WEERAPPERUMA et al. v. WEERAPPERUMA

119-NLR-NLR-V-39-WEERAPPERUMA-et-al.-v.-WEERAPPERUMA.pdf


Weerapperuma v. Weerapperuma.
433
1938Present: Poyser S.P.J. and Maartensz J.
WEERAPPERUMA et al. v. WEERAPPERUMA.'
160—D. C. ColombOj 7,550.
Marriage—Invalid by reason of legal impediment—Cohabitation in habit andrepute—No presumption of marriage.
Where a marriage registered between parties is invalid owing to a legalimpediment a presumption of marriage by cohabitation in habit andrepute cannot arise.
T
HE petitioner claimed letters of administration 'to the estate of hisdeceased brother Dangedera Gamage Edwin Weerapperuma.
The eighth respondent, Stella Weerapperuma, opposed the grant on theground that, she was the lawful widow of the deceased and had conse-quently a preferential claim to the letters of administration.
The eighth respondent was first married to Sathianathan who filed adivorce action against her. The decree nisi was entered on October 15,1921. The decree was never made absolute.
Qn May 6, 1922, a marriage was registered between the deceased,Weerapperuma, and the eighth respondent, and they lived together upto the deceased’s death which occurred on March 18, 1936. Sathianathandied on September 9, 1935.
The leaineid District Judge held that she was the lawful wife of thedeceased and granted her letters. From this order the petitionerappealed.
N. E. Weerasooria (with him E. G. Wickramanayake), for petitioner,appellant.—At the time of the marriage of the eighth respondent withthe deceased, her marriage with Sathianathan was subsisting and notlegally dissolved. After the death of the deceased an attempt wasmade to obtain a decree absolute in the divorce case, but the applicationwas refused. In the course of that proceeding, the eighth respondentcontended that the decree nisi should have been made absolute by theCourt ex mero motu, and that the marriage was valid. The authorities •are against that. (Sathiyanathan v. Sathiyanathan1; see also Aserappa v.Aserappa1; Hulme-King v. De Silva *.)
It was admitted that there were no customary ceremonies at thesecond marriage.
[Maartensz J.—How does that arise as the marriage had neverbeen dissolved ?]
One cannot presume a lawful marriage when there was an impedimentto the marriage although the parties lived as husband and wife.
H. V. Perera, K.C. (with him D. W. Fernando and K. Subramaniam),for the eighth respondent.—The learned District J(udge held that theregistration of the second marriage in 1922 constituted a good marriagebut that view cannot be supported. The learned Judge is right.on theground of a marriage by habit and repute. The parties entered under
* (1937) 9 C. L. W. 135.* (1935) 37 N. L. R. 372.3 (1936) 38 N. Z,. R. 63.
434
POYSER S.P.J.—Weerapperuma v. Weerapperuma.
■a form of marriage and lived as husband and wife. Though there wasan impediment to the marriage, it can be presumed that there was alegal marriage when the impediment, was removed.
[Maartensz J.—Did the parties realize that there was an impediment ?]
No. It is not necessary.
[Poyser S.P.J.—Can there be a presumption when there is definiteevidence against it ?]
Yes. It can be presumed. Where there is no impediment, theremust be some ceremony and must not be clandestine. It is merely acivil contract. The leading case is The Bredalbane Peerage claim In
De Thoren v. Attorney-General*, the parties went through a form ofmarriage though there was an unknown impediment. Everyone believedthat the marriage was good. It is improbable that the parties would gothrough another form of marriage once the impediment was removed,and the House of Lords held that it was not necessary.
[Maartensz J.—The Court shall presume that two people apparentlyliving together were legally married.]
It is a presumption of law and cannot be rebutted by a presumptionof fact. It can be rebutted only in a particular way. (Dinohamy v.Balahamy *; Wilkinson v. Payney ) In Gunaratna v. Punchihamy oneof the parties to the alleged marriage said that there was no registrationor marriage and that was sufficient to rebut the presumption. Thedecision in Punchi Nona v. Charles Appuhamy * is against this contention.The Roman-Dutch law favours marriage wherever it is possible.
[Maartensz J.—What about your reliance on the marriage of 1922in the petition ? Is not that against you ?]
No. That is precisely the point in the De Thoren case (supra).
The law is that if a person introduces another as his wife, that is adeclaration, even though the cohabitation arises out of an illegal con-tract. Hence the presumption arises.
There was no pretence of marriage in Sastry Velaider Aronegary v.Semhecutty Vaigalie*.
E. G. Wickramanayake, in reply.—The facts are against a presumptionof marriage by habit and repute. Under the Scotch law mere consentis sufficient, but not so under our law which requires that the consentshould have been open and attended by some ceremony. Where it isnot able to have direct, positive evidence that a ceremony did takeplace, the Court presumes that the ceremonies did not take place.(Gunaratnc v. Punchihamy".)
This was approved and followed in Punchi Nona v. Charles Appuhamy(supra).
H. V. Perera, K.C., referred to In re Shephard, George v. Thyer’.
February 17, 1938. Poyser S.P.J.—Cur- adv- vult- ■
The petitioner claimed letters of administration to the estate of his^deceased brother Dangedera Gamage Edwin Weerapperuma. Theeighth respondent, Stella Weerapperuma, opposed such grant on the
1(1872) L. R. 2 H.L.Sc. 269.•(1931)33 N. L.R.227.
(1876) 1 A. O. 686.7(1881)6 A. G. 364; 2 N.L.R. 322.
3(1927) 29 N. L. R.114.•(1912)IS N. L.R.SOI at504.
(1791) 4 Term 468.•(1904)1 Ch. 456.
» (1912) 15 N. &. R. 501.
POYSER S.P.J.—Weerapperuma v. Weerapperuma.' 435
ground that she was the lawful widow of the deceased and had' conse-quently a preferential claim to such letters.
The facts are as follows : The eighth respondent was first married toone Sathianathan who obtained a divorce from her on October 15, 1921.The decree, however, was never made absolute.
On May 6, 1922, she married the deceased, the marriage was dulyregistered (8DI), and they lived together up to the deceased’s deathwhich occurred on March 18, 1936.
Sathianathan did not die till September 9, 1935, and it was contendedon behalf of the petitioner that the eighth respondent did not contracta valid marriage with the deceased as the decree nisi granting Sathia-nathan a divorce was never made absolute.
The District Judge rejected this argument- and* held that althoughdecree absolute was not actually entered of record, the decree nisi becameabsolute “ in effect ” after the lapse of three months as no cause hadbeen shown against it being made absolute.
The District Judge also stated that “it has always been the practiceof this Court to make decree nisi in a divorce action absolute withoutany application on the part of the parties ”.
However that may be, there is a decision of this Court to the effectthat such practice is not justified by any provision of the Civil ProcedureCode.
In Aserappa v. Aserappa the following passage occurs in the judgmentof Dalton S.P.J.: —
“ According to the practice of that Court, he '(i.e., the District Judge,Colombo) states that decrees absolute, in matrimonial cases I presume,are entered as a matter of course after the lapse of the prescribedperiod without the Court being moved thereto by either party. Thepractice I understand, is based upon what are stated to be the explicitprovisions in section 605 of the Code. If that practice had beenfollowed therefore in this case, the Court would have made the decreeabsolute immediately after the expiration of three months from thedate of the decree nisi. It is clear that the practice is not uniform,because it was not followed in this case. Even in August when theplaintiff’s application was dealt with, the failure to act in accordancewith this practice was not mentioned.
“ If there is any such practice in force, and my brother Maartenszinforms me that it was in force when he was District Judge, Colombo,I am not satisfied that it is justified by any provision of the Code. Itseems to me that the person who requires the Court -to move, shouldmove the Court, and not that the Court should act of its own motionin making the decree absolute.” I
I think however it is unnecessary for us to decide whether this practiceis justified by the Code or not. The fact remains that in this case thedecree nisi w,as not made absolute and I cannot agree with the DistrictJudge that the decree automatically became absolute when three monthshad expired, and therefore, the eighth respondent was, in my opinion,unable to contract a valid marriage at the time she married the deceased.
* (1935) 37 N. L. B. 372 at p. 374.
436
POYSER S.P.J.—Weerapperuma v. Weerapperuma.
Mr. Perera conceded that he would not support the judgment onthese grounds, but argued that as the deceased and the eighth respondentlived together for fourteen years as husband and wife and were regardedas such by their friends and relations, that the law would presume alegal marriage. The case he principally relied on in support of thisargument was De Thoren v. Attorney-General
That case has been considered in various local decisions and the lawin regard to the presumption of marriages now appears to be wellsettled.
On this point I would refer to Dinohamy v. Balahamy *, a Privy Councildecision. In that case the following passage occurs in the judgmentof Lord. Shaw ‘: —
“ It is not disputed that according to the Roman-Dutch Law thereis a presumption in favour of marriage rather than of concubinage;that according to the law of Ceylon, where a man and woman areproved to have lived together as man and wife, the law will presume,unless the contrary be clearly proved, that they were living togetherin consequence of a valid marriage, and not in a state of concubinage.A judgment substantially in these words (Sastry Velaider Aronegaryv. tSe-mbecutty Vaigalie *), was pronounced by this Board through SirBarnes Peacock. Sir Barnes discusses the law with some fullness,quoting among other cases the opinion of Lord Cairns in De. Thoren v.Attorney-General (supra) and making reference to the Scotch leadingcase, the Bredalbane Case
In this case it is clearly proved beyond all doubt that the marriagebetween the eighth respondent and the deceased was invalid. Howunder these circumstances there can be any presumption in favour of a‘valid marriage I fail to see.
I need only add that the eighth respondent recently sought to haveher marriage with the deceased legalized by having the decree nisi madeabsolute “ nunc pro tunc(Sathiyanathan v. Sathiyanathan “.) it was
held however by this Court: (i.) that a party to a marriage, in respectof which a decree nisi for dissolution of marriage has been entered, isnot entitled to contract another marriage until decree absolute is entered ;(ii.) that if a party to a divorce action contracts another marriage afterdecree nisi, but before decree absolute, and during the lifetime of theother party, (a) the second marriage is invalid; (b) on the deathintestate of either of the contracting parties to the second marriage, thesurvivor is not entitled to any share of the estate of the deceased.
That case however was argued on the basis that the District JudgeShould “ ex mero rriotu ” have entered decree absolute and so it might beargued that this decision does not necessarily decide this appeal.
However that may be, the eighth respondent did not contract avalid marriage with the deceased, nor can, for the reasons previouslyset out, it be presumed that they were married.
1 (1876) 7 A. C. 686.4 [1881) 6 A. C. 364 : 2 N. L. R. 322.
» (7927) 29 N. L. B. 114.5 [1872)1,. R. 2 H. L.Sc: 269.
» (7927) 29 N. L. R. at p. 116.• (7937.) 9 Cty. Law Weekly 733.
I
In the Matter of Application for Writ of Certiorari
437
I would allow the appeal and direct that the appellant be grantedletters of administration to the estate of the deceased Dangedera GamageEdwin Weerapperuma.
In regard to costs I think an inquiry as to the eighth respondent'sstatus was unavoidable and therefore consider that the costs in thelower Court and of this appeal should come out of the estate.
Maartensz J.—I agree.
Appeal allowed.