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Present : Pereira J. and Ennis J.
GUNABATNA v. PUNCHIHAMY.198—D. C. Matara, 1,893.
Marriage—Presumption of marriage from cohabitation, habit, andrepute—Evidence thatthere wasno registrationor marriageaccord-
ing to native rites—Presumption rebutted.
The respondent(Punchihamy) sought to establish inthiscase a
marriage betweenherself and one Deonia(deceased).Theevidence
establishedthe factsof cohabitation,habit, and repute,but the
respondent, whilegiving evidence herself ofthe factsofcohabits,
tion, habit, and repute, gave evidence also to the effect that in factthere was no marriage either under the. Ordinance or according tonative rites and customs.
Held, thatthe presumptionof marriagefrom .the evidenceof
cohabitation, habit, and repnte was rebutted.
PEbhibaJ.—Afterthe coming intooperation of theMarriage
Ordinance of 1863 it was open to partiesto contract amarriage
according tonative rites andcustoms quite independently ofthe
requirementsof theOrdinance, andmarriages contractedaccording
to such ritesand easterns were not invalidby reason of the Ordi-nance having beendisregarded.From thedecisions pronounced
so far on the subject, however, it is difficult .to say whether amarriage not dulysolemnized andregistered under theOrdinance
was absolutely void, or void only if the parties professing to contractit according to statute knowingly and wilfully acquiesced in theirregularities mentioned insection 6 of theamendingOrdinance of
No marriage can beconstituted by cohabitation,- habit,and
repute. Evidence of cohabitation, habit, and repute merelygives
rise to a presumption of marriage, and thispresumptioncan be
displaced byevidence tothe contrary, butthe evidence shouldbe
strong and cogent.
Ennis J.—The DistrictCourt held thatthe factsprovedgave
rise to a presumptionin favourof Funchihamy,and appearsto have
been influenced by certain Scotch cases based on Scotch law, underwhich a mutual agreement to marry was the one essential to alawful marriage. Among the Sinhalese it appears certain that somefurther formalities are required to constitute& lawfulmarriage.
De Thoren v. The Attorney-General1 distinguished.
HIS was an appeal from an order of the District Court of Mataraholding that one Punchihamy (respondent) was entitled to
letters of administration to the estate of one Deonis as his widow,as against a brother (appellant) of Deonis who had applied foradministration.
i L. R. 1 A. C. 686.
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1M8' A. St. V. Jayewardene, for the appellant—In this case- the' presump-.Ounaratna v. .ti°n °f marriage from cohabitation, habit, and repute does notPunchihamy arise. The respondent was not considered to have been married to-Deouis even by her relations. The birth register showe that Deonisand the respondent were not married at the date of the birth of thechild.
In the oases relied on by the District Judge some sort of marriageceremony was gone through, and it was apparent there was a clearintention of marriage. [Pereira J.—If one of the parties is alive andgives evidence, but does not say that they were married], wheredoes the presumption of marriage by cohabitation and repute-come in.]
Bawa, K.C., for the respondent.—Although the wife says that no-legal marriage has taken place, she does not say that no form ofmarriage was gone through. The appellant must prove affirmativelythat there was no marriage according to village custom. Counselcited Lapsley v. Grierson,1 Langham v. Thompson,x Be Thoren v. TheAttorney-General,* and the Breadalbane Case.4
A. St. V. Jayewardene (argument for appellant continued).—Theauthorities relied on relate to marriages in Scotland. No particularceremony is necessary for constituting marriage in Scotland; habitand repute would be enough. [Pereira J.—Marriage is not consti-tuted by habit and repute; it is only presumed from habit,and!repute.] No presumption arises when the parties are alive andcan give evidence. Counsel cited Campbell v. Campbell,* SastnpValaidan Aronegary v. Sambeeutty Vaigalle et al.,* Arumugam v-Seethampillai,'1 Babina v. Dingi Baba.*
Bawa, K.C., for respondent.—In the Scotch cases, even where itwas admitted that parties began to live together illicitly, the proofof cohabitation and repute was held sufficient to raise the presump-tion that the marriage ceremony was performed. [Pereria J.—Butno ceremony is required under the Scotch law to constitutemarriage.] Some ceremony is required even by the Scotch law.Counsel cited Valliammai v. Annamalai,* D. C. Colombo, 59,572.10
Cur. adv. vult..
September 24, 1912. Pereira J.—
In this case I am not at all satisfied with the evidence that thedeceased, Deonis, and the respondent lived together as husband andwife, or that they were treated as such by their relations, friends, and
1 (1848) 1 House of Loris 498.* (1881) S N. L. R. 322.
(1886) 7 8. C. C. 66.
(1882) 6 8. C. C. 9.
N. L. R. 8.
1 Br. App- A.
2 (1904) 91 L. T. 680.
» L. R. 1 A. C. 686.
L. R. 2 H. L. So. 2^9.
(1867) 1 Scotch Appeals 182 et
• (1900)»• (1872)
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neighbours. The respondent admits that her children adopted her IMS.jpatronymic or gi name and not that of Deonis. That would hardlyj,
have been the case if they had considered themselves the legitimate——
children of Deonis. The respondent's own witness, Don Siman, is•doubtful whether the respondent was looked upon as the wife ormistress of Deonis, and he says that the respondent never attendedweddings of members of Deonis’s family, and that her children neveraddressed the children of DeoniB’s brother as they would have donehad they considered themselves related to them. Her witness, DonOdiris, says: " Deonis’s relations knew Deonis was keeping (sic)this Punohihamy,” and that he heard Punehihamy’s childrenaddress Deonis’s brothers as “ Punchimahatmaytf,” “ Balamabat-anaya,” and " Balahamy.” There are other portions of the evidencefor the respondent that may, in this connection, be referred to, butthe facts mentioned above go a great way to negative the idea thatthe respondent and Deonis were living together as wife and husband.
Assuming, however, that cohabitation with habit and reputehas been conclusively established by one part of the respondent’s•evidence, it appears to me that the presumption arising therefromhas been satisfactorily rebutted by another portion of her ownevidence. In view of the respondent’s evidence to the effect thatthere was no marriage by registration, the only presumption that sheean contend for is a presumption in favour of a marriage according^to native rites and customs. The first question to be considered',then is whether such a marriage was permissible after the comiug '•into operation of Ordinance No. 13 of 1863, by which admittedly the jparties are governed. The 3rd section of Regulation No. 9 of 1822^and the 6th section, of Ordinance No. 6 of 1847 both, made registra-tion essential to the validity of marriages. These provisions, how-ever, were repealed by Ordinance No. 13 of 1863, and no provisionwas made in this Ordinance for rendering the validity of marriagesdependent upon registration; and in this connection, in Babina v.
Dingi Baba,1 Cayley C.J., in a judgment not actually delivered owingto his illness, but adopted by the Judges who constituted the Bench,is reported to have said:“ The intention of the Legislature that
registration should no longer be requisite for the validity of marriagescould hardly have been more clearly expressed than it is by repealingthe sections of the old enactments requiring registration and omittingto re-enact them in this amending Ordinance.” This judgment waspractically, over-ruled by a majority of the Court in the case ofAmmugam v. SeethampuUe* Fleming A.C.J. observing as follows:
It is not on the mere fact of registration that I lay any particularforce, although such may be an important item in the marriageprocedure, and the best evidence that a marriage has taken place;but what I do consider that the law requires in order that a marriagemay be validly contracted is either that parties should be married*'(1SSQ 5 5. C. C. 9.1 (1885) 7 S. C. C. 56.
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1913* at the office of the registrar or at a registered place of worship, or.t if they enter into the contract of marriage at any other place, that
_ they should do so in good faith, and not with a knowledge that they
J>unchihamy «e acting contrary to law.
The above apparently was considered to be the. effect of OrdinanceNo. 13 of 1863, as amended by Ordinance No. 8 of 1865.
In Valliammai v. Annamalai,1 Bonser C.J. observed: " There isno longer any enactment which says that a marriage where theformalities prescribed by the Ordinance are not observed is to be nomarriage at all.”
In D. C. Kandy 16,721 (Leembruggen’s Reports 76) the partiesto the alleged marriage contract had gone through “ some ceremonyon the nature of a marriage according to the native customs,” andthereafter they lived together as man and wife; and Wendt J. wasof opinion that a valid marriage had been established.
From the above and other decisions on the question involved,which I do not think it necessary to cite here, it is indeed difficultto say what the state of the law with reference to the validity of'marriages not duly solemnized and registered under the Ordinanceof 1863 was after the coming into operation of that Ordinance, asamended by the Ordinance of 1865. Whether such a marriage wasabsolutely void, or void only if the parties professing to contractit according to statute knowingly – and wilfully acquiesced in theirregularities, motioned in section 6 of the Ordinance of 1865. Formy part I am inclined to the opinion that, it was open to parties tocontract a marriage according to native rites and customs quiteindependently of 'the Ordinance, and that marriages contractedaccording to such rites and customs, which, of course, had to bestrictly proved, where necessity for the proof of a marriage socontracted arose, were not invalid by reason of the provisions of theOrdinances of 1863 and 1865 being disregarded. Obviously thepresent respondent can have no ground of complaint against mytaking this view. I may, in passing, mention that the Ordinances-referred to above were repealed in 1895.
As observed already, it is admitted that the present respondent -was not married to Deonie under the Ordinance. That, clearly,was what she meant when she said that the marriage was notregistered, and that she did not know why Deonis had not marriedher; but it is said that she has established a marriage by cohabitation,habit, and repute. “ Marriage by cohabitation, habit, and repute ”is an expression that I do not quite understand. No iparriage canbe contracted or constituted by cohabitation, habit, and repute.Evidence of oohabitation, habit, and repute merely gives rise to apresumption of marriage, and this presumption, as has been held innumerous cases, is a presumption that can only be displaced bymeans of strong and cogent evidence to the contrary. In the
» (1900) 4 N. L. R. 8. .
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present case whether the respondent was married to the deceasedis best known to her; the issue is framed whether she “ was lawfullymarried to the deceased she gets into the witness box to provethe affirmative of the issue; but she does not take upon herself tosay in plain language that she was married to the deceased accordingto native rites and customs. On the contrary, her evidence un-mistakably points to the fact that there was no such marriage. Shebegins her evidence giving full details of the circumstances in whichshe and the deceased began to live together, and it is manifest fromthese details that there was no ceremony, no native rite or customobserved to constitute them (the respondent and the deceased) wifeand husband. That being so, I consider that the presumptionarising from evidence of cohabitation and habit and repute (I havedealt with the question of the weight to be attached to that evidencealready) has been effectively rebutted.
The case of De Thoren v. The Attorney-General 1 has been cited bythe counsel for the appellant. In that case the parties concernedwent through the formal ceremonial of marriage, honestly believingthat there was no obstacle to their uniqn, but it subsequentlytranspired that there was at the time of the ceremony an impediment(since removed) that invalidated the marriage. In spite of thatfact, the Court, on evidence of cohabitation, habit, and repute,presumed a valid marriage, and, in effect, held that the presumptionwas not rebutted by the fact that the marriage ceremony, on thestrength of which the parties commenced to live together as husbandand wife, was ineffectual to constitute a marriage between them. Itwill, however, be seen that under the Scotch law mere interchange ofwhat was known as “ nuptial consent ” was sufficient to constitutemarriage, and that it was inferred from the circumstances thatsuch consent was interchanged as soon as the parties were enabled,by the removal of the impediment referred to above, to enter intothe contract. The Lord Chancellor said: “ Why should it not bepresumed from cohabitation with habit and repute that as soon asthat obstacle was removed, which it very shortly was, a consent wasexchanged between' the parties to the husband and wife? ” Theposition will be easily apprehended by a perusal of the case referredto by the Lord, Chancellor, namely, the case known as the Breadal-bane Case.3
For the reasons given above I would set aside the order appealedfrom, and in other respects allow the appeal.
This is an appeal from an order of the District Court of Mataraholding that one Punchihamy was entitled to letters of adminis-tration to the estate of one Deonis as his widow as against abrother of Deonis who had applied ior administration.
i L. R. 1 A. C. 686.* L. R. 2 H. L. Se. 269.
Perk Ira J.
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The only issue raised was whether Punchihamy was lawfullymarried to the deceased. The District Court held that the facteproved gave rise to a presumption in favour of Punchihamy, andappears to have been influenced by certain Scotch cases based onScotch law, under which a mutual agreement to many was the oneessential to a lawful marriage. Among the Sinhalese it appearscertain that some further formalities are required to constitute alawful marriage. It, therefore, becomes necessary to examine thefacts closely to see if there is sufficient evidence to leave room forthe presumption in favour of Punchihamy. There was cohabitationfor a period of some thirty or thirty-five years. Punchihamy ingiving evidence said that no marriage was ever registered, and theonly statement which gives the slightest indication that there mayhave been a marriage by native custom is her own statement thatafter the first child was bom she went and lived with Don Deonis athis mother’s house. It is clear, in my opinion, that the facts proveddo not give rise to a presumption of lawful marriage.
The children did not call Deonis's brothers uncles or by anyterm of relationship. The registration certificate of the birth of oneof the children produced in evidence states that the parents were notmarried. Punchihamy herself declared that all the children havetaken her patronymic or gi name, and not that of Deonis. Itappears also that the wives of the brothers of the deceased did notassociate with the woman on any terms of equality, and Punchr-hamy herself never attended the marriages of members of thedeceased’s family. I consider that these facts and the silence ofPunchihamy as to any kind of ceremony of marriage leave no roomfor any presumption in her favour; they are in fact clear andconclusive that there was no marriage.
1 would allow the appeal with costs.
GUNARATNA v. PUNCHIHAMY