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Present: Lascelles A.C.J. and Van Langenberg, AJ.
PINTO et al. v. MARIA et al.
33—Z). C. Chilaw, 3,768.
Death-bed marriage —Effect of—Ordinance No, 8 of 1885, a. 4—Presump-tion of marriage—Cohabitation and repute.
A death-bed marriage under section 4 of Ordinance No. 8 of 1865has no legal effect, except that of preventing the re-marriage ofeither of the parties until the same be acknowledged by the partiesbefore the registrar in the manner described in the Ordinance.Until the marriage has been so acknowledged it remains a purelyreligious ceremony, which may relieve the consciences of the partiesand entitle them to the rites of their church. Beyond preventingthe re-marriage of either of the parties it has no effect on thecivil status of the parties or of their children.
N1 this case the plaintiffs sued for partition of a land. Theyaverred in their plaint that one of their brothers, Juan Deogo,
died unmarried and intestate.
The added defendants intervened after interlocutory decree, andasserted their claim to a share of the land as the widow and childrenof Juan Deogo. At the first trial the District Judge held in favourof a death-bed marriage. The plaintiffs appealed, and the SupremeCourt remitted the case to the District Court to ascertain whetherthe provisions of section 4 (2) of Ordinance No. 8 of 1865 hadbeen complied with. The District Judge upheld the claim of theintervenients.
The plaintiffs appealed.
H. A. Jayewardene, for the appellants.—A death-bed marriage bya minister under section 4 of Ordinance No. 8 of 1865 does' notconfer any civil rights, unless the provisions of section 4 (2) havebeen complied with. The learned District Judge holds that theprovisions of section 4 (2) were not complied with. Theintervenients cannot rely on the death-bed marriage. The evidence
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Mar. si .am would not justify a finding in favour of marriage by cohabitationPinto v. and repute. Counsel cited Sastry Valaiden Aronegary v. SembecuttyMaHa Vaigalai;1 VaUiammai v. Annamalai;2 D. C. Colombo 59,572;*D. C. Colombo, 38 Special ; 4 35 Cal. 232.
Bawa, for the respondents, argued that there was sufficientevidence to establish marriage by cohabitation and repute.
Jayewardene, in reply.
Cur. adv. vult.
March 21,1911. Lascelles A.C.J.—
In this case the decree of April 15, 1910, was set aside, and thecase was remitted to the District Judge to adjudicate on the validityof the alleged marriage between Anna Maria and Deogo Pinto.
The District Judge has pronounced in favour of the death-bedmarriage under section 4 of Ordinance No. 8 of 1865, and also onthe ground of the legal presumption in favour of marriage as opposedto concubinage. Mr. Bawa, for the appellants, found himself unableto contend that a valid civil marriage had been contracted undersection 4 of Ordinance No. 8 of 1865, and I only refer to this sectionon account of the difficulty which the learned District Judgeexperienced in construing it. The section allows any minister tosolemnize a death-bed marriage without the usual preliminaries,subject to certain conditions. Sub-section (2) declares that suchmarriage ‘‘ shall have no legal effect except that of preventing there-marriage of either of the said parties until the same beacknowledged by the parties before the registrar in the mannerherein described.”
Until the marriage has been so acknowledged it remains a purelyreligious ceremony, which may relieve, the consciences of the partiesand entitle them to the rites of their church. Beyond preventingthe re-marriage of either of the parties, it has no effect on the civilstatus of the parties or of their children. But what is the meaningof the words “ acknowledged by the parties before the registrar in themanner herein described,” which have given the District Judge somuch trouble ? The language is certainly obscure, but I think thatthe acknowledgment referred to must be the acknowledgment whichis in effect made by the parties when they appear before the registrarunder section 15 of the principal Ordinance, and each calls uponthose present to witness that he or she takes the other to be his orher lawful wife or husband. But however that may be, Deogo andAnna Maria did not comply with sub-section (2) of section 4. Inpoint of fact Deogo died before it would have been possible forhim to do so. The death-bed marriage was therefore not a valid
1 (1881) 2 N. L. B. 322.
*(1900) 4 Nt L. B. 8.
(1872) 1 Br. Appendix A.p I.
(1883) 1 Br. Appendix A., XV.
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With regard to the finding of the District Judge in favour of themarriage on the ground of the presumption in favour of marriageas opposed to concubinage, it is true that cohabitation with habitand repute gives rise to a presumption in favour of marriage. Butwhat are the facts of the case ? Anna Maria was herself called as awitness, and admitted in the most explicit manner that she hadlived with Dcogo as his mistress until the death-bed marriage ; thereis no suggestion that before the death-bed ceremony the partieswent through any ceremony which would be considered to be abinding marriage by persons of their class. I can find no evidencewhatever of habit and repute, for I cannot regard the fact thatAnna Maria managed to recover on notes payable to Dcogo asrelevant evidence for this purpose.
In the circumstances there is no room for the presumption infavour of marriage. To infer marriage from the bare fact of co-habitation in a case like this would be to obliterate the distinctionbetween lawful marriage and concubinage.
I am of opinion that no valid civil marriage was ever contractedbetween Deogo and Anna Maria. I set aside the decree of theDistrict Judge, and remit the case to the District Judge to enter upa decree on the footing that a lawful civil marriage was not contractedbetween Deogo and Anna Maria. The appellant is entitled to hiscosts of the appeal.
Van Langenberg A.J.—
I agree with my Lord that the death-bed ceremony did not conferon Anna Maria the full status of a wife. I am also of opinion thatthe evidence of Anna Maria does not justify the presumption thatshe and Deogo Pinto were living together in consequence of a validmarriage. I agree to the order proposed by my Lord.
PINTO et al v.MARIA et al