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

022-NLR-NLR-V-65-A.-E.-REID-Appellant-and-THE-ATTORNEY-GENERAL-Respondent.pdf


Raid v. The Attorney-General
97
1963 Present: Basnayake, C.J., Abeyesundere, J., and G. P. A. Silva, J.A. E. REID, Appellant, and THE ATTORNEY-GENERAL, RespondentS. C. 1511962—,D. C. {Grim.) Colombo, 2090jN
Bigamy—Marriage (general)—Second marriage contracted by husband after conversionto Islam—Secondwife also a convert to Islam—Validity of the second marriage—Marriage Registration Ordinance, ss. 18, 64—Muslim Marriage and DivorceAct—Kandyan Marriage and Divorce Act, s. 6—Penal Code, s. 362 B.
A man who has contracted a marriage under the Marriage RegistrationOrdinance does not commit bigamy if, while his marriage is subsisting, heembraces Islam and marries under the Muslim Marriage and Divorce Act awoman, who has also embraced Islam.
The appellant, when he was a Roman Catholic, married his first wife on18th September, 1933, under the Marriage Registration Ordinance. While hiswife was still living he married again under the Muslim Marriage and DivorceAct. He and his secondwife became converts to Islam on 13th June, 1959,and registered their marriage under the Muslim Marriage and Divorce Acton 16th July, 1959.
Held, that, although the proximity of the date of the second marriage tothe date of conversion gave room for the suspicion that the change of faithwas with a' view to overcoming the provisions of section 18 of the MarriageRegistration Ordinance, the second marriage was valid. Accordingly, theappellant could not be convicted of bigamy under section 362 of the PenalCode.
Appeal from a judgment of the District Court, Colombo. Thiscase was reserved by Tambiah, J. (G. P. A. Silva, J., agreeing), in thefollowing terms, for hearing by a fuller Court:—
“In this case an important question of law arises. The accusedappellant, it is admitted, was married to Edna Margaret Fredrica Reidnee De Witt under the provisions of the Marriages (General) RegistrationOrdinance No. 19 of 1907 and while this marriage was subsisting hemarried Fatima Pansy Reid under the Muslim Law after he had become aMuslim. The question is whether he committed bigamy after hebecame a Muslim in contracting a second marriage while the first marriagecontracted under the Marriages (General) Registration Ordinance wasstill subsisting. This question depends on the interpretation this Courthas to place on Section 18 of the General Marriages Ordinance. InSaji Mohamed v. Benedict1 the converse position arose. In this case amarried man who became a Muslim at the time of the marriage andmarried a second time while the earlier marriage was subsisting is saidto have committed an offence under Section 362 (B) of the Penal Code.In view of the various important points involved in this case my brotherand I agree that this is a matter that should be heard by 'a fuller bench.
1 {1961) 63 N. L. S. 505.
5—LXV
2E11534—1,855 (8/63)
BASNAYA K>8, C.J.—JZzid v. The Attorney-General
■ es
We have no power to lefer it to a fuller bench. Therefore we bringthis matter to the notice of His Lordship the Chief Justice for him torefer it to a fuller Court, if he thinks it fit to do so."
S. Barr Kumarakulasinghe, with S. KanagarcUnam and C. W. Perera,for Accused-Appellant.
Vincent T. Thamotheram, Deputy Solicitor-General, with 0. P. S. deSilva, Crown Counsel, for the Attorney-General.
Cur. adv. vult.
July 11, 1.963. Basjtayaae, C.J.—
The question for decision on this appeal is whether a man who hascontracted a marriage under the Marriage Registration Ordinance commitsbigamy if, while his marriage is subsisting, he embraces Islam and marriesunder the Muslim Marriage and Divorce Act a woman who has alsoembraced Islam.
Briefly the facts are as follows :—The appellant Allen EllingtonReid alias Ibrahim Reid was convicted of bigamy, an offence punish-able under section 362 (B) of the Penal Code, in that, while his lawfulwife Edna Margaret Fredrica De Witt was living, he married FatimaPansy. He has been sentenced to undergo a term of three months’rigorous imprisonment.
The appellant who was a Roman Catholic married at St. Mary’s Church,Badulla, on 18th September 1933 Edna Margaret Eredrica Reid neeDe Witt. They had eight children of whom six died. While thatmarriage was subsisting the appellant on 16th July 1959 married FatimaPansy Yon Haght at the Muslim Registrar’s Office at Ho. 2/6 SaundersCourt, Colombo. Her maiden name was Pansy Mary Clair Von Haghtand she first married Vincent de Kauwe who divorced her on 7thNovember, 1958. At the time of his second marriage the appellant andhis second wife had become persons professing Islam. They had beenconverted by the Muslim priest at the Vekanda Mosque on 13th June1959. On their conversion the appellant was named Ibrahim and hissecond wife Fatima. The appellant gave evidence admitting the abovefacts. Section 362 (B) of the Penal Code with the breach of which theappellant has been indicted and found guilty reads—
“ Whoever, having a husband or wife living, marries in any casein which such marriage is void by reason of its taking place dolingthe life of such husband or wife, shall be punished with imprisonmentof cither description for a term which may extend to seven years,and shall also he liable to fine.”
In the instant case the appellant had a wife living. Therefore thefirst element of the penal provision is satisfied. The second element isalso satisfied because he contracted a second marriage. The third
BASNAYAKE? C.J.—Reid v. The Attorney-General99
element is that the second marriage should be void by reason of itstaking place during the life of the first husband or wife. Is the tliirdelement satisfied ? Learned Deputy Solicitor-General maintained thatsection 18 of the Marriage Registration Ordinance applied and. that-until the appellant divorced his wife or she died he was not free tocontract a valid marriage as his first marriage was registered under thatOrdinance. The section on which he relies reads—
“ 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 section declares that no “ marriage ” shall be valid where thereis a prior " subsisting marriage ”. Now what is a marriage for the purposeof section 18. That expression is defined in section 64 and it means—“ any marriage, save and except marriages contracted under and byvirtue of the Kandyan Marriage Ordinance 1870 or the Kandyan Marriageand Divorce Act, and except marriages contracted between personsprofessing Islam.” There is nothing in the context of section 18 whichrenders the definition inapplicable. That section has therefore noapplication to marriages contracted under the Kandyan Marriage Ordi-nance 1870, the Kandyan Marriage and Divorce Act, and marriages“ contracted between persons professing Islam ”. Although Kandyanmarriages are excluded from the definition and therefore from the ambitof section 18, a Kandyan is not free to marry a second time while thefirst marriage is subsisting as section 6 of the Kandyan Marriage andDivorce Act declares invalid a second marriage under the Act where thespouse of the previous- marriage is alive and the marriage is subsisting.Now the appellant’s second marriage was registered under the MuslimMarriage aDd Divorce Act. Although that Act is not speciallymentioned in the definition, marriages contracted by persons professingIslam are excepted. Persons professing Islam can now marry onlyunder the Muslim Marriage and Divorce Act. So that marriages underthat Act are not marriages within the definition of the expression“ marriage ” in the Marriage Registration Ordinance.
In the instant case Ameer, the Muslim Priest at Vekanda Mosque hastestified to the fact that he converted to Islam both the appellant andhis second wife on 13th June 1959, and that on 16th July 195!) heregistered their marriage which according to the notice given, to theQuazi of the area under the Muslim Marriage and Divorce Act was aNotice of Intention to contract a second or subsequent marriage. Theproximity of the date of the second marriage to the date of conversiongives room for the suspicion that the change of faith was with a viewto overcoming the provisions of section 18 of the Marriage RegistrationOrdinance. But that circumstance does not affect the validity of th6second marriage.
100
Somarakana v. Tha Pubho Trustee-
The evidence of the Quazi and the priest who registered the marriageindicates that the requirements of the Act as to registration of themarriage have been observed and that they were satisfied that theparties were persons professing Islam.
The appellant is therefore not guilty of bigamy. We quash theconviction and sentence, and acquit him.
ABEYESimnEKB, J.—I agree.
P. A. Selva, J.—I agree.
Appeal allowed.