057-NLR-NLR-V-33-PUNCHI-NONA-v.-CHARLES-APPUHAMY.pdf
AKBAB J.—Punehi Nona v. Chattel Appuhamy.
1981Present: Akbar J. and Maartensz A.J.PUNCH! NONA ». CHARLES APPUHAMY.
44—D. C. (Inty.) Negombo, 2,772.
Marriage—Presumption arising from habit and repute—Evidence by allegedtoife—Rebuttal.
A, who was married to T, lived with P, as her associated husband.After T's death, A and P continued to live as husband and wife. A,who gave evidence, did not state that a customary marriage had takenplace between P and herself after T's death.
Held, that, under the circumstances, the presumption of marriage byhabit and repute did not arise.
^ PPEAL from a.judgment of the District Judge of-Negombo.
M. T. de S. Amarasekem, for appellant.
H. 7. Perera, for respondent.
September 7, 1931.. Akbar J.—
In this case the only point for decision in appeal is whether the peti-tioner was the lawful wife of one Peeris, the deceased intestate in thiscase. The petitioner gave evidence, in which she stated that one The-panis, a brother of Peeris, was married to her and that he was her husband,but that according to custom Peeris was also an associated husband,of hers. She considered both of them as her husbands. It is clear thataccording to law Thepanis being married to this woman, her associationwith Peeris was adulterous in spite of the so-called custom. She had8 children, all during Thepanis’ lifetime, and these children were regardedas Thepanis’ children. Thepanis died in 1916 and the petitioner continuedto live with Peeris as his wife. There was evidence to prove that Peerisand the petitioner were regarded as husband and wife. The District-Judge has held in favour of a presumption of marriage between Peeris-and the petitioner, because he thought effect should be given to the so-called custom of having associated husbands. It is clear, ’however,from the evidence of this woman that she considered both Thepanis'.and Peeris as her husbands and that she continued to live with .Peeris-without going through any formality of marriage according to custom^It is argued that this evidence of cohabitation was sufficiently strongto raise the presumption that Peeris and the petitioner lived togetherin consequence of a valid marriage and not in a state of concubinage.The case of Gunaratna v. Punchihamy1 is against the contention of therespondent. In that case too the woman was alive and went into thewitness box to give evidence. As Mr. Justice Pereira stated, “ Nomarriage .can be contracted or constituted -by cohabitation, habit, andrepute. Evidence of cohabitation, habit, and repute merely givesrise to a presumption of marriage, and this presumption, as has been 'held in numerous cases, is a presumption, that can only be displaced bymeans of strong and cogent evidence to the contrary. In the present
115 N. L. R. 501.
228AKBAB J.—Punchi Nona «. Charles Appuhamy.
case whether the respondent was married to the deceased is best knownto her; the issue is framed whether she 4 was lawfully married to thedeceased she gets into the witness box to prove the affirmative ofthe issue; but she does not take upon herself to say in plain languagethat she was married to the deceased according to native rites andcustoms. On the contrary, her evidence unmistakably points, to the~ fact that there was no such marriage. She begins her evidence givingfull details of the circumstances in which she and the deceased began tolive together, and it is manifest from these details that there was noceremony, no native rite or custom, observed to constitute them (therespondent and the deceased) wife and husband. That being so, Iconsider that the presumption arising from .evidence of cohabitationand habit and repute (I have dealt with the question of the weight to■ be attached to that evidence already) has been effectively rebutted
Mr. Perera who appeared for the respondent, whilst admitting thatthis case was against him, contended that the later case of Dinohamy v.Balahamy1 decided by the Privy Council should govern this case andthat the Privy Council had in effect overruled the decision quoted inthe 15 N. L. R. 1 do not think this contention is correct, becauseif reference is made to the decision of the Supreme Court reported in3 Times of Ceylon Law Reportsf p. 186, it will be seen that in that case,the issue was whether Balahamy was married according to the law ofCeylon to one Don Andris. There was evidence that there was such amarriage solemnized and further there was evidence of cohabitationby habit and repute. There was a total conflict between the witnesseson the one side and those on the other side, and the District Judge heldthat there was no marriage proved according to the law of Ceylon. Butthe Supreme Court and the Privy Council held that the marriage must'be presumed, because there was ample evidence from which the Courtcould conclude that there was a marriage according to custom from thestrong evidence led in the case to prove that the parties lived togetherfor 20 years as husband and wife and that they were regarded as suchby their neighbours; and because no evidence was afforded of repudiationof this relation by husband or wife, or anybody, it was held that theissue must be decided in favour of there being a valid marriage. Inthe case before us the woman actually gave evidence and the fact whetherthere was a marriage according to custom after Thepanis' death wasone peculiarly within her knowledge. The burden of proving this factwas on her under section 106 of the Evidence Ordinance. Althoughshe spoke to facts proving that she and Peeris lived together, she didnot state that she was married to the deceased according to Sinhaleserites and customs. There was no evidence from her that there was anymarriage ceremony according to custom whatsoever at any period ofher cohabitation with Peeris. Mr. Perera pressed upon us the case ofDe Thoren v. The Attorney-General2. But that case was also cited inthe 15 N. L. R. case and distinguished by the Supreme Court.Mr. Justice Ennis pointed out that under the Scottish law a mutualagreement to marry was the one essential to a lawful marriage; butthat amongst the Sinhalese some further formalities were required to
1 29 N, L. R. 114.
(1875-6) 1 A. C. 686.
Peiria v. Saravanamuttu.
'Constitute a lawful marriage. Mr. Perera admitted that the omissionby the petitioner to state that there was such a customary marriagewas perhaps due to the fact that counsel had relied only on the evidenceof cohabitation. But her evidence shows that, as she considered bothThepanis and Peeris as her husbands, she continued to live in that beliefwith Peeris after Thepanis' death. In view of this opinion of hers,her whole evidence negatives that there was the solemnization of acustomary marriage ceremony at any period after the death of Thepanis.
It is not fair that the case should be sent back for the question to be putto the respondent definitely after this point has now been focussed and■emphasised in view of the manner in which her case was put in the lowerCourt. In my opinion, if I may say so with respect, the reasoning ofPereira and Ennis JJ. seems to me to be sound and is in no way in•conflict with the -later decision of the Privy Council, when this later caseis analysed carefully. In my opinion the decision of the District Judgewas wrong, and I would set aside the judgment and decree and hold thatrthe petitioner .was not the lawful wife of Peeris, the deceased. The appealis allowed with costs in both Courts.
Maautensz A.J.—I agree.
♦
Appeal allowed.