PAULIS vs. JOSEPH AND OTHERS

031-SLLR-SLLR-2005-V-3-PAULIS-vs.-JOSEPH-AND-OTHERS.pdf


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PAULISVSJOSEPH AND OTHERSCOURT OF APPEALIMAM, J. ANDSRISKANDARAJAH, J.
CA 478/2003.
DC MT. LAVINIA160/931/D.OCTOBER 28, 2004.SEPTEMBER 30, 2004.JULY 19,2005.
Divorce obtained ex-parte – Complaint that divorce was obtained by abuseand misuse of legal process arid by fraud – Restitution in intergrum – Court ofAppeal (Appellate Procedure Rules) 1990, and Rule 3(5)-No affidavitaccompanying objections – Exceptional circumstances – Right to pension ■Constitution, Article 138(1).
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The petitioner sought to revise and sought restitutio – in intergrum and to setaside the judgment, decree nisi, and decree absolute entered dissolving themarriage of the petitioner to one P, and a declaration that she is the lawfulwife of the said P. She further sought a declaration that, she is entitled to thepension.
It was contended that the petitioner not being a party in the District Court casecannot seek restitution – in — intergrum and as the objections are notaccompanied by an affidavit the objections should not be accepted.
HELD:
Where one of the parties to the divorce action was dead, and if it is shownby the surviving spouse that divorce was obtained fraudulently withoutservice of summons and by abuse and misuse of legal process the Courtof Appeal has the power to grant restitutio – in- intergrum as well as act inrevision and set aside the divorce.
The Colombo fiscal’s reports seem to have been produced by a misuseof the legal process.
Held further:
Even though there is no affidavit accompanying the objections, the petitionerhas pointed out exceptional circumstances to revise the order.
The petitioner is the lawful wife of deceased P and is entitled to the pension,being the lawful wife of P.
APPLICATION for revision and restitutio – in intergrum from an order of the
District Court of Mt. Lavinia
Cases referred to:
Kusumawathie vs Wijesinghe 2001 Sri LR 238
Sirinivasa Them vs. Sudassi Thero – 63 NLR 31
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S.Mithrakrishan R. Mithrakrishanan for petitioner.
A. Muthukrishan with K. Sabaratnam for respondent.
Cur. adv. vult.
September 7, 2005.
IMAM, J.This is an application by the Petitioner for a revision and or Restitutio inIntergrum to set aside the Judgment, Decree Nisi, Decree Absolute enteredin DC. Mount Lavinia in Case No. 160/93 Divorce dissolving the marriageof the petitioner to Anthonipillai Paulis null and void, for a declaration thatthe petitioner is the lawful wife of the said Anthonipillai Paulis who died on16. 12. 2002, for a declaration that the petitioner is entitled to obtain thewidow’s pension of her deceased husband Anthonipillai Paulis, and foran order on the 2nd and 3rd Respondents to pay the pension of AnthonipillaiPaulis who died on 16. 12. 2002 to the Petitioner, inter alia other reliefssought for in the Petition.
On 12. 07. 2004 Counsel for the petitioner brought to the notice ofCourt that the statement of objections of the 1 st Respondent were notaccompanied by an affidavit as stipulated by the Court of Appeal (AppellateProcedure) Rules, which resulted in Counsel for the 1 st Respondent seekingpermission from Court to file an affidavit, which application was refused bythis Court.
The facts of this case as set out in the Petition are briefly as follows :The Petitioner is the widow of Anthonipillai Paulis.who died on 16. 12.2002 while serving as Assistant Director of Education (English) atThunukkai in the Mullaitivu District (X7a). The Petitioner married theaforesaid Anthonipillai Paulis on 20.02.84 (X2a), with the Birth Certificateof the petitioner being marked as (X1). After marriage, the Petitioner wasliving with her husband at her ancestral and dowry house at No. 131C,
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Beach Road Jaffna. At the time of their marriage, the Petitioner’s husbandwas employed as a Teacher at Pundulu Oya, and he was subsequentlytransferred to other schools. On or about 1990 the Petitioner .havingdiscovered that her husband had started an illicit affair with the 1stRespondent, resulted in-constant misunderstanding between the Petitionerand her husband. Nevertheless the Petitioner continued to live with herhusband, and the couple did not produce any children. About October1995 due to the problems in Jaffna the Petitioner and her husband weredisplaced from their house at 131C Beach Road, Jaffna with a fax copy ofa letter given by the Grama Sevaka corroborating this situation (X3), anda English translation being marked as (X3a). The Petitioner went to livewith her mother at Nelliyaddy, although her husband never joined her aspromised. The Petitioner after about eight months came to Colombo on orabout 23. 06. 1996 and was residing at SSK Lodge at 42 A/1, SagaraLane, Bambalapitiya for about two years with a true copy of the declarationmade to the police being marked as X4. From about 24. 06. 1998 thePetitioner was living at 12, Fernando Road, Colombo 06 until February2000, a true copy of the Declaration made to the Police dated 24. 06.1998 being marked as X5. Since then the Petitioner is living at No. 10/1,Fernando Road, Colombo 06 as set out in (X6).
The Petitioner’s position is that although she made several attempts tolive with her husband who was employed in the Education Department atThunukkai, he evaded living with her. The Petitioner states that her husbanddied while he was functioning as Assistant Director of Education (X7a)and his funeral took place in Jaffna which she could .not attend. ThePetitioner avers that after the death of her husband when she went to theZonal Department of Education Thunukkai on or about 27.12.2002, andmade an application to get her Widow’s Pension, the Petitioner to herutter dismay was informed by the Officers there, that in her husband’s filethere is a marriage certificate stating that her husband was married to the1 st Respondent. In mid January 2003 the Petitioner was informed by theaforesaid officers that the 1st Respondent had claimed the Widow’spension which was due to the petitioner and that the 1 st Respondent had
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produced the Decree of Divorce of the petitioner’s marriage to her husbandissued by the District Court of Mount Lavinia. The Petitioner states thatshe obtained certified copies of all the relevant papers in DC Mount LaviniaCase No. 160/93, including the Judgment, Decree nisi and Decree Absolutemarked as X8a, X8b, and X8C respectively.
The Petitioner contends that in the aforesaid Divorce case against herfiled by her plaintiff husband, her address has been cited as “134 Eli HouseRoad, Colombo 15,” although she never resided at this address, and furtherdoes not know these premises. She avers that although the ColomboFiscal reported to Court that summons was served on the Petitioner on08.11.1993 that summons was never served on her. She further contendsthat after Ex-parte Trial was held on 10. 10. 94, although the Colombofiscal reported that Decree Nisi was served on her on 23. 12. 94, it wasnever served on her. The Decree Nisi was made absolute on 07.06. 95.The Petitioner contends that the particulars of the registered Voters listsin the years 1993 to 2001 of the addresses mentioned in the Pleadings asmentioned in the Documents marked X10a (1) to X10a (9) do not refer tothe name of her husband the Plaintiff in the Divorce Case, and the voterslist marked X11a(1) to X11a(9) do not contain her name, and thus theaddresses of both the plaintiff (her husband) and herself are false. ThePetitioner submits that her husband had sought to obtain the divorce byabuse and misuse of legal process and or by fraud and or by producingfalse evidence. She further states that grave injustice has been caused toher, and she has been deprived of her widow’s pension. She contendsthat the final decree entered in the Divorce Case be declared null andvoid.
As the objections of the 1st respondent are not accompanied by anaffidavit, and no subsequent affidavit was filed, Rule 3 (5) of the Court ofAppeal (Appellate Procedure Rules) 1990 has been contravened, and thusthe objection cannot be accepted, as the aforesaid rule is mandatory.Nevertheless the position of the 1st respondent is that the remedyof restitutio in integrum is an extra ordinary remedy and should only be
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granted in exceptional circumstances and that the District Court havingoriginal jurisdiction the parties must go before the District Court. Theposition of the 1 st respondent is that only a party to a contract or to legalproceedings can seek this relief. The view of the 1st Respondent is thatthe issue of summons is a matter between Court and the officer concerned,and when an alternative remedy is provided in law, the remedy has to beexhausted before resorting to Restitutio in integrum. The contention ofthe 1 st Respondent is that she got married to Anthonipillai Paulis on 04.07.1998, and is thus the lawful wife.
As the 1st Respondent did not file any affidavit with the objectionsas mentioned earlier the Petitioner’s averments stand uncontradicted.Counsel for the 1st Respondent accepted this in his oral submissions;however he wished to make written submissions on a point of law.Although the position of the 1st Respondent is that the Petitioner shouldhave gone to the District Court as it has original jurisdiction and wherea due inquiry would be held. However there is no merit in this submission,as the Plaintiff (Petitioner’s husband) is now dead and she obviouslycannot go to the District Court. The facts of this case are almostidentical to Kusumawathie vs Wijesingh&'). That case too dealt withthe right to pension. In that case the wife filed papers in the DistrictCourt to set aside the ex-parte Judgment and Decree after the deathof the plaintiff when she became aware that the Decree for Divorce wasobtained fraudulently. The District Court held that it has no jurisdictionas the plaintiff was dead. The Court of Appeal held that in a situationwhere one of the parties to the divorce action was dead, and if it isshown by the surviving spouse that divorce was obtained fraudulentlywithout service of summons and by abuse and misuse of legal processthe Court of Appeal has the power to grant Restitutio in integrum aswell as act in revision and set aside the Divorce.
In this case although the Colombo Fiscal reported that summonshad been served on the petitioner, on examination of documents markedX10a(t) to X10a(9) and X11a(1) to X 11 a(9), it is proved beyond doubtthat the addresses of the Plaintiff (husband) and Defendants (Petitioner)are not those contained in the caption of the plaint nor in the Decree
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Nisi. Hence the Colombo Fiscal could not have served summons nora copy of the Decree Nisi on the Petitioner. Thus the Colombo Fiscal'sreports seem to have been produced by a misuse of the legal process.
In Sirinivasa Thero vs Sudessi Thero(2) at 31 it was held that Article138(1) of the Constitution has vested in the Court of Appeal sole andexclusive jurisdiction to grant relief by way of Restitutio in integrum. ThePetitioner has also pointed out exceptional circumstances to revise theorder of the learned District Judge of Mount Lavinia entered in DistrictCourt Mount Lavinia Case No. 160/93 Divorce dissolving the marriage ofthe Petitioner to Anthonipillai Paulis which order this Court declared nulland void. The Petitioner has thus proved that she is the lawful wife of theaforesaid Anthonipillai who died on 16.12.2002.
For the aforesaid reasons we grant relief to the petitioner as prayed forin the prayer to the petition, and this Court directs the 2nd and 3rdRespondents to pay the widow’s pension to the Petitioner being the lawfulwife of Anthonipillai Paulis who died on 16.12.2002. We further order the1 st Respondent to pay the Petitioner Rs. 5000/- costs.
SRISKANDARAJAH, J. -1 agree.
Application Allowed.