133-NLR-NLR-V-51-ANNAMMAH-Appellant-and-SUBRAMANIAM-Respondent.pdf
A nnammah v. Subramaniam
-547
1950
Present: Jayetilete C.J. and Pnlie J.
ANNAMMAH, Appellant, and SUBRAMANIAM, Respondent
8. C. 436—D. 0. Jaffna, 462
Divorce action—Non-appearance of defendant—Decree nisi—Requirement of personalservice of notice—Civil Procedure Code, as. 85, 596,604.
Where owing to tho non-appearance of defendant a decree nisi is enteredin favour of the plaintiff in a matrimonial action the procedure laid down insection 85 of the Civil Procedure Code must be followed and noticoof tho decreenisi must be served personally on the defendant, unless the Court directs somaother mode of service.
I'ULLE J.—Anttammak v. SuUrumuuiam
L from mi wdcr of the District Court, Jatfaa.
H. r. !*ereratK.C., with T. jFoim^Mdrfflin.for defcuduit appellant.
.V. 3. Wr.irasooria, K.C.t with V. K. Kandanramy, for plaintiff
respondent-.
Cur. odv. rult.
Mr.y 4, 1950. Puujj J.—
The appellant is titc wife of one SiUampalam Subramantam whoinstituted this action against her oo Sth June, 1940, for dissolution oftheir marriage on the ground of malicious desertion. On the 27tb August,1949, after ex parte trial decree nisi dissolving the marriage was enteredam! it >vas made absolute on the 29th November, 1948.
On the GtU January, 1949, the appellant moved that tho decree nisiand decree absolute bo set aside and she be allowed to file answer on theground that she was not aware of the institution of the action. Thepreseat appeal is from the order of the learned District Judge dismissingher application.
At the hoariut: Y-ho principal b;sue was whether summons was servedOil ;he appellant- by t)io process server, fsthai Selvad.irai, on tho 23rdJ;:/,*.*, 1348, on being pointed out by the plaintiff. Tho learned DistrictJudge, upon a consideration only of the evidence touching the factsimmediately connected with the alleged service of summons and of thecb.mm^rnrcs in which, according to the apwlUurt, she became awareof tho pro'joodi’igs, hel-.l against fchonnpelhuit-. Tn appeal it was contendedIhftb the J’n.V.m confined himself to a narrow Hold oi facts and failed toapiu’eci^b.r 1 •oievr.aey of a cogent body of evidence which rendered itbb:h:y i;u;n,:*-:.-,b!o that tho appellant would not have eo»uv.-;tvu the actionii.v.i :jh<: boon made ciwe.r;: of it- by tlie aorvieo of summons.
Tho pvrWofl were married in 1920 and according to tho respondentthey lived ay husband and wife happily till tho end of Reptemlxjr, 1942,when tbedofcrulantmalicioiisly deserted him. Tt is admitted that at thetime of the institution of the action the respondent v.ns living in adulterywith one Nagapjier Purv.athypillai by whom he had seven children.'I’hc adulterous association hod lasted over a period of twenty years andit is not devoid of significance) that both the plaint acid the evidencegiven at tho ex 'parte trial are silent os to the respondent’s own inGdolity.The portion taken up by tho respondent that he thought of obtaininga divorce l>e cause the appellant was not consenting to live with him hadto he carefully tested by the learned Judge in the light of the admissionthat the respondent was about this time anxious to logalise by marriagehis association with Parwafchy. A desire on his port to avoid prot ractedproceedings in which he would have had not only to ostablisli a chargeof desertion against- his wife but to justify his own misconduct was, inmy opinion, a sufficient inducement to keep the appellant ignorant of theproceedings. The apjKsllnnt's story sounds natural and true that diebecame aware of the case through the witness Kandiab only after therespondent hud given notice of his marriage with Parwatby. Kandi&hwas a witness to the notice of marriage dated 3rd January, 1949. I find
Edirieinghe v. District Judge of Matara
549
it difficult to believe that on receiving summons the appellant remainedindifferent to the assertion of her rights as the wife of the respondent.Having regard to all tho circumstances of tho case I am of opinion that thefinding that summons was served on the appellant is unreasonable andcannot be supported.
At tho argument in appeal the point was raised whether the decreenisi and the decree absolute entered under Chapter XLH of the CivilProcedure Code could stand in view of the failure to comply with section85 of the Code which requires that upon an ex parte hearing the decreenisi shall be served personally on the defendant, unless the Court directssome other mode of service. It is conceded that after the ex parte hearingon the 27th August, 1948, the procedure laid down in section S5 was notfollowed. There is nothing in Chapter XLII from which one is entitledto infer that the imperative provisions in section 85 are not applicableto^matrimonial cases. On the contrary section 596 provides that " theprocedure generally in such matrimonial cases shall (subject to theprovisions contained in this Chapter) follow the procedure hereinbeforeset out with respect to ordinary civil actions If in an action respectingproperty it is necessary that a defendant should have notice of a decreepassed against him in his absence, the grounds are very much strongerfor hokliug that the same procedure should be followed in an action fordissolution of marriage resulting as it does in the alteration of the statusof the parties. I am, therefore, of the opinion that the decree nisi andthe decree absolute passed under section 604 arc void and of no effect.
I would, therefore, set aside the decree nisi and the decree absolutedissolving tho marriage and remit the case to the learned District Judgewith directions to allow tho appellant to file answer and to try tho actionin due course, The appellant will be entitled to the costs of appealand tho costs of the proceedings in the District Court on the 9th March,1949.
Jayrtilekk O.J—I agree.
Decree set n«idc.