Kuar v Prasad [2003] FJHC 41; Hba0026d.2002 (20 February 2003)

IN THE HIGH COURT OF FIJI
(AT SUVA)

CIVIL APPEAL NO. 26 OF 2002S

Between:

RAJ KUAR
(f/n Raj Deo)
Appellant

and

DANIEL VIJAY PRASAD
(f/n Ram Prasad)
Respondent

Ms. R. Lal for the Appellant
No appearance by the Respondent

DECISION

On 1 October 2002 the Suva Magistrates’ Court granted the Respondent a decree nisi of divorce on the ground of cruelty. The Court proceeded to hear the petition notwithstanding that the Appellant’s solicitors wrote to the Court on 19 April 2002 maintaining that their client had not been properly served with the petition as required. Why counsel for the Appellant was not present on the date the petition was heard is not known to me but I observe that parties wishing to make representations to a Court should attend upon the Court in person, and not content themselves with writing letters.

On 15 October 2002 the present appeal was filed. Although the Resident Magistrate did not specify when the decree nisi was to become absolute, 15 October 2002 was within the 30 day abridged period sought by the petition in paragraph (b) of the prayer.

Notwithstanding the filing of the appeal, inspection of the original file reveals that the officer in charge of the Domestic Court certified that the decree nisi became absolute on 1 January 2003.

The preliminary issue now is whether in these circumstances there is jurisdiction to hear this appeal.

Section 90 of the Matrimonial Causes Act (Cap 51-the Act) reads as follows:

“No appeal after decree absolute

90. An appeal does not lie from a decree of dissolution of marriage or nullity of a voidable marriage after the decree has become absolute.”
    

It cannot be doubted that no appeal from a decree absolute lies in favour of any party who, having had time an opportunity to appeal from the decree nisi on which is is founded has not appealed therefrom (see Cleaver v. Cleaver (1884) 9 App Cas 631; McPherson v. McPherson [1936] AC 177 and Meir v. Meir [1948] P 89).

It is equally clear that a decree nisi must not be made absolute while an appeal is pending (Lloyd Davies v. Lloyd Davies [1947] P 53; [1947] 1 All ER 161).

It is most unfortunate that the Suva Magistrates’ Court appears to have disregarded a well known rule of practice. Neither did the Appellant’s legal advisors make an application for an order extending the time for the decree to become absolute under the provisions of Section 59 (2) of the Act.

In Everitt v. Everitt [1948] 2 All ER 645 the English Court of Appeal set aside the decree nisi and the decree absolute and gave the husband leave to appeal out of time on the ground that he had not been served with the petition and did not know of the proceedings.

In the present case it is not said that the Appellant did not know of the proceedings, merely that she had not been properly served.

I am satisfied in all the circumstances that Section 90 of the Act should be interpreted to mean that the right to lodge an appeal lapses when the decree becomes absolute but that where an appeal has already been lodged prior to the decree absolute being granted the right of appeal is not affected.

Whether or not on this occasion I should set aside the decree absolute is a separate matter. The Respondent was not present when I heard Ms. Lal on 18 February and therefore this appeal will be adjourned to 26 February 03 at 9.30 a.m. in chambers for continuation at which time the Respondent should be present. The Chief Registrar is asked to write to the Respondent to advise him of the adjourned hearing date.

M.D. Scott
Judge

20 February 2003