012-SLLR-SLLR-1985-V2-SOOSAIPILLAI-v.-PARPATHIPILLAI.pdf
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Mudiyanse v. Christie Silva (Atukorale. J.)
55
SOOSAIPILLAI
v.
PARPATHIPILLAI
COURT OF APPEAL.
H. A. G. DE SILVA. J. AND JAYALATH. J.
C A. 318/81- M. C. AKKARAIPATTU 5215/A.
MARCH 15. 1985.
Customary marriage – Kalam Ceremony – Presumption of valid marriage between manand woman living together – Maintenance.
In an application for maintenance the Magistrate accepted applicant's claim that shewas validly married to the defendant at a customary Kalam ceremony and thereafterlived together as wife and husband and of this union a child was born to her of which the.defendant was the father.
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The burden of proof of the ceremony of the Kalam form of customary marriage ison the applicant but expen evidence on the point would be necessary only if thecircumstances demand it.
Where a man and woman are proved to have lived together as man and wife thelaw will presume, unless the contrary be dearly proved.' that they were livingtogether in consequence of a valid marriage and not in a state of concubinage.
As to what constitutes a valid customary marriage must necessarily vary fromregion to region, community to community and race to race and depending on theaffluence of die parties even within the same group there could be varying degreesof elaboration and embellishments in the ceremonies constituting marriage. Butsome minimum ritual would be necessary by way of constituting the bare essentialsof a valid customary marriage. In the present case it was the ceremonial partakingof a common meal of rice and seven vegetables before the relations. It follows that,this ceremony of thus- bringing together the parties was a ceremony of validmarriage for no ceremony is prescribed for embarking on concubinage.
Cases referred to :
• K.;Thiagarajah v. P. Karthigesu {1966) 69 NLR 73.
Aronegary v. Vaigalie (1881) 2 NLR 322 (PC.)
$■ Kandiah v. Thangarriany {1953} 55 NLR 568.
Madappuli v. Patrick (1952) 54 NLR 365.
Van Breda et 3l v. Jacobs el at (1921) S.A. A.D. 330.
APPEAL from the Magistrate's Court ol Akkaraipattu.
P. Somatillekam for defendant-appellant
Applicant-respondent absent and unrepresented.
Cur. adv. vuIt.
June 12, 1985.
A. G. DE SILVA, J.
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The applicant-respondent filed an application in the Magistrate s Courtof Kalmunai claiming maintenance for herself and her child Suthaharanfrom the defendant-appellant alleging that she was married to thedefendant and that the child was bom to her in lawful wedlock. The •marriage, she averred, was a customary marriage effected by theperformance of the Kalam ceremony in the presence of their friendsand relatives. The defendant denied the marriage, and paternity. TheJeamed Magistrate in his judgment held that the applicant was marriedto the defendant and that the defendant was the father of the child
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and ordered that the defendant pay to the applicant a sum of Rs. 100per month from the date of the application and a further sum of Rs. 60per month for the infant Suthaharan. from‘.that date. It is from thisorder that the defendant has.appealed.
The case for the applicant briefly was that the defendant was astep-brother of her sister's husband. The defendant had expressed adesire to get married to the applicant and as such her mother hadarranged the match after comparing'their horoscopes. Thedefendant 's father had no objection to the marriage though he did .notattend the subsequent ceremonies. The other relations of thedefendant were opposed to the marriage. On the 15th January 1977,the day after the Thai Pongal holiday, friends and relatives of theapplicant and the defendant were invited for theceremony.and.thoughthe defendant's parents were not there, one of h‘is brothersThambimuttu Tharman was. there..- They had also invited amongstothers the President of the Rural Development Society of the.area aswell as the Chief of their caste which was the dhoby caste.
The Kalam ceremony was" conducted by a woman calledSinnathangam. Seven vegetables were cooked by Sinnathangamalong with the rice and were mixed together and served to the coupleon a brass tray or stand. The defendant had eaten three mouthfuls outof that rice and so had the applicant. The pot of plenty or fertility waskept and the ceremonial lamp was lit. The bride and bridegroom weredressed in clean clothes. After the ceremony the applicant and thedefendant had lived as man and wifef ir^the applicant’s home and thedefendant looked after her. They were accepted by the members ofthe community in which they lived as husband and wife. As a result thechild in question was bom to the applicant on 15th June 1978. Hisbirth certificate P1 states that the father of the child is the defendantand in answer to the question "are the parents married' it is stated'yes, customary marriage'. Five days before the birth' of the child thedefendant saying that he was going to thresh paddy had given theapplicant Rs. 50 and left after which he did not return. The applicanthad sent word to the defendant about the birth of the child, but he haddemanded a dowry and jewellery and had refused to come. Thedefendant's brother-in-law had come to the applicant's house afterthe child was born and refused to register the birth. Fifteen days afterthe birth of the child she had complained to the Grama Sevaka that thedefendant was refusing to register the birth and the Grama Sevakasent for the defendant but the defendant did not come.
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. Learned Counsel for the defendant-appellant submitted that in theabsence of expert evidence as to the necessary ingredients of theKalam ceremony, the learned Magistrate was in error in holding thatthe evidence of the applicant and the witnesses called by herestablished that the applicant and the defendant participated in a validKalam form of customary marriage. He relied on the case of K.Thiagarajah v. Karthigesu, (1) where a learned Pundit gave expertevidence as to what a Kalam ceremoney was and the essentialingredients which would constitute such a ceremony, but it must beborne in mind that such expert evidence was necessary in thecircumstances of that case. The Court held there that –
‘where the question at issue is whether a marriage wascelebrated according to custom, and the. evidence shows that theparties have neither cohabited for a single day nOr even livedtogether under the same roof, there is no presumption in favour oftheir marriage. In such a case, proof of marriage depends solely onevidence to the effect that a valid ceremony of marriage wasactually performed'
In Aronegary v. Vaigalie et al (2) the Privy Council held that –
'According to Roman-Dutch Law there is a presumption in favourof marriage rather than of concubinage. According to the Law ofCeylon, as in England, where a man and woman are proved to havelived together as man andwvife, the law will presume, unless thecontrary be clearly proved, that they were living together in. consequence of a valid marriage, and not in a state of concubinage.Where it is proved that they had gone through a form of marriageand thereby shown an intention to be married, those who claimedby virtue of marriage were not bound to prove that all the necessaryceremonies had been performed'
In the instant case the applicant has sought to lead evidence of aKalam ceremony performed by one Sinnathangam in which both theapplicant and the defendant participated. This, she has done by givingevidence herself and through the evidence of her sister SellamThangapillai who is married to the defendant's brother. SellamThangapillai and Sinnathangam had performed the Kalam ceremonyand had together cooked the rice and the seven vegetables used forthe ceremony. Sinnathangam, who was not called as a witness, and in
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regard to whose absence the defendant's Counsel had commentedon. had gone to Vaharai. (n addition there was also the evidence ofSubramaniam Karunathipillai. the President of the Local RuralDevelopment’Society who had been invited to the ceremony but hadgone there earlier, seen the arrangements made for the Kalamceremony, and had blessed the couple. He had not stayed on for theceremony as he was of the Vellala caste while the applicant and thedefendant were of the dhoby caste, the cooking of the curries was inprogress and about six or seven people had collected to witness theceremony. Under cross-examination this witness was asked aboutKalam ceremonies he had witnessed in the area and he spoke to whathe had seen on those occasions. The ceremonies he' had witnesseddid not seem to be very different from the ceremony that took place atthe applicant's house as-spoken to by the applicant and her sister. Inaddition this witness who was a neighbour of the applicant spoke ofthe applicant and the defendant living together as man and wife for aperiod of about six months following the Kalam ceremony. The GramaSevaka of that area who gave evidence after the applicant also speaksof the applicant and the defendant living and going about together asman and wife. We therefore find in this case evidence of a Kalamceremony coupled with evidence of life together under the same roof.In these circumstances as stated in Aronegary v. Yaigalie (supra) thepresumption is that they were living together in consequence of a validmarriage. It is then not necessary to prove that all the ingredients ofthe Kalam ceremony have been strictly adhered to.
The learned Magistrate in his order states –
"As to what constitutes a valid customary marriage mustnecessarily vary from region to region, community to community,and race to race. Suffice it to say that if any given community regardsome minimum ritual as adequate or necessary to constitute a validmarriage then conformity to the. prescribed minimum criteria couldresult in that particular community regarding the union between theparties as one of lawful wedlock It is natural, of course, within thesame community for there to be various degrees of elaboration inthe ceremonial attendant to marriage – or fatherwedding – depending upon the wealth and standing of parties but inall marriages within that community there are bare essentials whichprovide the sine qua non for a lawful marriage.
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In the case of .the particular community to which the partiesbelong the ritual that establishes the marriage between man andwoman is the ceremonial partaking by the parties of a common mealof rice arid seven vegetables before their relations. If in fact thatceremony is performed then a valid marriage will be deemed by lawto bind the parties whether or not in addition thereto otherembellishments normally associated with weddings such as loudspeakers and music, the lavish entertainment of friends andrelatives, distribution of invitation cards, the handing over of aKooray saree, the tying of a Thali, etc., takes place or not".
I am in total agreement with what the learned Magistrate hasstated.
He has quite correctly stated that the burden lay on the applicant toprove that such a ceremony did take place and he goes on to hold‘ that –
'In the circumstance of this case no great purpose would servethe respondent by quibbling about whether the ceremonies thattook place were adequate enough to constitute a valid marriage forthe reason that the respondent's defence was a complete alibi. Itdoes not lie, in his mouth, therefore to question the details of themarriage" ceremony. Moreover once it is established that someceremony took place bringing' the parties together it must surely. follow that the ceremony was one of marriage, for no ceremony isprescribed for embarking upon concubinage'.
In S. Kandiah v. Thangamany (3) it was held that –
'the presumption of marriage by habit and repute cannot prevailwhere there is evidence that parties had gone through a marriage- ceremony and the solemenization was invaild for the reason thatone of the parties was at the time of the ceremony lawfully married.Cohabitation of parties and general recognition of them as husbandand wife subsequent to: the dissolution of the prior marriage areinadequate in law for the application of the doctrine of presumptionof marriage..'
At page 570, the judgment states –
"under our law, however, some antecedent public ceremony,public, in the sense of a ceremony in the presence of relatives,friends or third parties, has to take place before the mere
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SoosaipiHai v. Parpathipiltai (H. A. G. De Silva. J.)
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circumstance of the parties living together as man and wife followedby recognition of their living together as man and wife by friends andrelatives can form the basis of a deduction that there was a lawfulmarriage between the parties"
In the instant case there is the evidence of the Kalam ceremony withevidence, of the parties»living ,together as man and..wife.. In thesecircumstances in addition to the evidence of a customary marriagethere is the evidence which raises the presumption that an antecedentmarriage by custom had taken place.
Learned Counsel for. the defendant-appellant'also cited the case ofMadappuliv. Patrick (A) where at page 368 Gratiaen, J. states –
"Soloman J. A. in Van Breda et at v.' Jacobs et at (5) said thatunder Roman-Dutch Law which does not differ substantially fromthe English Law on the’ subject >
the Court must be satisfied beyond any reasonable doubtthat thfe alleged custom does in fact exist
a custom to be valid must be an ancient or long establishedone;
it must be reasonable ;
it must have been uniformly observed, in the sense that theevidence 'must not vary in regard to the relativecircumstances of the act in regard to time, thing and place'in other words, the custom must be proved to be certain'.
There is no dispute that in the community to which the applicant andthe defendant belong, the Kalam ceremony is a form of customarymarriage. The witnesses who gave evidence for the applicant havebeen cross-examined on this basis and questions have been directedto ascertain the different ingredients which constitute the Kalamceremony and to ascertain whether all these ingredients were presentin the ceremony spoken to by the applicant and her witnesses.
As was stated earlier the defendant's case was a total denial ofparticipating in any ceremony whatsoever as, on the day he wasalleged to have so participated, he was said to have been spraying hisfields in a different place. This alibi has been rejected by the learnedMagistrate,
It was also proved.at the trial that the defendant though belongingto the dhoby caste as the applicant did, was a baptized Catholic whilethe applicant was a Hindu and as such the Kalam ceremony could not
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have taken place between two persons belonging to different faiths.No questions were directed on this either to the applicant, her sisterSeilam Thangapillai or to Subramaniam Karanathapillai the President ofthe Local Rural Development Society, all of whom spoke about theKalam ceremony. Further the ieamed trial Judge has held that thoughthe defendant was a baptized Catholic he did not appear to have beena practising one for when asked by Court 'to recite the most basicCatholic catechism— the Lord’s prayer – he was unable to go beyondthe first few words.
In my view the learned Magistrate has in a comprehensive and wellconsidered judgment held that the applicant and the defendant hadgone through a form of customary marriage and lived as husband andwife thereafter and that the child in respect of whom maintenance wasbeing claimed was the result of the union between the parties. I do notthink any adequate reason has been urged before us to vary thelearned Magistrate's finding on fact and on the law. I affirm thejudgment of the learned Magistrate and dismiss this appeal. There willbe no costs.
JAYALATH, J -»agree.
Appeal dismissed.