018-NLR-NLR-V-16-DINGIRIHAMY-v.-MUDALIHAMY-et-aL.pdf
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Present: Pereira J. and Ennis J.
DINGIKIHAMYMTJDALIHAMY et ah
209—D. C, Kurunegala, 4,402.
Kandyan marriage — Entry in marriage register (hat marriage was“ bina ” is not conclusive evidence of “ bina ” marriage—Effect ofregistration — Marriage dating back to date of native ceremony —Daughter marrying in “ diga ” after father's death loses right topaternal inheritance.
Per Pfrktra J. and Ennis J. with diffidence :—
The fact that a marriage of Kandyans is described in the
register of marriages as a bina one is not evidence of binamarriage ; evidence is admissible to contradict the registerand to prove that the marriage was diga.
Per Pereira J, with diffidence :—
The registration of a marriage among Kandyans has the effect
of making the marriage date back to the actual nativeceremonies performed for the. purpose of constituting themarriage.
Per Pereira J. and Ennis J.—A woman who after her father’s death,.that is to say, after she has actually inherited her father’s property,marries in diga, forfeits her rights already acquired.
rj^HE facts are set out in the judgments.
Morgan de Saram, for plaintiff, appellant.
Allan Driebetg, for first and second defendants, respondents.
V. Grenier, for third defendant, respondent.
Cur. adv: vult.
October 15, 1912. Pereira J,—
In- this case the plaintiff’s marriage appears to' havfc been regis-.tered in 1907, but the customary ceremonies appear to have been'performed many years before that. I have read the evidencecarefully, and I am inclined to think that its weight is in favour
1912*
191&
PSBBIBA J.JHngirihcmyMvdaUhtmy
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of the contention that those ceremonies were ceremonies proper toa diga marriage. In the register, however, the marriage is enteredas a bma marriage, and a question arises here, in view of section89 of the Kandyan Marriage Ordinance, whether the entry in theregister is not conclusive on the question as to the nature of themarriage. That section enacts that if it does not appear in theregister whether the marriage was contracted in bina or in diga,such marriage shall be presumed to have been contracted in diga.That being so, if it does appear in the register whether the marriageis contracted in diga or in bina, it may well be argued that thatentry has a greater effect than that of a mere presumption. Itmay. be said that the entry is conclusive on the question as to thenature of the marriage, but I see that the question has been con-sidered by Moncreiff J. in Ukku v. Kiri Honjda,1 and by my brotherWood Renton in Ram Etana v. Ntkappu,2 and that they are ofopinion that the entry in the register may be rebutted by evidence.
I thmlr that the entry in the register in the present case is sufficientlyrebutted by evidence. It has also been held in the first case cited*above that the registration of a marriage dates back ‘to the actualnative ceremonies performed for the purpose of constituting themarriage. I adopt this view also, although I felt it a litj-le difficultto reconcile it with the fact that the ceremony prescribed by section20 of the Ordinance reads like a ceremony intended to constitutea marriage for the first time. If the woman Had already beentaken by the man to be his wedded wife, I thought there would beincongruity in the question—“ Do you take this woman to be yourwedded wife? ”—given in section 20.
Then comes the question whether a woman who, after her father’sdeath, that is to say, after she has actually inherited her father’sproperty, marries in diga, forfeits her rights already acquired.On this question the decision in Meera Saibo v. Punchirala3 is inpoint
I would dismiss the appeal.
Ennis J.—
The points for determination in this appeal are whether a formof marriage gone through according to Kandyan custom about theyear 1885 is valid under the Ordinance* No. 3 of 1870, and if not avalid marriage,, whether it has any effect. There seems no reasonto doubt that, the particular form of marriage gone through whs° in diga ” as found by the District Court.
The parties to the marriage, however, in 1907 registered amarriage under the Ordinance No. 8 of 1870, and the certificateof that marriage contains, inter alia, the; following particulars:
1 6 N. L. A. 104.2 14 N. L. R. 289.
* 1$ N. L. A. 176.
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that the date of the marriage was July 29, 1907, and that themarrriage was in bina. The provisions of section II of the OrdinanceNo. .3 of 1870 are to the effect that no marriage contracted afterSeptember 30, 1860, or “•hereafter,” i.e., after December 31, 1870,should be valid, unless registered in the manner and form andbefore the registrar as provided in the Ordinance, with theexceptions contained in the Ordinance.
The only exception is in section 25, which provides that marriagescelebrated according to Kandyan custom after the passing ofOrdinance No. 13 of 1859, which are void for want of registrationor for invalid registration, should be deemed^ good and valid andoperate to dissolve all former marriages. Beading this with section11, it would seem that tile exception does not extend to Kandyanmarriages contracted from and after January 1, 1870.
Section 30 of the Ordinance of 1870 provides for legitimizationof children bom to the parties prior to the registration of a marriageunder the Ordinance, and finally section 39 provides that thecertificate of registration shall be the best evidence of the marriageand of the facts stated therein.
The construction I place upon this Ordinance is that Kandyan .marriages celebrated after September 30, 1860, and before January1, 1871, which have not been registered or invalidly registered,and which are otherwise valid by Kandyan custom, shall be deemedgood and valid marriages without registration at any time. Thatafter December 81, 1870, the only valid Kandyan marriage is onein manner and form and before a registrar as provided in theOrdinance No. 3 of 1870.,
A perusal of the Ordinance makes it dear that a registrar canregister only “ intended ” marriages, the notice to issue undersection 15 is a notice of a marriage to be “ contracted,” the form ofnotice under the section runs: “ I hereby give notice that a marriageis intended to be had within three months of the date hereof,”and section 20 requires the registrar by whom any marriage isto be registered to ask certain particulars of the parties “to bemarried,” after , which the contract of marriage is entered intobefore him and registration ensues.
Section 22 makes provision for the subsequent registration of" such ” a marriage (i.e., marriage before the registrar) in any casewhere, without fault of. the parties, the registration has beenomitted or erroneously made.
There is no provision in the Ordinance for the subsequent regis-tration of marriages already contracted, which under section 11 are;invalid. Certain of these marriages, are to be deemed to be valid,but some after January 1, 1871; and section 30 provides that every*marriage registered under this Ordinance, i.e., a registered marriageas distinct from one by custom, shall render legitimate the childrenbom to the parties previous to their intermarriage.
1919.
Stains J.Dmgirihamy
e.
Mudalihamy
1919.
Bmus J.
Dtagm/tomy
o.
3|ftt4aHfc<m/y
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/
The beej» evidence of the marriage, is, by* section 30; the entry inthe register, which is also the best evidence of the other facts statedtherein. These entries- o*n be made only, as I have shown above,with reference to a marriage before the registrar, and after inquiryfrom the parties as to the nature of the marriage intended to beentered into before him.
therefore, hold that the form of marriage gone through by theparties according to the Kandyan custom for • a marriage in Sigaabout the year 1885 did not constitute a valid marriage, or usingthe words of section 25 with regard to marriage by custom betweenOctober 1, 1860, and January 1,1871, the " marriage ” was " void/’and no provision exists in the Ordinance to make;, such a voidmarriage valid at a subsequent date. .
Had this void diga marriage any effect? In 3 A. C. R. 87Hutchinson C.J. and Middleton J, held that under Kandyan lawa woman who leaves her parental home and takes her permanentabode at her husband’s bouse and lives in diga mth himy althoughshe contracts no legal marriage, forfeits her right to her parentalinheritance/ In 3 Bal. 122 Wendt J. Held that under Kandyan Jawa woman going out in diga would not be entitled to claim a shareof her parental inheritance, although she may not contract a legalmarriage.
. In 2 G. L. R. 54 Lawrie J. held that the exclusion Under theKandyan law of a diga married daughter from a share in her fathers’property still attaches to a daughter who . goes out in diga, eventhough the marriage is invalid by reason of its non-registrationunder the provisions of Ordinance No. 3 of 1870. *
The last of these decisions was on the ground that the subsequentregistered marriage dated back to the previous ceremony for thepurpose of constituting the marriage, and . the same reason wasexpressed in 6 N. L. R. 104 by Moncreiff A.C.J., who said: “ Withsome diffidence I am inclined to think that subsequent registrationdates back to the original beginning of the connection between theparties.”*
In view of the decisions cited which were followed in the casescited ini 13 N. L. R. 176 and 14 N. L. R. 289, I also .with somediffidence'arrive at the conclusion that, for the purpose of ascertain-ing whether the statement of the parties before the registrar as tothe nature of the marriage is correct, the previous ceremony maybe referred to, and that the facte stated in the register may berebutted by evidence of the previous ceremony.
The Kandyan law that a marriage in diga by a woman* after th$,death of her father, and consequently after the * inheritance hadvested in her, causes inherited property to revert to the other heirs.,is also established by the cases cited.
;; I would, therefore, dismiss the appeal.
Appealx dismissed.