Ramasamy Pillai ». Commissioner for Registration of
Indian and Pakistani Residents
1959 Present: Basnayake, C.J., Pulle, J., and H. N. G. Fernando, J.K.RAMASAMY PILLAI, Appellant, and COMMISSIONER FORREGISTRATION OF INDIAN AND PAKISTANI RESIDENTS,
8. C. (Citizenship) 835—Application C. 3200
Indian and Pakistani Residents (Citizenship) Act, No. 3 of 1949—Section 6 (2) (Hi)—■“ Disability or incapacity ”—Interpretation of a statute—Admissibility ofreference to extraneous matter.
In. an application for citizenship under the Indian and Pakistani Residents(Citizenship) Act—
Held, that the fact that the applicant (a non-Muslim) had contracted twomarriages in India was not a disability or incapacity within the meaning ofsection 6 (2) (iii) of the Indian and Pakistani Residents (Citizenship) Act,although both wives were still alive.
Where the meaning of the words of a statute is not ambiguous, the parlia-mentary history of the statute is not admissible to explain it.
•f APPEAL under section 15 of the Indian and Pakistani Residents(Citizenship) Act.
N. K. Chohsy, Q.G., with C. Pathmanathan and B. J. Fernando, forApplicant-Appellant.
B. C. F. Jayaratne, Crown Counsel, with B, S. Wanasundera, CrownCounsel, for Respondent-Respondent.
Cur. adv. mU.
1 (1912) 15 N. L. B. 407.
BASNAYAKE, C.J.—Ramasamy Pillai v. Commissioner for '585
Registration of Indian and Pakistani Residents
March 25, 1959. Bashayaxe, C.J.—
This is an appeal under section 15 of the Indian and Pakistani Resi-dents (Citizenship) Act, No. 3 of 1949, (hereinafter referred to as the Act),hy one Krishnapillai Ramasamy Pillai, an applicant for registration undersection 4 (1) of the Act. It came up for hearing in the ordinary coursebefore my brother T. S. Fernando who reserved, under section 48 of theCourts Ordinance, for the decision of more than one Judge of this Court,the question whether the applicant in this case has fulfilled the require-ments of section 6 (2) (iii) of the Act as it appeared to him to be a questionof doubt or difficulty. I thereupon made Order under section 48A ofthat Ordinance constituting a bench of three Judges for the decision of thequestion so reserved.
According to the particulars stated in the affidavit and the depositionof the applicant he is a person born at Tattaparai in South India butnow living in Colombo. He first came to Ceylon in 1927. By occupationhe is a tailor and he was at the date of his application on 20th June 1951Head Ladies’ Tailor at Hirdaramani Ltd. He is 41 years of age and hastwo wives the first of whom he married on 12th June 1930 and the secondon 15th March 1945. He has no children by his first wife, but has threedaughters by his second wife bom on 22nd November 1946, 29th April1948, and 10th May 1950.
His first marriage was solemnized by a Hindu Brahmin at Tattaparawhere he was then resident. There is no record of the marriage, nor isthe marriage registered, The second marriage was solemnized at theHindu Temple Choultry, Madras, by the Temple Priest. Neither isthere a record of that marriage nor is it registered. Apart from theapplicant’s bare word that he has two wives there is no material beforeus to show that he is married according to the law of India even once.There is also no material before us to establish that he is entitled to marrymore than one wife according to the law of his country. But proceedingon the assumption that he is legally married according to the law of Indiaand that according to the law of that country the applicant, who claimsto have been continuously resident in Ceylon during the period of sevenyears commencing on 1st January 1939 and ending on 31st December1945, is entitled to marry a second time during the subsistence of the firstmarriage, I shall address myself to the question reserved for decision bymy brother.
At the inquiry into the applicant’s application the Deputy Commis.eioner informed him that the following were the matters for inquiry:—.
“ 1. whether he is free from any legal disability, the contrary is
indicated by the fact that, not being a Muslim, he has contracted a
second marriage in contravention of the laws of Ceylon;
2. whether his first wife Mangammal was resident in Ceylon from1st January 1939 to 1946 without absence exceeding 12 months on anysingle occasion;
BASNAYAKE, C.J.—Ramasamy Pfflai v. Commissioner for
Registration of Indian-and Pakistani Residents
whether his second wife Rajammal was resident in Ceylon from15th March 1946 to March 1948 and 1949, without absence exceeding12 months on any single occasion;
whether he had permanently settled in Ceylon: the contraryis indicated by the fact that, in seeking to remit money abroad, hedeclared himself to be temporarily resident in Ceylon. ”
After the applicant had deposed to certain facts relevant to his application,the Deputy Commissioner made the following order:—
“ On the evidence before me, I hold that applicant is under legaldisability in that, not being a Muslim, he has contracted 2 marriages incontravention of the laws of Ceylon and is now living in Ceylon withboth his wives. I also hold that the applicant is not permanentlysettled in Ceylon. I do not therefore consider it necessary for me toinquire into the points 2 and 3 in my notice namely the residence ofapplicant’s 2 wives (Mangammal and Rajammal). Application isrefused. I inform applicant accordingly. ”
It is not clear why the Deputy Commissioner held that the applicantwas under “ legal disability ”, nor is there any indication why he usedthat expression or what he meant by it. He perhaps had section 6 (2) (iii)of the Act in mind. That section provides that a condition for allowingan application for registration under the Act shall be that the applicantshall satisfy the Commissioner that the requirements (i), (ii), (iii) and (iv)of subsection (2) of that section are fulfilled in the case of the applicant.We are here concerned with requirement (iii) which reads “ that theapplicant is free from any disability or incapacity which may render itdifficult or impossible for the applicant to live in Ceylon according to thelaws of Ceylon ”. Learned counsel for the applicant submitted that theapplicant had stated in his affidavit that he is free from any disabilityor incapacity which may render it difficult or impossible for him to livein Ceylon according to the laws of Ceylon, that he had lived in Ceylon.since his second marriage in 1945 and had not found that the fact thathe had two “ wives ” rendered it difficult or impossible for him to livehere according to the laws of this country.
Learned Crown Counsel submitted that the fact that the applicanthad two “ wives ” was a disability or incapacity which rendered it difficultor impossible for the applicant to live in Ceylon according to its laws.Learned Crown Counsel endeavoured to conjure up various difficultiesthat might arise in certain eventualities. He stressed in particular thedifficulties the appellant would have if he ever sought a divorce. Therequirement is that the applicant should satisfy the Commissioner that atthe time of the application he is free from disability or incapacity whichmay render it difficult or impossible for him to live in Ceylon accordingto the laws obtaining at that time. Requirement (iii) deals with a factualsituation in existence at the time the Commissioner considers the applica-tion. It does not deal with situations that might arise in future: The
BASNAYAKE, C. J.—Ramasamy PtUai v.Gommtssionerfor. 537
Registration of Indian and Pakistani Residents .
Deputy Commissioner has given ho reasons for his conclusion that theapplicant is under a “ legal disability He seems to think that thefact that, not being a Muslim, he has contracted two marriages placeshim under a “ legal disability ”. He is mistaken in so thinking. Heis also mistaken in thinking that the applicant has contravened the lawsof Ceylon. None of the submissions of learned Crown Counsel satisfyme that the applicant is under a “ disability or incapacity ”.
, “ Disability ” and “ incapacity ” are well known expressions in Englishlaw, and when used in our statutes should be given the same meaning—^IVahamka Investment Co. Ltd. v. Commissioner of Stampsl. The formeris defined in Sweet’s Law Dictionary as “ the absence of legal ability to docertain acts or enjoy certain benefits; such as the disability to sue, totake lands by descent, to enter into contracts, to alien property etc. ”.Disability is classified by the learned author into general and specialdisability. “ Disability is called general when it disables the person fromdoing all acts of a given kind, or special when it disables him from doing aSpecific act. Examples of general disability occur in the case of Outlawsand convicts, who cannot bring any action or suit in their own right,and lunatics and infants, who cannot alien property or enter intocontracts except for necessaries. ”
The same author states that “ incapacity ” is the opposite of “ capacity ”and therefore equivalent to disability. He defines capacity thus:
" A person is said to have legal capacity when he can alter his rights andduties by the exercise of his own will. Hence idiots and lunatics are saidto have no legal capacity, and infants and married women have a res-tricted capacity: in other words, they are under disability ”. Tomlins’Law Dictionary defines “ disability ” thus: “ An incapacity in a man toinherit any lands, or take t|bat benefit which otherwise he might havedone …. There are also other disabilities, by the commonlaw, of idiotcy, infancy, and coverture, as to grants etc. And by statutein many cases ; as papists are disabled to make any presentation to achurch etc. which disability is continued by 10 G. 4 C. 7; officers not takingthe oaths are incapable to hold offices; foreigners, though naturalized, tobear offices in the government. ” The same author defines “ capacity ”as “ An ability, or fitness to receive; and in law it is where a man, orbody politic, is able to give or take lands, or other things, or to sueactions. ” It would appear from the above citations that “ disability ”and “ incapacity ” are synonymous expressions.
Is the fact that the applicant has two’wives (which the Commissionerhas accepted as correct) a “ disability ” or “ incapacity ” within themeaning of those expressions ? If it is not then the applicant need dono more than he has done. My answer to the question posed by mybrother T. S. Fernando is that the applicant is free from any disabilityor incapacity which may render it difficult or impossible for him to livein Ceylon according to its law and that he has therefore fulfilled therequirement of paragraph (iii) of subsection (2) of section 6 of theAct.
1 (1932) 34 N L. S. 266 at 272.
BASNAYAKE, C.J.—Ramaaamy PiUai v. Commissioner for
Registration of Indian and Pakistani Residents
Before I leave this judgment I think I should not omit to refer to learned.Crown Counsel’s invitation to us to read the Sessional Paper containingthe discussions which preceded the enactment of the Act. He relied inparticular on the correspondence that was exchanged between the Govern-ments of Ceylon and India. We refused to accede to his request as wedid not think that a situation which required the adoption of such anexceptional course had arisen. Here the words of the statute can bogiven a meaning as I have ventured to do without resorting to extraneousaid. Learned Crown Counsel’s contention was that it was legitimate toexamine extraneous matter to ascertain the intention of the legislature.Now what exactly is meant by the expression “ intention of the legis-lature ” ? Lord Halsbury described this expression as
“ a common but very slippery phrase, which, popularly understood,,may signify anything from intention embodied in positive enactmentto speculative opinion as to what the legislature probably would havemeant, although there has been an omission to enact it. In a Court ofLaw or Equity, what the Legislature intended to be done or not tobe done can only be legitimately ascertained from that which it has-chosen to enact, either in express words or by reasonable and necessaryimplication. ” (Salomon v. Salomon d> Co. Ltd.)4
Although there are instances in which this Court has resorted to ex-traneous aid in construing an enactment, the most notable of which areBalappu v. Andiris 2 and Euma v. Banda 8, a bench of three Judgesrefused to do so in the case of Mvdanayake v. Sivagnanasundsram 4.In that case several judicial dicta of the English Courts were considered.Though it is unnecessary for the purpose of this judgment to refer to themthe following words of Lord Porter in Commonwealth of Australia v.Bank of New South Wales 5 bear repetition—
“ But; in whatever sense the word ‘ object ’ or ‘ intention ’ maybe used in reference to a Minister exercising a statutory power, inrelation to an Act of Parliament it can be ascertained in one way only,which can best be stated in the words of Lord Watson in Salomon v.Salomon <fe Co. (1897) A. C. 22 at 38:
1 In a court of law or equity, what the legislature intended to bedone or not to be done can only beJegitimately ascertained from thatwhich it has chosen to enact, either in express words or by reasonableand necessary implication. ’
The same idea is felicitously expressed in an opinion of the Englishlaw officers Sir Roundell Palmer and Sir Robert Collier cited by Issacs J.in James v. Cowan6 :
‘ It must be presumed that a legislative body intends that whichis the necessary effect of its enactments : the object, the purposeand the intention of the enactment, is the same. ’ 1
1 (1897) A. C. 22 at 38.a (1910) 13 N. L. R. 273.
(1920) 21 N. L. R. 294.
4 (1951) 53 N. L. R. 25.iU950) A. C. 235 at 307.• 43 C. L. R. 386, 409.
PULLE, J.—Ratnasamy Pillai v. Commissioner for
.Registration of Indian Pakistani Residents
The same learned judge adds:
‘ By the “ necessary effect ”, it needs scarcely be said, those learnedjurists meant the necessary legal effect, not the ulterior effecteconomically or socially. ’
There is no indication that the Privy Council doparted from the principleobserved by this Court in Mudanayake's case (supra) when it was heardbefore it. (See Kodakan Pillai v. Mvdanayake1.) In this connexion it isnot out of place to refer to the words of Lord Wright in Assam Railwaysand Trading Go. v. Commissioners of Inland Revenue2—
“ It is clear that the language of a Minister of the Crown in proposingin Parliament a measure which eventually beoomes law is inadmissibleand the Report of Commissioners is even more removed from value asevidence of intention because it does not follow that their recommen-dations were accepted.”
Courts both here and elsewhere have departed occasionally from theserules, but those exceptions do not affect the rule that is now too wellestablished to admit of doubt that the intention of Parliament is not tobe judged by what is in its mind, but by its expression of that mind ittthe statute itself.
This appeal will now go back for the hearing of the other questionsarising on it.
I have had the advantage of reading in advance the judgments of myLord the Chief Justice and my brother H. N. G. Fernando and I agreewith them that the answer to the question referred to us is that the appli-cant has fulfilled the requirement of section 6 (2) (iii) of Act No. 3 of 1949.
Learned Counsel for the Crown envisaged a number of difficulties thatmight arise in applying the common law of the country relating tomarriage and the law of inheritance to a non-Muslim who is married tomore than one wife. In short it was argued that as the appellant was aHindu he could not be assimilated to any monogamous community ipCeylon. If it was the intention of the legislature to deny citizenship topersons in the position of the appellant, it has failed to express thatintention. Once it is conceded that the appellant could have contracteda lawful marriage while an earlier one was still subsisting, it cannot be saidthat he is at present suffering from a “ disability ” or an “ incapacity ”within the meaning of section 6 (2) (iii). Even if one gives a meaningto the expression “ disability or incapacity " most favourable to the Grown,it cannot be said that such “ disability or incapacity ” may render itdifficult or impossible for the applicant to live in Ceylon according to theJaws of Ceylon.
1 (1953) 54 N. L. R 433.
* (1935) A . C. 445 at 46$.
v'-540H. N. G. FERNANDO, J.—Ramasamy Pitlai v. Commissioner
for Registration of Indian and Pakistani Residents
H. N. G.-Fernando, J.—
This appeal against an order refusing an application for registrationas a citizen of Ceylon under the Indian and Pakistani Residents (Citizen-ship) Act, No. 3 of 1949, was first,argued before a single Judge who, underSection 48 of the Courts Ordinance, reserved for the decision of twoor more Judges the question “ whether the applicant in this case hasfulfilled the requirements of Section 6 (2) (iii) of the Act (of 1959)
The applicant had stated in his application that he had contractedtwo marriages, the first on 12th June 1930 and the second on 15th March1945, and it is manifest that the second marriage was contracted duringthe subsistence of the first, and that both wives are still alive. In hisorder refusing the application, one of the grounds of refusal stated by theDeputy Commissioner is that the applicant “ is under legal disabilityin that, not being a Muslim, he has contracted two marriages in contra-vention of the laws of Ceylon ”. It is evident that the Deputy Com-missioner had in mind the paragraph (iii) of sub-section (2) of Section 6of the Act which requires an applicant to satisfy the Commissioner “ that,he is free from any disability or incapacity which may render it difficult orimpossible for him to live in Ceylon according to the laws of Ceylon
Doth marriages of the appellant took place in India, and it is concedeiithat under the Law of India (where the parties were domiciled at the.relevant time) the second marriage was validly contracted notwithstandingthe subsistence of the first. It is also rightly conceded that the secondmarriage of the applicant is reoognized as valid by the Law of Ceylon,upon the principle of Private International Law that a marriage will beregarded as valid, if it was duly contracted in the country of the domicileof the parties and in accordance with the law of that country. There isno principle of the Common Law of Ceylon nor any statutory enactmentwhich denies validity to the applicant’s second marriage or in any wayprohibits his residence in Ceylon with his two wives or renders such'residence difficult or impossible. Hence it is clear that, by living or re-siding in Ceylon with his two wives and the children of the two marriages,
, the^ipplicant is not contravening the Law of Ceylon in any manner.
The disqualification contemplated in paragraph (iii) is the existenceof some u disability or incapacity ” having the effect or consequencestated in that paragraph. Counsel for the applicant has argued that thedisabilities or incapacities known to the Law of Ceylon are minority,lunacy, bankruptcy and the like, and that paragraph (iii) must be takento contemplate some condition or status which is at least ejusdem generiswith such known disabilities and incapacities. But even if the expressionis construed in a very wide sense, it is difficult to see how the fact that a;man has contracted a second, yet valid, marriage, constitutes either a“ disability ” or an “ incapacity ”. On the other hand, even upon theassumption that this applicant is under some disability or incapacity byreason of the two marriages, is it a consequence that it will be difficultor impossible for him to live in Ceylon according to the laws of Ceylon ?No such difficulty or impossibility has been brought to our notice.
Visvaverni v. Mwrugiah
Crown Counsel has invited us to examine certain official documents.He states that these documents will show clearly that before the Act of1949 was introduced in the Legislature in the form of a Bill the officialsand authorities concerned in the preparation of the Bill and its considera-tion in draft form had intended that the provision now found in paragraph(iii>) of section 6 (2) of the Act should operate to disqualify a non-Muslimwho had contracted a second marriage during the subsistence of a first.We have no reason to doubt the accuracy of Crown Counsel’s statementbut since the language of the provision in question is quite incapable ofany construction which might render it applicable to the circumstanceof the present case, reference to any such documents would serve nopurpose even if such reference were permissible. I would cite in thisconnection the observations in Maxwell on Interpretation of Statutes,10th Edition at page 27 ; “ But it is unquestionably a rule that what maybe called the parliamentary history of an enactment is not admissibleto explain its meaning. Its language can be regarded„only as the languageof the three Estates of the realm, and the meaning attached to it by itsframers or by individual members of one of those Estates cannot controlthe construction of it. Indeed, the inference to be drawn from comparingthe language of the Act with the declared intention of its framers wouldbe that the difference between the two was not accidental but intentional
At the . best reference to extraneous matters might assist in the inter-. pretation of a statute if its meaning is ambiguous and it is necessary todecide which of two or more possible constructions should be adopted;or else if a possible construction of the language involves absurdity.But where it is contended that language should be given a meaningcompletely different from any possible meaning which can reasonablybe assigned to that language, extraneous matters cannot be used to supportsuch a contention.
For these reasons I would answer in the affirmative the questionreserved for the consideration of this bench. The substantive appealwill be listed for further argument in the ordinary course upon the othermatters which arise for determination.
Appeal to be listed for further hearing.
K. RAMASAMY PILLAI, Appellant, and COMMISSIONER FOR REGISTRATION OF INDIAN AND