C.K. Matenba v. Mary Matenba, Mat. Cause 1-D-66, 10/5/68, Georges C. J.

C.K. Matenba v. Mary Matenba, Mat. Cause 1-D-66, 10/5/68, Georges C. J.

Petitioner husband applied for a divorce on grounds of cruelty. Respondent wife originally prayer for judicial separation on the grounds of petitioner’s adultery but later substituted a prayer for divorce, and a decree nisi was granted on that prayer. During these proceedings the Court granted leave to withdraw the original petition though this was merely noted in the record and was not signed or mentioned in the judgment or order granting the decree nisi to respondent. It is also alleged that other errors occurred in the proceeding: (a) that the answer was not served on a person who apparently was the woman involved in the alleged adultery; (b) that no affidavit of service on her was filed; (c) that the application for amendment submitted by respondent was not in writing and was not accompanied by and affidavit stating that there was no collusion; and (d) that the application by petitioner to withdraw his petition was not in writing or accompanied by and affidavit denying collusion. In the present proceedings petitioner applied to have respondent’s decree nisi made absolute. Respondent opposed the application and prayed that the decree nisi be rescinded. She stated that she is a Roman Catholic, that her religion does not permit divorce, and that she is greatly distressed because of her sin in seeking a divorce, a step which she says she took in a state of confusion.

            Held: (1) An answer cannot survive the withdrawal of a petition. [Citing Schira v. Schira (1865) L.R. 1 P. & N 465; Sandler v. Sandler (1934) P. 149. (2) The order granting leave to withdraw the petition constituted a judgment. (Citing Tharman Din V. Cabal Das, A.I.R. 1933 Oudh 385; Chitaley & Pac, 2^nd edition, p. 50. (3) In the circumstances of these proceedings, the order should be treated as if it had been signed on the day pronounced. (4) However, the Court has the power to alter an order before it is drawn up, passed and entered; until that time it is only provisionally effective and may be altered. (Citing Raichand Lakhamshi v. Assanand & Sons, (1957) E. A. 82; Re Harrisons Settlement (1955) 1 All E.R. 185]. The order was altered to one staying the petition so that the decree to one staying the petition so that the decree nisi given on the answer could be given effect. (5) The failure to serve the woman named in the answer made the proceedings voidable but not void and may be cured. [Citing Watts v. Watts (1959)2 All E. R. 687; obiter; of Lord Denning M. R. in Balloqui v. Balloqui (1964) 1 W. L. R. 83]. (6)The application for leave to amend by respondent was made in petitioner’s presence without objection. In these circumstances there was a tacit direction by the Court to follow a procedure other than that prescribed by Rule 14(2) of the Matrimonial Causes Rules, and the Court has the power to make such variation. (7) No affidavit denying collusion was required to accompany the amendment since the amendment merely modified the prayer and alleged no new facts. (8) For similar reasons, the application for leave to withdraw the petition did not require an affidavit denying collusion. (9) The Court has jurisdiction to rescind the decree nisi which it granted. [Citing s. 3 of the Matrimonial Causes Ordinance, Cap. 364, which with exceptions grants the Court the same jurisdiction as the High Court of Justice in England as of 1^st April, 1936; Rutter v. Rutter (1921) P. 421; Daglish v. Daglish (1935) P.49]. (10) There is precedent for the rescinding of a decree nisi because a party objected on religious principle. [Citing Griffiths v. Griffiths (1911) 29 T.L.R. 281]. However, the most important considerations are whether there is nope of reconciliation and whether the financial interests of the wife are adequately protected. In this case there is no hope of reconciliation, the wife is protected financially, and to rescind the decree nisi would be to deny the husband the right to be heard as to the remedy which should be awarded to his wife. Ordered that a copy of respondent’s answer be served on the woman named and that the decree nisi be set aside if she intervenes; if she does not intervene, the matter to be placed before the Court for making the decree absolute unless cause is shown for not doing so.