Pemcmflo «. Dabrmxt
Present: Sinnetamby, J., and L. B. de Silva, J.
R.E. FER.NANDO, Appellant, and W. W. DABRERA and others,
S.G. 3911968—,D. Q. (Jhilano, 13553jP
Marriage by habit and repute—Proof-
Evidence of marriage ceremonies or religious rites is not essential to establishmarriage by habit and repute if both the parties to the marriage are dead andthe marriage itself was contracted at a very early date.
SINNETAiVfBY, J.—Fernando v. Dabrera
ApPEAL from a judgment of the District Court, Chilaw.
N.E. Weerasooria, Q. (7. .with H.Wanigatunga and Cecil de S. Wijaratne,for the plaintiff-appellant.
W. D. Gunaselcera, for the 7th and 8th defendants-respondents.
Cur. adv. vult.
March 13, 1961. Sht^etakby, J.—
The plaintiff instituted this action for partition of the land calledPaluwelgalamukalana, alleging that he, the 1st defendant, and the 2nddefendant were co-owners. The 1st defendant William claimed the landexclusively as his own, basing it on prescription. William’s claim,however, failed both in the original court and in appeal, and an inter-locutory decree for partition was entered. Subsequently, it was dis-covered that certain other parties had to be added, and they were dulyadded: the interlocutory decree was accordingly amended on 18thFebruary, 1955. Up to that stage, the 7th and 8th defendants werenot parties to the action ; but, on the 22nd of June, 1955, they movedto intervene claiming that Catherina Hamy, through whom the plaintiff,the 1st defendant, 2nd defendant and the other intervening defendantsderived title, was not married to Juan Dabrera, to whom the propertyoriginally belonged. They alleged that Juan Dabrera died withoutissue and that they were the legal heirs of Juan Dabrera, being thechildren of his sister. The main question for decision, therefore, waswhether Juan Dabrera was married to Catherina Hamy. If there wasa marriage, the intervenients, namely the 7th and 8th defendants, wouldhave no title : but, if they were not married, the plaintiff and the otherdefendants would not inherit. It was suggested for the plaintiff thatthese intervenients were put up by William to obtain a decree in theirfavour, with the object of depriving the plaintiff and others of theirshares.
In order to succeed in their intervention, the 7th and 8th defendantshad to establish an interest in the land by proving, first, that they were,in fact, heirs of Juan Dabrera, and, then, that Juan Dabrera was notmarried to Catherina Hamy. It is not necessary for us to deal with thequestion of whether the intervenients’ mother is the sister of JuanDabrera as we are satisfied that, upon the evidence, Juan Dabrera mustbe held to have married Catherina Hamy. No certificate of marriagewas produced. The plaintiff claimed that the evidence establishesmarriage by habit and repute. The learned Judge took the view that,to establish marriage by habit and repute, there must always be satis-factory evidence of some customary rites followed by evidence of habitand repute. In our view, he misdirected himself on this point. If one
SUNTSOBTAMIBY, —J'lftwtiAj t>. Ddbtwu
of the parties to the marriage is alive, then of course, it would be necessaryto establish the existence of marriage ceremonies, for, a party to themarriage must necessarily be aware of it and be able to give evidencein regard to rfc; but where neither of the parties is alive, Mid themarriage itself was contracted at a very early date, evidence of customaryrites or religious rites would be difficult, if not impossible, to obtain,and is, therefore, not insisted on. It is for that reason that the lawrecognises proof of a marriage by habit and repute. Reference was madeby learned counsel for the 7th and 8bh defendants to Kandiah v.Thangamany1 wherein acting Chief Justice Nagalingam made thefollowing observations :—
“Under our law, however, some antecedent public ceremony in thepresence of relatives, friends or third parties, had to take place beforethe mere circumstances of the parties living together as man andwife followed by recognition of their living together as man and wifeby friends and relations can form the basis of a deduction that therewas a lawful marriage between the parties. It is not unimportantto stress that the fact of two parties living together as man and wifeand their being recognised as such by friends and relations gives riseto a presumption—and a presumption only—of marriage. It doesnot prove the fact of marriage, and the presumption is not an irrebut-table presumption but one which may be disproved. ”
In that case, there was evidence available and led to establish the per-formance of alleged customary marriage rites : that evidence was unsatis-factory and showed that an invalid marriage ceremony was performed.In those circumstances, the presumption of marriage by habit and reputecould not be drawn, as the evidence led rebutted the presumption.
It is clear, therefore, that the fact that two persons are living togetheras husband and wife and are recognised as such by everybody in thecircle in which they move creates a presumption in favour of marriage ;and, in the absence of rebuttable evidence to the contrary, the Courtis entitled to presume that the parties were duly married as requiredby law. On the other hand, if a party seeks to establish a customarymarriage by the performance of some religious ceremony and fails inthat, then, tbe presumption is rebutted and the mere fact that the twopersons subsequently lived together as husband and wife does notestablish marriage.
In the present case, no attempt was made to prove that there was amarriage solemnized according to religious or customary rites. Allthat was sought to be proved was evidence which would enable thepresumption of marriage to be drawn. Had the learned Judge nottaken a wrong view of the law on this question, he may, perhaps, havecome to a different conclusion. The evidence shows that Juan Dabreraand his wife lived together and were accepted by everybody as husband
* (1963) 66. L, s. 668.
Fernando v. Ootnmieaioner of Income Tax
and ■wife. Emaline the 7th defendant stated that Juan Dabrera andCatherina Hamy were not married in the Roman Catholic church. Thatis understandable as Catherina Hamy was a Buddhist. That explainswhy Juan Dabrera was not given a Catholic funeral. From this fact,it would be most unreasonable to assume, as the learned trial Judge did,-that the denial of a Catholic burial to Juan Dabrera was because he wasnot married to his wife. The only positive item of evidence against themarriage is the document 7D1, which is the birth certificate of one ofthe children, where the parents axe stated not to have been married :but as was observed by the Judges who decided the case reported in38 Ceylon Law Weekly at page 87, an entry of “ not married ” in a registeris intended by parties who are illiterate to mean no more than “notregistered”. There undoubtedly is evidence to establish the fact thatafter Juan Dabrera married Catherina Hamy and conducted her to thevillage, there was no ceremony of marriage performed; but, this doesnot preclude the possibility, indeed the probability, of a marriage cere-mony being performed in the bride’s home at Mawila. There was noevidence that a ceremony was not performed at Moratuwa which isJuan Dabrera’s home town or Mawila where Catherina Hamy’s parentslived, but the evidence clearly discloses that from the moment of theirarrival in the village they were accepted and treated as husband andwife.
I would accordingly hold that a marriage by habit and repute hasbeen established and dismiss the intervention of the 7th and 8thdefendants with costs both here and in the court below.
L. B. de Silva, J.—I agree.
R. E. FERNANDO, Appellant. W. W. DABRERA and others, Respondents