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(1948) JELR 87076 (CA)

Court of Appeal  •  2 Jul 1948  •  United Kingdom

Tucker, Bucknill  and Somervell L.J.J


TUCKER, L.J.: This is an appeal from the decision of HODSON, J., rejecting a husband’s petition for nullity brought under s. 7 of the Matrimonial Causes Act,1937. That section is as follows:

In addition to any other grounds on which a marriage is by law void or voidable, a marriage shall be voidable on the ground : (a)that the marriage has not been consummated owing to willful refusal of the respondent to consummate the marriage; or

That either party to the marriage was at the time of the marriage of unsound mind or a mental defective with the meaning of the Mental Defective Acts, 1913 to 1927 or subject to recurrent fits of insanity or epilepsy; or (c) that the respondent was at the time of the marriage suffering from venereal diseases in a communicable form; or (d) that the respondent was at the time of the marriage pregnant by some person other than the petitioner : provided that in the cases specified in paragraphs (b), (c) and (d) of this sub- section, the Court shall not grant a decree unless it is satisfied- (i) that the petitioner was at the time of the marriage ignorant of the facts alleged ;(ii) that the proceeding was instituted within a year from the date of the marriage; (iii) that material intercourse with the petitioner has not taken place since the discovery by the petitioner of the existence of the grounds for a decree.

The section then goes on :

Any child born of a marriage avoided pursuant to paragraphs (b) or (c) of the last foregoing sub- section shall be a legitimate child of the parties thereto notwithstanding that the marriage is so avoided.

It is to be observed that that paragraph does not apply in cases, like the present, which fall under paragraph (d).

In the present case the parties were married on Oct. 31, 1944 and the petition was presented on March 8, 1947. It is clear on the face of it that more than a year had then expired from the date of the marriage, and, therefore, the case comes within the proviso that the Court shall not grant a decree unless it is satisfied that the proceedings were instituted within a year from the date of the marriage. The marriage having taken place on Oct. 31 1944 a child was born on May 30 1945, so that it would have been a premature birth if the husband was the father. The husband became more aware that his wife was pregnant as at the result of a letter which he sent to him on May 15, 1945. I think it is probable that he had had some communication before that, but that is the first document in the case produced at the trial. In that latter of May 15 the wife said that the child would be coming before its time because of a fright and a fall that she had had. On June 14, after the birth, she wrote again referring in more detail to her accident and fright. In August, 1945, the husband came home on leave and his suspicions were aroused, but a neighbor was called in who confirmed the wife’s story as to her fall and the husband accepted that explanation and they lived together until July, 1946, when she left him. He then made inquiries of the doctor who had attended her in her confinement, and on September 20, 1946, he was informed by the doctor that the baby at birth was apparently nine month’s child. He thus became aware of the position, but the petition was not filed until March 8, 1947. The learned held that it was impossible to say that the husband had not discovered the existence of the grounds for the decree until a date subsequent to his visit in August, 1945. He said:

On these facts, the husband’s suspicion having been aroused when the child was born, and enquires having been made by him to confirm those suspicious very shortly after his wife left him, it is in my opinion, impossible to say that he did not discover the existence of the grounds for a decree until after the later date. It may be that his affection for his wife induced him to remain with her at first and to give her the benefit of any doubt there might be, but the result is that he has failed to prove that marital intercourse has not taken place since the discovery of the existence of grounds for a decree.

I do not think it is necessary to express any view with regards to that part of the case, because I think it is clear that the husband is debarred from bringing this proceeding by reason of the fact a period of considerable more than a year passed between the date of the marriage and that of the institution of the proceedings.

The argument that has been presented to us by Counsel to the husband with a view to overcome this difficulty is as follows. He says that, in effect proviso (ii) in s. 7 (1) is in nature of a statute of limitation and that equitable principle should be applied to its interpretation, and, accordingly, if it be established that the husband’s right’s right in this respect has been concealed by the fraud o the wife, the period provided for in the subsection should be extended until the discovery of the fraud. Counsel concedes that this section does not come within s. 26 of the limitation Act, 1939, which provides for the extension of the period of limitation in actions based on fraud, or where the right of action was concealed by the fraud, or where the action is for relief in consequence of mistake, because that section only covers actions for which the period of limitation is prescribed by the Act and the Act does not prescribe any period of limitation with regards to the matter. In support of the sub-section that is s. 7 (1) of the Matrimonial Causes Act, 1937, should e regard as a statute of limitation, Counsel refers us to the limitation (Enemies and War Prisoners’ ) Act, 1945, which provides, in s. 1 (1):

If at any time before the expiration of the period prescribed by any statute of limitation for the bringing of any person who would have been a necessary party to that action if it had then been brought was an enemy or was detained in enemy territory, the said period shall be deemed not to have run when the said person was an enemy or was so detained, and shall in no case, expire before the end of twelve months from the date when he ceased to be an enemy or to be so detained or from the date of the passing of this Act, whichever is the later...........................

In s.2 it is provided that for the purpose of this Act “ ‘ statute of limitation’ means any of the following enactments, i.e.,: the Limitation Act, 1939”and a number of other Acts, including, the Copyright Act, 1911, the Moneylenders Act 1934, and s. 7(1) of the Matrimonial Causes Act, 1937

The mere fact that parliament thought fit, in the special case of the person who were enemies or were detained in enemy territory, to provide that some extension of time should be given for bringing proceedings under sub-s. (1) of s. 7 of the Matrimonial Causes Act, 1937, does not in my view, bind us to decide that the sub-section should be interpreted as meaning that parliament has intended to enable the Courts, in applying the sub-section, to invoke equitable principle with the result that in many cases the period of twelve months would be considerably extended. I do not think that this case can be dealt with merely by considering whether or not this sub-section is for some purpose a statute of limitation. The question turns on the construction of the sub-section as a whole. One must appreciate the subject the subject- matter with which it is dealing, viz., proceedings to alter the status of the parties the result of which will affect the children of the marriage, and that in all the cases specified in the sub-section parliament has though has thought fit to prescribe in the clearest possible language that the Court shall not grant a decree unless it is satisfied that proceedings were instituted within a year of the marriage. It would be wrong for this Court to extend that period in a way which might, in some cases, involve bastardising children that had been born of the union which it was sought to avoid. There are cases of bigamy and insanity in which marriages are void or voidable on grounds other than those specified in the sub-section and their avoidance may involve children who have been born of those marriages, but that is no reason why, by our interpretation of this Act, we should enlarge the area of such cases. It seems to me on the clear wording of this section that the husband is out of Court and that the appeal on that ground must fail

BUCKNILL, L.J.: I agree with the reasons given by my Lord.

SOMERVELL,L.J.: I agree. If it is desired to lay down a period of limitation after he expiry of which actions cannot be brought, there are, broadly two ways in which the period can be delimited. One is to take a fixed period as from a certain date irrespective of whether the person seeking reliefs has, or could have, knowledge of his right .Those two broad principles are very familiar. They can be combined, and in the present statute, parliament might have provided that proceedings must be instituted within a year from the date of the marriage or within, say six months from the discovery by the petitioner of the existence of the grounds in question, which ever period was longer. Counsel is asking us to imply into this sub-section a provision based on what I described as the second broad method by which the period can be delimited. I can see no reason why we should imply any such provision and a good many reason against it. Reference has been made by my brother to the Limitation Act, 1939, and I think that a study of the material sections of that Act reinforces the reasons which he has given for arriving at his conclusion. In the 1st part of that Act one finds certain periods of limitation set out. According to Counsel’s Argument, I think he would have said that the equitable principle as to fraud would have to be applied to them even if there had been no mention of it in the Act, but, in fact, one finds that extension on the ground of concealment by fraud is specifically set out in the Act. There is no such provision in this Act, and it seems to me impossible to imply it even if the equitable principle had any application (and I rather doubt whether it has) to the subject matter with which we are concerned in this Appeal.

Appeal dismissed with Cost

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