the adoption order, P2. learned counsel for theIs! respondent maintained, firstly that it was not open to the
Sri Lanka Law Reports
 1 S.L.R.
contesting respondents to attack the validity of the^doption ordercollaterally in these proceedings. Secondly, he contended that theoral evidence led at the earlier inquiry established quite clearly thatthe marriage between the deceased and the petitioner had beenregistered in accordance with the prescribed fofmalities and wasone that the parties had contracted in the honest belief that therewas no legal impediment to their getting married. He thus urgedthat it was a putative marriage, that the children born of such amarriage are considered to be legitimate and that this principleshould be extended to the facts and circumstances of the instantcase and the 1st respondent's adoption be considered to be valid.In support of this contention he cited Hahlo on 'The South AfricanLaw of Husband and Wife' (1953 Ed., p. 275) and the case ofFernando v. Fernando (1). Finally learned counsel submitted that itwas not open to the contesting respondents to challenge theadoption order as it was not challenged in the Supreme Court at theearlier hearing.
The main question that arises for our determination is whether,as maintained by learned Senior Attorney, the adoption order P2 isvoid or not. The word 'spouses’ appearing in the proviso to S. 2 (2)of the aforesaid Ordinance is not defined, but the definition of theword 'adopter' in S. 17 throws much light on its meaning.'Adopter' is defined to mean, inter alia, both husband and wifewhere an adoption order is made in favour of a husband and wife oniheir joint application. The only provision in the Ordinance whichempowers a joint application to be made for an adoption order isthe proviso to s. 2 (2). But for the proviso, s. 2 (2) imposes aprohibition on the making of an adoption order authorizing two ormore persons to adopt a child. Thus the word 'spouses' in theproviso when read with the definition of the word 'adopter' in s. 17must necessarily mean husband and wife. This also seems to bethe popular meaning of the word. Jowitt's Dictionary of English Lawdefines 'spouse' as one's wife or husband. Hence it appears to methat s. 2 (2) of the Ordinance imposes a prohibition whichprecludes a court from making an adoption order in favour of twopersons except upon the joint application of a husband and wife.The application should be by the husband and wife and theadoption order must be one authorizing the husband and wife toadopt the child. S. 2 f2) seems to me to be a mandatory provisionof law. A court has no power to entertain a joint application to
Baby Nona v. Milton (Atukorale, J.)
adopt a child unless it be by the husband and wife. Similarly a courtis not competent to make a joint adoption order except in favour ofa husband and wife. In the instant case as the petitioner and thedeceased never stood to each other in the relationship of husbandand wife. I am oflhe opinion that the adoption order, P2, has beenmade in contravention of the provisions of s. 2 (2) of the Ordinanceand is thus of no legal effect. It is a nullity. It is not necessary thatsuch an order should be set aside in the very proceedings in whichit was made. It is open to the contesting respondents in the instantproceedings to show that the order is a nullity – vide Macfoy v.United Africa Co. Ltd. (2). I am also of the opinion that P2 beingvoid and of no legal effect the principle that the natural children of aputative marriage are considered to be legitimate would have noapplication to the circumstances of this case. The extension of thisprinciple to cover the case of an adopted child would thus not arisefor consideration by us.
The final submission of learned counsel for the 1st respondenthas now to be considered. It is clear from the judgment of theSupreme Court that the question of the validity of the adoptionorder P2 was not canvassed at the hearing of the appeal. In fact thevalidity or otherwise of the order was never considered by theSupreme Court. Nor was its validity put in issue at the inquiry in thelower court. As pointed out by me earlier it was only on 27.9.1977,i.e, after the judgment of the Supreme Court, that the 1strespondent for the first time set up a claim for letters oiadministration on the basis of an adoption, The contestingrespondents in their objections to this claim of the 1st respondentchallenged the validity of the order, P2. There is nothing in thejudgment of the Supreme Court which precludes the contestingrespondents from doing so. This submission too fails.
For the above reasons the appeal is allowed. The order of thelearned District Judge is set aside. The 1st respondent'sapplication for letters of administration is dismissed and the case isremitted to the District Court for a consideration of the applicationof the contesting respondents for letters. In the circumstances ofthis case there will be no order as to costs.
T. D. G. DE ALWIS, J.-l agree.
NONA v. MILTON AND 3 OYHERS