-she loses action to set order aside
IN 1968, Alexander Daniels, by means of a trick on his wife, obtained a decree nisi in an undefended divorce suit.
By this trick, the wife, Babra Daniels, did not defend or attend the divorce proceedings and continued cohabitation until October 18, when she learnt that the Court had granted her husband a decree nisi for the dissolution of their marriage.
Accordingly, she instituted a summons to set aside the decree nisi.
But High Court Judge, Justice Victor Crane who heard the application, dismissed the action on the ground that the applicant had taken the wrong course, and ought to have taken her information to the Attorney General for action.
More particularly, the wife stated that a few days before June 12, 1967, the date when the citation and petition were served, her husband had persuaded her to resume cohabitation, and after the petition had been served, had instructed her to inform her lawyer that they had resolved their differences. She did so, and around July 9, 1967, the conjugal state was resumed and sexual relations recommenced. It was not until October 18 that she learnt that a decree nisi had been pronounced, and she accordingly took out a summons to set it aside.
In dismissing the action, Justice Crane held that:
(i) There was no distinction between the application to set aside a decree nisi, and one calling upon a petitioner to show cause why the decree should not be made absolute;
(ii) under Section 12 (1) of the Matrimonial Causes Ordinance, Chapter 166, the respondent was not a person entitled to apply to show cause, and therefore she could not apply to have the decree set aside;
(iii) her proper course was to give the information at her disposal to the Attorney General, as the Queen’s Proctor, for him to take such action as he considered appropriate.
Senior Counsel Mr. Rex H. Mc Kay, appeared for the appellant, while Mr. Bernard De Santos, S.C., represented the respondent.
Delivering his judgment in the matter, Justice Crane said that on October 2, 1967, the husband obtained a decree nisi of dissolution against the wife in an undefended suit. The wife, though duly served with the citation and petition, did not appear to defend.
According to the judge: “This is the wife’s application, by way of summons, for the following orders: That the decree nisi be set aside; that she be at liberty to file an entry of appearance and an answer to the petition; and that she be granted her costs and such further or other relief as may be just.
“The main ground on which her application rests, as revealed in her affidavit in support, is that there was condonation following on which there was a resumption of cohabitation. This was brought about, she says, by a ruse on her husband’s part in the following manner: She had been persuaded by him a few days before June 21, 1967, the date the citation and petition were served on her, to resume cohabitation with him at 147 Garnett Street, Kitty, and instructed by him to inform her lawyer not to proceed any further, and to discontinue proceedings as differences between them had been resolved.
“Accordingly, on or about July 9, 1967 the conjugal state was resumed, and sexual relations recommenced. This state of affairs continued until October 18, 1967, when she left him having ‘heard that a decree nisi had been pronounced against her on October 2, 1967, in proceedings which he had led he to believe were abandoned.’ She is now desirous of entering an appearance, and filing an answer and, in the circumstances, prays that the decree nisi be set aside.
“The husband strongly denies there was a resumption of cohabitation as alleged, or that he ever instructed his wife not to proceed further in defence of the petition. Although he admits his wife did return to the matrimonial home, he however insists that she performed no matrimonial chores, nor slept in the same room with him when she returned. He brands the allegations contained in the affidavit-in-support false and malicious, and designed to embarrass and cause him unnecessary expense. In paras. 8 and 9 of the affidavit-in-reply, he avers that this summons is misconceived, both as to jurisdiction and for reasons of non-compliance, with procedural requirements of Chapter 166 and the related rules.”
Having given the matter some thought, the judge said, “I must, perforce, agree that the objections raised by the husband are weighty and must prevail; and that I have no jurisdiction to entertain this application.”
And, having agreed with counsel for the petitioner’s objection that the correct procedure had not been observed, Justice Crane said in closing:
“What clearly ought to have been done by the applicant in this matter was for her to have given the information of what she has sworn to in her affidavit to the Attorney General; he is the Queen’s Proctor in matrimonial cases, and it should have been left to him to take such proceedings under Section 12 (4) of the Matrimonial Causes Ordinance, Chapter 166 as he thought fit, bearing in mind, as the extract from Halsbury’s Laws of England shows, that the real object of the interim period of six weeks is for the Attorney General to make enquiries into the petitioner’s case…
“I must rule that it is now too late for the wife to enter an appearance and file an answer. These proceedings are misconceived, and the orders sought are consequently refused. Summons dismissed.”