WIJEGUNAWARDENA v. GRACIA CATHERINE

022-SLLR-SLLR-1984-2-WIJEGUNAWARDENA-v.-GRACIA-CATHERINE.pdf


CA
Wijegt/nawj=na v Gracia Catherine
387
WIJEGUNAWARDENA
v.
GRACIA CATHERINE
COURT OF APPEAL
TAMBIAH. J AND MOONEMAl LE. o
C A 271/7/ (F)
D C GAMPAHA 18633,'D
MAY 28, 29. JUNE 25 AND AUGUST 10. 1 984
Divorce-Nullity of marriage-Mamage ceremony in Church-Vaiidity-MarriageRegistration Ordinance, Sections 23, 25. 26, 33. 34 (1). (2). (3). 5 (b). 41, 42. 43and 46-C'jstorrary mamage-Burden of proof-Marriage by habit and repute
The plaintiff-appellant ‘'led this action craving for a declaration that there was no"marriage" oetween him and the defsnd.am-'sspondert and/or that it is null and void orin the alternative for a divorce on the ground of constructive malicious desertion On24.7.1973 the plaintiff had given notice of marriage to the Registrar of Marriages andbelieving that he had complied with the law regarding marriage he went to Church on13 8.1973 with the defendant to get married and there mass was held, prayers wereread, the priest took a ring and put rt on the defendant's finger anc obtained thesignatures of noth parties to a book kept m the Church. Candles and oil lamps wereburning in tire Church during the ceremony No certificate issued by the Registrar wasgiven to the priest and the book signed by the parties wts not one kept in compliancewith the provisions cf the Marriage Registration Ordinance. Thereafter theplaintiff-appellant lived with the defendant as man and v.ife. On 13th July 1975 theplaintiff left the defendant after a quarrel wen her and filed th.s action thereafter.
Held-
Before a Minister car, solemnise a marriage in terms of s 34(1). there must be ncertifies!'* of the marriage notice which alone gives the Minister the authority tosolemnise a marriage In the instant care there was no such certificate of notice givento him The parties wilfully went through a marriage ceremony in Churcr. knowing fullyweP that no certificate had oeen issued Therefore the marriage is null and void in termsof section 46 of the Marriage Registration Ordmance
The evidence only proves that a r.premony took place according to the rules,customs and rites of the Catholic Church It dues no; prove that a customary marriagetook place What was done was to conduct a form of religious service in accordancewith the customs and rituals cf the Church as the parties indicated that their marriagehad already been registered
The Durden was on the defendant to prove a custcmarv marriage.
In view of the admission that there was no valid manage under the MarriageRegistration Ordinance the only presumption the parties can contend for is apresumpfon favour of a customary marriage When a party fails to establish acustomary mamage t.ne presumotion of a valid marriage is rebutted and a marriage (byhabit and repute) ,3 not established by the parties living together as husband and wife.
382Sri Lanna Law Reports(1984] 2 Sri L R.
Cases referred to :
; 1) Nicholas de Silva v. ShaikAli. (1895) I NLR 228
The Queen k Kantar Chinnatamby 6 SCC 121
Gunaratna v. Punc,hihamy. (1912) 15 NLR 501. 504{4) Sophia Hamine v. Appuhamy (1922) 23 NLR 353. 36 1
'5) Ponnammah v Rajakulasingham. (1948) 50 NLR 135. 137
Ratnamma v Rasiah. (1947) 48 NLR 475
Dinohamy v. Balahamy. (1927) 29 NLR 114.116.
(81 Fernando v. Dabrera. (1961) 65 NLR 282. 284.
Dr. Colvin R. De Silva, with D R. P. Goonetilleke, Terence Wickremasmghe, K. STillekeratne and M'ss Saumya de Silva for the plaintiff-appe"ant.
S D. Jayasundera for the defendant-respondent.
Cur. adv vult.
August 29, 1984TAMBIAH, J.
The plaintiff-appellant filed action against the defendant-respondentand prayed for a declaration that there is no marriage between themand or that their marriage is null and void or in the alternative, for adecree of divorce. To sustain his prayer for a declaration, the plaintiffaverred in his amended plaint that on 24th July, 1973, he gave noticeof marriage to the Registrar of Marriages and on 13th August, 1973,believing that he had complied with the provisions of law regardingmarriage, at about 8.30 p.m. he went to St. Anthony's Church atKongodamulla with the defendant with the intention of gettingmarried ; that night, at the Kongodamulla Catholic Church, Rev. Fr.Batepola took a ring and put it on the defendant's finger and requestedthe plaintiff and the defendant to sign a book kept in the church ; thathe now finds that he and the defendant have signed a book which hasnot been prepared according to the provisions of the GeneralMarriages Ordinance ; that thereafter he applied for a certified copy ofthe marriage certificate and this was refused by the Rev. Father who isin charge of the registers at the Kongodamulla Church.
The plaintiff's alternative prayer for a decree of divorce was basedon the following averments-that on or about the 13th June, 1975, hewas compelled to leave the matrimonial home as he found it difficultand dangerous to live with the defendant for the reasons that therewere constant quarrels and disagreements between them, sheconstantly abused him in indecent language, she treated him
CA
Wijagur.awardena v. Gracia Catherine (Tambiah. J J
383
disgracefully in the presence of others, she made false allegations thathe associated with other women, she failed to attend to his needs andto look after the household work, she got her brothers to abuse andthreaten him and she was always with a morose face and treated himwith cruelty giving him pain of mind. He alleged that she was guilty ofconstructive malicious desertion.
The defendant by her answer admitted the plaintiff's averment thatthey went to Kongodamulla Church at about 8 30 p.m. on 13thAugust, and went on to state that she is the legal wife of rhe piaintiffand that the marriage between them was solemnised by Rev. FatherBatepola at the said Church ; that the marriage took place legally aswell as with the customary ceremonies such as the function held atthe Church on 13.8.73 ; they behaved as husband and wife beforethe relations and the general public ; that if there was any legal defectin the solemnization of the marriage, it was not a bar to their marriage.She asserted that she was a devoted and faithful wife. She denied thatthe plaintiff deserted her for the reasons he had given and stated thatthe plaintiff had started a friendship with one Miyuri Gunaratne and asshe did not agree to plaintiff's demand for a divorce, he neglected her,ill-treated and finally maliciously deserted her on 13th July, 1975. Sheprayed for the dismissal of plaintiff's action.
At the start of the case, it was recorded that both parties admittedthat there is no valid marriage between the plaintiff and the defendantunder the Marriage Registration Ordinance. Thereafter, the caseproceeded to trial on the following issues
Since the marriage that was intended to be solemnizedbetween the plaintiff and the defendant under the MarriageRegistration Ordinance did not take place, can a declarationbe obtained that the marriage was void and or that nomarriage took place between the plaintiff and thedefendant ?
In the alternative, did the defendant behave in the manneras set out in paragraphs 10 to 15 of the amended plaint ?
If issue 2 is answered in the affirmative, is the defendantguilty of constructive malicious desertion ?
If so, can the plaintiff get a decree for divorce ?
Did there come into existence and continue, a marriage thatwas solemnized customarily and publicly ?
384
Sn Lanka Law Reports
[ 1984] 2 Sn L R
Did the plaintiff maliciously desert the defendant on or about13th July, 1975 ?
If issues 5 and 6 are answered in the defendant's favour,should the plaint;ff’s action be dismissed ?
As there is no marriage registered under the MarriageRegistration Ordinance, has the defendant a right in law toframe issue 5 ?
Issues 1 to 4 and 8 were raised on behalf of the plaintiff and issues 5to 7 on behalf of the defendant.
The plaintiff, a Buddhist and a teacher in a tutory at Gampaha gaveevidence He gave his age as 32 years and stated his wife was 36years. There are no children by the marriage. He came to know thedefendant in or about 1968 and commenced a friendship. He wasliving :n a rented house and the defendant's brothers, her parents andthe defendant herself came to reside with him He decided to marryher at the Kachcheri but she wantea to get married at the MiriswattaChurch to which she belonged. As he was a Buddhist and felt shy toget married at the Miriswatta Church, the defendant’s mother andrelations made arrangements to have the marriage at theKongodamulla Church as they knew the priest Rev. Fr. Batepola. Hegave notice of marriage and obtamed a certified cooy of same (P 1),and with a letter from the Rev. Fr. at Gampaha, he met Rev. Fr.Batepola and fixed 13th of August as the date for the marriage. On13th August, at about 7 or 7.15 p.m., he, the defendant, her mother,the mother's elder sister, the defendant's brother and her sister-in-lawwent to the Kongodamulla Church. Inside the Church, prayers wereread, the Rev. Father put a ring on the defendant's finger, he readsomething in English and Sinhaia which he could not understand andthereafter they were conducted to the living room. He signed. It tookabout two hours and it was 8 o.r 8 45 p.m. when all matters wereover. There were candles lit and also coconut oil lamps inside theChurch.
He also gave evidence concerning the conduct and behaviour of thedefendant and her family which compelled him to leave her on 13thJuly. On the 12th evening, there was a quarrel between them over thefalse allegation that he was friendly with other women and he left thenext day and never returned to her.
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V/ijSgjnawardena v Gracia Catherine TawOian. J;
385
Under cross-examination, he admitted that after the wedding atKongodamulia Church, ne accepted the defendant as his lawful wifeand lived with her for two years with that knowledge and went aboutopenly with that knowledge ; that his parents and fnends acceptedthem as lawful husband and wife ; that he had sexual intercourse withher. Ah.er he separated, he met the Rev. Father at tfe KcnnodamullaChurch and applied for s marriage certificate r. ordf: .o *i!e ar actionfor divorce. The Rev. Father checked his booicc and sa'J tnat no suchmarriage was registered and he looked into another bock and askedhim whether they came to Chjrch after i-avinq got marriedsomewhere else and he replied they were marned at this Church, andthat he had brought a notice of marriage with hrn. Then the Rev.Father said that he could remember seeing some iong forms andasked him whether this (P1) was it. He answered yes. The mass washeld in the Church. The date on which he left the defendant was 13thJuly 1975, and not 13th June, 1975. It is a mistake. He denied thesuggestion that he left the defendant because of his fondness forMiyuri Guneratne.
The plaintiff's only witness Gunawardene gave evidence to suoporthim in regard to issue No. 2.
Rev. Fr. Batepola gave evidence for the defendant. He knew thatnotice of marriage had been given. He married them on 13.08.1973and obtained their signatures and of the witnesses to the effect thatthey were married. A document (D1) which defendant's attorneymoved to mark in evidence was ruled out as it was not listed. Themarriage took place at about 4 or 4 30 in the evening arid lasted about35 minutes. He explained to them what he did at that time. Themarriage took place before the altar. After the wedding took placeaccording to the customs, he registered the marriage in the livingroom which adjoins the Church, having obtained their signatures.
Under cross-examination, the witness stated the following
There is only one type of wedding in a Church, which isdone according to the directions of the Holy CatholicChurch.
There are two books kept in the Church. One book is keptaccording to the law of the State. It is a book given by theKachcheri. The other book is kept according to the law ofthe Church.
386Sri Lanka Law Reports[ 198-1] 2 Sri LR
If a marriage that takes place in a Church is registered in theKachcheri Book, it is the duty of the Priest to send a copy tothe Kachcheri.
First of all, notice of marriage is given. Secondly a certificatefrom the Registrar is received. The Registrar gives theauthority by a Certificate, if no such certificate is received,the marriage cannot be entered in the book given by theKachcheri. If a marriage that takes place in the Church isentered r. the Kachcheri Book, it is necessary to send acopy to the Kachcheri.
The marriage has to be solemnized in the Church between 6a.m. and 6 p.m. with all the doors of the Church open.
To the pointed question "Is there a marriage calledcustomary marriage in Church ?". the witness answered "Ittakes place according to the law of the Catholic Church"Such a marriage is not registered in the Kachcheri Book.
If both parties are Christians and a marriage had taken placeoutside the Church they can be married again in Church ; ifthe marriage is between a non-catholic and a catholic, theycan be married again with the permission of the Archbishop.
When re-examined the witness stated the following
1 if parties are Christians, they are married according to thelaw of the Church. If they are catholic and non-catholic wemarry them with the permission of the Archbishop.Religious customs are the same for both.
In my Church there are two books for registration ofmarriages. In one, the registration is done according to thelaw of the State. The other book is kept according to thedoctrine – the canon Law of the Church.
In regard to the present marriage), he did not prepare thebook according to the Law of the State but according to theLaw of the Church. Both the plaintiff and the defendantsigned the book. They understood that a marriage tookplace. The plaintiff was a Buddhist and the defendant aRoman Catholic. (An affidavit (D 2) signed by the parties toshow that the parties had got permission from the CatholicChurch to marry was rejected by the Judge).
CA
Wijegunawardena v Gracia Catherine (Tambiah, J.)
387
Before a marriage is solemnized according to the Law of theState, the parties are asked whether their marriage isregistered The plaintiff asked me to marry them in Churchas the plaintiff had registered the marriage. The plaintiff toldme that there was a marriage existing according to the Lawof the State. That is why the marriage was registered in thebook kept according to the law of the Church. The plaintiffdid not bring a certificate. A certificate from the State is notnecessary for a Church marriage. The couple is married ontheir mutual trust that they had got married according to theLaw of the State.
The defendant then gave evidence and stated she got married at St.Anthony's Church and the Rev. Fr. Batepola officiated at the marriage.He explained about the gravity of the marriage. Thereafter they livedtogether for two years, behaved as husband and wife, and theirparents and relations accepted them as husband and wife. She deniedthat she neglected her husband or that she did not attend to thehousehold work. The plaintiff left her because of his association withMiyuri Guneratne. She denied that the plaintiff left her for the reasonshe had given. He said that she was older than him, had no children andhe asked her to get separated from him in order to get married toMiyuri Guneratne. She had known the plaintiff since 1964 and since1965, for eight years, lived with him in one house but separately.Before the marriage, the plaintiff, she, her parents and her twobrothers lived at two rented houses, at Weliveriya and Bendiyamullaand moved into their new house which the plaintiff had built, on theday of their marriage.
i
The defendant called three other witnesses – Charles, a relative ofthe defendant, Stated he knew both parties and on a day in August1973, he met the parties at a hotel and they were having tea. Theplaintiff told him they had got married. On his invitation, the partiesvisited his house twice or thrice.
Appuhamy, another relative of the defendant stated that in thepresence of the plaintiff, the defendant told him they were married andthat on four or five occasions the parties visited his place.
The 3rd witness, Milton, a brother of the defendant, said that hewas present at the marriage at the Kongodamulla Church. FatherBatepola officiated. It took place at 4 p.m. and lasted about an hour. Itis incorrect to say it took place at 8 00 in the night.
388
[1984] 2 Sri L.R
Sri Lanka Law Ryc-jrts
The learned Judge observed in his judgment-
"His (Rev. Fr. Batepola's) evidence was that he performed amarriage between the plaintiff and the defendant according to thecustoms of the Cnurch He also described the mass held. The masbhad taken about 35 minutes. According to the plaintiff there haabeen religious ceremonies in the Church. A mass had been held,prayers were said and the ring had been put on the defendant. Theplaintiff once tried to say that the marriage was performed in theliving room. It may oe that he attempted to say so in order tominimise the dignity and sacredness of the ceremony. However theplaintiff had to admit that the mass was held, the marriage tookplace and the ring was pur in the Church. In the Church there werecandles lit and oil lamps burning. The plaintiff also attempted toshow that the mass was held at about 8.00 in the night. To do thatthe plaintiff made use of the admissions made by the defendant inher answer. The defendant by her answer admitted paragraph 3 ofthe plaint, in paragraph 3 among other things there appears that theplaintiff and defendant went to Kongodamulla Church at about 8.30p.m. It appears that the defendant had not been much careful whenanswering Paragraph 3 of the plaint is also not devoid of suchinformation. The plaintiff in his plaint has stated that he left thedefendant on 13.6.75. He said that it may be a mistake and that heleft the defendant on 13.7.75. In evidence it -was proved that themass had been held before nightfall. As stated by Rev. Fr. Batepolait had taken place at about 4-4.30 p m. According to thedefendant's brother Milton it was at 4.00 p.m.
Before the marriage was solemnized Rev. Fr. Batepola had madethe plaintiff and the defendant understand what he was doing andthereafter he had solemnized the marriage according to thecustoms of the church and the laws of the church.
You have to consider the question whether there exists a marriagebetween the plaintiff and the defendant with the above facts in thebackground
There is enough evidence that the wedding took place in public andthat the plaintiff and the defendant behaved as a marriedcouple
CA
Wljegunawsratna v. Grac’.a Catner.re (Tambiah J)
389
But in this case it has been proved that the plaintiff and thedefendant were married at a Catholic Church according to theCatholic customs before a Cathclic priest. Therefore it can oe saidthat this was a marriage prepared according to thecustoms
It is ven, clearly established that they have got married according tothe Catholic customs as stated above
In the judgment in Nicholas de Silva v. ShaikAh (1) it has been heldthat a marriage performed by a Catholic priest does not becomevoid for the mere fact that it was not registered. Though thatjudgment has been given prior to our Ordinance, it :s even nowaccepted that a marriage which is performed according to thereligious customs does not become void though it is not registered.Considering the facts in this case and the law, it is certain that therehad been a customary and public marriage between the plaintiff andthe defendant."
As between the two versions as to why the plaintiff left thedefendant, the learned Judge said-
"The evidence in this case reveals that the main reason for thepresent situation between the plaintiff and the defendant is MiyuriGunaratne. The plaintiff has left the defendant wilfully and thedefendant cannot be held responsible for the plaintiff's act."
The learned trial Judge answered all the plaintiff's issues againsthim ; the defendant’s issues were answered in her favour. LearnedCounsel for the appellant did not canvass the finding of the learnedtrial Judge that it is the plaintiff who maliciously deserted thedefendant on 13th July, 1975, but, he submitted that the answers tossues 1,5 and 8 are erroneous decisions.
The Carriage Registration Ordinance (L.E. Vol. 5, Cap. 112)prescribes certain preliminaries to be observed prior to a marriageunder the Ordinance. Notice of marriage must be given to theRegisrrar of the division in which the parties have dwelt cr to theDistrict Registrar in whose district they have cwelt (s. 23). EveryRegistrar to whom notice of an intended marriage is given is requiredto enter the particulars of the notice in the Marriage Notice Book (s.25). The Registrar is bound, upon application of the party givingnotice, +o issue a certificate in the Form F in the 1st schedule (s. 26).On the production of the certificate of the Registrar, it shal' be lawful
390
Sri Lanka Law Reports
[1984; 2 Sri L R
for a marriage to be solemnized between the parties by or in thepresence of a Minister in a registered place of worship or otherauthorised place or by a Registrar in his office, station or otherauthorised place (s. 33). A marriage in a registered place of worst ;pshould be solemnized by a Minister in a registered place of worship,with open doors and between the hours of 6 o'clock in the morningand 6 o'clock in the afternoon, in the presence of two or more crediblewitnesses, and according to the rules, customs, rites and ceremoniesof the Church, denomination, or body to which such Minister belongs(s. 34 (1)) The Minister is required to enter in duplicate, in a book tobe kept for that purpose, a statement of the particulars of themarriage, and the statement shall be signed by the Minister, theparties to the marriage, and by two respectable witnesses who werepresent at the solemnization and are personally acquainted with theparties (s. 34 (2), (3)). The Minister, within seven days of thesolemnization of the marriage, shall send the duplicate statement ofthe marriage to the District Registrar who is required to enter theparticulars of the marriage in the Marriage Register Book (s. 34 (5)(b) ). The entry in the Marriage Register by the Registrar shall be thebest evidence of the marriage, (s. 41). Once a marriage is registered,s. 42 states that it shall not be necessary, in support of such marriageto give proof of certain matters mentioned therein and shuts out anyevidence to be given to prove the contrary in any suit or legalproceedings touching the validity of such marriage. Where a marriageis contracted, but without the fault of the parties, it has not beenregistered o' erroneously registered, there is provision for supplyingthe omission or correcting the error in the registration, by anapplication to the District Court (s. 43); s. 46 sets out thecircumstances in which a marriage will be null and void. It states that ifboth parties to any marriage shall knowingly and wilfully intermarryunder the provisions of the Ordinance in any place other than thatprescribed by the Ordinance, or under a false name or names, orexcept in cases of death-bed marriages, without certificate of noticed j|y issued, or shall knowingly or wilfully consent to or acquiesce in thesolemnization of the marriage by a person who is not authorised tosolemnize the marriage, the marriage of such parties shall be null andvoid.
In this case, notice of marriage was given and therefore partiesintended to get married under the Marriage Registration Ordinance. Itis the plaintiff's case that certain formalities prescribed by the
CA
W^egjrawardena v Gracia Catherine (Tarrbmh. J)
391
Ordinance have not been observed, namely, the marriage was notsolemnized in Church between the nours prescribed by s. 34 (1) andthe marriage was not registered as required by the Ordinance. Themarriage solemnized by Rev. Fr. Batepola, according to the plaintiff,was therefore not legal and valid. The learned Judge has accepted theevidence of Rev. Fr. Batepola and the witness Milton in preference tothe evidence of the plaintiff, and has held that the marriage wassolemnized before nightfall at about 4.00 or 4.30 in the evening. I seeno reason to interfere with this finding. As regards registration, and itis common ground that the marriage was not registered, both learnedCounsel conceded that registration is not essential to the validity ofthe marriage.
Learned Counsel for the defendant contended that it is the plaintiff'sown evidence that he consented to get married in Church and that onthat day, he went to Church with the defendant and his in-laws; in thechurch, there were candles lit and coconut oil lamps burning; prayerswere read, a ring was put on the defendant's finger and Mass washeld. He signed. Rev. Fr. Batepola stated that the marriage took placebefore the altar. Therefore, learned Counsel said that there was a validmarriage that has been solemnized according to the rules, customs,rites and ceremonies of the Church, in terms of s. 34 (1).
Learned Counsel for the plaintiff argued that before a Minister cansolemnize a marriage in temns of s. 34 (1), there must be a Certificateof the marriage notice which alone gives the Minister the authority tosolemnize a marriage. The evidence is, there was no such Certificateof Notice. I agree with this submission.
S.33 says that upon the production of the Certificate by theRegistrar, it shall be lawful for a marriage to be solemnized by aMinister. It is the certificate, then, that gives the Minister the authorityto solemnize a marriage. Unless s. 33 is conformed to, the Ministercannot solemnize a marriage under s. 34.
In The Queen v. Kanter Chinnatamby (2) the respondent wasindicted for bigamy. The indictment charged that the accused'hadmarried Parupathi in June 1876, and that in April 1884. Parupathibeing still alive, he had married Valiamma. Notice of marriuge betweenthe accused and Parupathi under Orel: 'lanr.e No 13 of 1883 wasgiven, hut the Regism&r v svicano-. admitted that he issued nocertificate of the mariage notice tu the parties. The marriage was
392Sri Lanka Law Reports[1984] 2 Sri L.R.
solemnized by the Registrar of the District. The question arosewhether the marriage between the accused and Paruoathi was invalidby reason of the non-issue of the certificate of the marriage notice.The Supreme Court held that the issue of the certificate of themarriage notice is a condition precedent to the validity of marriageunder the Ordinance.
In this case, according to the plaintiff, only a certified copy of thenotice of marriage was given by him to Rev. Fr. Batepola. Rev. Fr.Batepola concedes that it is the certificate of the marriage notice thatgives him the authority to solemnize a marriage under the MarriageRegistration Ordinance. Though Rev. Fr. Batepola does not expresslysay that there was no certificate of the marriage notice, this could beimplied from his evidence. The plaintiff was a Buddhist and thedefendant a Christian. The parties told him that a marriage betweenthem had already been registered; with the permission of theArchbishop, he married them again in Church and made the necessaryentries in the book kept, not under the Ordinance, but under the Lawsof the Church. It follows from this item of evidence that if there was acertificate of the marriage notice, he would have solemnized themarriage and made the entries in the book kept under the Ordinance.There is also the admission by the parties before the trial commenced,that there was no valid marriage between the parties. I take the viewthat there was no valid marriage under the Marriage RegistrationOrdinance between the plaintiff and the defendant.
S. 46 has to be considered. Learned Counsel for the plaintiffcontended that the section does not apply to the present case. For s.46 to apply, he said, there must be a marriage and the parties mustintermarry under the provisions of the Ordinance. Alternatively, hesubmitted if the section does apply, the marriage is null and void, asRev. rr. Batepcla solemnized the marriage without a certificate of themarriage notic– and the padies knew that there was no suchcelibate 'sued
in my opinion, fhe case .s governed by s. 46. The appellant's casewas presented tc us cn the footing that though the marriage wassolemnized by Rev Fr. Batepola under s. 34 (1), he had not been dulyempowered to solemi lize the marriage, as he had no certificate of themarriage notice in his hands
CA
Wijegunawardena v. Gracia Catherine (Tambiah, J.)
393
A husband or wife may present a plaint praying that his or hermarriage be declared null and void. Such decree may be made on anyground which renders the marriage contract between the parties voidby the law applicable to Ceylon (s. 607 Civil Procedure Code). TheMarriage Registration Ordinance sets out various grounds on which amarriage may be declared null and void (see Sections 15,16 and 18).S. 46 also is another such ground.
In Kanter Chinnatamby's case (supra), the Registrar of Marriagessolemnized the marriage between the parties at the bride's residence,without the certificate of the marriage notice being issued. TheSupreme Court having held that the marriage was invalid, went on toconsider the provisions of s. 6 of Ordinance No. 8 of 1865 (which is interms identical with s. 46) and held that the marriage was valid,although the certificate of the marriage notice had not been issued tothe parties and the marriage had been solemnized at an unauthorisedplace.
"Now it appears to me, that the intention of the Legislature asexpressed in the 6th clause was, that marriages solemnized withoutthe particular formalities referred to in that clause shouldnevertheless be valid unless the omission were knowing and
wilfulIn the language of Lord Penzance, it was necessary
to show not only that both the prisoner and Parupathi when theymarried knew that no certificate had been issued, and that noauthority had been given to celebrate at other than the prescribedplaces, but that knowing those facts they nevertheless wilfullyintermarried.'
(perBurnside, C.J. atp. 124)
So, it seems to me that the plaintiff can get a declaration that themarriage is null and void, only if it is established that at the time Rev.Fr. Batepola solemnized the marriage, both parties knew that nocertificate of the marriage notice had been issued, and yet knowingthis fact, they nevertheless wilfully intermarried.
Notice of marriage was given and the parties decided to get marriedin Church. It is for the parties to obtain from the Registrar thecertificate and hand same to the Minister who was to officiate at themarriage. There is not a word in their entire evidence that theyobtained one. At the trial of the case, both parties admitted that therewas no valid marriage under the Marriage Registration Ordinance. Rev.
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Sri Lanka Law Reports
[1984] 2 Sri L.R.
Fr. Batepola states, and his evidence has been accepted by thelearned trial Judge, that the parties represented to him that they werealready married and that their marriage was registered. That is why noentries were made in the book kept under the Ordinance. The onlyconclusion I can come to is that the parties wilfully went through amarriage ceremony in Church, knowing fully well that no certificatehad been issued. The plaintiff is entitled to a declaration that themarriage is null and void. The answer to issue (1) should have been"Yes".
I now come to issue No. 5.
The learned District Judge in his judgment adverted to the fact thata mass had been held, that prayers were uttered, that a ring had beenput on the defendant's finger, and that candles and oil lamps wereburning inside the Church. He stated that it had been proved in thecase that the plaintiff and the defendant were married at a CatholicChurch according to catholic customs before a catholic priest, andthat there is enough evidence that the wedding took place in publicand that the plaintiff and the defendant behaved as a married couple.He concludes that there has been a customary and public marriagebetween the parties.
Learned Counsel for the plaintiff attacked this finding. He submittedthat notice of marriage had been given and that the parties intendedthe marriage to be solemnized under the provisions of the Ordinanceand that it was not open to the defendant to prove a customarymarriage , that a marriage according to the customs, rites andceremonies of a church does not constitute a customary marriage ;assume that there is a Roman Catholic customary marriage, theevidence in the case is insufficient to establish such a marriage ; thatRev. Fr. Batepola's evidence destroys the defendant's case that therewas a customary marriage between her and the plaintiff.
I cannot agree with the first submission. Parties may give notice tothe Registrar of their intention to marry, and yet later decide tosolemnize their marriage according to the rites and customs of thecommunity to which they belong, quite independently of theOrdinance. Such a customary form of marriage, if proved to havetaken place, will constitute a valid marriage independent ofregistration.
CA
Wijegunawardena v. Gracia Catherine (Tambiah, J.)
395
Customary marriages are marriages contracted according to thenative rites and customs. A!! the reported cases deal with customarymarriages among the Hindus and Buddhists of Sri Lanka. Both learnedCounsel have not been able to refer us to a single decided case whichrecognised a Roman Catholic customary marriage, nor have I beenable to discover one.
Let me assume that there is a customary marriage called the RomanCatholic customary marriage. Marriages contracted according tonative rites and customs must be “strictly proved" (per Pereira, J. inGunaratne v. Punchihamy. (3)). 'A customary marriage must be"proved and established", (per Sampayo, J. in Sophia Hamine v.Appuhamy{4) ).
"A custom is a question of fact and must be proved by him whoalleges it to exist. Similarly a person who alleges that a certaincustomary ceremony is essential to a valid marriage must prove thatit is so."
(perBasnayake, J. in Ponnammah v. Rajakulasingham (5))
The burden was on the defendant to prove a customary marriage.The defendant's evidence is not helpful at all. All that she states is thatshe got married to the plain iff at St. Anthony's Church, that Rev. Fr.Batepola officiated and explained to the parties about the gravity of themarriage. Rev. Fr. Batepola's evidence is hardly helpful. All that hestates is that the marriage took place at 4 or 4.30 in the eveningbefore the altar of the church and that the wedding took placeaccording to the customs and the laws of the catholic church. But,this does not render it a customary marriage. The tying of a thali is anessential element in a H ndu marriage (see, Ratnamma v. Rasiah, (6)).A Puruwa Ceremony, vsnere the fingers of the bride and bridegroomare tied together and water poured over them is an importantcustomary rite in a Buddhist marriage (see Sophia Hamine v.Appuhamy, supra). If indeed there is a Roman Catholic customarymarriage, there should be evidence of what are the essential requisitesof such a marriage. All the evidence we have is that that evening aceremony took place before the altar of the church, in the presence ofa few relations, where a ring was put, a mass held, prayers utteredand the solemnity of the marriage was explained by the officiatingpriest. The church was lit by candles and oil lamps. This evidence onlyproves that a ceremony took place according to the rules, customsand rites of the Catholic Church, in terms of s. 34( 1). It does not prove
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that a customary marriage took place. !t seems to me that the learnedDistrict Judge has equated the celebration of a marriage according tothe rules, customs and rites of the church, wiih a marriage that iscelebrated according to cjstomary rites, and has thus confused onewith the other.
Moreover, the evidence given by the defendant's own witness, Rev.Fr. Batepola, destroys the case of the defendant of a customarymarriage between herself and the plaintiff, for, he says that heconducted a form of religious service in accordance with the customsand rituals of the Catholic Church, and made the necessary entries inthe Book kept according to the Laws of the Church, as the partiesindicated to him that their marriage was already registered.
The defendant has failed to prove a customary marriage and issueNo. 5, should have been answered against her as "No".
It was submitted by learned Counsel for the defendant that theevidence establishes that a marriage was solemnized by a Minister ofthe Catholic religion, that thereafter the parties lived together ashusband and wife for two years, and that these facts give rise to thepresumption that they were so living because of a valid marriage,which presumption must be rebutted by the plaintiff. This submissionleads me on to consider the question whether in this case there is amarriage by habit and repute.
"According to the law of Ceylon, where a man and woman areproved to have lived together as man and wife, the law willpresume, unless the contrary be clearly proved, that they wereliving together in consequence of a valid marriage, and not in a stateof concubinage."
(pe*Lord Shaw in Dinohamy v. Balahamy (7))
In view of the admission of parties that there was no valid marriagebetween them under the Marriage Registration Ordinance, the onlypresumption that the defendant can contend for, is a presumption infavour of a customary mairiage.
"If a party seeks to establish a customary marriage by theperformance of some religious ceremony and fails in that, then, thepresumption is rebutted and the mere fact that the two personssubsequently lived together as husband and wife does not establishmarriage."
(per Sinnatamby, J. in Fernando v. Dabrera (S)).
CA
Wijegurtawardena v. Gracia Catherine (Tambiah, J.)
397
As I stated earlier, the defendant has failed to establish a customarymarriage, and the presumption in favour of marriage is thus rebutted.
The appeal is allowed and the plaintiff is entitled to a declaration thatthe marriage between him and the defendant is null and void. Therewill be no costs of appeal.
MOONEMALLE. J. – I agree.
Appeal allowed