026-SLLR-SLLR-1998-1-NATALIE-ABEYSUNDERE-v.-CHRISTOPHER-ABEYSUNDERE-AND-ANOTHER.pdf
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Natalie Abeysundere v. Christopher Abeysundere and Another 185
NATALIE ABEYSUNDERE
v.CHRISTOPHER ABEYSUNDERE AND ANOTHER
SUPREME COURTG. P. S. DE SILVA, CJ.,
WADUGODAPITIYA, J.,
PERERA, J..
WIJETUNGA, J. ANDSHIRANI BANDARANAYAKE, J.
S.C. APPEAL NO. 70/96HIGH COURT GALLE NO. 5/94M.C. GALLE NO. 6403OCTOBER 13TH AND 14TH, 1997.
Penal Code, S. 362 B – Bigamy – Muslim Marriage contracted during thesubsistence of a monogamous marriage — Validity of the second marriage -Marriage Registration Ordinance, Sections 18, 19 (1), 35 (1) , 35 (2) and section64.
The accused-respondent and his first wife the appellant both Roman Catholicswere married under the Marriage Registration Ordinance. During the subsistenceof the first marriage, the accused registered a marriage with one Miss Edirisingheunder the Muslim Marriage and Divorce Act. The accused was convicted of theoffence of bigamy. His defence was that prior to his second marriage, both heand Miss Edirisinghe had embraced Islam; and as such, the second marriagewas valid.
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Held:
Section 18 of the Marriage Registration Ordinance prohibits polygamy andsections 18, 19 (1), 35 (1) and 35 (2) read together show beyond doubtthat the Ordinance contemplates only a monogamous marriage; and therespondent could not, by a unilateral conversion to Islam, cast aside hisantecedent statutory liabilities and obligations incurred by reason of theprior marriage. The rights of the respondent are qualified and restrictedby the legal rights of his wife whom he married in terms of the MarriageRegistration Ordinance.
The second purported marriage of the respondent during the subsistenceof the prior marriage contracted under the Marriage Registration Ordinanceis void, notwithstanding the respondent's conversion to Islam.
Attorney-General v. Reid (1966) 67 NLR 25 P.C. and Reid v. Attorney-General
(1964) 65 NLR 97 SC overruled.
Cases referred to:
Attorney-General v. Reid (1966) 67 NLR 25 P.C.
Weatherley v. Weathertey (1879) Kotze 71.
Niboyet v. Niboyet 4 PD 1 (Court of Appeal).
King v. Perumal (1912) 14 NLR 496 (Full Bench).
Pasmore and others v. Oswaldwistle Urban District Council (1898) AC 387,393.
Reid v. Attorney-General (1964) 65 NLR 97 S.C.
Smt Saria Mudgai, President, Kalyani and Others (Petitioners) v. Union ofIndia and others (Respondents) AIR 1995 S.C 1531.
APPEAL from the High Court, Galle.
Ranjit Abeysuriya, PC with M. Markhani, Ms. Priyadharshani Dias and Ms. Mrinali
Talgodapitiya for the appellant
D. S. Wijesinghe, PC with Jayantha de Almeida Gunaratne, Ms. Dhammika
Dharmadasa and Upul Ranjan Hewage for the respondent
B. P. Aiuvihare, SSC lor the Attorney-General.
R. K W. Goonesekera as amicus curiae.
Cur. adv. vult.
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December 16, 1997.
G. P. S. DE SILVA, CJ.
The accused-respondent (hereinafter referred to as respondent) wasconvicted of the offence of bigamy (s. 362 (B) of the Penal Code).The charge was that on 6.10.85 he contracted a second marriagewith Kanthika Chitral Saranalatha Edirisinghe whilst his lawful wifeNatalie Manel' Antoinette Abeysundera was alive. These proceedingswere instituted by the Police in the Magistrate's Court of Galle.
The offence of bigamy as set out in section 362 (B) of the PenalCode reads thus:
"Whoever, having a husband or wife living, marries in anycase in which such marriage is void by reason of its taking placeduring the life of such husband or wife, shall be punished withimprisonment . . ."
The ingredients of the offence are (i) at the time of his secondmarriage the accused already has a spouse living, (ii) the accusedpurports to marry a second time during the subsistence of the priormarriage, (iii) the second marriage is void by reason of its taking placewhile the prior valid marriage remains undissolved.
In the present case there is no dispute that the ingredients (i) and(ii) above have been established by the prosecution. The matter inissue is the third ingredient of the offence enumerated above.
The first marriage was solemnized at the All Saints' Church, Borella,on 27th September, 1958, (vide marriage certificate P1). Admittedly,the respondent and his wife (who is the present appellant) were bothRoman Catholics. The respondent was an Engineer serving at theColombo Municipal Council. He worked at the Colombo MunicipalCouncil until his retirement in 1975. Thereafter he worked abroad for2 years and upon his return to Sri Lanka joined the "DFCC" in August,1979. While working at the "DFCC", he developed a friendship withMiss K. C. S. Edirisinghe. In 1980 the respondent instituted divorceproceedings against the present appellant in the District Court ofColombo. The action, however, was dismissed on 4th September,1985 (P2). The respondent did not prefer an appeal against thejudgment dismissing his action. On 26th September, 1985, he gifted
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his "matrimonial home" to Miss K. C. S. Edirisinghe (deed of gift P3).At the trial before the Magistrate's Court he made a statement fromthe dock and asserted that both he and Miss Edirisinghe were convertedto Islam in March, 1985. On 6th October, 1985, for the second timethe respondent got married and it was to Miss K. C. S. Edirisinghe,under the Muslim Marriage and Divorce Act (P4 the certificate ofmarriage dated 6.10. 85 and P5 the declaration dated 6. 10. 85 bythe bridegroom in terms of section 18 (1) of the Muslim Marriage andDivorce Act).
As stated earlier, the Magistrate convicted the respondent on thecharge of bigamy; he was sentenced to a term of 18 months rigorousimprisonment suspended for a period of 5 years and a fine ofRs. 2,000 was also imposed. The respondent preferred an appeal tothe Provincial High Court of Galle. His appeal was successful, theconviction and sentence were set aside and he was acquitted. Withthe leave of this court, the aggrieved party N. Manel A. Abeysunderahas preferred the present appeal.
When this appeal came up before a Bench of 3 Judges,Mr. Abeysuriya, counsel for the appellant, at first stated that he wouldaccept the correctness of the decision of the Privy Council in Attorney-Genera/ v. Reid (1>. However, at a subsequent stage of the argument,counsel submitted that he would be challenging the correctness ofthe decision of the Privy Council in Reid's case (supra). It was inthese circumstances that an order was made directing that this appealbe heard before a Bench comprising five Judges (Article 132 (3) ofthe Constitution). It is relevant to note that the principal reason forthe acquittal of the respondent by the Judge of the High Court wasthe ruling given by the Privy Council in Reid's case (supra).
The material facts in the present case are almost the same asthe facts in Reid's case. Reid married Edna Margaret de Witt at St.Mary's Church, Badulla, on 18th September, 1933. Both parties wereChristians at the time of the marriage and they lived together until1957. In 1957 Reid's wife left him and obtained an order for main-tenance against him in the Magistrate's Court of Colombo. On 13thJune 1959, Reid and a divorced lady named Fatima Pansy wereconverted to Islam. On 16th July 1959, they got married in Colomboand the marriage was solemnized by the Registrar of Muslim Marriagesunder the provisions of the Muslim Marriage and Divorce Act, notwith-
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standing the fact that Reid's earlier marriage was subsisting. Reid wasindicted before the District Court of Colombo and was convicted ofthe offence of bigamy under section 362 (B) of the Penal Code.He appealed against the conviction to the Supreme Court and hisconviction was quashed. The Attorney-General appealed against thejudgment of the Supreme Court to the Privy Council. The Attorney-General's appeal, however, was dismissed by the Privy Council. Asin the instant case, the only question that arose for consideration iswhether the third ingredient of the offence of bigamy was established.Their Lordships of the Privy Council concluded that “whatever maybe the situation in a purely Christian country (as to which theirLordships express no opinion) they cannot agree that in a countrysuch as Ceylon a Christian monogamous marriage prohibits for alltime during the subsistence of that marriage a change of faith andof personal law on the part of a husband resident and domiciled there.They agree with the observations of Innes, J. almost 100 years ago.In their Lordships view in such countries there must be an inherentright in the inhabitants domiciled there to change their religion andpersonal law and so to contract a valid polygamous marriage ifrecognized by the laws of the country notwithstanding an earliermarriage. If such inherent right is to be abrogated it must be doneby statute. Admittedly, there is none … It follows that as the Attorney-General of Ceylon cannot establish that this second marriage wasvoid by the law of Ceylon by reason of the earlier Christian monoga-mous marriage the appeal must fail."
In order to consider the crucial question that arises for decisionin this appeal, namely, whether the second marriage was void, it isfirst necessary to consider the nature of a contract of marriage andin particular the precise character of the first marriage, which therespondent contracted under the Marriage Registration Ordinance. Itis not disputed that the first marriage was a valid marriage'.contractedin terms of the Marriage Registration Ordinance.
First, as to the general nature of the contract of marriage- .Willein Principles of South African Law, 5th edition states:
“Marriage is an institution which is regulated by the law, andwhich confers a status on the parties to it. It is a juristic act suigeneris . . . The legal consequences of a valid marriage are thata continuing collection of rights and duties, mostly reciprocal, are
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conferred or imposed on the parties. This combination of rightsand duties is usually termed a relationship" (p. 89).
Kotze, J. in Weatherley v. Weatheriey® stated :
"Marriage is not a mere ordinary private contract between theparties, it is a contract creating a status and gives right to importantconsequences directly affecting society at large. It lies indeed atthe root of civilized society."
Brett, U. in Niboyet v. Niboyei® (Court of Appeal)
expressed himself in the following terms:
“Marriage is the fulfilment of a contract satisfied by thesolemnization of the marriage, but marriage directly it exists createsby a law a relation between the parties and what is called a statusof each. The status of an individual, used as a legal term, meansa legal position of the individual in or with regard to the rest ofa community. That relation between the parties, and that statusof each of them with regard to the community, which are constitutedupon marriage are not imposed or defined by contract or agreementbut by law."
What then are the provisions of the law in terms of which therespondent chose to enter into a contract of marriage on 27th September1958? (i.e. the first marriage). The material provisions of the MarriageRegistration Ordinance are sections 18,19 (1), 35 (1) & (2) and thedefinition of "marriage" contained in the interpretation section, namely,section 64.
Section 18 :"No marriage shall be valid where either of the
parties thereto shall have contracted a priormarriage which shall not have been legallydissolved or declared void."
Section 19 (1) "No marriage shall be dissolved during the lifetimeof the parties except by judgment of divorce avinculo matrimonii pronounced in some competentcourt."
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Section 35 (1):“A marriage in the presence of the registrar shall,
except as hereinafter provided, be solemnizedbetween the parties at his office or station with opendoors, and between the hours of six O'clock in themorning and six O'clock in the afternoon, and inthe presence of two or more respectable witnesses,and in the following manner:
(2) The registrar shall address the parties to thefollowing effect:
"Be it known unto you, A, B and C, D., that bythe public reception of each other as man and wifein my presence, and the subsequent attestationthereof by signing your name to that effect in theregistry book, you become legally married to eachother, although no other rite of a civil or religiousnature shall take place; and know ye further thatthe marriage now intended to be contracted cannotbe dissolved during your lifetime except by a validjudgment of divorce, and that if either of you beforethe death of the other shall contract another marriagebefore the former marriage is thus legally dissolved,you will be guilty of bigamy and be liable to thepenalties attached to that offence."
Section 64:"In this Ordinance, unless the context otherwise
requires –
"marriage" means any marriage, save and exceptmarriages contracted under and by virtue of theKandyan Marriage Ordinance, 1870, or the KandyanMarriage and Divorce Act, and except marriagescontracted between persons professing Islam."
There is little doubt that section 18 expressly prohibits polygamyand sections 18, 19 (1) and 35 (1) & (2) read together show beyonddoubt that the Marriage Regisration Ordinance contemplates only amonogamous marriage. As stated by Dr. H. W. Tambiah in his workLaws and Customs of the Tamils of Jaffna, "by the General MarriageOrdinance only monogamy is recognised . .." (page 106). The
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respondent having solemnized his first marriage under the MarriageRegistration Ordinance is bound to monogamy and, what is more,the only mode by which such marriage could be dissolved is by a"judgment of divorce a vinculo matrimonii pronounced in somecompetent court". The obligation of monogamy and the mode ofdissolution of the marriage are the statutory incidents of the firstmarriage which the respondent entered into with the appellant.
As rightly pointed out by Mr. R. K. W. Goonesekera, the judgmentof the Privy Council in Reid's case makes no reference at all to theenactments which preceded the present Marriage RegistrationOrdinance. Mr. Goonesekera drew our attention to section 28 ofOrdinance No. 6 of 1847.
The section reads thus:
“28. And it is further enacted, that no marriage solemnizedin any part of this Island, after the notification in the Gazette ofthe confirmation of this Ordinance by Her Majesty, shall be valid(except among Muhammedans) where either of the parties theretoshall have contracted a prior marriage, which shall not have beenlegally dissolved or declared void by decree of some competentcourt. And every person, except a Muhammedan, who shall, aftersuch period as aforesaid contract a subsequent marriage, beforehis or her prior marriage shall have been so dissolved or declaredvoid and every person except a Muhammedan, who shall marryanother whom he or she shall know to be bound by a previousmarriage not so dissolved or declared void, shall be guilty ofbigamy, and liable to imprisonment with or without hard labour forany period not exceeding three years. Provided always, that noperson marrying a second time, whose husband or wife shall havebeen continually absent from such person for the space of sevenyears then last past, and shall not have been known by such personto be living within that time, shall be deemed to be guilty of bigamy."
It is thus clear that as far back as 1847, our law made expressprovision prohibiting polygamy (except in the case of Muslims) anddefining the offence of bigamy. A provision to the same effect wasfound in section 19 of Ordinance No. 2 of 1895. Thus in 1911Lascelles, CJ. in King v. Perumal w (Full Bench) stated:
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"That polygamy has been prohibited and has been an offenceunder the Municipal law of Ceylon for more than half a century,except in the case of Muhammadans, is beyond all question" (atpage 505).
Having considered the statute law and rules of Private InternationalLaw the learned Chief Justice went on to state –
"It is thus clear that, except in the case of Muhammadans,polygamy is as obnoxious to the public policy of Ceylon asto that of European States. . . In view of the circumstance thatpolygamy is expressly prohibited by the Municipal law of theColony (except in the case of Muhammadans) I am clearly ofopinion that a polygamous marriage between persons who are notMuhammadans is void in Ceylon . .
It is also relevant to note that Wood Renton, J. who was the trialJudge in Perumal's case while “stating the case" in terms of section355 (1) of the then Criminal Procedure Code expressed the viewthat the Marriage Registration Ordinance, No. 19 of 1907 "not onlycontemplates monogamous marriage alone but expressly prohibitspolygamy. .
It is therefore abundantly clear that the concept of monogamy andthe prohibition on polygamy was a part of our law relating to marriageas long ago as 1847. Unfortunately, neither the relevant statutes northe Full Bench decision in Perumal's case were cited before the PrivyCouncil in Reid's case.
Perumal's case is important for smother reason. Dealing with theconcept of a "Christian marriage" in relation to the rule of Privateinternational Law "under which the capacity to marry depends uponthe domicil of the parties" and the "well-recognized exceptions to therule," Lascelles, C.J observed:
“But the use of these expressions (the general consent of sillChristendom', ‘the law of God' and 'the law of Christendom') doesnot imply that it is only in countries where Christianity is theprevailing religion that polygamous and incentuous marriages arebeyond the pale of private international law. If a non-Christiancountry has followed the rule of Christendom as to polygamy andby its Municipal law has prohibited such marriages it surely stands
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on the same footing as Christendom as regards the non-recognitionof polygamous marriages. The only distinction is that in the formercase the prohibition rests on grounds of public policy, whilstin the latter case it is associated with the teaching of Christianity"(at page 505).
Thus the submission of Mr. Goonesekera that prohibition againstpolygamy (except in the case of Muslims) under our statute lawrests on grounds of public policy is well-founded. As stressed byMr. Goonasekera, the integrity of the institution of marriage is themost important consideration. None of these matters were consideredby the Privy Council. The Privy Council was content to observe,"whatever may be the situation in a purely Christian country (as towhich their Lordships express no opinion) they cannot agree that ina country such as Ceylon a Christian monogamous marriage prohibitsfor all time during the subsistence of that marriage a change of faithand of personal law on the part of a husband resident and domiciledthere" Attorney-General v. Reid (supra) at 32.
There is no question that Reid was free to change his faith, butthe true question which arose for decision was whether Reid couldcast off the statutory obligations which directly arose from his previousmarriage in terms of the Marriage Registration Ordinance by the simpleexpedient of unilateral conversion to Islam. Could he by his ownact overcome the incidents of the marriage he chose to contract interms of the Marriage Registration Ordinance? In my view, the answeris emphatically in the negative. The statute expressly provides for themode of dissolution of the marriage, and that is the only mode providedfor by law. "The principle that where a specific remedy is given bya statute, it thereby deprives the person who insists upon a remedyof any other form of remedy than that given by the statute, is onewhich is very familiar and runs through the law". Pasmore and othersv. The Oswaldtwistle Urban District Council*. The Privy Council inReid's case did not focus on the crucial question whether by aunilateral conversion to Islam subsequent to a lawful marriage in termsof the Marriage Registration Ordinance, Reid could absolve himselfof the statutory liabilities incurred and the statutory obligations under-taken by him. The Privy Council overlooked the fact that the “rights"of Reid were qualified and restricted by the legal rights of his wifewhom he married in terms of the Marriage Registration Ordinance.
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Savitri Goonesekera in her work on the Sri Lanka Law on Parentand Child relevantly states (commenting on Reid's case):
“In emphasizing the right of a person to change his personallaw by a unilateral act, the Privy Council seems to have beeninfluenced by the theory that the inhabitants of Sri Lanka have aninherent right to change their religion and personal law. This view,we have observed, is not correct with regard to other personal laws(i.e. other than Muslim law) that apply in Sri Lanka. Besides, theconcept of the monogamous marriage, in the non-Muslim law onfamily relations in this country, indicates that there is no absoluteright to convert to Islam and change one's personal law* ■ ■ InReid's case the Attorney-General argued that a marriage under theGeneral Marriages Ordinance created a status of monogamy whichcould not be changed legally unless the marriage was dissolvedor annulled. The Privy Council rejected this argument stating thatwhatever may be the situation in a purely Christian country . . .in a country like Ceylon … a monogamous marriage (does not)prohibit for all time during the subsistence of that marriage, achange of faith and personal law. The Privy Council, we haveobserved, was unaware of the fact that there are strict limitationson the application of the other personal laws. In rejecting theAttorney-General's argument, the Court refused to appreciate thateven the right of conversion to Islam and of becoming subject toMuslim law could be qualified in a non Muslim state, wherethe monogamous marriage was the norm in the law on familyrelations." (at pages 56 and 57).
Again, the Privy Council in Reid's case failed altogether toappreciate the significance of section 35 of the Marriage RegistrationOrdinance in the context of a statute which recognizes only amonogamous marriage. The comment of the Privy Council on section35 reads thus :
"Their Lordships have not overlooked section 35 of the MarriageRegistration Ordinance which tends to support Mr. Littman'sargument, but the exhortation contained in the registrar's addressis no more than a warning and though it may be apt to misleadthe ordinary man or woman ignorant of the definition of marriagecontained in section 64, it cannot successfully be prayed in aid
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when considering whether the offence of bigamy has beencommitted in terms of section 362 (B) of the Penal Code" Attorney-General v. Reid (supra) at 32.
It is to be noted that section 35 contemplates the situation wherethe Registrar addresses the parties to the marriage just before theyplace their signature on "the registry book". They are unambiguouslytold in simple language that the marriage intended to be contractedcannot be dissolved except by a valid judgment of divorce and if eitherof the parties contracts another marriage before the former marriageis legally dissolved he or she will be guilty of bigamy. It is difficultto understand what the Privy Council meant by saying that the"exhortation" is apt "to mislead the ordinary man or woman". The truemeaning of section 35 is lucidly expressed by Savitri Goonesekerain the following terms :
"He (the Registrar) is required to tell them that the marriagecan only be dissolved by a valid judgment of divorce, or death,and that a marriage prior to dissolution amounts to bigamy. Thisprovision on the Registrar's directive is therefore not based on amisconception of the law, as the Privy Council suggested. It isan articulation of the concept that status of marriage acquired underthe General Marriages Ordinance prevents a spouse from contract-ing a valid second marriage. Inasmuch as a subsequent marriageunder the Ordinance is declared void when a prior marriage hasnot been legally dissolved, the statute contemplates the creationof a monogamous marital status." (Sri Lanka Law on Parentand Child, p. 58).
It is thus clear that the approach of the Privy Council to a pivotalprovision in the Marriage Registration Ordinance is fundamentallyflawed.
Mr. D. S. Wijesinghe for the respondent adopted the reasoningof His Lordship Chief Justice Basnayake in Reid's casei® and strenu-ously contended that the entirety of the Marriage RegistrationOrdinance has no application whatever to persons professing Islam.The respondent's second marriage was under the Muslim Marriageand Divorce Act and ex facie it is a valid and lawful marriage. Inshort, counsel's submission was that the prohibition contained insection 18 of the Marriage Registration Ordinance will not and cannotapply to persons professing Islam. Reliance was placed on the definition
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of "marriage" in section 64 of the Ordinance. Counsel for the AttorneyGeneral agreed with the submissions of Mr. Wijesinghe.
Having cited section 18, His Lordship Chief Justice Basnayakereasoned thus: "The section declares that no marriage" shall be vaildwhen there is a prior 'subsisting marriage1. Now what is a marriagefor the purpose Of section 18? That expression is defined in section64 and it means 'any marriage save and except marriages contractedunder and by virtue of the Kandyan Marriage Ordinance 1870 or theKandyan Marriage and Divorce Act and except marriages contractedbetween persons professing Islam. There is nothing in the contextof section 18 which renders the definition inapplicable". Mr. Abeysuriyafor the appellant submitted that the approach of His Lordship the ChiefJustice was "simplistic". Section 18 is an all-important provision of theOrdinance. The section enshrines the concept of a monogamousmarriage and expressly prohibits polygamy. I therefore cannot agreethat “there is nothing in the context of section 18 which renders thedefinition inapplicable". The definition of “marriage" applies "unless thecontext otherwise, requires" (section 64). The Marriage RegistrationOrdinance is founded on the concept of a monogamous marriage andthis is the relevant context. To have recourse to the definition of theterm “marriage", in the way suggested, would render a basic andessential provision of the Ordinance largely nugatory. This is not apermissible mode of interpretation. By reason of the definition of“marriage", persons professing Islam cannot marry under the MarriageRegistration Ordinance. The true issue is not whether the respondent'ssecond marriage under the Muslim Marriage and Divorce Act is validor not, but whether by a unilateral conversion to Islam he could castaside his antecedent statutory liabilities and obligations incurred byreason of the prior marriage. As stated earlier, the answer is clearlyin the negative.
Mr. R. K. W. Goonesekera cited before us a recent judgment ofthe Supreme Court of India which seems to me of decisive importance- Smt Sarla Mudgal, President, Kalyani and others (petitioners) v.Union of India and others (respondents)m . The question that arosefor decision was "whether a Hindu husband, married under Hindu law,by embracing Islam, can solemnize a second marriage. Whether sucha marriage without having the first marriage dissolved under law wouldbe a valid marriage, qua the first wife who continues to be Hindu?Whether the apostate husband would be guilty of the offence under
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section 494 of the Indian Penal Code"? After a careful and a com-prehensive consideration of the position under Hindu law, and theHindu Marriage Act 1955 as well as several decisions of the Indiancourts, Justice Kuldip Singh concluded that the “second marriage ofa Hindu husband after his conversion to Islam is a void marriage interms of section 494 of the Indian Penal Code". Justice Kuldip Singhreasoned as follows :
“It is, thus, obvious from a catena of case law that a marriagecelebrated under a particular personal law cannot be dissolved bythe application of another personal law to which one of the spousesconverts and the other refuses to do so. Where a marriage takesplace under Hindu law the parties acquire a status and certain rightsby the marriage itself under the law governing the Hindu Marriageand if one of the parties is allowed to dissolve the marriage byadopting and enforcing a new personal law, it would tantamountto destroying the existing rights of the other spouse who continuesto be Hindu. We, therefore, hold that under the Hindu PersonalLaw as it existed prior to its codification in 1955, a Hindu marriagecontinued to subsist even after one of the spouses converted toIslam. There was no automatic dissolution of the marriage . . .The position has not changed after coming into force of the HinduMarriage Act, 1955 (the Act) rather it has become worse for theapostate … A marriage solemnized, whether before or after thecommencement of the Act, can only be dissolved by a decree ofdivorce on any of the grounds enumerated in section 13 of theAct … It is obvious from the various provisions of the Act thatthe modem Hindu law strictly enforces monogamy. A marriageperformed under the Act cannot be dissolved except on the groundsavailable under section 13, of the Act. In that situation parties whohave solemnized the marriage under the Act remain married evenwhen the husband embraces Islam in pursuit of other (sic) wife.A second marriage by an apostate under the shelter of conversionto Islam would nevertheless by (sid) a marriage in violation of theprovisions of the Act by which he would be continuing to begoverned so far as his first marriage under the Act is concerneddespite his conversion to Islam. The second marriage of an apostatewould, therefore be (sid) illegal marriage qua his wife who marriedhim under the Act and continues to be Hindu. Between the apostateand his Hindu wife the second marriage is in violation of the
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provisions of the Act and as such would be non est. Section 494Indian Penal Code is as under :
Marrying again during lifetime of husband or wife' – Whoever,having a husband or wife living marries in any case in which suchmarriage is void by reason of its taking place during the life ofsuch husband or wife, shall be punished with imprisonment of eitherdescription for a term which may extend to seven years, and shallalso be liable to fine.
The necessary ingredients of the section are : (1) having ahusband or wife living; (2) marries in any case; (3) in which suchmarriage is void; (4) by reason of its taking place during the lifeof such husband or wife . . .
It is no doubt correct that the marriage solemnized by a Hinduhusband after embracing Islam may not be strictly a void marriageunder the Act because he is no longer a Hindu, but the fact remainsthat the said marriage would be in violation of the Act which strictlyprofesses monogamy . . .
The expression "void" under section 494 I. P. C. has been usedin the wider sense. A marriage which is in violation of anyprovisions of law would be void in terms of the expressionused under section 494 I. P. C.
“A Hindu marriage solemnized under the Act can only bedissolved on any of the grounds specified under the Act. Till thetime a Hindu marriage is dissolved under the Act none of thespouses can contract second marriage. Conversion to Islam andmarrying again would not, by itself, dissolve the Hindu marriageunder the Act. The second marriage by a convert would there-fore be in violation of the Act and as such void in terms ofsection 4941. P. C. Any Act which is in violation of mandatoryprovisions of law Is per se void.
The real reason for the voidness of the second marriage is thesubsisting (s/c) of the first marriage which is not dissolved evenby the conversion of the husband. It would be giving a go-byeto the substance of the matter and acting against the spirit of thestatute if the second marriage of the convert is held to be legal*,(pages 1536 to 1537).
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In my view, the reasoning of Justice Kuldip Singh set out in extensoabove is cogent and valid, and is clearly applicable to the facts ofthe fact before us, and to Reid's case.
In the early part of his judgment Justice Kuldip Singh made a veryrelevant observation which Mr. R. K. W. Goonesekera rightly emphasizedin the course of his submissions. The issues that arise are concernedwith an institution of the utmost importance, namely marriage and thefamily. Said the learned Judge, "Marriage is the very foundation ofthe civilized society. The relation once formed, the law steps inand binds the parties to various obligations and liabilities there-under. Marriage is an institution in the maintenance of which the publicat large is deeply interested. It is the foundation of the family andin turn of the society without which no civilization can exist." (page1533). These wider considerations, so relevant and important for acorrect appreciation of the issues involved, I say with the utmostrespect, were completely lost sight of by the Privy Council and HisLordship the Chief Justice. To attempt to literally transpose the definitionof the expression "marriage" to the core provision in the Ordinance(section 18) has the effect of emasculating the section. This approachis wrong for it takes no account of the basic principle enshrined inthe Ordinance, the recognition of monogamy alone and the explicitprohibition on polygamy.
For the reasons I have endeavored to set out above, I hold thatReid's case [supra] was wrongly decided and must be overruled. Asstated earlier, the material facts in Reid's case and in the presentappeal before us are almost identical and the legal issues are thesame. I accordingly hold that the second purported marriage of therespondent to Miss Edirisinghe during the subsistence of the prior validmarriage contracted under the Marriage Registration Ordinance is void,notwithstanding the respondent's conversion to Islam. It follows thatthe charge of bigamy (section 362 (B) of the Penal Code) preferredagainst the respondent is proved.
The appeal against the acquittal of the respondent by the Judgeof the High Court is accordingly allowed and the judgment of the HighCourt is set aside. I affirm the conviction and the sentence imposedby the learned Magistrate.
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Wickrematunga v. Anuruddha Ratwatte and Others
201
Whilst thanking Mr. Abeysuriya, Mr. Wijesinghe and Mr. Aluviharefor their assistance in this not altogether easy case, I wish toplace on record my deep appreciation of the assistance given byMr. R. K. W. Goonesekera who appeared as amicus on the invitationof the court.
WADUGODAPITIYA, J. – I agree.
PERERA, J. – I agree.
WIJETUNGA, J. – I agree.
BANDARANAYAKE, J. – I agree.
Appeal allowed.