SHARVANANDA. C. J.. COLIN-THOMt J. AND ATUKORALE. J.
S.C. No. 5/85.
A. No. 271 /77(F).
C. GAMPAHA 18663/D.
SEPTEMBER 3. 4 AND 5. 1985.
Matrimonial actions-Customary marriage-Marriage according to Roman CatholicRites in Church without registration under the General Marriages Ordinance (MarriageRegistration Ordinance)—Is it equivalent to marriage according to Roman Catholiccustom?-S. 34 of the General Marriages Ordinance (Marriage Registration Ordinance).
A marriage solemnised according to the rules, customs, rites and ceremonies of theRoman Catholic Church may serve two purposes-(l) to satisfy the requirements ofs.34(1) of the Marriage Registration Ordinance as preliminary to registration of themarriage under s. 34(2) and (3). and (2) since these rules, customs, rites andceremonies of the church have been absorbed into the web of catholic customarymarriage, to constitute a customary marriage.
A marriage solemnised according to the customs, rites and ceremonies of the RomanCatholic Church has legal validity irrespective of legal registration thereof and isregarded as a lawful marriage on the basis of it being a customary marriage recognised
Although the plaintiff was a Buddhist, he intended to marry in the Church, gotpermission from the Catholic Bishop to marry the defendant and voluntarily chose to gothrough the catholic ceremonies and subsequently lived with the defendant as husbandand wife. He is therefore bound by the marriage which took place according to thecustomary rites of the church. The onus was on the plaintiff to show that the requisitesof a Catholic customary marriage were not performed and this burden he has failed todischarge.
Cases referred to:
Gunaratne v. Punchihamy-(1912) 15 NLR 501.
Sopia Hamine v. Appuhamy-( 1922) 23 NLR 353.
Aronegary v. Vaigalie-(1881) 2 NLR 322 P.C.
Thiagaraja v. Kurukkal-(1923) t25 NLR 69.
Poopalaratnam v. Sabapathy-(1921) 2 C.L. Rec. 210.
Chellappah v. Kandasamy-(1915) C.W.R. 104.
Thiagarajah v. Karthigesu-(1966) 69 NLR 73.
Nicholas de Silva v. ShaikAli-(1895) 1 NLR 229.
APPEAL from the judgment of the Appeal Court reported in  2 SLR-381.
Jacolyn Seneviratne with G. G. Anilpragasam. Lakshman Perera and Demeyan de Silvafor defendant-appellant.
Dr. Colvin ft. de Silva with D. ft. P. Gunatillake and Miss Saumya de Silva forplaintiff-respondent.
May 7. 1986.
SHARVANANDA, C. J.
By his plaint dated 21.1 1.1975, the plaintiff-respondent institutedthis action, against.the defendant-appellant praying for a .declarationthat there was no marriage between him and the defendant and/orthat the marriage is null and void or, in the alternative, for a decree for.divorce-vinculo matrimonii dissolving the marriage with thedefendant, on the ground of her constructive malicious desertion. Byhis .amended plaint dated 27.3.1976, the 'plaintiff stated thatalthough it was thought that the defendant and plaintiff were marriedon the 13th August 1973, at the St. Anthony's Church,Kongodamulla, there was no such marriage in fact or, in law. Thedefendant filed answer on the 2nd April 1976. denying the allegationsin the plaint and stated that she was the legally married wife of theplaintiff and that the marriage between her and the plaintiff waseffected on the 13th August, 1973, at the KongodamullaSt. Anthony's Roman Catholic Church by Rev. Batepola. This defendantfurther stated that all the activities in connection with the ceremonywere performed in a simple way because the defendant's father was illat the time of this marriage. But the defendant expressly stated that"all those rites were performed according to custom and procedure".
When the case was taken up for trial on 29th June, 1976, bothparties admitted that "there is no valid marriage registration under theRegistration of Marriages (General) Ordinance". The case proceededto trial on the following issues: —
As no marriage under the General Marriages Ordinance hastaken place between the plaintiff and the defendant, can theplaintiff obtain a declaration that there was no marriagebetween the plaintiff and defendant?
Did the defendant conduct herself in the way set out inparagraphs 10 to 15 of the amended plaint?
If the answer to issue No. 2 is "yes", was the defendant in factand/in law guilty of constructive malicious desertion?
If so. can the plaintiff obtain a judgment for divorce?
Was there a customary marriage and a marriage of reputebetween the plaintiff and the defendant in this case?
Was the defendant in this case,- maliciously deserted by theplaintiff on or about the 13th of July 1975?
If issues No. 4 and 5 are decided in the defendant's favour,should this case of the plaintiff be dismissed?
As no marriage has been registered under the GeneralMarriages Ordinance, is the defendant lawfully entitled to raiseissue No. 5?
By his judgment dated 23rd September 1977. the trial Judgeanswered issues 1, 2 and 3 in the negative and issues 5. 6, 7 and 8 inthe affirmative. In relation to issue 4. the District Judge said that it didnot arise in view of his .answer to issue 3. The trial Judge accordinglydismissed the plaintiff's action with costs. The plaintiff preferred anappeal to the Court of Appeal. By its judgment dated 29.8.84, thatcourt allowed, the appeal on the ground that the defendant had failedto establish a customary marriage and hence the plaintiff was entitledto a declaration that the marriage between the plaintiff and defendantwas null and void. Counsel for the plaintiff did not canvass the findingsof the trial Judge that it was the plaintiff who maliciously deserted thedefendant on the 13th July 1975. The defendant-appellant has filedthis appeal against the said judgment of the Court of Appeal.
The plaintiff is a Buddhist and the defendant is a Roman Catholic. Inhis evidence the plaintiff stated that he was intending to marry thedefendant at the Kachcheri, but as the defendant said that they mustmarry at the church, he agreed, and accordingly got permission tomarry from the priest at Gampaha. He gave notice of marriage at theRegistry Office, Gampaha and on the 13th August 1973, he alongwith the defendant, her mother, aunt and sister-in-law went toKongodamulla St. Anthony's Church. He went to the church at about
p.m. and they had some prayer, a ring was put on to thedefendant's finger and they said something in English and Sinhalese,which he could not understand. He said that everything was over at
about 8.30-8.45 p.m. The trial judge has rejected the evidence ofthe plaintiff that the ceremony took place between 7.00 and 8.00p.m. in the evening and has held that-
'at the Church Rev. Batepola held a ceremony according to thecustoms of the Catholic Church and solemnized a marriage betweenplaintiff and defendant".
According to. the plaintiff, both he and the defendant came back toGampaha and went to live at a house at Sri Bodhi Road. At this househe and the defendant started living as husband and wife; the friendsand relatives of both parties accepted them as husband and wife; thetwo ofthem lived together and accepted each other as husband andwife. These facts are admitted by both plaintiff and defendant. Incross-examination the plaintiff admitted that he accepted thedefendant to be his legal wife, after the marriage at Kongodamullachurch on 13th August 1973, and it was with that idea the two ofthem lived together and during this period they moved about in publicwith that idea in mind and he showed the world that the defendantwas his lawful wife.
After the plaintiff and the defendant had so lived together ashusband and wife for two years, the plaintiff wanted to divorce thedefendant. For that purpose the plaintiff tried to obtain the marriagecertificate. When he tried to obtain a marriage certificate he vyasinformed that the marriage between him and the defendant had notbeen registered under the General Marriages Ordinance. Hence arisesthe prayer of the plaintiff for a declaration that the marriage betweenthe plaintiff and the defendant is void or that no marriage had takenplace between the two of them.
The defendant's position is that though no marriage has beenregistered under the General Marriages Ordinance in fact a customarymarriage was performed at the church and hence, the plaintiff couldnot maintain this action for a declaration that there was no marriagebetween him and the defendant. The relevant question arises whetherthere was a customary marriage countenanced in law between theplaintiff and defendant.
In this case it is common ground that notice of marriage in terms of[ section 24 of the General Marriages Ordinance was given. It ismanifest therefore that the parties intended to get married under the, General. Marriages Ordinance. But the plaintiff contends that certainindispensable formalities prescribed by the General Marriages
Ordinance had not been observed, namely that the marriage was notsolemnized in church between 6.00 a.m. and 6.00 p.m. as prescribedby section 34(1) of the Ordinance and that the marriage was notregistered as required by the Ordinance. The certificate of marriagewhich alone gives the Minister of the church the authority to solemnizethe marriage was never issued and hence the Minister was notempowered to register the marriage.
The trial judge has accepted the evidence of Rev. Batepola. inpreference to the evidence of the plaintiff and has held that themarriage was solemnized at about 4.00 or 4.30 in the evening. Thisfinding of fact is well based and the plaintiff's challenge to the validityof the marriage on the allegation that the marriage rites wereperformed after the prescribed time stands rejected.
This finding cannot be faulted. But as regards registration I agreewith the counsel for the plaintiff that it is only on the production of thecertificate of the Registrar that a Minister of the church can solemnizea marriage. Since there was no such certificate Rev. Batepola had noauthority under the Ordinance to register the marriage. It is acceptedby the parties that in the circumstances the marriage could not havebeen lawfully registered by Rev. Batepola.
The case hasthen to be decided on the basis that there had been novalid registration of marriage between the parties under the GeneralMarriages Ordinance. But then, is registration essential to the validityof marriage? Section 41 of the General Marriages Ordinanceprovides-
"The entry made by the Registrar in his marriage register undersections 34, 35 and 40 shall constitute the registration of themarriage and shall be the best evidence thereof before all courts andin all proceedings in which it may be necessary to give evidence ofthe marriage."
This Ordinance does not exclude other recognised forms of marriageand a customary marriage may, therefore, be proved and established.Marriage has been defined to mean any marriage save and exceptmarriages contracted-under and by virtue of the Kandyan MarriagesOrdinance of 1870 or of the Kandyan Marriages and Divorce Act andexcept marriages contracted between persons professing Islam(section 64).
A customary marriage is a marriage coming within this definition,though not one under the provisions of the Ordinance as to form andregistration.
Regulation 9 of 1822 attempted to introduce as a part, not merelyof the.evidence but of the constitution of marriage-a stringent systemof registration and enacted that no marriage contracted after the 1 stAugust of that year should be valid unless it was registered. The nextenactment No. 6 of 1847 was intended to restrict valid marriage tosuch as should be solemnized either by a Christian minister or by aMarriage Registrar. But the 6th section which- again provided thatunregistered marriages should be invalid was never proclaimed. Thelaw of 1822 still remained in force. It was however provided bysection 3 of the Ordinance No. 6 of 1847 that past marriagesrendered invalid by not being registered in conformity with Regulation9 of 1822 were to be deemed good and valid, except where theparties to any such marriage or either of them, not beingMohamedans, shall during the lifetime of both parties have contracteda valid marriage. The effect of this clause was to validate all customarymarriages contracted prior to 1847. Section 2 of this Ordinancedeclared valid past marriages solemnized by Christian Ministers.' Itspecifically enacted that-
"all Marriages which, have been heretofore bona fide solemnizedwithin this Island between parties legally competent to marry byMinisters of the Christian religion ordained.. . .either by licence orafter the publication of banns and, according to the rites of thereligious communities to which such Ministers shall have belonged,shall be deemed and taken to have been a good and valid marriagein law."
As to subsequent marriages, the law of 1822 continued to apply. Thenext Ordinance was No. 13 of 1863 which came into operation byproclamation on 1.3.1867. In the ordinance of 1863 the provision ofthe earlier Ordinance which made registration essential to the validityof the marriage was omitted. Section 15 of Ordinance No. 2 of 1895enacted that no marriage should be valid unless it was duly solemnizedby a Minister or Registrar and was registered in the manner and formprescribed by the Ordinance. The only exception was made in favourof Hindus-Tamils not domiciled in Ceylon. This section 15 wasrepealed by Ordinance No. 10 of 1896, and it has not beenreintroduced into the present Marriages Registration OrdinanceNo. 19 of 1907. The present legal position is that while registration is
essential for the validity of a marriage under the Kandyan MarriagesOrdinance of 1870, it is open to persons other than Kandyans tocontract a marriage according to native rites and customs. VideGunaratne v. Punchihamy (1), Sopia Hamine v. Appuhamy (2).Aronegaryv. Vaigalie (3), 2 N.L.R. 322, P C.. Thiagarajah v. Kurukkal. (4), Poopalaratnam v. Sabapathy (5).
In Chellappah v. Kandasamy (6) where two persons, Tamils ofJaffna having given the Registrar of Marriages notice of their intentionto marry, solemnized their marriage according to Hindu rites but owingto certain disputes refused to proceed to registration, it was held thatthe customary form of marriage according to Hindu rites constituted avalid marriage independently of registration.
Where marriage has to be established by proof of performance ofcustoms or ceremonies, case law shows that the relevant customsand ceremonies vary according to the race, caste, religion or socialstatus of the parties. If it is shown by the custom of the caste orreligion or district that certain form is considered as constituting amarriage, then the adoption of that form with the intention of therebycompleting the marriage union is sufficient in law to constitutemarriage. When the fact of celebration of the marriage is established itwill be presumed, in the absence of evidence to the contrary, that allthe forms and ceremonies necessary to constitute a valid customarymarriage have been gone through. Where there is a marriage in fact,there would be a presumption in favour of there being a nn&rriage inlaw.
In Aronegary v. Vaigalie, (supra) it was held by the Privy Council thatwhere it is proved that parties have gone through a form of marriageand thereby shown an intention to be married, persons who claim byvirtue of the marriage were not bound to prove that all necessaryceremonies had been performed. In Thiagarajah v. Carthigesu (7), thequestion in issue was whether a marriage was celebrated according tocustoms and the evidence showed that the parties had neithercohabited for a single day nor even lived together under the same roof,and it was held that in such a case there is no presumption in favour oftheir marriage and that in such a case, proof of marriage dependssolely on the evidence to the effect that a valid ceremony of marriagewas actually performed. By parity of reasoning it would thus appear thatwhere parties have lived together as husband and wife following upon
performance of certain rites and ceremonies associated withmarriage, the burden of proving that the appropriate marriagecustoms and the fact that the required cere’mony were not performedwould lie heavily on those who deny the validity of the marriage. In thiscase since the plaintiff has admitted that after the marriage ceremonyat Kongodamulla, both he and the defendant had lived together openlyas husband and wife and had been accepted by the public to behusband and wife, the onus will lie on him to show that it is invalidbecause certain vital ceremonies had not been gone through. TheCourt of Appeal has on the admitted facts of this case erred in castingthe burden of proof on the defendant to show what are the essentialrequisites of a Catholic marriage and that the marriage between herand the plaintiff conformed to those requisites. The onus was on theplaintiff, in view of these admissions referred to above, to show thatthe essential requisites of a Catholic customary marriage .were notperformed. He has failed to lead any evidence on these matters todischarge the burden that rested on him.
In Nicholas de Silva v. Shaik Ali (8) a Divisional Bench of theSupreme Court held that a marriage of two members of the. Catholicchurch solemnized by a minister of the church, at a Roman Catholicchurch, did not become null and void forwant of registration, but wasvalid in law. The oral evidence in that case "proved the ceremony tohave been a Christian one". This case establishes that a marriageperformed in a Catholic church according to customary Catholic ritesis a lawful marriage, even though there is no registration of themarriage according to law. The religious rites may owe their origin tothe canon law but thereby we are not importing the canon law into ourjurisprudence. The religious rites and ceremonies of the church arerelevant because they have come to be the customary rites andceremonies according to which the catholics solemnize theirmarriages. Thus they have as such acquired legal significance.
The trial Judge has accepted the evidence of Rev. Batepola and hasheld that it is crystal clear that the marriage has been solemnizedaccording to the Roman Catholic customs. He finds that "it has beenproved in this case that the marriage between the plaintiff and thedefendant has been solemnized at a Roman Catholic church accordingto the customs of the Roman Catholic church before a Roman Catholicpriest". Rev. Batepola who officiated at the marriage of the parties,testified that he performed the marriage inside the church between
and 4.30 p.m. and that he took about 35 "minutes for theceremony and that he explained to the parties what he was doing. Incross examination by counsel for the plaintiff he stated as follows:
"Q. During this period, how many marriages were you concernedwith?
A. About 1,000 marriages.
Q.You have a very good understanding of the ceremonies held inconnection with marriages?
A. I know.
Q. How many kinds of church marriages are there?
A. There is only one method in the church.
Q. What is that method?
A. To effect it according to the rules of the Catholic church,according to law.
Q. In your church, is there a marriage called customary marriage?
A. The marriage is performed under the law of the church.
Q. Is there something called customary marriage?
A. It is done according to the rules of the church.
Q. If the man is not a Catholic, can the two parties come to thechurch and get the blessings of the church?
A. It can be done with the authority of the church.
Q. By the "authority of the church" do you mean the authority of theBishop?
In re-examination the witness clarified the position as follows:
A. "If both are Christians we get them to marry according to the lawof the church, if they are a non-Christian and a Christian wemarry them after obtaining the authority of the church.According to the religious rites of the church the same thing isdone in both cases. If it is a case of the non-Christian and aChristian only, we obtain the authority of the church."
The witness, further stated that the plaintiff (a Buddhist) and thedefendant (a Catholic) applied for permission to the Catholic church toget married and the two o.f them got the permission from the church.It is to be noted that during a searching cross-examiniation Of Rev.Batepola apart from a single question that he told the plaintiff only thathe blessed the ring, not a. single suggestion was made that anyceremony or rite necessary for the solemnization of the marriage wasnot performed. Rev. Batepola quite categorically said that the weddingtook place according to the customs and the laws of the Catholic
church. The Court of Appeal has held that-.
" this does not render it a customary marriage
If indeed there is a Roman Catholic customary
marriage, there should be evidence of what are the essential
requisites of such marriage The evidence only proves
that a ceremony took place according to the rules, customs andrites of the Catholic church, in terms of section 34(1)." It does notprove that a customary marriage took place. It seems to me that thelearned District Judge has equated the celebration of a marriageaccording to the rules, customs and rites of the church, withmarriage celebrated according to customary rites and has thusconfused one with the other."
: With all respect to that court, I cannot agree with that court'scomments and conclusion. The defendant's case is that the customsand rites of the Catholic church represent the customary rites andceremonies essential for a Catholic customary marriage, and that thesolemnization of a marriage according to the said customs and rites ofthe church satisfies the requirements of a customary marriage of the.Roman Catholics. The rules and customs of the Roman Catholicchurch do not have any independent authority to validate a marriage.They are relevant only because the Roman Catholics have adoptedthem as part of their customary ceremonies regulating their marriage.A marriage solemnized according to the rules, customs, rites andceremonies of the church may thus serve two purposes-one tosatisfy the requirements of section 34(1) of the Marriage (General)Ordinance as preliminary to registration of the marriage under Section34(2-3) and secondly since these rules, customs, rites andceremonies of the church have been absorbed into the web of Catholiccustomary marriage, to constitute a customary marriage. It is to benoted that section. 2 of the Ordinance No. 6 of 1847, quoted supra.
recognised marriages solemnized according to Christian rites and gavelegal validity to Christian marriages solemnized by a Minister ofChristian religion according to the rites of the religious communities towhich such Minister belonged without such marriage being registeredaccording to law. Thus a marriage solemnized according to thecustoms, rites and ceremonies of the Catholic church has legal validityirrespective of legal registration thereof and is regarded as a lawfulmarriage on the basis of it being a customary marriage recognised inlaw.
In my view, the trial judge acted under no confusion when heaccepted the sufficiency of the marriage ceremonies conducted byRev. Batepola at the church on 13.08.1973 in accordance with therites of the church to satisfy the requirements of a customary marriageof Roman Catholics.
It was said that the plaintiff is a Buddhist and hence could not haveadopted a Catholic customary marriage. But, the evidence shows thathe intended to marry the defendant at the Kongodamulla Church, gotthe permission of the Catholic Bishop to marry the defendant asrequired by the church and voluntarily chose to go through theCatholic ceremonies, with a full appreciation that he was marryingaccording to catholic rites. Having elected voluntarily to marry thedefendant who is a .Catholic according to the customary rites of theCatholics, he is bound by the marriage which took place according tothose rites. Further he subsequently lived with the defendant ashusband and vyife on the basis of the validity of the marriage that tookplace between him and the defendant on 13th August 1973. Hisconduct manifested a recognition of the existence and validity of themarriage'; he had approbated the marriage which he is seeking to getrid of; it is most inequitable and contrary to public policy that he shouldbe permitted to challenge it with effect..
2-GRACIA CATHERINE v. WIJEGUNAWARDENE