Sri Lanka Law Reports
(2005) 2 Sri L. R.
VARUN A JAYASURIYAVSKRISHANJINI JAYASURIYACOURT OF APPEALWIMALACHANDRA, J .
CA 1201/2004 (REV)
DC COLOMBO 22047/DNOVEMBER 8, 2004DECEMBER 7, 2004
Civil Procedure Code – section 76 – Decree of Divorce prayed for – which Courthas jurisdiction – defendant's position that a Divorce has already been grantedby a foreign court – Raising same as a preliminary issue – Proper procedureto be followed – domicile of the Parties – Jurisdiction – Foreign Decree -Validity – Miscarriage of Justice – Powers of Revision – Jurisdiction not deniedin the answer – Fatal?
The plaintiff petitioner (husband) instituted action in Colombo on 15.03.2004praying for a decree of divorce on the ground of malicious desertion. Thedefendant respondent (wife) filed answer on 2.1. 2003 counter suing for adecree on divorce on the ground that she had filed a divorce action in Canadaagainst the plaintiff petitioner and the said action is still pending. On the firstdate of trial the defendant respondent raised the issue that as the CanadianCourt on 15.11. 2003 has granted a divorce, the District Court, Colombo hasno jurisdiction and wanted this issue to be tried first. This was objected to bythe plaintiff petitioner but the trial court decided the issue in favor of the defendantrespondent and dismissed the action.
The plaintiff petitioner moved in revision.
Held:(1) in the instant case the question arises as to the validity or the recognitionof the Foreign Decree. The jurisdiction of the Foreign Court to dissolvea marriage between at Sri Lanka citizen and a lady born in Sri Lankawho has obtained the citizenship of Canada is in issue.
The only Court which has jurisdiction to entertain an action for divorceis the Court in whose area the parties are domiciled at the time ofinstitution of proceedings. The marriage of the defendant respondentto the plaintiff petitioner took place in Colombo and therefore the
CAVaruna Jayasuriya vs. Krishanjini Jayasuriya383
question arises whether it is only the District Court of Colombo that hasjurisdiction. The wife acquires the domicile of the husband up to dateof decree in a matrimonial action.
(2) If the question of law is combined or interwoven with questions of fact,the issue cannot and ought not to be tried as a preliminary issue.
The defendant has not specifically traversed the averments in theplaint as to the jurisdiction of the Court – section 76. Civil ProcedureCode. Issues relating to the -fundamental jurisdiction of the Courtcannot be raised in oblique or veiled manner but must be expresslyset out in the answer.
The impugned order is wrong exfacie and it amounts to positivemiscarriage of justice due to a violation of a fundamental rule ofprocedure.
APPLICATION in Revision from an order of the District Court of ColomboCases referred to :
Navaratnam vs. Navaratnam 46 NLR 361
Annekada vs. Myappan 33 NLR 198
Morris vs. Morries 40 NLR 246
Julaldeen vs. Rajaratnam (1986) 2 Sri LR 201
Soya vs. Silva (2000) 2 Sri LR 235
Romesh de Silva, PC with Hiran de Alwis for plaintiff petitioner.Defendant respondent absent and unrepresented
Cur. adv. vult.
June 28, 2005WIMALACHANDRA, J.
This is an application in revision from the order of the Additional DistrictJudge of Colombo dated 29.03. 2004. By that order the learned Judgeanswered the following issue raised by the counsel for the defendantrespondent respondent (defendant) in the negative, and dismissed theplaintiffs action.
Sri Lanka Law Reports
(2005) 2 Sri L R.
The said issue reads as follows:
“Does this Court have jurisdiction to hear this case in view of the judgmentdated 15.11.2003 in case No. 500/12/2514/91/001 filed by the defendantagainst the plaintiff in Montreal, in the Province of Quebec, in Canada.?"
The plaintiff – petitioner (the plaintiff) instituted this action against thedefendant in the District Court of Colombo on 15.03.2002 and prayed fora Decree of Divorce, a vinculo matrimon, on the grounds of maliciousdesertion and/or constructive malicious desertion by his wife, the defendant,and for the custody of the child of the marriage. The plaintiff averred in hisplaint that on or about March 1998 the defendant, without any notice, leftSri lanka for Canada and only thereafter notified the plaintiff by registeredletter. Accordingly, the plaintiff avers that on or about March 1998 thedefendant deserted the plaintiff with a view to ending the marriage. Thedefendant filed answer on 2.1.2003 and counter sued and prayed for adecree of divorce against the plaintiff, on the ground that she had filed adivorce action in Canada against the plaintiff and had made the plaintiff ofthe present action as the defendant of that action and that action is stillpending. The defendant admits that the plaintiff and the defendant weremarried on 7.9.1989 and there is one child from the marriage.
On the fourth date of trial on 3.2.2004, the counsel for the defendantraised the aforesaid issue on the basis that the judgment in the aforesaidaction filed in Canada has been pronounced on 15.11.2003 and a divorcehas been granted in favour of the defendant and moved that the said issuebe tried as a preliminary issue. The counsel for the plaintiff objected to thisapplication and stated that said issue involves a mixed question of factand law and as such it cannot be taken as preliminary issue. Thereafterthe Court directed the parties to tender written submissions. The learnedjudge by his order dated 29. 03. 2004 held that in view of the judgment incase No. 500/12/2514/91/001 referred to in the said issue, the plaintiffcannot maintain the action, and dismissed the same. It is against thisorder the plaintiff has filed this application in revision.
K.D. P. Wickramasinghe in his book ‘Civil Procedure in Ceylon’, 1971edition, at pages 179 and 180 citing the authorities on this question hasstated thus:
Varuna Jayasuriya vs. Krishanjini Jayasuriya
“it has been held that when an issue of law arises, and if it appearsthat the case can be disposed of on that issue only, the Judge has thepower to try that issue first, postponing the settlement of the issues offact until he has disposed of the issue of laW
If the question of law is combined or interwoven with questions of fact,the issue cannot and ought not to be tried as preliminary issue of law.
In the instant case the question arises as to the validity of the judgmententered in the matrimonial Court in the Province of Quebec in Canada,dissolving the marriage of the plaintiff and the defendant, and the recognitionof the decree so entered by a Canadian Court. The defendant is residingin Canada and the plaintiff is a citizen of Sri lanka living in Colombo.Accordingly, the jurisdiction of the Canadian Court in the province ofQuebec to dissolve a marriage between a Sri Lankan citizen and a ladyborn in Sri Lanka, who is supposed to have obtained the citizenship ofCanada is in issue. Admittedly, the marriage had been registered in SriLanka and the spouses had lived in Sri Lanka. At the time the plaintiffinstituted this action in the District Court of Colombo, the defendant wasliving in Canada and according to her, she had obtained the citizenship ofCanada. The plaintiff has taken the position that the Canadian Court hasno jurisdiction to entertain the action filed by the defendant in the provinceof Quebec in Canada.
The domicile of a married woman is the same as, and changes with,the domicile of her husband. According to the common law, the onlyCourt which has jurisdiction to entertain an action for divorce is the Courtin whose area the parties are domiciled at the time of the institution ofproceedings (The Law and the Marriage Relationship in Sri Lanka’ byShirani Ponnambalam, 2nd edition at page 370). The wife acquires thedomicile of the husband up to the date of the decree in a matrimonial
action. (Navaratnam vs. Nawaratnam 0) Jurisdiction to grant a divorce
depends upon the domicile of the husband (Annekade Vs. MyappanHowever in Morris l/s. Morris petitioner was a native and a permanentresident of Ceylon while her husband was an European, domiciled in England,and the Supreme Court of Ceylon was held to have jurisdiction to entertainthe petition for divorce.
Sri Lanka Law Reports
(2005) 2 Sri L R.
Another important factor in this case is that the marriage between theplaintiff and the defendant was solemnised and registered in Colombo on7.9.1989, (Paragraphs 2 and 3 of the plaint) The defendant in her answeradmitted paragraphs 2 and 3 of the plaint. The action has to be institutedin the Court within whose territorial jurisdiction the marriage contract wasmade. In the instant case the marriage of the defendant to the plaintifftook place in Colombo, and therefore the question arises whether it is onlythe District Court of Colombo that has jurisdiction in the matter.
The learned President’s Counsel for the plaintiff also brought to thenotice of Court in his submissions that the defendant had counter-suedin her answer for divorce and by this act the defendant had submittedherself to the jurisdiction of the District Court and thereby accepted thejurisdiction of Court. Moreover the defendant has not specifically traversedthe averment in the plaint as to the jurisdiction of the Court. Section 76of the Civil Procedure Code states that if the defendant intends to disputethe averment in the plaint as to the jurisdiction of the Court, he must doso by a separate and distinct plea, expressly traversing such averments.It is to be observed that the defendant’has raised the aforesaid issue onthe basis that in view of the judgment in the case of the matrimonialaction No. 500/12/2514/91/001 in the matrimonial Court in Quebec, Canada,against the plaintiff, the District Court of Colombo has no jurisdiction todetermine this action filed by the plaintiff against the defendant.Accordingly, the defendant has challenged the jurisdiction of the DistrictCourt to hear and determine this action by raising this issue. However,the defendant has not taken an objection with regard to jurisdiction in heranswer at the earliest opportunity. Relating to the fundamental jurisdictionof the Court cannot be raised in oblique or veiled manner but must beexpressly set out in the answer (vide Jalaldeen Vs. Rajaranam)
The aforesaid issue involved the jurisdiction of the Canadian Court,and in this case where the wife is a resident of Canada, she could notobtain relief in Canada when husband was domiciled abroad.
Another issue is the recognition of foreign decrees. Following theprinciple that jurisdiction in divorce is based on domicile, Courts recognisea decree if it is obtained in the country in which the parties were domiciledat the time of the institution of the action. Accordingly, the recognition ofa foreign decree is also an issue before Court. There are cases where
Dissanayake vs. Samurdhi Authority of Sri Lanka and Others
Court has a discretion to refuse recognition. For instance, divorce obtainedoutside the country, if it is recognised, would be contrary to public policy.
In the circumstances I am of the view that the aforesaid matters arequestions of fact involved with the aforesaid issue and in view of that, thesaid issue ceased to be a preliminary issue of law. For a case to bedisposed of on a preliminary issue, jt should be pure question of law whichgoes to root of case. Moreover it appears to me to decide the said issueseveral documentary evidence have to be considered at he trial. It is myfurther view that the said issue cannot be decided on written submissionswithout taking evidence.
Considering the facts and circumstances of this case, the impugnedorder made by the learned Judge is wrong ex – facie and it amounts to apositive miscarriage of justice due to a fundamental rule of procedurebeing violated. It was held in the case of Soysa l/s. Silva5 that the powergiven to the Superior Courts by way of revision is wide enough to give itthe right to revise any order made by an original Court. Its object is thedue administration of justice and correction of errors, sometime committedby the Court itself, in order to avoid miscarriage of justice.
I am of the view that non * interference by this Court will cause denial ofjustice and irremediable harm to the defendant. Therefore, there are specialcircumstances for this Court to exercise its powers of revision.
For these reasons, I hold that the learned additional District Judgeerred in answering the above mentioned issue in the negative againstthe plaintiff and dismissing the plaintiff’s action. Accordingly, I set asidethe order made by the learned Judge dated 29. 03. 2004 and allow theplaintiff’s application in revision. The learned Judge is directed to gothrough the trial and answer all issues at the conclusion of the trial.
The plaintiff is entitled to the costs of this application.
District Judge directed to go through the trial and answer all issues.
VARUNA JAYASURIYA vs KRISHNANJINI JAYASURIYA