Case Summary: Invalidated Ex Parte Divorce Due to Non-Service of Summons

Case Summary

Case Title: Kurukulasooriya Pearl Benita Perera v. Horanakkara Hemasinghelage Manel Ashoka
Case Number: CA/RI/14/2018
Court: Court of Appeal of Sri Lanka
Judges: D.N. Samarakoon, J. & B. Sasi Mahendran, J.
Decision Date: 05.08.2022

Facts

1. The petitioner, Kurukulasooriya Pearl Benita Perera, was married to the late Francis Luxshman Perera on 06.10.1980.
2. On 07.01.1993, the late Francis Luxshman Perera filed a divorce case in the District Court of Colombo (Case No. 16279/D), citing adultery and/or malicious desertion.
3. The District Court issued a decree nisi on 07.12.1993 and a decree absolute on 30.06.1994, finalizing the divorce.
4. The late Francis Luxshman Perera subsequently married the respondent, Horanakkara Hemasinghelage Manel Ashoka, on 03.08.1995.
5. The late Francis Luxshman Perera passed away on 08.02.2016.
6. A dispute over the succession of his estate arose when:
   • The petitioner filed a testamentary action in the District Court of Negombo on 05.05.2016.
   • The respondent filed a competing action in the District Court of Gampaha on 07.06.2016.
7. The petitioner challenged the validity of the divorce, alleging that summons had not been duly served on her.
8. She claimed she was abroad (in the UAE) from 28.05.1993 to September 1996, as evidenced by her passport.
9. The petitioner argued that her late husband had provided false information about her residence and misled the court to obtain an ex parte divorce judgment.

Parties

• Petitioner: Kurukulasooriya Pearl Benita Perera
• Respondent: Horanakkara Hemasinghelage Manel Ashoka
• Deceased: Francis Luxshman Perera (late husband of the petitioner)

Legal Issues

1. Was summons properly served on the petitioner in the divorce proceedings?
2. If summons was not duly served, was the divorce judgment a nullity?
3. Can the Court of Appeal exercise restitutionary jurisdiction to set aside the divorce decree?
4. Was there a delay in filing the present application, and if so, does it bar relief?

Arguments of the Parties

Petitioner’s Arguments:

• She was not served with summons as required by law.
• At the time of the divorce proceedings, she was abroad, and the service of summons recorded in court was fraudulent.
• Due service of summons is essential for a valid judgment, and failure to serve summons invalidates the divorce decree.
• Since the decree was obtained by fraud, the delay in filing this application should not bar relief.

Respondent’s Arguments:

• The petitioner had delayed in challenging the divorce (as the decree absolute was issued in 1994).
• Since the decree was finalized decades ago, it should not be set aside now.

Judgment

1. Summons was not duly served – The evidence (passport records) showed that the petitioner was abroad when summons was allegedly served.
2. Failure to serve summons invalidates the divorce decree – The court relied on past rulings (e.g., Ittepana v. Hemawathie, Siriwardena v. Jayasumana) to conclude that failure to serve summons is a fundamental defect affecting jurisdiction.
3. Fraud justifies setting aside the decree – The late Francis Luxshman Perera misled the court by providing false addresses, making the divorce decree a nullity.
4. The Court of Appeal has jurisdiction – Since the petitioner’s former husband was deceased, she had no alternative but to seek restitutionary relief from the Court of Appeal.
5. Delay is not a bar when fraud is involved – The court cited precedents (Biso Menika v. Cyril de Alwis) to hold that delay does not prevent granting relief when fraud is evident.

Conclusion

The Court of Appeal set aside the ex parte divorce judgment and decrees on the basis that summons was never properly served. The petitioner successfully proved that her late husband had obtained the divorce through fraudulent means. The judgment emphasizes the importance of proper service of summons and reinforces that a judgment obtained without jurisdiction is a nullity.