025-NLR-NLR-V-80-S.-G.-NISMALAM-et-al.-Applicants-and-SHANTHI-et-al.-Respondents.pdf
304
New Law Reports
(1978) Vol. 80N.LR.
1978 Present: Samarakoon, C. J., and Gunasekera, J.
S. G. NISMALM et al. Applicants and SHANTHI et al. Respondents.5.C. APN/GEN/31/78 M.C. Wattala 83/AC.
Adoption of Children Ordinance — Distinction between “resident" and “domiciled” -Jurisdiction.
An applicant under the adoption of Children Ordinance should be a resident in Sri Lanka tomake an application for adoption.
Held:
The word “resides” suggests some continuity or permanancy. A transient visitor for thepurpose of business, a tourist who changes hotels from day to day and from time to time asoccasion demands does not reside for the purposes of giving jurisdiction to a Court.
An APPLICATION for adoption order by a person not domiciled in SriLanka can be entertained only by the Magistrate’s Court of Colombo atBambalapitiya. Any other Magistrate’s Court in the island has no jurisdictionto entertain such an application.
Matter brought to notice of the Supreme Court.
Chula de Silva for Applicants.
S. C. Dickens, State Counsel for the Attorney-General.
Cur. adv. vult.
July 7,1978. Samarakoon, C. J.
This is an application made under the provisions of the Adoption ofChildren Ordinance (Cap. 61) for the adoption of a female child namedShanthi bom on the 11th May, 1978, to the 2nd respondent. At the time ofthe application the child was living at Ratuwatte, Walana in Panadura. TheProbation Officer, Colombo was appointed the Guardian ad Litem of thechild. The applicants are a married couple of foreign nationality residing atScoravagen 54,951.49 Lulea, Sweden and presently staying at Pegasus ReefHotel, Wattala. This is a well-known Tourist Hotel and it was conceded that
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they were staying in this hotel pending the conclusion of these proceedings,upon which, they would return to Sweden. The husband is an Accountantand the wife a nurse, both employed in Sweden and drawing considerableincome by way of salary. This and other applications were brought to mynotice as being filed in the Magistrate’s Court of Wattala. I called for allrecords as it was contended that that Court did not have jurisdiction toentertain these Applications.
Two matters arise for consideration. They are-
Have the applicants the necessary qualifications to make thisapplication by virtue of the fact that they are staying in a hotel withinthe territorial jurisdiction of the Magistrate’s Court of Wattala?
Can the Applicants in any event ask for an order by reason of the factthat they are non-residents?
It is necessary to look into the history of the relevant legislation. TheAdoption of Children Ordinance by section 15(1) empowered a Court ofRequests to make an Adoption Order. It reads as follows:-
“15(1). The Court having jurisdiction to make an adoption order underthis Part shall be the Court of Requests having jurisdiction in the placeat which the applicant, or the child in respect of whom the applicationis made, resides”
Section 3(3) provided one of the restrictions as follows:-
“3(6) An adoption order shall not be made in favour of any applicantwho is not resident and domiciled in Ceylon or in respect of any childwho is not a British subject and so resident.”
Act No. 1 of 1964 added a proviso to section 4(6) as follows:-
“Provided that the making of an adoption order in favour of anapplicant who is not domiciled in Cteylon shall be deemed to be notprohibited where the Court is satisfied that there are specialcircumstances which justify the making of such an adoption order.”
A further amendment to section 3 appeared in section 2 of Law No. 6 of1977 which reads as follows:-
“(6) An adoption order shall not be made in favour of any applicantwho is not resident and domiciled in Sri Lanka or in respect of anychild who is not resident.”
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At the relevant time jurisdiction vested in Magistrates’ Courts as Courts ofRequest had been abolished.
It appears that a person who is not resident and domiciled in Sri Lankacannot be granted an adoption order. However in the matter of domicilealone the Court is given a discretion if there are special circumstances infavour of the applicant vis a vis the child sought to be adopted. It is cleartherefore that there is a distinction in this section between the words“resident” and “domiciled”. If resident, though not domiciled, his applicationcan be entertained. An applicant can be resident in Sri Lanka but still have adomicile in a foreign country, e.g. a domicile of origin. A man can have but' one domicile at any moment but he can have one or more residences otherthan in his country of domicile. Cassim v. Saibo.' It is conceded that theapplicants are domiciled in Sweden. For the purposes of this application dothe applicants reside within the jurisdiction of the Court? The word“resident” in section 3(6) and the word “resides” in section 13(1) must meanthe same thing in the context of this Ordinance. For the purposes of givingthe Court jurisdiction, the applicant must reside within the territorialjurisdiction of the Court. Section 9(a) of the Civil Procedure Code confersjurisdiction if the Defendant resides within the jurisdiction of the Court. Inthe case of Mendis v. Perera2 Pereira, A.J. held that a man resides where hehas his family establishment and home. An insolvent who lived in a house inGalle with his mistress but resided at Matara for a few months in connectionwith his business was held to be a resident of Galle and not of Matara for thepurposes of the Insolvency Ordinance — In re Goonewardene3. The word“resides” suggests some continuity or permanency. A transient visitor for thepurposes of business, a tourist who changes hotels from day to day and fromtime to time as occasion demands, does not reside for the purposes of givingjurisdiction to a Court. In the case of In re Adoption Application 52/19514 theapplicants (husband and wife) lived in Nigeria where the husband was'aDistrict Officer in the Colonial Service. Every 15 months they went toEngland during the husband’s period of leave of 3 months. In 1951, while onsuch leave in England, they stayed with the parents of one spouse. Theybought a house in England but did not occupy it hoping to occupy it whenthe husband’s period of service was over in about 7 years. While holidayingthey made an application for permission of Court to adopt a child. Pendingsuch application the period of leave was over and the husband returned to hisservice in Nigeria. The wife remained in England intending to join the. husband with child once the adoption order was granted to her. Harman, J.refused the order holding that the wife was merely a sojourner during theperiod of leave and was in fact resident in Nigeria. He said, at page 25:
■CIJ. 14.
’(1924) 24N.L.R. 431 at 434.
J(I911) 13 N.L.R. at41.‘(1952) Ch. 16.
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“The Court must be able to postulate at the critical date that theapplicant is resident, and that is a question of fact. Residence denotes,some degree of permanence. It does not necessarily mean the applicanthas a home of his own, but that he has a settled headquarters in thiscountry. It seems dangerous to try to define what is meant by residence. Itis very unfortunate that it is not possible to do so, but in my judgment, thequestion before the Court is in every such case whether the applicant is aperson who resides in this country. In the present case I can only answerthe question in the case of the wife by holding that she is not resident inthis country; she is merely a sojourner here during a period of leave; sheis resident in Nigeria, where her husband’s duties are, and whether, inpursuance of her wifely duties, she accompanies him. I do not think eitherof the applicants is resident in England at present. They may behereafter.”
A mere fleeting residence cannot give the Court jurisdiction. Theapplicants are permanently resident in Sweden where they work and havetheir home. They are here residing in a hotel purely for the purposes of thisapplication and will return with or without the child, depending on the order.They have no other interest in this land except, may be, as tourists. They livein a hotel as lodgers. It is a significant fact that section 13(1) stipulates “theplace at which the applicant, or the child in respect of whom the applicationis made resides.” The child is one under ten years and necessarily resideswith its parent or .parents or some orphanage to which custody has been dulygiven. It has a residence of some permanence in Sri Lanka. The same kind ofresidence must necessarily be attributed to the applicant. Otherwise it wouldbe possible for a foreigner to bring a child from some foreign land, live in ahotel or lodgings in Sri Lanka, and obtain an adoption order from a Courthere in respect of that child. Such acts will make a mockery of theOrdinance. Counsel for the Applicant stated that the intention of thelegislature was to permit foreigners to obtain adoption orders in respect ofchildren belonging to this country and take them away to a foreign landwhere they live. I am unable to accept this contention as the plain meaning ofthe words I am called upon to construe belies such an intention. I thereforehold that upon the averments in the petition the applicants do not “reside”within the jurisdiction of the Magistrate’s Court of Wattala.
It is necessary to decide the other point of contest too in view of thereasons given by the Magistrate for entertaining this application. By noticepublished in Gazette No. 142/65 of 19th December, 1974, “all actions,proceedings or matters under the Children and Young Persons Ordinance andthe Adoption of Children Ordinance within the judicial zone of Colombo”were vested in the Magistrate’s Court of Colombo held at Bambalapitiya.
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This categorically mentioned “Zone of Colombo”. By a notice published inGazette 243/9 of 17th December, 1976, the earlier schedule was replaced bya new schedule which gave the said Court jurisdiction as follows:-
COLUMN II“All actions, proceedings or matters under the Children and YoungPersons Ordinance arising within the judicial zone of Colombo; and allactions, proceedings or matters under the Adoption of Children Ordinancearising within the judicial zone of Sri Lanka in which the applicant is notdomiciled in Sri Lanka and all other actions, proceedings or matters underthe Adoption of Children Ordinance arising within the judicial zone ofColombo.”
This makes a clear distinction between those concerning “Zone of Colombo”and those of the “Zone of Sri Lanka”. Persons not domiciled in Sri Lanka,wherever they may be within the “Judicial Zone of Sri Lanka” can makeapplication only to the Magistrate’s Court of Colombo at Bambalapitiya.Any application for an adoption order by a person not domiciled in Sri Lankacannot be entertained by any other Magistrate’s Court in the Island as theyhave no jurisdiction. The Magistrate has stated that he assumed jurisdictionbecause the Gazette “does not state that the other Magistrate’s Courts havebeen deprived of their jurisdiction in these matters.” Suffice it to state that inthis case jurisdiction depends on what the Gazette states and not on what itdoes not state.
Counsel for the applicant argued that the regulations published in theseGazettes are ultra vires because the Minister who purported to act underpowers given him by section 46 of the Administration of Justice Law, No. 44of 1973 in making these regulations did not in fact have power under thatsection. Section 46(1) reads as follows:-
“46(1). The Minister may, by regulation, nominate a Court or Courtssituated anywhere in Sri Lanka for the purpose of trial and disposal ofsuch categories of actions, proceedings or matters as shall be specified insuch regulation, and accordingly, subject to the provisions of subsection(2), such Court or Courts shall, notwithstanding anything to the contraryin this or any other written law in regard to the territorial limits of thejurisdiction of such Court, have jurisdiction to hear-, try and determine allsuch actions, proceedings or matters, as the case may be.”
Counsel conceded that the Minister can categorise actions, proceedings ormatters and also deal with the disposal of proceedings or matters; Category,he stated, meant type of matter, but in this case the Minister, wascategorising in reference to persons which he had no power to do. 1 do notthink the regulation was personal to any persons. All it did was to state that
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applications made by non-domiciled persons should be instituted in aparticular Court. The category was based on“domicile”, a well-knownconcept and the type of matter was the applications of the non-domiciledpersons. I am of opinion that the regulation is not ultra vires.
For the above reasons I declare the proceedings null and void and dismissthis application. I also called for applications made in the same Magistrate’sCourt which bore the numbers AC/79, AC/80, AC/81, AC/82 and AC/84.The applicants in all of them are Swedes, domiciled in Sweden. Howeverthey have obtained adoption orders and I am informed by the Counsel whoappeared for the applicant in AC/83 that they have left the Island, each withthe child in respect of which the order was obtained. No useful purpose willbe served by setting aside those orders because the applicants and childrenare now beyond the reach of the Courts of this Island.
WALPITA, J. — I agree.
Gunasekera, J. — I agree.
Application dismissed.