078-NLR-NLR-V-60-BEERAN-Petitoner-and-MINISTER-OF-DEFENCE-AND-EXTERNAL-AFFARIS-et-al.-Respon.pdf
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Beeran v. Minister of Defence and External Affairs
Present: Weerasooriya, J.
BEERAN, Petitioner, and MINISTER OF DEFENCE ANDEXTERNAL AFFAIRS et al., Respondents
S. 0. 214—Application for a Writ of Mandamus and/or Certiorari onthe Minister of Defence and External Affairs and two others
Muslim Law—Marriage—Entry in marriage rgisler—Its scope as best evidence ofmarriage—Muslim Marriage and IHvorce Act, No. 13 of 1931, ss. 2, IS, 24 (4),71, 82, 85—Citizenship Act, No. 18 of 1948, s. 11 A.
The petitioner, a Muslim of Indian origin, procured tlio registration of a secondmarriage in Ceylon contrary to the express provisions of soction 24 (4), readwith sections 18 (1) (a), 82 and 85, of the Muslim Marriage and Divorce Act.The description of the petitioner’s civil condition as “ unmarried ” in themarriage certificate was false. Thereafter the petitioner made application to beregistered as a citizen of Ceylon under section 11A of the Citizenship Act, onthe basis that he was the spouse of a citizen of Ceylon. To establish the validityof his marriage, he relied on the marriage certificate and on the provisions ofsection 71 of the Muslim Marriage and Divorce Act according to which themarriage certificate shall be accepted as the best evidence of the marriage towhich the certificate relates.
Held, that section 71 of the Muslim Marriage and Divorce Act applies only toan entry of particulars relating to a marriage which may lawfully be registeredunder the Act. It does not apply to an entry relating to a marriage the regis-tration of which is expressly prohibited.
WEERASOOBIYA, J.—Beeran v. Minister of Defence and External Affairs 309
Application for a writ of mandamus and/or certiorari.
M.S. M. Nazeem, with M. T. M. Svyardeen, for the petitioner.
St. G. B. Jansze, Q.C., Acting Attorney-General, with E. R. deFonseha, Grown Counsel, for the 2nd respondent.
Cur. adv. miU.
October 3,1958. Weeeasoobiya, J.—
This is an application for a mandate in the nature of a writ of mandamusand/or certiorari. The matter came up in the first instance beforemy brother Sinnetamby and he directed notice to issue on the 2ndrespondent alone, who is the Permanent Secretary to the Ministry ofDefence and External Affairs. The 1st respondent is the Minister ofDefence and External Affairs. The 3rd respondent is the AssistantPermanent Secretary to the Ministry of Defence and External Affairs.
The petitioner is of Indian origin and has been residing in Ceylon since1936. In his application Rl, dated the 9th November, 1955, for a tempo-rary residence permit under the Immigrants and Emigrants Act, No. 20of 1948, he described himself as married to one Bebe Fatuma a person ofIndian nationality. On this application he was granted a visa to expirefinally on the 17th September, 1956. Representations made by him tothe Controller of Immigration and Emigration with a view to having thisperiod further extended did not meet with success.
As would appear from the marriage certificate PI a (vide translation Plb)purporting to have been issued under the Muslim Marriage andDivorce Act, No. 13 of 1951, at the time when the petitioner made theapplication Rl he had already gone through a form of marriage with oneKunji Pathumma on the 25th June, 1955. In that certificate his civilcondition is given as “ unmarried ”. Rl does not give the date of thepetitioner’s marriage with Bebe Fatuma but the position taken up byMr. Nazeem who appeared for him was that the marriage was still sub-sisting at the time when he went through the form of marriage withKunji Pathumma. Mr. Nazeem admitted that the description of thepetitioner’s civil condition as “ unmarried ” in the certificate PI is false,and also that in regard to the petitioner’s marriage with Kunji Pathummathere was non-compliance with the provisions of section 24 of the MuslimMarriage and Divorce Act relating to the notices to be given where amarried male Muslim living with or maintaining one or more wivesintends to contract another marriage. That these provisions are of animperative nature would seem to follow from sub-section (4) of section 24which provides that no marriage contracted by such a Muslim shall beregistered under the Act where the requisite notices had not been given.
Slf) WEERASOORTYA, J .—Seeran v. Minister of Defence and External Affairs
Section 2 of the Act provides that the Act shall apply only to themarriages and divorces, and other matteis connected therewith, of thoseinhabitants in Ceylon who are Muslims. Neither in the application forthe writ nor in the supporting affidavit is there any averment that thepetitioner and Kunji Pathumma are persons to whom the Act applies,but even if they are persons of that description, it would appear from thevital admissions made by Mr. Nazeem that the petitioner procured theregistration of his marriage with Kunji Pathumma contrary to the expressprovisions of sub-section (4) of section 24 by a false declaration undersection 18 (1) (a) and he thereby committed offences punishable undersections 82 and 85 of the Act.
Subsequent to the alleged marriage between the petitioner and KunjiPathumma the latter was (on the 28th October, 19f>7) registered as acitizen of Ceylon under the Indian and Pakistani Residents (Citizenship)Act, No. 3 of 1949. On the 8th March, 1958, the petitioner had an inter-view with the 3rd respondent at which the question of the petitionerbeing registered as a citizen of Ceylon under section 11A of the CitizenshipAct, No. 18 of 1948, on the basis that he was the spouse of a citizen ofCeylon was discussed. With reference to that interview lie was informed,by the 2nd respondent by his letter P6 dated the 18th March, 1958, thatit was “quite impossible” to recognise the petitioner’s marriage withKunji Pathumma and that therefore there was no question of his 1>eingentitled to Ceylon citizenship by virtue of it. He was also informed thatthe Controller of Immigration and Emigration would be authorised to, allow the petitioner time finally till the 30th April, 1958, to wind up hisaffairs and leave Ceylon and that if the petitioner failed to leave by thatdate steps would be taken to enforce his departure. It is not clear whatproof was adduced by the petitioner at the interview on the 8th March,1958, of the validity of his marriage with Kunji Pathumma.
On the 22nd May, 1958, an order for the arrest of the petitioner and hisremoval from Ceylon was made under section 28 (1A) of the Immigrantsand Emigrants Act. On this order he was arrested on the 11th June,1958, and released on security being giv'en on the 12th June, 1958. Itwas on the 11th June, 1958, that for the first time the application of thepetitioner in the prescribed form for his registration as a citizen of Ceylonunder section 11A of the Citizenship Act was forwarded to the 2nd res.pondent by Kunji Pathumma. RIO is a copy of this application.Annexed to the application was a copy of the certificate of the petitioner’smarriage with Kunji Pathumma. By letter P8 dated the 11th June,1958, the 2nd respondent informed Kunji Pathumma that the petitioner’sapplication for Ceylon citizenship could not be entertained and referredher to the 2nd respondent’s earlier letter dated the 18th March, 1958 (P6)to the petitioner.
The 2nd respondent is a prescribed officer under sub-sections (2) and
of section 11A of the Citizenship Act, No. 18 of 1948. Where anapplication for registration as a citizen of Ceylon is made by any personunder the provisions of section 11A, sub-section (3) requires that the
WEERASOORIYA, J.—Beeran v. Minister of Defence and External Affairs 311
prescribed officer shall, if he is satisfied that the applicant has the quali-fications specified in that sub-section, forward it to the Minister for con-sideration. One of the qualifications specified is that the applicant is thespouse of a citizen of Ceylon by descent or registration. The 2nd res-pondent having refused to forward the petitioner’s application datedthe 11th June, 1958, to the Minister (as is to be presumed from the replyP8), the question arising for decision in these, proceedings is whether awrit of mandamus should issue to compel the 2nd respondent to forwardit.
The position taken up by the 2nd respondent against the issue of thewrit is that the petitioner is not qualified to be registered as a citizen ofCeylon under section 11A of the Citizenship Act, No. 18ofl948. Thiswasfurther amplified by the Acting Attorney-General who stated that oneof the grounds for the 2nd respondent’s refusal to forward the petitioner’sapplication to the Minister was that the 2nd respondent was not satisfiedon the material placed before him that the petitioner had contracted avalid marriage with Kunji Pathumma. If this ground is made out the2nd respondent was under no statutory duty to forward the petitioner’sapplication to the Minister for consideration.
The only evidence adduced before the 2nd respondent, as well as at thehearing before me, in proof of the petitioner’s alleged marriage withKunji Pathumma was the certificate P1a purporting to have been issuedunder the provisions of the Muslim Marriage and Divorce Act. Section71 of that Act provides, inter alia, that a certified copy of the entry in theregister of marriages kept under section 18 shall be accepted and receivedin all Courts as the best evidence of the marriage to which the entiyrelates.
While the certificate PI a contains the various particulars relating tothe petitioner’s alleged marriage with Kunji Pathumma which are re-quired to be entered in the register of marriages kept under section 18of the Muslim Marriage and Divorce Act (where the registration of themarriage is not expressly prohibited under the Act), the question thatarises is whether the provisions of section 71 (in so far as it relates tomarriages) would be applicable to that certificate so as to make it the bestevidence of the marriage. If section 71 is not applicable the evidentiaryvalue of the certificate PI a is clearly nil. In my opinion section 71applies only to an entry of particulars relating to a marriage which maylawfully be registered under the Act. It does not apply to an entryrelating to a marriage the registration of which is expressly prohibited,and such an entry is void and of no legal effect. Although I have formedthis opinion without the assistance of any argument by Counsel on eitherside (as the particular point was not dealt with at the hearing before me)it seems to me, having considered the matter anxiously, that no otherconclusion is possible.
Even if for the reasons stated by me the provisions of section 71 donot apply to the certificate P1a, it would appear to have been open tothe petitioner to have adduced other evidence, before the 2nd respondent
312 WEEBASOORIYA, J.—Beeran v. Minister of Defence and External Affairs
as well as before me, that he had contracted with Kunji Pathumma avalid marriage under the Muslim Marriage and Divorce Act (notwith-standing his non-compliance with the provisions of section 24 relatingto the notices to be given by him). In this connection see the case ofThe King v. Peter Nonis1. Such evidence the petitioner failed to adduce.
In the view that I have taken it is not necessary to consider the variousarguments addressed to me by the Acting Attorney-General against theissue of the writ. The application fails and is dismissed with costspayable to the 2nd respondent which I fix at Rs. 315.
1 {1917) 19 N. L. 11. 10.
Aj^licution dismissed.