THE ATTORNEY-GENERAL, Appellant, and A. E. REID, Respondent

009-NLR-NLR-V-67-THE-ATTORNEY-GENERAL-Appellant-and-A.-E.-REID-Respondent.pdf


[In thk Pbivy Council]
Present: Viscount Dilhome, Lord Hodson, LordGuest, Lord Upjohn, and Lord WilberforceTHE ATTORNEY-GENERAL, Appellant, andA. E. REID, Respondent
Pbivy Council Appeal No. 18 or 1964
S. C. 1511962—D. C. (Grim.) Colombo, 2090IN
Bigamy—Christian monogamous marriage—Subsequent conversion of husband toMuslim faith—His right to contract a polygamous marriage—Marriage Regis-tration Ordinance, ss. 18, 10(1), 85 (2), 64—Muslim Marriage and DivorceAct—Penal Code, s. 362 B.
In a country such as Ceylon, where there are many races and creeds and anumber of Marriage Ordinances and Acts, the inhabitants domiciled herehave an inherent right to change their religion and personal law and so tocontract a valid polygamous marriage. If such inherent right is to be abrogatedit must be done by statute.
The respondent contracted a marriage on 18th September 1933 under theMarriage Registration Ordinance, according to Christian rites. On 13thJune 1959 he and a divorced woman were converted to the Muslim faith. Amonth later they were duly married under the provisions of the MuslimMarriage and Divorce Act, notwithstanding that the earlier marriage wassubsisting and had not been dissolved under section 19 of the Marriage Regis-tration Ordinance. The respondent was at all material times domiciled andresident in Ceylon. Admittedly the conversion of the respondent to theMuslim faith was sincere and genuine.
Held, that the Muslim Marriage and Divorce Act makes full provision for amale Muslim inhabitant of Ceylon to contract more them one marriage.Accordingly, the respondent was not guilty of the offence of bigamy, becausethe second marriage was not void within the meaning of section 362 B of thePenal Code.
Appeal, by special leave, from a judgment of the Supreme Courtreported in (1963) 65 N. L. R. 97.
Mark Littman, Q.G., with M. P. Solomon, for the appellant.
E. F. N. Graliaen, Q.C., with T■ O. KeUock and M. 1. Hamavi Haniffa,for the accused-respondent.
Cur. adv. vult.
2B 5183—1,855 <4/65)
December 15, 1964. [Delivered by Lord Upjohn]—
This is an appeal by the Attorney-General of Ceylon, by special leave,from a judgment of the Supreme Court of the Island of Ceylon dated11th July 1963 whereby the respondent’s appeal ag°inst his convictionon the 23rd November 1961 by the District Court of Colombo of theoffence of bigamy was allowed and the conviction was quashed.
The relevant facts are not in dispute. The respondent married EdnaMargaret de Witt according to Christian rites at St. Mary’s Church,Badulla, on 18th September 1933. Both were Christians at the timeand they lived together as man and wife until 1957. There were eightchildren of the marriage. In May 1957 the wife left the respondentand obtained a Maintenance Order against him in the MagistratesCourt of Colombo.
On the 13th June 1959 the respondent and a divorced lady of thename of Fatima Pansy were converted to the Muslim Faith. A monthlater on the 16th July 1959 they were duly married in the District ofColombo by the Registrar of Muslim Marriages under the provisionsof the Muslim Marriage and Divorce Act, 1951, notwithstanding thatthe earlier marriage was subsisting.
On the 28tb October 1961 the respondent was indicted at the instanceof the appellant for the offence of bigamy under section 362 "B of thePenal Code which so far as relevant is ir these terms :—
“ Whoever, having a husband or wife living, marries in any casein which such marriage is void by reasor of its taking place auringthe hie of such husband or wife, shall be punished with imprisonmentof either description for a term which may extend to seven years, andshall also be liable to fine. ”
He was duly convicted by Buultjens A.D.J. and sentenced to threemonths rigorous imprisonment from which judgment, as alreadymentioned, he successfully appealed.
As the first Christian marriage was under the Marriage RegistrationOrdinance some reference to that Ordinance is necessary. It containsthe following relevant seotions :—
“18. No marriage shall be valid where either of the parties theretoshall have contracted a prior marriage which shall not have beenlegally dissolved or declared void.
19.(1) No marriage shall be dissolved during the lifetime of the
parties except by judgment of divorce a vinculo matrimonii pronouncedin some competent court
(2) The registrar shall address the parties to the following effect:
“ Be it known unto you, A. B. and C. D., that by the publio receptionof each other as man and wife in my presence, and the subsequentattestation thereof by signing your name to that effect in the registrybook, you become legally married to each other, although no other riteof a oivil or religious nature shall take place; and know ye furtherthat the marriage now intended to be contracted cannot be dissolvedduring your lifetime except by a valid judgment of divorce, and thatif either of you before the death of the other shall contract anothermarriage before the former marriage is thus legally dissolved, youwill be guilty of bigamy and be liable to the penalties attached tothat offence.”
64. In this Ordinance, unless the context otherwise requires—
“ marriage ” means any marriage, save and except marriages con-tracted under and by virtue of the Kandyan Marriage Ordinance,1870, or the Kandyan Marriage and Divorce Act, and except marriagescontracted between persons professing Islam ; ”
The Muslim Marriage and Divorce Act applies only to marriages anddivorces and to ancillary matters of those inhabitants of Ceylon whoare Muslims, but their Lordships do not think it necessary to set out inextenso any of its provisions. It is sufficient to say that it makes fullprovision for a male Muslim inhabitant of Ceylon to contract more thanone marriage provided certain notices are given by the Muslim to theQuazi of the District and by the Quazi to the existing wife or wives.
It is important to state at the outset that this appeal has been arguedbefore their Lordships upon the express admission of Counsel for theappellant on the footing that the conversion of the respondent to theMuslim faith on the 13th June 195£ was sincere and genuine notwith-standing doubts expressed in the Courts below on this point.
Before dealing with the arguments and examining the authorities itwill be convenient to state the matters which are rot in controversybetween the parties.
The second marriage ceremony was duly performed by a properofficer after all due notices had been given and was properly registeredunder the Muslim Marriage and Divorce Act.
Accordingly two of the three essential ingredients in the commissionof an offence under section 362 B of the Penal Code are satisfied namelythe respondent is a person “ having a husband or wife living ** who“ marries
The sole question therefore is whether the third ingredient, that iswhether the second “ marriage is void by reason of its taking placeduring the life of such husband or wife ”, is satisfied.
Mr. Littman in supporting the view accepted by the learned ActingDistrict Judge does not rely on any statutory enactment which rendersthe second marriage void for he recoanises that having regard to section64, section 18 of the Marriage Registration Ordinance does not applyto the second Muslim marriage.
Section 18, he concedes, is dealing only with a monogamous marriagebut he submits that it reinforces his main argument for it is someindication of the view of the 1 egislature that the parties to a monogamousmarriage are incapable of re-marrying until it has been legally dissolvedor declared v oid.
Mr. Littman’s main argument was that a person who enters into amonogamous Christian marriage not only enters into a contract butacquires as a result a status, recognised throughout Christendom ; thatit must be the voluntary union for life of one man and one woman to theexclusion of all others, and that status cannot be changed and no newmarriage of any sort can be contracted by either spouse until the marriageis dissolved by a procedure recognised as applicable to monogamousmarriages even if both parties change to the Muslim religion. He reliedon such well known cases as Hyde v. Hvde1; Sottomayer v. De Barros 2and Niboyet v. Niboyet3. Though a polygamous marriage may for somepurposes be recognised as a marriage (see for example Baiadail v. Baindail*)he argued with much force that there is no true analogy between aChristian monogamous marriage and a polygamous marriage (see It. v.Hammersmith Registrar of Marriages 5). So he submitted that a marriageunder the Marriage Registration Ordinance being admittedly monogamousprecluded either party during its subsistence from validly entering intoanother marriage even on a change of faith of both. This argument isstrengthened where the change of faith is unilateral on the part of thehusband only.
Mr. Littman recognised that Ceylon is a country of many raoes whoprofess many creeds ; that there are three Acts dealing with marriagein the Island, the Marriages Registration Ordinance (whose long title is
•4P.D. 1.
•{1946) P. 122.
1 L. R. 1 P. dr D. 130.
•{1917) IK. B. 634.
* 5 P. D. 94.
the Maniage General Registration Ordinance), Tve Kandyan Marriageand Divorce Act and the Muslim Marriage and Divorce Act; each Actdealing with different forms, ceremonies and incidents of marriage. Buthe submitted that none of these Acts lays down any code, and generalprinciples must be applied to see whether by the first marriage the partiesacquired a status which rendered them incapable of validly marryingagain until the first marriage should be validly dissolved. By the firstmarriage such a status, he submitted, was acquired which in the absenceof dissoli tion of the first rendered the second marriage ceremony void.
Mr. Littman’s argument may be summarised in the following passageof the judgment of the Acting District Judge :—
** Monogamy is an unalterable part of the status of every personwho marries under the Marriages (General) Registration Ordinanceand a change of religion cannot affect that status. Conversion tothe Muslim Faith, even if genuine, cannot enable one who has marriedunder the General Marriages Ordinance to contract a polygamousmarriage ; such a marriage is void in the lifetime of a former wife.”
Mr. Gratiaen’s argument for the respondent was that the statusarising out of a contract of marriage is one to which each country is'entitled to attach its own conditions both as to its creation and duration.Sottomayer v. De Barros supra at 101. He submitted that the questionis : what status does the law confer upon parties to a marriage underthe Marriage Registration Ordinance ? That question, he argued,must be answered solely by reference to the relevant statute law. Hesubmitted that if the marital rights of the first wife have been violated,as admittedly they have, then the Marriage Registration Ordinanceprovides a remedy in section 19, but there is nothing in any statute whichrenders the second marriage invalid and nothing in the general law ofthe country which precludes the husband from altering his personallaw by changing his religion and subsequently marrying in accordancewith that law, if it recognises polygamy, notwithstanding an earliersubsisting monogamous marriage.
Before examining these arguments their Lordships propose to refer to theauthorities on this important question. Curiously enough they are few.
In the Judicial Committee of the Privy Council the question seemsonly to have been answered once and then only in a most tentative wayin the case of Skinner v. Orde 1, a case relating to the custody of an infant.The mother of the infant, then a widow, went through a marriage inMahomedan form with a man already the husband in Christian marriageof a living Christian wife. James L.J. delivering the judgment of theBoard said “ The High Court expressed doubts of the legality of a sub-sequent Mahomedan marriage which their Lordships think they werewell warranted in entertaining ”.
114 Moo. Jnd. App. 309.
2*B. 5183 (4/65)
The subsequent case of Skinner v. Skinner1 does not help.
Their Lordships have been informed that the question has never beenconsidered in any reported case in Ceylon.
In India the question has been considered on a section substantially thesame as in Ceylon. As long ago as 1866 in 3 M. H. C. R. VII a Hinduwas converted to the Roman Catholic faith and married in accordancewith that faith but subsequently reverted to Hinduism, which at thattime recognised polygamy, and married again. It was held he was notguilty of bigamy. Holloway J. decided it on the short ground thatas Hindu law recognised polygamy a second marriage according toHindu rights would not be invalid, still less so by reason of the earliermarriage under the Roman Catholic faith which Hindu law would nothave recognised.
Innes J. put it on a broader ground. He examined the only relevantstatute (9 Geo. IV C. 74 Sec. 70) and pointed out that it only renderedvoid a second marriage between persons professing the Christian Religionat the time of the second marriage, which the accused did not, so thatthis statute did not operate. He continued :
“ If, in becoming a Christian, a man took upon himself the obligationof monogamy, i.e., if the Christian Religion restricted him, on hisembracing it, to one wife, then I should say that if such a personmarried while still a Christian he could not afterwards throw off hisobligations by a mere change of profession. But I do not think thata profession of Christianity ipso facto imposes any such obligationalthough doubtless the tendency of Christianity is adverse to polygamy.Polygamy as an offence exists only by statute ; and there is no statuteapplicable …. ”
In Emperor v. Lazar2 the Court relying on decisions where Hinduwomen had been found guilty of bigamy and on the English case ofReg. v. Allen 3 declined to follow 3. M. H. C. R. VII and found the accusedguilty of bigamy. It is important to note that the case is distinguishablefrom that before their Lordships for after referring to the cases of bigamyby Hindu women the Court said “ We think the same principles mustbe applied to the present case which is even stronger as here the accusedis stated not to have renounced the Christian religion. According tothe above decisions it would make no difference if he had. ”
Three years later in Emperor v. Antonyi, where the prosecutionconceded that the accused had renounced Christianity before the secondallegedly bigamous marriage, Abdur Rahim J. followed 3 M. H. C. R.VII in preference to Lazar's case, and without giving reasons, directedthe jury to acquit the accused of bigamy.
1 O.C. R. 367.
33 1. L. R. (Mad.) 371.
1 (1898) L. It. 25 Ind. App. 34.* (1907) 30 I. L. R. (Mad.) 550.
Apart from the fact that it is distinguishable their Lordships thinkthat the reasoning of the Court in Lazar’s case is open to some criticism.Reg. v. Allen is not in point for both marriages in that case were mono-gamous and to follow the cases where Hindu women had been foundguilty of bigamy was erroneous for the simple reason that Hindu lawand Muslim law have never recognised the validity of a plurality ofhusbands by women. Therefore Muslim women have been found guiltyof bigamy in taking a second husband during the subsistence of a formermarriage because by the law of their faith the second marriage was invalid(see Re Ram Kumari). Such cases support the argument of the respond-ent and not that of the appellant.
It appears to their Lordships that as regards India the law is statedwith complete accuracy in Datta v. Sen 8. That was a succession casebut the question for decision was whether an Indian Christianwho became converted to Mahomedanism could take a second wife.Henderson J. said at p. 16 :
“ In connection with marriage the personal law must be applied.
In the case of Advocate-Oeneral of Bombay v. Jimababai3, Beaman J.
said this :—
‘ On conversion to Mahomedanism, converts, no matter what theirprevious religion may have been, must be taken at that moment tohave renounced all their former religious and personal law in so faras the latter flowed from and was inextricably bound up with theirreligion and to have substituted for it the religion of Mahomed withso much of the personal law a3 necessarily flows from that religion. ’
After his conversion Dukhiram was governed by the Mahomed anlaw. There can be no question that under that law he was entitled tocontract a valid marriage with Alfatanessa. It would, therefore, be aserious thing to say that such a union was a mere adulterous connection.
In our view, as he was entitled to contract this marriage under theMahomedan law, it must be held to be a valid marriage unless there issome statute which invalidates it. Mr. Sen was not able to put forwardany such provision : nor can we find anything either in Act XV of 1872or in the Indian Divorce Act which would expressly invalidate thismarriage. The result is that, in our opinion, Dukhiram did contracta valid marriage with Alfatanessa. **
Such authority is entitled to great weight particularly in questions ofthe validity of marriages celebrated in accordance with the laws of thecountry where it is celebrated, but does not bind their Lordships, whohave to consider this matter for the first time as a matter of decision.
Ceylon is a country of many races, many creeds and has a number ofMarriage Ordinances and Acts. The position there, as it appears totheir Lordships, is similar to that in the former territories of BritishIndia where as was pointed out by Chagla J. in Khartum v. Irani 1** in matrimonial matters there is no one law which applies to personsdomiciled in British India ; they are governed by their personal lawswhich differ from community to community
Their Lordships also note with interest the recent observationsof Sir Jocelyn Simon P. in Gheni v. Cheni8 who said at p. 22" After all there are no marriages which are not potentially polygamousin the sense that they may be rendered so by a change of domicile andreligion on the part of the spouses ”, which recognises that the obliga-tions assumed upon undertaking a Christian monogamous marriage maynot in some circumstances be incapable of change.
Whatever may be the situation in a purely Christian country (as towhich their Lordships express no opinion) they cannot agree that in acountry such as Ceylon a Christian monogamous marriage prohibits forall time during the subsistence of that marriage a change of faith and ofpersonal law on the part of a husband resident and domiciled there.They agree with the observations of Innes J. almost 100 years ago. Intheir Lordships’ view in such countries there must be an inherent rightin the inhabitants domiciled there to change their religion and personallaw and so to contract a valid polygamous marriage if recognised by thelaws of the country notwithstanding an earlier marriage. If suchinherent right is to be abrogated it must be done by statute.Admittedly there is none.
Their Lordships have not overlooked section 35 of the Marriage Regis-tration Ordinance which tends to support Mr. Littman’s argument, butthe exhortation contained in the regislrar’s address is no more than awarning and though it may be apt to mislead the ordinary man or womanignorant of the definition of marriage contained in section 64, it cannotsuccessfully be prayed in aid when considering whether the offence ofbigamy has been committed in terms of section 362 B of the PenalCode.
It follows that as the Attorney-General of Ceylon cannot establishthat this second marriage was void by the law of Ceylon by reason of theearlier Christian monogamous marriage the appeal must fail.
For these reasons their Lordships have humbly advised Her Majestyto dismiss the appeal.
Appeal dismissed.
* (1903) 2 W. L. R. 17.
1 11947) A. 1. R. 272 at p. 273.