038-SLLR-SLLR-2008-V-1-SOMAWATHIE-v.-WIMALARTNE.pdf
384Sri Lanka Law Reports[2008] 1 Sri L.R
SOMAWATHIEv
WIMALARATNESUPREME COURTSHIRANEE TILAKAWARDANE, J.
DISSANAYAKE, J.
AMARATUNGA, J.
S.C. APPEAL NO. 6/2001H.C. BALAPITIYA 114/2000M.C. ELPITIYA 54578NOVEMBER 3, 2006
Maintenance Ordinance (Cap. 91) Section 2 – Duty cast on the husband by Section2 to provide maintenance for his wife – If the alleged marriage is invalid by reasonof some legal impediment on the part of the husband, can the innocent party (wife)claim maintenance against her husband under Section 2 of the MaintenanceOrdinance or under common law? – Putative Marriage – Action for damages forinjuria ?
The appellant, claiming to be the wife of the respondent filed an application underand in terms of section 2 of the Maintenance Ordinance in the Magistrate's Court toobtain maintenance from her husband, the respondent. The respondent admittedhis first marriage to one Anulawathie and had further admitted that he had beenconvicted of bigamy. It was common ground between the parties that at the time therespondent got married to the appellant he had been already married to saidAnulawathie. The Magistrate Court granted the reliefs prayed for by the applicant -The High Court allowed the appeal of the respondent. The main issue before the
qqSomawathie v^85
Wimalaratne
Supreme Court was whether an innocent party to a bigamous marriage can claimmaintenance against her spouse who had contracted a bigamous marriage.
Held:
The duty cast on the husband by section 2 of the MaintenanceOrdinance is to provide only for his wife, upon proof of the husband'sfailure or neglect to maintain his wife.
If the alleged marriage of an applicant for maintenance is invalid byreason of legal impediment which makes the woman stand in somelesser relationship to the alleged husband than his "wife", it is plain fromthe wording of section 2 of the Maintenance Ordinance that she is notentitled to claim maintenance for herself.
Magistrate had to decide whether there was a valid marriage betweenthe respondent and the appellant creating the husband and wiferelationship between them with all its attendant duties and obligations.
Since a bigamous marriage which was void ab-initio did not create anylegal result, a Court was not entitled to rely on an admission made by therespondent to invest the respondent's second marriage with any validityit did not and could not have in law.
The word "wife" used in section 2 of the Maintenance Ordinance doesnot empower a Court to interpret that word to include a person whostands in a lesser relationship than that of a wife. Hence the appellanthas no right to come under section 2 of the Maintenance Ordinance toobtain maintenance for herself. Her remedy, if at all, would be an actionfor damages for injuria or breach of promise against deceiver.
per Gamini Amaratunga, J.
"A putative marriage means a marriage contracted in good faith and in ignorance(on one or both sides) that impediments exist which render it unlawful" …
"The rule that a marriage which is null and void ab-initio has none of theconsequences of a valid marriage, is subject to two exceptions in the case of aputative marriage. The first exception is that children of a putative marriage areconsidered legitimate and a Court is entitled to declare this status. This exceptionhas received judicial recognition. The other exception is that if the parties to aputative marriage have not entered into an ante nuptial contract, it must bepresumed that they intended to be married in community of property."
APPEAL from the judgment of the High Court of Balapitiya.
Cases referred to:
Subramaniam v Pakkiyaladchumy 55 NLR 87.
Fernando v Fernando 70 NLR 534.
Ngobeni v Gibitwayo, 1946(2) PH B 58 W.
Locke v Locke, 1951 (1) SA 132 N.
Vlook v l/look 1953(1) SA 485 W.
Morrison v Morrison, 1978(2) SA 185C.
Cur.adv. vult.
386Sri Lanka Law Reports[2008] 1 Sri L.R
November 03, 2006GAMINI AMARATUNGA, J.
This is an appeal, with leave granted by the High Court, against thejudgment of the learned High Court Judge of Balapitiya allowing therespondent-appellant-respondent's (the respondent) appeal against theOrder of the learned Magistrate of Elpitiya directing him to pay Rs.1500/- per month to the applicant-respondent-appellant (the appellant)as maintenance.
At the time this appeal was argued the learned Counsel for therespondent raised a preliminary objection with regard to the validity ofthis appeal. This objection was based on the judgment delivered by thisCourt on 15.6.2006 in SC Appeal No. 44 of 2005, where this Court heldthat where leave to appeal has been granted by the High Court, thepetition of appeal has to be filed in this Court in terms of Rule 28(2) ofthe Supreme Court Rules of 1990. In the present case, there is noseparate petition of appeal and the only petition available in the recordis the petition filed in the High Court to obtain leave to appeal to thisCourt. The learned Counsel for the appellant had no prior notice of thepreliminary objection. This Court therefore permitted her to fileadditional written submissions on the preliminary objection. Since bothparties had earlier filed their written submissions on the merits of theappeal, the Court heard arguments of both learned Counsel on themerits of the appeal and decided to consider the merits of the appealand the preliminary objection together. I therefore decided to considerthe merits of the appeal before I deal with the preliminaryobjection.
The appellant, claiming to be the wife of the respondent, filed anapplication, dated 22.4.1994, in the Magistrates Court in terms ofsection 2 of the Maintenance Ordinance (Cap. 91) to obtainmaintenance for herself from her husband, who is the presentrespondent. The respondent who appeared in the Magistrates Court toanswer the claim for maintenance admitted his marriage to theappellant. Since the appellant was not prepared to accept therespondent's invitation to come back to live with him, the learnedMagistrate had held an inquiry.
The appellant's evidence was that she was earlier married to oneAriyaratna who had later disappeared during the reign of terror thatexisted in the country in 1989. Thereafter on 26.3.1993 she married the
qqSomawathie v Wimalaratne337
(Gamini Amaratunga, J.)
respondent before the Registrar of marriages and lived in therespondent's house as his wife. About eight months later she came toKnow that the appellant had earlier married one Anulawathie. Later therespondent started to ill-treat her and assault her. Due to thisharassment she left the appellant's home.
In his evidence the respondent had admitted his first marriage toAnulawathie which he had contracted under the name of GeeganageWimal Senadheera. He had further stated that the said Anulawathie hadfiled a maintenance case against him and that he had been convictedof bigamy.
At the inquiry, it was the common ground between both parties thatat the time of the respondent's marriage to the appellant, the former hadalready married one Anulawathie. In fact the certificate of that marriagewas before Court marked P1.
In terms of section 2 of the Maintenance Ordinance, a Magistrate isempowered to order the husband to pay maintenance upon proof of thehusband's failure or neglect to maintain his wife. The duty cast on thehusband by section 2 is to provide only for his "wife". If the allegedmarriage of an applicant for maintenance is invalid by reason of somelegal impediment which makes the woman stand in some lesserrelationship to the alleged husband than his 'wife', it is plain from thewording of section 2 that she is not entitled in law to claim maintenancefor herself. In Subramaniam v Pakkiyaladchumy(1), it has been heldthat a woman, who contracts a second marriage before the decree nisientered in divorce proceedings is made absolute, cannot claimmaintenance from the person with whom she contracted the secondmarriage.
Section 18 of the General Marriages Ordinance (Cap 112) enactsthat:
"No marriage shall be valid where either of the parties thereto shallhave contracted a prior marriage which shall not have been legallydissolved or declared void."
The existence of a prior marriage is an absolute impediment to asecond valid monogamous marriage contemplated by the GeneralMarriages Ordinance. There was no evidence before the Magistrate -or even at least a suggestion – that at the time of the respondent'smarriage to the appellant, his first wife Anulawathie was dead or that thefirst marriage had been dissolved by the decree of a competent Court.
388Sri Lanka Law Reports[2008] 1 Sn L.R
Thus the legal position apparent from the evidence before theMagistrate was that the respondent's marriage to the appellant, being abigamous marriage, was void ab inito.
The learned Magistrate had not considered this aspect at all. Insteadhe had relied on the respondent's admission of his 'marriage' to theappellant as a sufficient basis to hold that a husband and wiferelationship existed between the parties. The learned Magistrate hadheld that having first admitted the second marriage, the respondent wasnot entitled to subsequently contend that the second marriage wasinvalid. To support his view the learned Magistrate had relied on thedoctrine of approbation and reprobation, which is also expressed in theLatin maxim Allegans contraria non est audiendus
He is not to be heard who alleged things contradictory of each other.The relationship of husband and wife is a legal status acquired by theparties when there is a valid marriage. On the evidence available beforehim the learned Magistrate had to decide whether there was a validmarriage between the respondent and the appellant creating thehusband and wife relationship between them with all its attendant dutiesand obligations. This was a question of law. Since the bigamousmarriage which was void ab initio did not create any legal result, a Courtwas not entitled to rely on an admission made by the respondent toinvest the respondent's second marriage with any validity it did not andcould not have in law. The respondent's so-called admission, whenviewed in the light of the evidence of his previous marriage, was nothingmore than an admission that he purported to marry the appellant. Itslegal effect was a question of law that should have been decided byCourt. The learned Magistrate's failure to address his mind to this vitalquestion of law and his decision to act solely upon the so-calledadmission disregarding the evidence of the respondent's previousmarriage completely vitiated his finding that the appellant was entitled toclaim maintenance from the respondent.
The learned High Court Judge, having considered the evidence ofthe respondent’s previous marriage has rightly held that the appellantwas not the 'legal wife' of the respondent and accordingly set aside thelearned Magistrate's order directing the present respondent to paymaintenance to the appellant.
When the present appellant filed a petition in the High Court seekingleave of the High Court to prefer an appeal to this Court, the learned
Somawathie v Wimalaratneggg
(Gamini Amaratunga, J.)
High Court Judge had directed to forward the record to this Court. Therecord does not indicate the questions upon which leave to appeal wasgranted. When leave to appeal to this Court is granted, it is the duty ofevery High Court Judge to clearly and precisely specify the questions oflaw upon which leave to appeal is granted. In the absence of any suchquestions specified by the learned Judge, this Court has to presumethat leave to appeal had been granted upon all five questions set out inthe appellant's application for leave to appeal. Those questions are asfollows.
Was the interpretation given to section 2 of. Act No. 37 of 1999correct in law?
Did the High Court err in interpreting the word "spouse"?
Was the decision to set aside the order of the Magistrate undersection 2 of the Maintenance Ordinance correct in law?
Was the interpretation given by the High Court to the wordcruelty correct in law?
Did the High Court err in considering the weight to be attachedto the admission of marriage?
Question No. 1 specifically refers to section 2 of the Maintenance ActNo. 37 of 1999 and question No. 2 refers to the word 'spouse' appearingin section 2 of the said Act in place of the word 'wife' used in section 2of the Maintenance Ordinance repealed by the Maintenance Act No. 37of 1999. The appellant's application for maintenance had been filedunder section 2 of the Maintenance Ordinance. Whilst the inquiry waspending in the Magistrate's Court, the new Maintenance Act had comeinto operation. The new Act, by section 19, repealed the MaintenanceOrdinance. Section 20 of the new Act provides that all proceedingsinstituted under the Maintenance Ordinance and all appeals from ordersmade under that Ordinance and pending on the day preceding thecommencement of the new Act shall be heard and disposed of asthough the Maintenance Ordinance had not been repealed. In view ofthis provision this appeal has to be decided according to the provisionsof the repealed Maintenance Ordinance and as such the interpretationof section 2 of the Maintenance Act No. 37 of 1999 and the word'spouse' appearing in section 2 thereof has no relevance to this appeal,i therefore reject questions No. 1 and 2 as they are irrelevant.
390Sri Lanka Law Reports[2008} 1 Sri L.R
In his judgment the learned High Court Judge had not specificallydealt with the weight to be attached to the respondent's admission of hismarriage to the appellant but the learned Judge’s conclusion that inview of the respondent's first marriage, there was no valid marriagebetween him and the appellant clearly shows that the learned Judge didnot attach any significance to that bare admission which had no legalbasis. I have already pointed out that the respondent's so-calledadmission had no relevance to the question of law to be decided by theMagistrate. I accordingly answer question No. 5 in the negative.
In considering question No. 3, it is pertinent to state that at theargument before us, the learned Counsel for the appellant did notcontend or seek to argue that the respondent's marriage to theappellant was valid. The learned Counsel for the appellant sought toinvoke the aid of the common law concept of putative marriage tosalvage the case of the appellant.
A putative marriage means a marriage contracted in good faith andin ignorance (on one or both sides) that impediments exist which renderit unlawful. Black's Law Dictionary 5th Edition. "The putative marriageis a device ad misericordiam to tamper with the chill wind of invalidity toa man or a woman who has entered into a marriage relationship in bonafide ignorance of a legal impediment such as a subsisting marriage ora relationship within the prohibited degree." Hahlo, The South AfricanLaw of Husband and Wife, 2nd Edition, Page 483. The rule that amarriage which is null and void ab initio has none of the consequencesof a valid marriage, is subject to two exceptions in the case of a putativemarriage. The first exception is that the children of a putative marriageare considered legitimate and a Court is entitled to declare this status.This exception has received Judicial recognition in Sri Lanka. SeeFernando v FernandoS2) The other exception is that if the parties to aputative marriage have not entered into an antenuptial contract ofproperty. This exception has no application in Sri Lanka where thesystem of community of property is not longer a part of the law relatingto married persons' property.
Apart from the above exceptions, there is no exception recognisedby common law which enables a Court to regard the innocent femaleparty to a putative marriage as a wife for the purpose of imposing orenforcing a duty of support. Thus the concept of putative marriagecannot be of any avail to the appellant under the present state of the
qqSomawathie v Wimalaratne39-j
(Shiranee THakawardane, J.)
common law. In addition, the clear and unambiguous word 'wife' usedin section 2 of the Maintenance Ordinance does not empower a Courtto interpret that word to include a person who stands in a lesserrelationship than that of a wife. Accordingly the appellant has no legalright to come under section 2 of the Maintenance Ordinance to obtainmaintenance for herself.
The learned Counsel for the appellant submitted that if an obligationto maintain the appellant is not imposed on the respondent he wouldstand to benefit from his own wrongdoing. However much this Courtmay dislike the insensitivity and moral depravity of the respondent andthe absence of any regard for the consequences of his behavior to theappellant this Court is unable to grant any relief to the appellant in theseproceedings. Her remedy, if at all, would be an action for damages forinjuria. As pointed out by Hahlo, citing South African and Englishauthorities, "if one of the parties took advantage of the other's innocenceby inducing him (or her) to enter into a marriage which the deceiverknew, but the deceived did not know to be null and void, the innocentparty may have an action for damages for deceit (fraud), injuria orbreach of promise against the deceiver." South African Law of Husbandand Wife 5th Edition, page 107.
For the reasons set out above I answer question No. 3 in theaffirmative. In view of the conclusion reached on question No. 3, thenecessity to consider question No. 4 and the preliminary objectionraised on behalf of the respondent does not arise. I accordingly dismissthis appeal without costs.
Hon. Tilakawardane, J. has written a separate judgment dismissingthis appeal for the reasons stated therein.
DISSANAYAKE, J. -I agree.
Appeal dismissed.
SHIRANEE TILAKAWARDANE, J.This appeal is against the judgment of the learned High CourtJudge of Balapitiya allowing the respondent-appellant-respondent's(the respondent) Appeal against the order of the learned Magistrateof Elpitiya directing to pay Rs. 1500/- a month as maintenance tothe applicant-respondent-appellant.
The appellant filled an application under Section 2 of theMaintenance Ordinance No. 19 of 1889 as amended by the
392Sri Lanka Law Reports12008] 1 Sri L.R
Maintenance Act No. 37 of 1999 for maintenance, against herhusband, the present respondent, in application dated 22.04.1994before the Magistrates Court. The appellant claims that she marriedthe respondent before the Registrar of Marriages, on 26.03.1993,and lived in the respondent's house as his wife. About eight monthslater she came to know that the respondent has previously marriedone Anulawathie. Later, the appellant was forced to leave therespondent's home due to the ill treatment meted out to her by therespondent.
The respondent has admitted his marriage to the appellantduring the subsistence of his previous marriage to Anulawathie, onaccount of which he has pleaded guilty to the charge of bigamy.The respondent relies on his conviction for the crime of bigamy tocontest the claim for maintenance brought by the appellant. Therespondent claims that since his marriage to the appellant hasbeen rendered void by his bigamous conduct, no claim for spousalmaintenance could be validly raised against him.
The primary issue before this Court concerns whether aninnocent party to a bigamous marriage can claim maintenanceagainst his or her purported spouse under either statute or commonlaw; and what impact does the nullity of a marriage have on a claimfor maintenance or support by either party? Analysis of the generalprinciples governing the effect of a void marriage as well as certaincommon law exceptions thereto would be relevant to thedetermination of the aforesaid issue.
There is clarity under both statute as well as common law that,the existence of a prior subsisting marriage of either party rendersthe second marriage void ab initio. Section 18 of the GeneralMarriage Ordinance provides that "no marriage shall be valid whereeither of the parties thereto shall have contracted a prior marriage,which shall not have been legally dissolved or declared void."
A void marriage does not entail any of the legal consequencesof a marriage. There are no reciprocal rights and duties of supportarising out of such a marriage. The nullity of a marriage is absoluteand it may be relied on by either party or by any interested thirdparty even after the death of one or both parties. (Vide, H.R. Hahlo,The South African Law of Husband and Wife, 4th Edition, Page488).
Somawathie v Wimalaratne
SC(Shiranee Tilakawardane, J.)393
The Maintenance Ordinance, under which the present claim hasbeen filed, contemplates the provision of maintenance to a "wife"claiming under a vaiid marriage. Neither the Ordinance nor theMaintenance Act of 1999 contemplates the payment ofmaintenance to a person who stands in a relationship other thanthat of a wife or spouse. Where the term "wife" or 'spouse" hasbeen used with clarity and without ambiguity by the legislature, thiscourt is unable to expand its meaning in order to include thoseclaiming under a void marriage, who do not share a spousalrelationship with the person against whom, a claim is made.
Common law does provide a notable exception to the generalprinciple that a void marriage is of no legal effect. Where one orboth parties to the marriage are innocent and have entered into themarriage with bona fide intent, the court may declare that at theinstance of the innocent party certain consequences of a validmarriage may attach to it under the principle of matrimoniumputativum. (Vide, H.R. Hahlo, The South African Law of Husbandand Wife, 4th Edition, Page 488).
The court has no power to validate an invalid marriage, butunder the circumstances certain consequences of a valid marriagewould attach to a putative marriage. However these consequencesare limited in that they pertain only to the legitimacy of children borninto .such a marriage and the presumption regarding community ofproperty, the latter of which has no application in Sri Lanka.Prevalent jurisprudence does not support the extension ofconsequences, under a putative marriage to permit the granting ofmaintenance to an innocent party. (Vide, H.R. Hahlo, The SouthAfrican Law of Husband and Wife, 4th Edition, Page 496).
The position appears to be different under English Law. Section23 of the Matrimonial Causes Act. 1973 provides that where a courtis called upon to grant a decree of nullity of marriage, the court may.in its discretion, make financial provisions for either party to themarriage.
The position of the innocent party to a bigamous marriage hasalso been examined under the common law. The decisionscentered largely on whether the guilty party could sue for nullity ofthe marriage (Ngobeni v Gibitwayd3') or in anyway gain advantagefrom his or her wrongful act, (Locke v Locked). Courts have
394Sri Lanka Law Reports(2008] 1 Sri L.R
concluded that a person guilty of bigamous conduct is notprecluded from suing for the nullity of his or her second marriage(Vlook v Vlook 1953(5>; Morrison v Morrisoni<6)). However, thesedecisions were concerned primarily with the determination of thestatus of the marriage, and not regarding the avoidance of legalduties and liabilities flowing to the guilty party therefrom.
Regrettably though, Sri Lankan statute law at present does notprovide for the protection and maintenance of the innocent party toa bigamous marriage. Neither does common law principle ofputative marriage come to her rescue given its limited scope. TheAppellant in the instant case therefore is compelled to seek remedyin damages on ground of fraud, injuria or breach of promise, as noremedy in her favour is available to her under statute or commonlaw.
The law as it stands, only penalizes the bigamous conduct andfails to take account of the plight of the victim spouse, namely theinnocent spouse in such situations. Not only does it fail to providesubstantive protection for the victim spouse, it also supplies theguilty party with advantageous gain by such person's wrongful act.This anomaly militates against the principles of justice and equityas well as fundamental principle of legal jurisprudence that no manor woman can benefit from his or her own wrong. It is imperativethat the Law Commission of Sri Lanka, in its review of marriagelaws in Sri Lanka, takes account of this anomalous situation andundertakes effective steps to rectify the same at the earliest, inorder to avoid a further miscarriage of justice.
Appeal is accordingly dismissed. No costs.
Appeal dismissed.