DIAS J■—The King v. Arumugnm
Present: Dias J.
THE KING v. ARUMUGAM
S. C. 22—M. C. Chavakachcheri, 28,514
Hindu marriage—Dissolution—Decree of Court necessary—Wife's competency totestify against husband—Evidence Ordinance (Cap. 11), section 120.
A Hindu customary marriago cannot be dissolved in any other way than bydecree of a Court.
A wife married according to Hindu customary rites cannot be oalled os awitnoas for the prosecution against her husband by virtue of section 120 of theEvidence Ordinance.
^)rDER made in the course of a trial before a Judge and Jury, in theNorthern Circuit.
Vincent Thamotheram, Croton Counsel, for the Attorney-General.
M.Balosunderam, with J. Rajaratnam, for the accused.
February 27, 1950. Dias J.—
Learned Crown Counsel in opening tiio case for the prosecution, in-which the accused is chargod with murdor, stated that the dccoasodman was married to tho ex-wife of the accused. Mr. Balasundoram forthe dofoncc has in the absence of the Jury argued that it is not competontfor the prosecution to call this woman as a witness. Learned CrownCounsel has nallod one witness on this question of competency. S. Sit-ham pary who is the father of the woman states that she was married tothis accused according to Hindu customer}' rites many years ago. Theusual customary ceremonial was observed. There was a public receptionand thereafter tho accused and the lady lived together as man and wifeand were 60 received amongst their friends mad relatives. S. Sitham-pary says that thereafter this union was dissolved. Thore. was no actionfor divorce and there was no decree dissolving the marriago a vinculo'matrimonii. What appoars to have happened is that the lady left theaccused and thereafter became the mistress of the doceasod.
Now, marriage according to customary Hindu ritos is lawful and isacknowledged to bo a marriage by our law. Neither counsol has beenable to cito any authority for the proposition that such a marriage canbe dissolved in any way other than by decree of a Court. There is noproof that the union was dissolved. Therefore, applying the presump-tion of continuance, I think, the customary marriage continues and ifthat be so, tho lady being the lawful spouse of the accused cannot undersection 120 of the Evidence Ordinance be called as a witness for theprosecution. 1 therefore hold that the witness is incompetent to testifyfor the prosecution.
THE KING v. ARUMUGAM