HJLLE, J.—Wifesingke v. Ktdawardene
Present: Basnayake, C.J., and Pnlle, J._WIJESINGHE and another, Appellants, and KULAWARDENE and
S. C. 321—D. G. Gampaha, 2,631 /L
Marriage by habit and repute—Quantum of evidence.
Two brothers, A and B, were the associated husbands of C. One of them,A, was lawfully married to C. After A’s death, C’s relationship with B conti–mied for about 30 years, during which period two children were boro. The twochildren instituted the present action claiming title to a land, which admittedlybelonged to their deceased father B, on the ground that they were B’s heirsat law. Their averments, however, that B and C were married according to ,customary rites and were accepted as husband and wife in the social circles inwhich they moved were not satisfactorily proved. Further, according toan entry in the birth certificate of the 2nd plaintiff, the informant B who wasthe father had stated that the parents were not married.
Held, that the long period of cohabitation was not by itself sufficient evidenceof “ habit and repute ” that B and C were lawfully married.
XXPPEAL from a judgment of the District Court, Gajnpaha.
H. V. Perera, Q.C., with 8, 0■ E. Rodrigo, for the plaintiflfs-appellants.
N. E. Weerasooria, Q.C., with G. JD. G. Weerasinghe and 8. D.Jayasundera, for the defendants-respondents.
Cur. adv. milt.
June 7, 1957. Pulle, J.—
The two plaintiffs who are the appellants sought a declaration of titleto a divided portion of land called Wellabodawatte which admittedlybelonged to their father, one W, A. Punchi Appuhamy. The questionfor determination in this appeal is whether the learned District Judgewas wrong in holding that their mother, one Gajanayake KankanlegeYasohamy, was not lawfully married to Punchi Appuhamy.
It is not disputed that Yasohamy was first married to one Appusingho,the elder brother of Punchi Appuhamy. Appusingho died on11th February, 1900, leaving children of whom one is the witnessW. A. Baban Nona. The case for the plaintiff is that after the death ofAppusingho there was a marriage between Punchi Appuhamy andYasohamy according to customary rites and that by that union the 2ndplaintiff was born on 10th September, 1901, and the 1st plaintiff in 1907.The defendants have resisted the claim of the plaintiffs on the basis thatPunchi Appuhamy having died unmarried the plaintiffs were not his heirsat law.
The plaintiffs attempted to prove a marriage according to. customaryrites by the evidence of a younger brother of Yasohamy, named Theisms.The trial Judge has discounted his evidence and it is, therefore, notnecessary to discuss the facts deposed to by him.
'6r—-LX’ , f
PUL.LE, J.—WijesinQhe e. KuldwardSne
Punohi. Appuhamy died about the year 1930 and Yasohamy in 1947.According to the 1st plaintiff the children of the two unions of Yasohamygrew up together. Regarding the division of the properties of the familythe 1st plaintiff stated,
“ My mother’s lands were amicably settled between my brothers andsisters and my step-brothers. My senior father's properties were possessedby his children and my junior father's properties were possessed by me. ”By “ senior father ” the 1st plaintiff meant his father’s elder brother,Appusingho.
..She 1st plaintiff also stated in evidence that his parents used to attendiveddings, funerals and temples together. On this point the witness wasI; not supported by his step sister Baban Nona who stated that she hadnot seen Punchi Appuhamy and her mother going together to temples,fairs, weddings or funerals. It is fairly clear from the judgment underappeal that the trial Judge was not inclined to accept the evidence ofthe 1st plaintiff on this point.
The defendants took up the position at the trial that the two brothers- were the associated husbands of Yasohamy, supported by the evidencegiven by Baban Nona. According to her Punchi Appuhamy also livedwith Yasohamy in the same house, although at times he resided with hismother Nonahamy. Baban Nona used to address Punchi Appuhamy as
the “ junior father ” and Appusingho as “father” and she regarded .the former also, during the lifetime of the latter, as her mother’s husband.She added,
“ I remember the time that Appusingho died. After that no marriageceremony was performed in my house between Punchi Singho and my- mother. Everything went on as before but there was no ceremony. ”trial Judge’s finding that Appusingho and Punchi Appuhamy wereassociated'husbands of Yasohamy whose relationship with Punchi Appu-hamy continued after Appusingho’s death has-been attacked on the groundthat there was no evidence to support it. I am unable to agree that onthe evidence of Baban Nona, supported as it is to some extent by the1st plaintiff, the trial Judge could not justifiably come to a finding thatAppusingho and Punchi Appuhamy were the associated husbands ofYasohamy.
The fact that Punchi Appuhamy was also regarded as a husband ofYasohamy was not an impediment to his becoming her lawful husbandafter the death of Appusingho. It was strenuously urged on us that thelong period of cohabitation from about 1900 to 1930 raised a strongpresumption of a valid marriage which could only be displaced by cogentevidence to the contrary. Now in the eases cited to us like Saslry Vdai-der Aronegeryv. Sembecutty Vaigalie et al.1 and Dinohamy v. Balahatny 2there was not only direct evidence of what appeared to be marriage cere-monies but also evidence that the man and woman were accepted ashusband and wife in the social circles in which they moved. On thisaspect there is no evidence in fhe present case. The trial Judge felt hecould not attach much importance to the evidence that Punchi Appuhamyand Yasohamy together attended weddings and funerals and worshipped
* (1927) 29 N. L. B. 1J4.
> 1 (1881) 2 N. L. R. 322.
at temples because Thelenis who was admittedly living in adultery alsowent about with his mistress to weddings, funerals and temples. In thisconnexion I would quote the observation of Simonds, J., in Me Tallin, .Watson v. Tate1. . . the man and woman lived-together at
Rockhampton for ten years as man and wife in the sight of that smallcommunity. They were there received into society, which was not asociety of loose and uncertain morals, but with proper views as to maritalrelations, and were at all times regarded as man and wife. This beingso, the presumption of our law is that they were man and wife. Thispresumption is not to be disturbed except by evidence of the most cogent ”kind. ”
Punchi Nona v. Charles Appuhamy 2 was also a case in which afterthe death of her husband a woman continued to live with her associatedhusband. It was contended that the evidence of cohabitation raised a -presumption that they lived together in consequence of a valid marriageand not in a state of concubinage. The woman who gave evidence madeit clear that she did not go through any customary formalities of marriageafter the death of her lawful husband. Following the decision of this'court in Gunaratna v- Punchihamy3 it was held in effect that any pre-sumption arising from evidence of cohabitation was effectively rebutted.
It is true that in the instant case Yasohamy could not give evidence, asshe was dead, but her daughter Baban Nona who was living with her oughtto have known whether a marriage ceremony had in fact taken placeshortly after her father’s death but she denied the happening of any suchevent. It seems to me that it is a matter for a judge of first instancetoassess the proper weight of a circumstance of this kind in judging of the-'extent to which the presumption has been rebutted. '
A good deal of reliance was placed on the case of In re Shepard, George v.Thyer 4. The parties v’ho were residing in England went through aform of marriage in a French village and it was assumed for the purposesof the judgment that it was impossible according to the law of Francethat there should have been a marriage as alleged. After the ceremonythey lived together in England as man and wife for thirty years and hadseveral children who were recognised as lawful children by members ofthe man’s family. It was held on the authority of Sastry Velaider Arohe- ‘gery v. Sembecutty Vaigalie et al.8 that the presumption in favour ofmarriage arising from the long continued cohabitation of the parties asman and wife was not rebutted. I must confess I do not, with all respect,find it easy to follow the reasoning in this case, if the validity of a marriagehas to be tested by the rule of lex loci celebrationis. Perhaps the ratiodecidendi lies in the concluding part of the judgment which reads,
“ Now here I have the intention to marry: about that there is.not a shadow of doubt. I have some evidence about which there is agreat deal of doubt. There is a somewhat romantic story, doubtfulin its details, of a marriage de facto, of something gone through to,perfect the intention of marriage, and I have some evidence of recognitionof children. Now after thirty years, the Court has been asked to say
1 (1921) AU E. R. p. 105 at p. 108.* (1912) 15 N. L. B. 501.
* (1931) 33 N. L. R. 227.* 11904) 1 Ch. 456.
« (1881) 2 N. L. B. 322.
FCLLE, J.—Wijeaingfie v. Kulawardcne.
that because the marriage has not been proved, and cannot be proved,- these children are not to be admitted to share. I think I should begoing against the authorities if I came to any such conclusion, andtherefore I must hold that they are entitled to share. ”
would distinguish this case from the present on the ground that herethere is no evidence of any intention to marry or of proof of any ceremonyconnected with a marriage. If this view is not sound I would prefer tofollow the reasoning in the two local cases cited above, Punchi Nona v.Charles Appuhamy1 and Gunaratne v. Punchihamy a. Dicey on Conflicterf Laws (Sixth Edition) has the following interesting footnote at page 763,
“The courts will sometimes, when some evidence is given thatpersons who lived as reputed husband and wife have gone through somemarriage ceremony in a foreign country, presume, on very slightgrounds, that the local form of marriage was followed. Be Shepard(1904) 1 Ch. 456, where the alleged marriage was asserted to have beencelebrated in France, but can hardly have been in any event valid byFrench law. The decision illustrates the tendency to assume thatforeign law is in its operation similar to English law with its fondnessto presume legal origins for relations existing de facto.”
' Another circumstance relied on by the defendants is the entry in thecertificate of the birth of the 2nd plaintiff. The informant is thefather who had stated that the parents were not married. One doesappreciate that a statement such as this does not by itself have theeffect of rebutting the presumption but I cannot agree that it should beruled out as' wholly irrelevant in the context of the circumstances whichare relied on by way of rebutting the presumption.
Before concluding the judgment I wish to refer again to the case SastryVelaider Aronegery v. Sembecutty Vaigalie et al.'3 in which a particularoeremony on a particular occasion was relied on as evidence of marriage(p. 325), but that other ceremonies “ necessary for marriage ” were saidnot to have been performed on account of a row. In commenting on thisthe Privy Council said,
“ Strong reliance was placed by the defendants upon the statementthat other ceremonies were necessary for marriage, but were not‘ performed on account of the row ’. It is to be observed that thisstatement was obtained upon cross-examination, and was probablyin answer to a leading question. The witness was in all probabilitybetter acquainted with what ceremonies were usually performed thanwhat were actually essential to the validity of a marriage.
“ Their Lordships do not attach much importance to the answer.There is evidence from which it may be inferred that the serving of ricewas the essential ceremony, and it was proved that rice was served.But the evidence of. marriage does not rest here. It is confirmed inthe strongest manner by some dowry deeds. ’*
It seems to me that where, as in this case, an attempt is made to estab-lish by direct evidence that the marriage in question according to
1 (1931) 33 N. L. B. 227.;a (7|J2) IS N. L. B. SOI.
BASNAYAKE, C.J.—Wijesmghe t>. Kulawardene
customary rites took place on a particular occasion and such evidenceis wholly discredited, a trial judge is entitled to' take this circumstanceinto account in judging how far the presumption arising from cohabitationand habit and repute is rebutted.
For the reasons stated by me I am unable to say that the finding of thelearned District Judge is wrong. I would dismiss the appeal with costs.
I have had the advantage of reading the judgment prepared by mybrother Pulle, and I agree that this appeal should be dismissed with cost?.
The plaintiffs have failed to establish by evidence of “ habit and repute*’that Punchi Singho Appuhamy and Yasohamy were lawfully married.Mere cohabitation or living together does not constitute “ habit ”. Thernan and woman must live together behaving in every way with thec-v i< lent belief and assumption that they have the rights and responsibilitiesof persons who have contracted a lawful marriage. The birth certificateof i Vj« 2nd plaintifiF certainly negatives any such belief and assumptionas the parents who informed the Registrar of her birth stated to him thatthey were not married.
The evidence of “ habit ” must be supported by evidence of “ repute ”.When both are established they lead to the inference that the parties werelawfully married. In the instant case the plaintiffs have also failed toestablish “ repute ”. There is no satisfactory evidence that the conductof the parents of these plaintiffs produced in the society of which theywere members, among their relatives, neighbours, friends and acquain-tances, a general belief that they were really married.
WIJESINGHE and another, Appellants, and KULAWARDENE and others, Respondents