T. CHRISTINA and 3 others, Appellants, and S. CECILIN FERNANDO, Respondent

056-NLR-NLR-V-65-T.-CHRISTINA-and-3-others-Appellants-and-S.-CECILIN-FERNANDO-Respondent.pdf


274
L.^B- bb SILVA, J.—Christina v. CecUm Fernanda
1962Present: L. B. de Silva, J., and G. P, A. Silva, J.
T.CHRISTINA and 3 others, Appellants, and S. CECILTNFERNANDO, Respondent
S. C. 38/60 {Inty.)—D. 0. Kalutara, 3648/TDivorce—Decree nisi by default made absolute without notice to opposite party—
Liability to collateral attack by third parties—Effect of a decree entered by a
Court of competent jurisdiction—Civil Procedure Code, s. So—Evidence
Ordinance, ss. 41, 44.
It is not open to any person to attack collaterally a decree absolute fordivorce, except on the grounds set out in sections 41 and 44 of the EvidenceOrdinance.
The respondent applied for letters of administration to the estate of herdeceased husband P. The objectors-appeUants, claiming to be the lawfulheirs of the deceased, opposed the application of the respondent on the groundthat she was not legally married to the deceased. The basis of their claim wasthat the respondent was previously married to one M and that, in the actionfor divorce instituted by the respondent against M, the decree nisi by defaultafter due service of summons was made absolute without service of noticeof the decree nisi on M. It was contended that the decree absolute was voidand of no effect on acoount of non-compliance with an imperative provisionof section S5 of the Civil Procedure Code.
Held, that the decree absolute for divorce had been entered by a Court ofcompetent jurisdiction and, however erroneous or irregular it may have beenas between the parties to the action for divorce, was not open to collateralattack by third parties in. other proceedings.
PPEAL from, a judgment of the District Court, Kalutara.
W. Jayewardene, Q.C., with M. L. de Silva and S. S. Basnayake,for Objectors-Appel!ants.
E. V. Per era, Q.Q., with U. A. Perera. for Petitioner-Respondent.
Cur. adv. wit.
November 1, 1962. L. B. db Suva, J.—
The Petitioner-Respondent S. Ceoflin Fernando applied for letters ofadministration to the estate of the deceased H. Livens Fernando as thewidow of the deceased. The Objectors-appeUants, claiming to be the lawful
L. B. de SILVA. J.—Christina v. Cectiin Fernando
275
heirs of the deceased, opposed the application of the petitioner-respondenton the ground that she was not legally married to the deceased. Thebasis of this cla im was that she had previously married one P. A. Martbelis.She sued Marthelis for a divorce and obtained a decree nisi by default afterdue service of summons in D. C. Kalutara Case No. 26,390. This DecreeNisi was thereafter made absolute without service of notice of the DecreeNisi on the defendant.
The Appellants are attacking the Decree Absolute for divorce as a nullityin these testamentary proceedings. The petitioner-respondent marriedthe deceased after she obtained the Decree-Absolute for divorce and themarriage was duly registered. The Appellants contend that the petitioner’smarriage to the deceased was a bigamous marriage, as she was at the timeof this marriage, the legally married wife of P. A. Marthelis.
It has been held in Annammah v. Subramaniam1 that the provisions ofsection 85 of the Civil Procedure Code apply to a Decree Nisi for Divorceand the service of notice of the Decree Nisi on the defendant was an impera-tive provision of the law. It was also held in that case in Appeal, thatsummons had not been served on the defendant. On these two grounds,the Court held that the Decree Nisi and Decree Absolute were both voidand of no effect. The application to set aside the decree was made in thesame case.
On this authority we hold that the provisions of section 85 of the CivilProcedure Code apply to a Decree Nisi for default in a Divorce action andthe failure to serve notice of Decree Nisi on the defendant in the casewas a non-compliance with an imperative provision of the law. The abovedecision would be binding if the defendant made an application in theDivorce Case to set aside the Decree Absolute or to have that decreeabsolute declared null and void on the ground that notice of Decree Nisiwas not served on him.
The Appellants contend in the present case that the Decree-Absolutefor Divorce iu favour of the Petitioner-Respondent was ab initio null andvoid and of no legal effect whatsoever. The petitioner-respondent con-tends that the Decree absolute was only voidable at the instance of thedefendant in direct proceedings and it is not open to collateral attack inother proceedings at the instance of third parties.
In some cases the expression “ null and void ” has been used in a loosesense to include a decree or other act of Court which could be so declaredin appropriate proceedings—(i.e. when the Decree or act is only voidable).
The question for decision in this case is whether the Decree Absolutefor divorce in favour of the Petitioner-respondent, is ab initio void and ofno legal consequence. If so it could be attacked by the Appellants iucollateral proceedings.
In Marsh v. Marsnr the Privy Council stated “ if the Order is void, theparty whom it purports to affect can ignore it and he who has obtained it,will proceed thereon at his peril, while if it be voidable only the party
fl 1945 A. C. p. 284.
1 <1950) 51 N. L. R. 547.
276
L. B. db SILVA, J.—OTirt3«ttav. G**lin Fernando
V
affected must get it set aside. No Court has ever attempted to lay downa decisive test for distinguishing between the two classes of irregularitiesnor will their Lordships attempt to do so here, beyond saying that one
test that may be applied is to inquire whether the irregularity has causeda failure of natural justice. There is, for instance, an obvious distinctionbetween obtaining judgment on a writ which has never been served and onein which, as in Fry v. Moore there has been a defect in the service butthe writ bad come to the knowledge of the defendant. Ramp-Adams v.Rail2 really depends on different considerations; it was a case dependingon the application of positive law. The rule laid down in. terms that beforetaking a certain step, namely, proceeding in default, endorsement of servicemust be made on the writ. If this condition is not fulfilled, the plaintiffcannot take advantage of this particular procedure. Me PTierson v. MePherson3 is an illustration of the rule that where there has been a defectin procedure which has not caused a failure of natural justice the resultingorder is only voidable ”.
Appellants strongly relied on Craig v. Kanseen4. In this case summonsbad not been served on the defendant before judgment was obtained.It was held that “ failure to serve process where service of process isrequired is a failure which goes to the root of our conceptions of theproper procedure in litigation. Apart from proper ex parte proceedings,the idea that an order can validly be made against a man who had nonotification of any intention to apply for it. is one which has never beenadopted in England. To say that an order of that kind is to be treated asa mere irregularity, and not something which is affected by a fundamentalvice, is an argument which, in my opinion, cannot be sustained.”
In that case, Lord Greene, M.R. said at p. 113, “ These cases appear tome to establish that an order which can properly be described as a nullityis something which the person affected by it is entitled ex debito justitiaeto have set aside ”.
In Wolfenden v. Wolfenden 5, the Decree Absolute for Divorce wasentered at the instance of the guilty defendant without service of noticeon the plaintiff who obtained the Decree Nisi, as required by the rules.The judge held that as the husband has not complied with the statute, hecould not treat the making of the Decree Absolute as a mere irregularityand must treat it as a nullity, He set aside the Decree Absolute.
In B. v. BA Scarman, J. declared the Decree Absolute for Divorcevoid as the statute provided that the Decree shall not be made absoluteuntil the Court is satisfied as to the arrangements for the care and up-bringing of the children. He considered the question if the DecreeAbsolute was a nullity or if it was valid till it was lawfully set aside. Heheld that the disobedience to the law was so fundamental that it doesrender the decree absolutely void.
123 Q. B. D. 395.* (1943) 1 A. E. R. 108.
*1911 2 K. B. 9*2.* (1947) 2 A. B. R. 653.
* 1936 A. O. 111.• (1961) 2 A. E. B. 398.
L. B. de SILVA, J.—Christina v. Cecilin Fernando
277
It must be noted that in the cases cited so far, the finding that the Decreewas a nullity, was made in the same case, on the application of a partyaffected. Such an order may be made by the Court that entered thedecree, by an Appellate Court, in Revision, by a writ of certiorari or byseparate action between the parties concerned for that purpose. Butwe are required to consider if such an order or decree is open to collateral—attack in other proceedings at the instance of third parties.
If such an order or decree was void ab initio and had no legal conse-quences it could undoubtedly be challenged collaterally in other proceed-ings even by third parties, as no one can possibly claim any rights fromsuch an order or decree.
In dealing with the Collateral Impeachment of judgments—in volume 1of “ The Law of Judgments” by H. C. Black (an American publication),2nd edition (1902), the author states at p. 425, “ When the record itselfdiscloses the fact that the Court had no jurisdiction of the controversyor that jurisdiction of the person of the defendant did not attach in theparticular case, the judgment is a mere nullity, and may be collaterallyimpeached by any person interested, whenever and wherever it is broughtin question. Thus when the defendant against whom a judgment wasentered had no notice and that appears from the proceedings, the judgmentis void on its face. It is equally true of want of jurisdiction of the subjectmatter. Orders and judgments which the Court has not the power underany circumstances to make or render are null and void, and their nullitycan be asserted in any collateral proceeding when they are relied on insupport of a claim of right ”.
He further states at p. 426,“ It is also to be remarked that there is
a clear distinction between those facts which involve the jurisdiction ofthe Court over the parties and the subject matter, and those quasi-jurisdictional facts, without allegation of which the Court cannot be set inmotion and without proof of which a decree should not be pronounced. Inthe absence of the former, the judgment of the Court is void and may beattacked in collateral proceedings, while, in respect of the latter, it isconclusive and cannot be questioned except on a direct proceeding ”.
In support of her position, the Petitioner-Respondent strongly reliedon the provisions of sections 41 and 44 of the Evidence Ordinance-Section 41(1) provides that a final judgment, order or decree of a compe-tent Court, in the exercise of probate, matrimonial, admiralty or insolvencyjurisdiction, which confers upon or takes away from any person any legalcharacter, or which declares any person to be entitled to any such charac-ter …. not as against any specified person but absolutely, is
relevant, when the existence of any such character …. is relevant
Sub-section (2) provides that such judgment, or order or decree isconclusive proof—
(o) ….
that any legal character to which it declares any such person to beentitled, accrued to that person at the time when such judgment,order or decree declares it to have accrued to that person.
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L. B. D3 SILVA, J.—Christina v, Oecilin ffmmcm&o
that any legal character which it takes away from any such person
ceased at the time from which such judgment, order or decreedeclared that it had ceased or should cease.
….
The decree absolute for divorce in favour of the petitioner-respondentis undoubtedly a decree which falls within the provisions of this section. Itis not disputed that the District Court of Kalut&ra is a competent Courtto enter a decree absolute in a matrimonial cause both with respect to theparties and the subject matter of the action.
Under section 44, any party to a suit or proceeding may show that anyjudgment, order or decree which is relevant under section 41 and whichhas been proved by the adverse party, was delivered by a Court notcompetent to deliver it or was obtained by fraud or collusion.
It is not the case for the appellants that there was any fraud or collusionin obtaining the decree absolute for divorce. It was argued that theCourt was not competent to enter the deoree absolute because theimperative provision of the law which required notice of decree nisi to beserved personally on the defendant was not complied with. In otherwords, the case for the Appellants was that the Court had no jurisdictionto enter the decree absolute and the decree was a nullity ab initio.
There are no local cases on this point where such a decree has beenattacked collaterally as in this case.
In Caston v. Gaston1 a decree absolute for nullity of marriage was madeabsolute by the High Court before the expiry of 6 months from the passingof the decree nisi. There was a provision in the statute that a decree nisipassed by the District Judge is subject to confirmation by the High Court.There was also a proviso that no Decree Nisi shall be confirmed till afterthe expiration of not less than six months …. from the pronouncingthereof. It was held in that case that this proviso did not apply to theHigh Court. But the Court considered the effect of this proviso on thedecree absolute for nullity of marriage, if it applied to a decree of theHigh Court.
The Court held at p. 279 (bottom), “ The decree of the High Court…. was a decree of the kind specified in section 41 of the Indian
Evidence Act, 1872. It was a final decree made in the exercise of matri-monial jurisdiction, declaring the present respondent not to be thewife of the then respondent. If it was a decree of ‘ a competent Court ’then however erroneous or irregular it may have been, it is under the sectionconclusive proof that the respondent’s previous marriage was a nullity..The effect of such conclusive proof can only be avoided by showing that theHigh Court was not a competent Court within the meaning of section 41or was c a Court not competent to deliver ’ the decree within the meaningof section 44. Unless that oan be proved, the decree is conclusive, as nofraud or collusion is suggested. The question then is, was the High Court’sdecree delivered by a Court not competent to deliver it ?
122 AUababod (1900)—p. 271.
L. B. de SILVA, J.—Christina v. Cecilin Fernando
279
cIt appears to me that this question must be answered in the negative.The High Court had undoubted jurisdiction in the suit for nullity ofmarriage. As regards the place, it possessed the local jurisdiction definedby the Act. It possessed personal jurisdiction over the parties to the suitwho were persons governed by the Divorce Act; audit had jurisdiction overthe subject matter or the class of suit as disclosed in the petition for declara-tion of nullity.
Since the High Court had jurisdiction in the suit, it follows that it hadjurisdiction to consider and determine every question of law or fact 'arisingin the suit. This would of course include any question of the construc-tion of sections 17 and 20 of the Indian Divorce Act. ”
Having considered an illustration, the Court held, “ In such a case,surely the Court would not only be competent but bound to decide thequestion thus raised and argued. If competent to consider and decide thequestion, it cannot be supposed that the Court was ‘ competent ’ todecide it in one particular way only. This shows that even if the decisionwas erroneous or irregular, the Court was nevertheless * competent todeliver ’ it.
The competency or jurisdiction of the Court cannot possibly depend onwhether a point which it decides has been raised or argued by party orcounsel. An express decision upon the construction of sections 17 and 20and an implied decision must stand on the same footing. The view thatthe decree was a nullity by reason of the proviso in section 17 could only besupported on the principle that whenever a decision is wrong in law orviolated a rule of procedure, the Court must be held incompetent to deliverit. Such a principle is obviously unsustainable. In the first place it isopposed to the language of sections 41 and 44 of the Evidence Act, whichwere undoubtedly meant to make the decree which they refer to, conclusiveexcept in a very restricted class of cases. If the intention had been tomake such decrees questionable on the ground of any legal defector irregu-larity, very different expressions would have been |Used and it would beinaccurate to describe such decrees as constituting ‘conclusive proof’.In the second place, if the principle were sound, any judgment might becollaterally attacked by contending that it was in violation of such rulesof procedure as the rale of res judicata contained in section 13 of the Codeof Civil Procedure, or the rule of limitation contained in section 4 of theLimitation Act, 1877. These rules are expressed in language as peremp-tory as that of the proviso in section 17 of the Divorce Act; but it has neverbeen held, and it could not be held, that a Court which erroneously decreesa suit which it should have dismissed as time-barred, or as barred by therule of res judicata, acts without jurisdiction and is not competent todeliver its decree. The insecurity of titles and of status arising from theadoption of such a principle is just what sections 41 and 44 of the EvidenceAct were intended to prevent. The sections recognize that, given thecompetency of the Court, even error or irregularity in the decision is aless evil than the total absence of finality which would be the onlyalternative.
2S0
L. B. db SELVA, J.—Christina v. Caoilin Iftmando
In the third, place, the judgment of the Privy Council in Amir HasanKhan v. Skeo BaJcsh Singh 1 shows that, even, for the purposes of direotattack in revision under section 622 of the Civil Procedure Code, a decreecannot be held to have been made without jurisdiction or illegally,merely because it was wrong in law or alleged to be in violation of suchrules of procedure as those ooatained in sections 13 and 43 of the Code.
If so, then a fortiori such a decree could not be regarded as madewithout jurisdiction for the purposes, not of direct but merely collateralattack in a subsequent suit.”
It may be noted that the provisions of sections 41 and 44 of the IndianEvidence Act are the same as the provisions of these sections in ourEvidence Ordinance. In the Allahabad case cited, the attack on thedecree absolute was collateral.
In Nathuram v. Kalian Das2 the decision in Caston v. Gaston was citedwith approval. Judgment was entered in a time barred action on a con-fession to judgment. As the Court was competent to hear the suit, it washeld that it was competent to decide every question, whether limi-tation or any other matter arising in the suit and whether raised byparty or counsel. If it did decide such a question wrongly, it did notthereby lose its jurisdiction and its decree, though possibly wrong, is not anullity. The decree is a perfectly good decree un til reversed in the mannerpointed put by their Lordships of the Privy Council in Malkarjun v.Narhari 3.
In the last case, notice of execution proceedings was served on the wrongperson and on his objection, the Court wrongly held that he was the rightperson. The Privy Council observed that in so doing the Court wasexercising its jurisdiction. It made a sad mistake, it is true, but a Courthas jurisdiction to decide wrong as well as tight. Tf it decides wrong,the wronged party can only take the course presented by law for settingmatters right, and if that course is not taken the decision, however wrong,cannot be disturbed.
In Sardarmal v. Aranvayal Sabhapathy4 it was argued that an adjudi-cation of insolvency was made by the Madras Insolvent Court on a petitionthat did not disclose an act of insolvency and was therefore a nullity.At page 212, the Court stated, " What then is the test of whether the orderof adjudication in this case was not merely wrong but an order which theInsolvent Court was not competent to make ? In Ketilamma v. Kelappen5it was held that the words * not competent ’ in section 44 refer to a courtacting without jurisdiction and that the decree of a Court in a suit whichshould have been dimisaod as barred by section 244 of the Code of CivilProcedure, though wrong, could not be treated as passed by a Court notcompetent to pass it …. The ' competency 5 of a Court and its
jurisdiction ’ axe thus synonymous terms. They mean the right of a Courtto adjudicate in a given matter. They do not mean, in a case where that
111. A. 237 (11 Calcutta 5).* 1900 I. L. R. 25 Bombay 337.
26 Allahabad 523.* 21 Bombay 206.
* 12 Madrat 228.
L. B. db SILVA, J.—Christina v. Cecilin Fernando
281
light exists, the coming to a correct conclusion upon any question of factor law arising in that matter It was held that the Madras InsolventCourt was competent to enter the order of adjudication.
Our attention has been invited in this case to the “ Restatement ofLaw ”■— “ Judgments ” by the American Law Institute (1942). In chapterITde&ling with the validity of judgments, section 4 (page 19) states, “ Ingeneral, a judgment, even though it is subject to reversal or to attack inequity, is valid if
(o)the state …. has jurisdiction ….
a reasonable method of notification is employed and a reasonableopportunity to be heard is afforded to persons affected.
it is rendered by a Court with competency to render it.
there is compliance with such requirements as are necessary for the
valid exercise of power by the Court.
Inter-state questions do not arise in this case. The defendant in theDivorce action was served with summons and he undoubtedly had areasonable opportunity to defend the action. This requirement of the lawhas been dealt with in Marsh v. Marsh referred to earlier. There wouldundoubtedly be a failure of natural justice if the Court does not employa reasonable method of notifying the defendant, of the suit and if he isnot given a reasonable opportunity of being heard. It may be noted thatin many of the English and Privy Council cases cited, there was a failure toissue summons or writ on the defendant. Even in the Wolfenden case,when the guilty party moved to have the Decree Nisi obtained by the wife,made absolute, he gave no notice of his application to the plaintiff. Aplaintiff who obtains a Decree Nisi for Divorce, need not take steps tohave it made absolute. So that if the guilty defendant takes that step,the issue of notice on the plaintiff was not only a requirement of the statutelaw but as a matter of natural justice, the plaintiff was entitled to havesuch notice. It is very similar to a plaintiff obtaining a judgment withoutservice of summons on the defendant.
As stated earlier, the Court that entered the Decree absolute for divorcewas a Court of competent jurisdiction. It is the ground (d) that needsfurther consideration. In dealing with this question, it is statedtinder section 8 at page 46 of the “ Judgments ”, “ the judgment maynevertheless be void because of a failure to comply with requirements ofthe law of the State for the valid exercise of power by the Court. Thevalidity of the judgment depends upon whether or not the requirements arejurisdictional
Dealing with defects of process, it states, “ Ordinarily, it is true, thefailure to comply with procedural requirements, although it may make thejudgment reversible, does not make it void. The result is different, how-ever, if under the law of the State in which the judgment is rendered, the
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J?amesa*do «. Dabrara
procedural requirement is eesgoti&l to the exercise of jurisdiction by theCourt. It is a question in each case, whether under the law of the Statethe requirement is a condition precedent to the exercise of jurisdiction by theCourt. ” This aspect of the law has been considered in Hamp-Adams v.
Modi cited earlier.
As the defendant in the Divorce Case was duly served with summons butdid not appear and defend the action, we are unable to take the view thatthe failure to serve notice of Decree Nisi on the defendant, though it wasan imperative step in the case, was a condition precedent to the exercise ofthe jurisdiction of the Court. No doubt the decree could have been reversedon that ground in appeal or set aside by direct action or application to theCourt but it was not a nullity. It was a Decree Absolute of a competentCourt and the Court was competent to pass that decree in spite of thematerial irregularity that occurred in the case.
We hold that it is not open to any person to attack a decree absolute fordivorce collaterally except on the grounds set out in sections 41 and 44 ofthe Evidence Ordinance.
We may incidentally mention that the defendant in the Divorce Casesubsequently appeared in that case and acknowledged the validity of th edecree and had the Decree formally amended as his name was incorrectlygiven. This application was made in that case after the Petitioner -Respondent had married the deceased. We are, however, not basing ourdecision on any question of acquiescence or estoppel.
Eor the reasons set out in onr judgment, we hold that the Petitioner-respondent is the lawful widow of the deceased and is entitled to Letters ofAdministration to the deceased’s estate. The Appeal is dismissed withcosts.
G. P. A. Silva, J.—I agree.
Appeal dismissed.