018-NLR-NLR-V-69-K.-THIAGARAJAH-Appellant-and-P.-KARTHIGESU-Respondent.pdf
H. N. G. FERNANDO, 6.P.J.—Thiagarajah v. Karlhigesu
7S
1966 Present: H. N. G. Fernando, S.P.J., and G. P. A. Silva, J.K.THIAGARAJAH, Appellant, and P. KARTHIGESU,Respondent
S. C. 568/1963—D. C. BcUticaloa, 1909/Misc.
Jurisdiction—Action for a declaration of status as an unmarried man—Maintain-ability—Declaratory judgments—Limitations on the exercise of declaratoryjurisdiction of courts—“ Cause of action ’’—Civil Procedure Code, ss. S, 40,217 (O), 392 et seq.—Courts Ordinance, s. 62.
Customary marriage—Burden of proof.
A civil court has jurisdiction to make a decree or order declaring astatus. The maintainability of an action for declaration of status is clearlycontemplated in the definition of “ cause of action” in section 5 of the CivilProcedure Code, read together with the provisions of section 217 (G) of thesame Code and section 62 of the Courts Ordinance.
The plaintiff instituted action praying for a declaration that he was notmarried to the defendant. The defendant denied the status of the plaintiff asan unmarried man. The dispute was whether a valid ceremony of marriageaccording to the custom prevailing in their community took place between theplaintiff and the defendant.
Held, that the action was maintainable. Inasmuch as the dispute was alegal dispute concerning the status and rights of the parties, the declaratoryjurisdiction of the Court could be invoked. The jurisdiction of the Court tomake a declaration of status included the jurisdiction to declare the statuswhich the defendant denied.
Held further, that where the question at issue is whether a marriage wascelebrated according to custom, and the evidence shows that the parties ha7eneither cohabited for a single day nor even lived together under the same roof,there is no presumption in favour of their marriage. In such a case, proof ofmarriage depends solely on evidence to the effect that a valid ceremony ofmarriage was actually performed.
PPEAL from a judgment of the District Court, Batticaloa.
8. Nadesan, Q.C., with G. Ranganathan, Q.C., S. C. Grosseite-Thambiahand K. Tfievarajah,. for the plaintiff-appellant.
W. Jayeivardene, Q.C., with K. Kanthasamy and Mark Fernando,for the defendant-respondent.
Cur. adv. vult.
July 22,1960. H. N. G. Febnatjdo, S.P.J.—
This is an unusual action, probably one of first instance in our Courts,in which the plaintiff prays for a declaration that ho is not married to thedefendant. Reference to the facts is not necessary at this stage, for thefirst question is whether our Courts have jurisdiction to grant such adeclaration. – –
SBB 19611-1,914 (19/66)
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H. N. G. FERNANDO, S.P.J.—Thiagarajah v. Karthigesu
Section 217 of the Civil Procedure Code provides that “ a decree or
order of courtmay, without affording any substantive
relief or remedy, declare a right or status ”, and Section 40 of the Coderefers to an action “ to establish, recover or enforce a status ChapterXXV of the Code, which deals with the continuation of actions afteralteration of a person’s “ status ”, shows that the expression as used inthe Code regards the marriage of a woman as being a change of her status.If,a3 the Code contemplates, the change from being a femme sole to beinga married woman is a change of status, the change from bachelorhoodto the condition of being a married man is equally a change of status. Inthe former case, the change can affect the capacity in two ways, i.e. awoman’s right to property or her contractual capacity may be altered byreason of marriage, and also her capacity to contract a valid marriageis ordinarily limited by the fact of her subsisting marriage. In thelatter case, the capacity of a married man to contract a valid marriageis equally limited. In fact, the counsel for the defendant in appeal didnot seriously contend that the declaration sought in this case is not adeclaration of the plaintiff’s status.
Counsel’s principal argument was that this action is one for jactitationof marriage, i.e. to restrain a defendant from boasting that he or she ismarried to the plaintiff. (The plaintiff in this action has asked for thatvery relief in addition to the declaration which he claims). That actionwas a matrimonial action, which in England used to be entertained bythe Ecclesiastical Courts. But it is argued that such an action cannotbe entertained by our Courts, because the matrimonial jurisdictionreferred to in Chapter XLII of the Code does not include such an action.The omission to include such a reference was, it is argued, deliberate, andestablished an intention that our Courts should have no jurisdiction toentertain actions for jactitation of marriage.
I do not disagree with the argument that the action for jactitation ofmarriage is one within matrimonial jurisdiction, and no authority wascited to us which might indicate that the Courts in Holland or Ceylonentertained such an action. But the plaintiff in this case seeks alsoanother remedy, which is a declaration of his status as an unmarried man ;and the objections which I have thus far considered are not relevant tothe question whether the jurisdiction to make a declaration of status(the existence of which jurisdiction is clearly contemplated in Head G ofSection 217 of the Code) does or does not include the jurisdiction todeclare the status which the defendant in this case has denied.
Counsel for the defendant sought to draw an analogy between thepresent case, and that decided in 1860-1862 Ramanathceris Reports(page 133). This Court there held that it had no jurisdiction to .order therestitution of conjugal rights, on the ground that the Courts in Hollandwere not shown to have had 6uch a jurisdiction. The deoision was soexpressed, but what is its principle ? If the Courts of Holland did notmake orders for the restitution of conjugal rights, the reason was that the
H. N. O. FERNANDO, S.P.J.—Thiagarajah v. Karthiijenu76
substantive law governing the marriage contract did not compel a spouseto participate in marital relations, although the denial of marital rightmight constitute a breach of the contract. The principle is the same asthat which prevents a party to certain other contracts from enforcingspecific performance of the contract by the other party. If the law doesnot compel the specific performance, then equally the courts will notdecree the remedy of specific performance. In appropriate cases, thecourts have the duty to determine that the contract was not performed,but only for the purpose of exercising its jurisdiction to decree the reliefwhich the law allows for non-performance, which in most cases wouldbe pecuniary damages for breach of contract. Indeed there can be nodoubt that the Courts in Ceylon, for the purpose of deciding whether adecree of divorce or separation should be granted, do have the duty todetermine whether a party to a marriage has failed to perform his or hercontractual duties of cohabitation.
The suggested analogy between such cases and the present one is inmy opinion fallacious. For no question here arises of a Court makingany order inconsistent with substantive law governing contracts ofmarriage. Even if a court were to grant a positive declaration that A ismarried to B, the court would not thereby order either party to performconjugal duties. The question whether A is or is not married to B canarise for determination in several contexts, e.g. in a matrimonial action,in an action for declaration of title to land, in an action for defamation,in an action for injury caused to A or to B, and so on. In the instantcase, the plaintiff’s action for a declaration of his status calls for adetermination of that question, and it is the duty of the court to decideit, if there is jurisdiction to decree the declaration.
Counsel has argued that under our Code a person cannot institutean action unless he is able to plead that he has a cause of action asdefined in Section 5 of the Code. A similar argument was considered.inAziz v. Thondaman where the court apparently took the view that,because Section 217 (G) of the Code declares that a decree may ‘‘ declarea right or status ”, a person may therefore bring an action to have aright or status declared. The precise objection, based on the definitionof “ cause of action ”, was (I think with respect) not clearly formulatedin that judgment. The objection is that the definition does expresslyinclude the denial of a right, but makes no reference to the denial of astatus, and that therefore the denial of a status does not give rise to anactionable cause. The answer to this objection is that the definitionand the provisions of Section 217 (G) must be read together, andconstrued as far as reasonable so as to render both provisions effective.Inconsistency is avoided by the construction that, in the definition,“denial of a right ” includes the denial of a status. To deny a status caninvolve a denial of the legal rights flowing from such a status. To denythe plaintiff’s status of bachelor was to deny his right and his capacity
1(1959) 81 N. L.R.217.
76H. N. G. FERNANDO, S.P.J.—-Thiagarajah v. Karthigesu
to contract a valid marriage. A cause of action can therefore arise uponthat denial. Any other construction would render the provision for adecree or order declaring a status a dead letter, and would offend theprinciple of construction ut magis valeat quampereat.
The arguments of counsel were to some extent based upon the absenceof any precedent in the Courts of Holland for the grant of the particulardeclaration sought in this case, that A is not married to B. The lack ofsuch precedent can compel me to assume, even though the assumptionmay in fact be incorrect, that the courts of Holland had no jurisdictionto make such a declaration. But it is not to be further assumed thattherefore the Courts in Ceylon do not have that jurisdiction. Section 62' of the Courts Ordinance, which is only a re-enactment of the corres-ponding provision in Section 24 of the Charter of 1833, confers on
District Courts "original ” jurisdiction in all civilmatrimonial
matters, and in any other matter in which
jurisdictionis now or may hereafter be given to District Courts by
law ”. Section 62 had in contemplation the jurisdiction referred to inSection 217 of the Civil Procedure Code for a Civil Court to make a decreeor order declaring a status. It is significant, and decisive of this matter,that the date of operation of the Courts Ordinance, No. 1 of 1889,was 2nd August 1890, while the date of operation of the Code, No. 2 of1889, was 1st August 1890. The jurisdiction referred to in Section 217 (G)of the Code was thus in existence immediately before Section 62 of theCourts Ordinance came into operation. That jurisdiction now existsquite independently of the consideration whether or not it was recognisedIn the Roman-Dutch Law. And it is very nearly beyond argumentthat in conferring that jurisdiction, the Legislature of Ceylon intendedto adopt the English law contained in Order XXV Rule 5, of the EnglishRules of the Supreme Court 1883, to the following effect:—
“ No action or proceeding shall be open to objection, on the groundthat a merely declaratory judgment or order is sought thereby, and thecourt may make binding declarations of right whether any consequen-tial relief is or could be claimed or not. ”
That the modem declaratory judgment is in many jurisdictions theconsequence of adoption from the English Law has been stated in acomprehensive and very helpful study of numerous English cases byDr. Zamir of the University of Jerusalem. (The Declaratory Judgment1962). Section 217 (G) of our code amply confirms that statement sofar as Ceylon is concerned.
In Aziz v. Thondaman (supra), this court disapproved the opinion of thetrial judge that the granting of a declaration of status is not a matterwithin the discretion of the Court. That opinion I think with respectwas correct, not merely because it was in line with English decisions,but because those decisions demonstrate the danger and inconveniencewhich can result if a declaratory judgment can be claimed as of right.
H. N. G. FERNANDO, S.P..T.— Thiagarajah v. Karthigesu
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“ It seems to me that when the court is simply asked to make adeclaration of right, without giving any consequential relief, the courtought to be extremely cautious in making such a declaration, and oughtnot to do it except in very special circumstances. ”
(Grand Junction Waterworks Co. v. Hampton U.D.C. (ISOS) 2'Ch.331).
"The power of a court to make a declaration, where it is a question of
defining the rights of two parties is almost unlimitedTho *
discretion should of course be exercised judicially, but it seems to methat the discretion is very wide (Hanson v. E ad cliffc U. D. C.(1922) Ch. 400).
These two citations from judgments delivered in 1898 and 1922respectively show how sharply the attitude of the Courts in Englandtowards declaratory judgments changed within a short space of time.In 1953 (Barnard v. National Dock Labour Board1), Denning L.J. said“ I know no limit to the power of the court to grant a declaration, exceptsuch limit a3 it may in its discretion impose upon itself
The limits of the jurisdiction as laid down in English cases areclassified in Dr. Zamir’s book, and I shall freely borrow from it, in orderto refer to the limitation appropriate to cases like the one before us.
The declaratory jurisdiction can be invoked for the determination oflegal disputes, but not for disputes of a moral, social or political character.The dispute in the present case, whether a valid ceremony of marriagetook place between the plaintiff and the defendant, is certainly a legaldispute, because it concerns the status and rights of the parties.
Theoretical issues cannot be determined. “ The question must be areal and not a theoretical question ; the person raising it must have a realinterest to raise it ”.(1921 A.C. 438). If the right asserted by the
plaintiff is not denied by the defendant, or where there exists only thepossibility of a claim against the plaintiff or the possibility of the denialof his rights, the issue is only theoretical : so also where the facts inrelation to which a declaration is sought are hypothetical.
There are two other limitations on. the exercise of the declaratoryjurisdiction which have to be specially considered in this case. A personwho contemplates some course of action cannot seek a declaratory orderpronouncing upon the lawfullness of the proposed action, or upon therights which might be claimed or denied if and when he takes- theproposed action (Lever Brothers o. Manchester Ship Canal Co., at page 50-• of Zamir). Again a declaration will not be granted if it can be of nopractical consequence. Thus, where the plaintiff claimed a declarationthat they were entitled to an ancient ferry from point to point, thedeclaration was refused on the ground that no disturbance had beenproved of the plaintiff’s alleged rights.
1 U9S3) 2 Q. B. 18.
*•BB. 10011 (12/06)
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H. N. G. FERNANDO, S.P.J.—Thiagarajah v. Karlhigasu
Both such limitations might appear to be applicable in the present-case. The mere assertion that the plaintiff is married to the defendant,by itself, has no practical consequences, and it seems to follow that adeclaration to the contrary also will have no practical consequences.The plaintiff may have fears that the defendant may claim from himsuch personal or proprietary rights as may be accorded to a wife by therelevant law applicable in their cases ; but there has yet been no suchclaim, and if there is one, the dispute as to their marriage can then bedetermined. The plaintiff may fear that, if he now contracts a marriage,he may become liable to a conviction for bigamy ; but that liability canarise, nob because of the defendant's assertion, but because of the factsinvolved in the assertion which if they are subsequently proved will es-tablish the offence of bigamy. If in effect it is the plaint-ilf’s purpose toobtain from a civil court a declaration that will or may protect him fromfuture criminal proceedings for bigamy, that in itself might be sufficientreason for denying to him a declaratory decree.
The principle underlying the limitations just mentioned is a generalone, applicable to every exercise of a Court’s jurisdiction, and not onlyto the declaratory jurisdiction. It is stated thus by Allen (Law andOrders, 2nd Edition page 266) :—
It is a principle of our jurisprudence—and, it is to be supposed,of most systems of law—that courts will not entertain purelyhypothetical questions. They will not pronounce upon legal situationswhich may rise, but generally only upon those which have arisen.”
Since this principle is generally applicable, it must be presumed thatits requirements are satisfied when a Court enters a decree of nullity ofmarriage or of divorce. Taking in particular an action for a decree ofnullity ab initio, it must be presumed that there is a pending legal disputefor determination by the Court and that the decree when entered willhave practical consequences. But the point of the dispute is no differentfrom that arising in the present case, namely, “ was there a valid marriagebetween the plaintiff and the defendant ?”. Denning, L.J. (in Har-Shefi v. liar Shefi1 ) stated that the sole object of a suit fornullity was “ to obtain a declaration that what purported to be avalid marriage was in law a nullity The present action differs from asuit for nullity only because the plaintiff does not concede that there waseven the semblance of a marriage in his case. But the dispute is preciselywhether the ceremony relied on by the defendant as purporting to bea valid marriage, was valid according to customary law. Again, theconsequences of a decree of nullity ab initio are no different from thosewhich wifi flow from a declaration in the present case that the plaintiffand the defendant are not, and never were, husband and wife. Hence theprinciple, that the issue involved in litigation must be real and nothypothetical, must be held to be equally satisfied in both types of action.
(1953) 1 A. E. R. 7S3.
H. N. G. FERNANDO, S.P.J.—Thiagarajah v. Karthigesu
79
Consideration of this matter leads me to the opinion that, properlyclassified, a decree of nullity ab initio of a purported marriage falls withinthe categories of decrees declaring status. And since a person’s status,whether of bachelor, spinster or married person, so obviously affects hisrights and capacities, there is a reasonable presumption that a declarationof such status will have practical consequences. The same presumptionmay I think be invoked when the plaintiff in this action seeks a declarationof his status as a bachelor.
I would hold for these reasons that the District Judge rightly heldthat he had jurisdiction to grant the declaration.
The learned District Judge dismissed the plaintiff’s action becausehe reached a finding upon the evidence that the plaintiff and the defendantwere in fact married on 21st January 1959 according to the customapplicable to the community to which both parties belonged, namelythe Mukkuwa community of the Tamils of the Batticaloa District.
The plaintiff is a graduate teacher, and the only child of a teacher.The defendant is the daughter of a teacher. Both parties enjoy a highsocial status in their community on this account, and both parties arecomparatively speaking regarded as being affluent units in theircommunity.
On lGth January 1959, there was a meeting between the plaintiff,his father, the defendant’s parents, and one or two others, at which amarriage between the plaintiff and the defendant was arranged. Thedefendant’s father agreed to give as dowry a sum of Rs. 10,000 incash, and a land on which he agreed to erect a house of the value ofRs. 25,0000 or more, and two paddy fields. Actually, the erection ofa house on the land had already commenced at the time, but the majorpart of the building operations had yet to be taken in hand. Accordingto the plaintiff, the dowry included a motor-car of the value of Rs. 13,000;but according to the defendant’s father the arrangement was that hewould assist the plaintiff to purchase a car.
There is conflict as to the further arrangements made on 16th January.According to the plaintiff, it was arranged that on 21st January he andthe defendant should become formally engaged to each other, in tokenof which there would be an exchange of rings ; the notice of (prospective)marriage was also to be signed on that day and given to the Registrar ofMarriages ; the dowry deed was also to be sighed on the 21st. But the cashdowry of Rs. 10,000 was to be paid on the day of the marriage, and theerection of the house would also be completed before that day. Theactual date of the marriage was not fixed.
The de.'ence version of the events arranged for 21st January wassimilar to that of the plaintiff, but differed vitally in that (according tothis version) a marriage according to custom was to take place on thatday. It was arranged that the dowry deed for the land and paddy fieldswere to be signed on the 21st, but there was no arrangement as to thepayment of the cash dowry and no undertaking that the house would beerected within any specified time.
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H. N. G. FERNANDO, S.P.J.—Thiagarajah v. Karlhigcsu
The trial Judge has assumed, presumably upon the evidence of theactual events of 21st January, that the parties, and principally theplaintiff, had intended to contract a customary marriage on the 21st.But he did not attempt to test the truth of the two conflicting versions ofthe arrangement reached on January lGth by an examination of thoseversions themselves.
The plaintiffs evidence is that, very soon after the arrangements madeon the 16th, he received some disturbing information concerning thedefendant. For this reason he wrote a letter on the 19th to the defendant’sbrother in which he requested that the engagement ceremony, fixed forthe 21st, should be postponed. But the brother came and saw him andpersuaded him not to press for the postponement. He then withdrewhis request for the postponement, because at that stage the informationwhich he had was only a matter of rumour, and because in any event hewas only to become engaged, and not to be married on the 21st.
The defendant’s father admitted the receipt of a letter requesting apostponement of the ceremony arranged for the 21st. But according tohim the request was for a postponement of the marriage ceremony fixedfor that date. The letter, he said, had been handed to the defendant’sproctor, but he could “ not definitely say whether I can produce thisletter this afternoon ”, These statements were made by the witness onthe morning of 16th July 1962. When the trial was resumed that after-noon, the witness again said that the letter had been given to the proctor.But, in answer to a further question, he admitted that he had not askedthe proctor whether the letter was still available. It was not producedat the trial.
This letter would in all probability have either confirmed or rebuttedthe plaintiff’s evidence that what had been arranged for the 21st Januarywas only an engagement ceremony. If it did refer to an engagement,and not to a marriage ceremony, it would have shown at the least that,shortly before the 21st January, the plaintiff had denied an arrangementfor a marriage on that day ; and if so, the failure to refute in writing sucha denial made in a letter was significant. It is unfortunate that the trialJudge did not choose to infer that the defence withheld the letter becauseit must have contained evidence unfavourable to the defendant’s case.That inference can nevertheless be relied upon at the stage of appeal.
The trial Judge has noted in the record a statement of defence counselthat “ certain documents had been misplaced But even if this state-ment might show that the letter had been misplaced, it was open to thedefence to call the proctor as a witness to give secondary evidence of thecontents of the letter. As matters actually stood, the plaintiff’sevidence as to the contents of the letter was not contradicted by thebest available evidence.
H. X. G. FERNANDO, S.P.J.—Thiagarajah v. Karlhigesu
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Before referring to the grounds upon which the learned trial Judge heldthat the plaintiff and the defendant were married according to thecustom prevailing in their community, I must note one feature whichdistinguishes this case from many contained in our Law Reports in whichthere arose the question whether a marriage had been celebrated accordingto custom. The distinction is that the question there arose in relation topersons who claimed to have been husband and wife by habit and repute,and not (as in this case) to persons who have never lived together evenas man and concubine. In the usual cases “where a man and a womanare proved to have lived together as man and wife, the law will presume,unless the contrary be clearly proved, that they were living together inconsequents of a valid marriage, and not in a state of concubinage ”,
Arm.egary v Vagulie et al.1 In view of the evidence of cohabitationand repute, it was held in that case that it was wrong to place, on theparty asserting the marriage, the burden of proving the appropriatemarriage customs and the fact that the requisite ceremony wasperformed. But in the present case, the parties have neithercohabited for a single day nor even lived together under the sameroof. There is therefore no presumption in favour of their marriage,proof of which depends solely on evidence to the effect that a validceremony of marriage was actually performed.
In deciding what was the custom prevailing in this particularcommunity, the learned trial Judge has adopted the opinion of the .witness Pandit Periatambipillai which was
“ whether it be milk and fruit or rice and curry they are all mixed upand placed in the same vessel and both the he and the she who hadlived and grown up in two different homes partake of the meal thatis mixed up, the one and only meal and this is intended to achievethe oneness cf the he and the she. In other words it is the identityof one getting merged into the identity of the other. This is also whatis described as the identification of both in the sorrows andhappiness of one with the other.”
This witness appears to have created a very favourable impressionboth as to his learning and his credibility. It is fortunately not necessaryfor me to examine the credentials of the witness, which counsel for theplaintiff in appeal has quite properly attempted to attack. I am satisfied,on different grounds, that the evidence of this witness fell far short ofestablishing that a valid marriage according to custom did take placebetween the plaintiff and the defendant.
The witness admitted more than once that the essential element of acustomary marriage in this particular community is the Kalam ceremony,in which rice and seven curries are offered to the bridegroom ; it is inter-esting to note that this “ rice ceremony ” was accepted eighty years age
1 {1881) 2 N. L. R. 322 ( Pricy Council).
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H. N. G. FERNANDO, S.P.J.—Thiagarajah t>. Karthigesu
in the judgment of the Privy Council (2 N.L.R. 322) as being the essentialelement of a valid marriage, and that in a case from the District Courtof Batticaloa. The ceremony, according to the witness, is that the bride-groom mixes some rice with the curries, and first eats three mouthfullshimself; he then with his hands feeds three mouthfulls to the brideThe defendant’s father did state that this rice ceremony was performedbetween his daughter and the plaintiff ; but the trial Judge quite rightlydid not act upon that statement, for the unusually good reason that therewas not at the time any witness who could claim to have been present atthe rice ceremony and to have seen it performed. Since the performanceof this ceremony is the essential element of the marriage custom, it isincredible that it was performed in secret, without opportunity for invitedfriends and relatives to witness its performance if so minded. Thedefendant’s “ expert ” witness had often witnessed this ceremony, andindeed his qualification as an expert depended very much on the fact thathe had attended ;everal marriages at which the- rice ceremony wasperformed. Moreover, the trial judge has not rejected the evidence ofat least one reputable witness called by the plaintiff that the rice ceremonyordinarily takes palce in the view of invited guests.
The trial Judge should not in my opinion have been content with merelydeclining to act upon the evidence of the defendant’s father that therice ceremony V'as perfo:med. There were good grounds for him to find,in all the circumstances, that no rice-feeding ceremony took place.
The plaintiff’s evidence at the trial was given on 25th October 1960and on 17th January 1961. In regard to the lialam ceremony allegedto have taken place on 21st January 1959, the plaintiff was cross-examinedsolely on the basis that he and the defendant had jointly partaken of milkand fruit. No question was put to him suggesting that the rice ceremonyhad been performed. His evidence was concluded on 17th January 1961.
On 18th January 1961, during the cross-examination of a witnesscalled by the plaintiff to speak to marriage customs, it was suggestedmore than once to this witness that rice is not essential for the kalamceremony and that “ something like milk or something pure ” couldbe used instead. The same suggestions were repeated to the witnessduring the afternoon session. But a while later, defence counsel forthe first time suggested in his questions that the rice ceremony hadactually been performed between the plaintiff and the defendant in aninner room in the house..
It seems to me that the plaintiff was entitled to the benefit of thefact that, until the afternoon of 18th January 1961, it had not been thedefence position that the rice ceremony had been performed. Theinference which strongly arises is that the rice-ceremony did not in facttake place.
H. N. G. FEPvNANDO, S.P.J.—Thiagarujah v. Karthige&n
89
The plaintiff was subsequently recalled by the Judge and in answerto him denied that the rice ceremony had taken place. Thereafter,the defendant’s father asserted that it had. The trial Judge did notthink it necessary to consider who spoke the truth, and who the lie,on this point. If the circumstances to which I have just referred hadbeen taken into account, together with the unusual feature that therewas not available to the defence a single witness, not even the defendantherself or her father, who could testify at first hand to the performanceof the rice ceremony, it would have been a perfectly justifiableconclusion that the evidence of the defendant’s father on this point wasdeliberately false, and conversely that the plaintiff’s evidence was true.
By way of parenthesis I must here refer to defence counsel’s explunation to the Judge “ that by some over-sight perhaps he did not put itto the plaintiff. . .that there was a kalarn ceremony. .
meaning participation in rice and curry. . . . inside a room ”.One point has been established beyond doubt by the evidence in thiscase, namely that the rice ceremony alone would constitute a validmarriage between these parties. That being so, the plaintiff can rightlyask this court to presume that the fact of its performance should havebeen the vital and decisive question for determination at the trial ofthis action. The failure of the defence to raise this question, exceptbelatedly, must enure to the plaintiff’s advantage despite the expla-nation from the Bar, which quite properly was expressed in uncertainterms.
It is convenient at this stage to consider a matter to which 1 havealready referred, namely the omission of the trial Judge to consider thequestion of the intention which the plaintiff entertained when he cameto the defendant’s house on 21st January 1959, that is to say “ did be-come there as prospective fiancee or else as bridegroom”? Accordingto his evidence, he did not imagine that he could contract a valid marriageexcept by participation in the rice ceremony, and for the reasons I havestated he certainly did not participate in such a ceremony. As to thealleged symbolic and alternative participation in milk and fruit, he wasnot even asked in cross-examination whether he was aware, before liecame to the defendant’s house on 21st January 1959, that the arrange-ments fixed for that day contemplated any ceremony in which he woulddrink from some vessel and thereafter hand the vessel to the defendant.Nor was he questioned with a view to showing that he had been informedthat his marriage would be. solemnized, not by the know'll rice ceremony,but instead by some alternative ceremony, the validity of which couldif necessary be established by “ expert ” evidence in a court. Thereis no evidence that he was instructed in any way as to his part in suchan alternative ceremony, which would have been novel to him. Thefact that the rice ceremony was not performed on 21st January 1959,and the lack of evidence indicative of a prior arrangement to perforinan alternative ceremony of marriage, render reasonable and crediblethe plaintiff’s evidence that he did not intend to be married that day.
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H. N. G. FERNANDO, S.P.J.—Thiagarajah v. Karthigesu
It ia common ground that the “ financial ” transactions fixed for the21st was only the execution of a deed for the promised land and paddyfields ; these were valued in the deed at Rs. 9,000. Hence the partiesdid not contemplate that the cash dow ry of Rs. 10.0CO would be givenon that day, nor that any agreement would then be executed bindingthe defendant’s parents to fulfil their promise to erect a valuable houseon the land and to assist the plaintiff in th ■ purchase of a car. Indeedthe defendant’s father admitted that “ there was no talk as to wheDthe money (the cash dowry) should be paid
The defence version meant that, although the marriage was fixed forJanuary 21st, the plaintiff was content to rely on the bare word of thedefendant’s parents in regard to a very substantial part of the promiseddowry, and did not seek even an oral assurance as to the time whenthe promise would be perform: d. There is literally nothing in theevidence to indicate that the plaintiff w'as thus ready to marry in hastewithout troubling to eliminate possible causes for subsequent repen-tance. Indeed, I shall immediately refer to evidence which eliminatesthe possibility that the ordinary motive for a hasty marriage was presentin the mind of either of these two parties.
This alleged marriage was in fact not consummated. At one stage,the defendant’s father appeared to give the court the impression thatby some prior arrangement “ the marriage was to be consummated onlyafter the tying of the tali is gone through ” at some later time. But helater admitted that there had been no discussion of the question of theconsummation of the marriage. Since there had been no discussionof this delicate but important detail, one cannot understand why bothparties appeared to have readily assumed (this is obvious from theevidence) that they were not to live as husband and wife after theceremony which took place on January 21st. I
I need refer only to one other matter w hich is relevant to the questionwhether the plaintiff intended to be married on 21st January. Thedefendant’s expert witness stated that “ depending on the means of theparties concerned ”, the koorai and tali ceremonies take place on the dayof the marriage. There w'as in this case no tali ceremony. This omissionwas explained by the defendant’s father’s evidence that both sides hadearlier agreed to have this ceremony performed “ after the wedding ”,but without fixing even an appropriate date. At one stage of his cross-examination, the witness resiled from this position by stating there hadbeen no discussion as to the tali ceremony. A while later he revertedto the explanation of a postponement of that ceremony, stating that on9th January, the question was discussed and “ the plaintiff’s party werefin ling it difficult to have the tali made, and I suggested that I couldget that tali made ’ ’. This explanation was later expanded by the witness,when he stated that the plaintiff’s family were at the time unable to affordthe expense of buying a tali. He then proceeded to give evidence as
H. N. G. FERNANDO, S.P.J.—Thiagarajah v. Rarlhigent
86
to the means of the plaintiff and his parents, in an effort to support theallegation of their inability to pay for a tali. But he did admit that theplaintiff’s parents were possessed of several properties, and lie had earliermade the admission that “ both his parents and we are fairly well to do ”,
The trial Judge refers in the judgment to the explanation that thetali ceremony was not performed because the plaintiffs family did nothave at the time the Rs. COO or 700 necessary to procure a tali. Buthe did not consider the credibility of that explanation, and expressedno view as to its truth. Nor did he examine the truth of the assertionthat the question of the tali ceremony had been discussed and settledon 9th January. Had he examined that assertion in the light of therelevant evid< nee to which I have now referred, he would not have foundany reasonable grounds upon which to accept it as true. I am myselfconvinced in the circumstances of this case that, if the intention of theparties had been that the ceremony of a customary marriage should takeplace on 21st January, that tali ceremony would also have been fixedfor that day.
I have referred in detail to the matters relevant to the point whetherthe plaintiff came to the defendant’s house on 21st January with theintention of marrying her. There must be added to these the item thatthe truth of the evidence of the defendant’s father on this point is cast indoubt by the falsity of his version that the rice ceremony was in factperformed. There is also the consideration that the defendant herselfdid not enter the witness box to speak to her own state of mind. Theonly reasonable conclusion which the trial Judge could have reached onthis point, if he had considered these matters, is that the plaintiff didnot leave his home with any intention of contracting a marriage.
I shall now consider the crucial quest on decided by the trial Judgenamely that a ceremony did take place on 21st January which consti-tuted a valid customary marriage. He referred to the evidence that the“ bridegroom ” was brought to the “ bride’s ” house by the latter’selder brother ; the house of the defendant was decorated for the occasionand a canopy of white cloth had been erected ; on the arrival of theplaintiff the defendant’s father broke a coconut and the “ evil eye cere-mony ” was performed ; the plaintiff and the defendant garlanded eachother and sat together on a settee ; they exchanged rings ; a porcelainvessel containing milk and fruit was delivered to the defendant whooffered it to the plaintiff; the plaintiff took three sips from the vesseland returned it to the defendant who in turn took three sips ; thereaftera dowry deed was read over by a notary and signed by the partiesincluding the plaintiff.
It is the partaking in the manner stated above of fruit and milk whichthe Judge has held to have had an “ inner meaning ” and to haveconstituted the marriage ceremony.
so
H. N. G. FERNANDO, S.P.J.—Thiagurajah v. Karthigesit
The evidence of the defendant’s chief witness Pandit Periyathambi-pillai makes it quite clear that the Icalam, ceremony which had customarilybeen observed in this community is the rice ceremony performed in themanner I have already explained. But he stated his opinion that accord-ing to the sastras it is sufficient if fruit and milk is used instead of rice.The answers of the witness in subsequent cross-examination appear toindicate that his opinion is not supported by the writings he had in mind.But even if valid this was opinion evidence based on the witness’s inter-pretation of ancient writings. He was questioned further as to theinstances in which to his knowledge milk and fruit had actually beenused in the kalam ceremony instead of rice. His answers revealed thatduring the course of twenty five or thirty years he had noticed the useof milk and'fruit only on two occasions although he had been presentat over a hundred marriages.
One of the two occasions was a case where on the day of the marriagethe bridegroom’s party threatened to take away the bridegroom (andthus not to proceed with the arranged marriage). At this stage, accord-ing to the witness, he himself suggested an immediate second marriagebetween the two families, i.e. “ an exchange marriage ” between thebridegroom’s sister and bride’s brother. This emergency proposal madeafter midnight was proceeded with and the bridegroom’3 sister washurriedly brought from the house, knowing then for the first time thatshe was to be married. In this emergency the witness himself apparentlysuggested that milk and fruit, instead of rice should be served for boththe marriages.
The second instance according to the witness where fruit and milktook the place of rice was in 1940 but he attempted no explanationas to why a traditional rice ceremony was not performed.
The effect of the evidence of this witness surely is that custom asfollowed among this community in Batticaloa requires the performanceof the rice ceremony, and that in nearly every case to which he canspeak that ceremony was in fact performed, but that on two occasions,one of which had been of his own devising, milk and fruit took the placeof rice. Thus the use of milk and fruit even according to the witnesswas an exception to the traditional custom and in one at least of the twoinstances was resorted to in quite extraordinary circumstances at thewitness’s own suggestion. Two deviations from traditional custom arein my opinion quite insufficient to support the witness’s position thatin modem times young people are accustomed to follow the deviationrather than the tradition. In the first of the two instances, the deviationwas not made in consequence of the modern views held by young peoplenor in the present case is there any clue that either the plaintiff or thedefendant abhorred the use of rice or that milk and fruit are modem incomparision with rice. In fact, the defendant’s father could not evenattempt to explain why in this instance, fruit and milk were used as a
H. N. G. FERNANDO, S.P.J.—Thiagarajah v. Karthigesu
87
substitute for rice. The witness’s frequent admissions concerning theobservance of the rice ceremony contradict his own assertion that thecommunity has recognised any new custom.
The dowry deed P6 contains a recital that it is a conveyance to theplaintiff “as bridegroom” and the defendant “as bride”. Theacknowledgment which they signed in acceptance of the gift also refersto them as bridegroom and bride. This undoubtedly constitutes anadmission by the plaintiff that the marriage took place on 21st January.
The plaintiff explained at the trial that when the dowry deed wasread, he understood it to refer to a future marriage. He had given tnesame explanation in the letter P5 written by his Proctor to the defendant-on 26th May 1959. No reply to this letter w'as sent to the plaintiff.,and no satisfactory reason was given for the failure to reply. Therewas not even evidence that the plaintiff was ever requested to completethe alleged outstanding arrangements for the civil marriage beforethe Registrar and for the tali ceremony. The plaintiff’s denial in May1959 w'as not contradicted in writing nr by conduct until after theinstitution of this action in March I960.
The considerations just mentioned, and the matters with which 1have dealt in discussing whether the plaintiff intended to contract avalid marriage, are more than sufficient to rebut the effect of the apparentadmission in the deed P6.
During the argument of the appeal my brother suggested that theproceedings (if I may so term them) of 21st January 1959 had theappearance of a marriage ceremony, and that many of the events ofthat day would not have taken place on the occasion of an engagement.It w'as in view' of this feature, unfavourable to his case, that the plaintiff’scounsel proposed to produce certain love-letters alleged to have beenwritten by the defendant to a Sinhalese by the name of Mendis ;counsel proposed a line of cross-examination designed to show that“there was an alleged plan on the part of the defendant’s father to stagea milk-feeding ceremony and to incorporate in the dowry deed a termto the effect that the marriage had already taken place ”. This coursethe Judge did not permit, because in his view' “ what is really beforethe court is the nature of the ceremonies and other things that tookplace on that day ”. This statement confirms my clear impressionthat the Judge did not consider important or even relevant the questionwhether the plaintiff intended to contract a marriage. In the result,he presumed that intention because the ceremonies in his opinion consti-tuted a valid marriage, but he took little or no account of the severalmatters which (as I have tried to show) negatived that intention. Theinconsistency, that the plaintiff, who had no intention to contracta marriage, nevertheless participated in ceremonies which bore theappearance of a marriage, is explained in the submission of plaintiff’scounsel that the defendant’s father planned to stage a marriage ceremony.It is fortunate that this already long judgment need not include anypronouncement on the validity of that explanation.
12-Volume LXDC
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Jayasekera v. Sinna Karuppan
I am compelled for the reasons stated to reverse the finding of factof the trial Judge and to hold that the plaintiff is not married to thedefendant:—
(а)on the ground that the plaintiff did not intend to contract a marriage
to the defendant on 21st January 1959 ; and/or
(б)on the ground that a valid marriage between the plaintiff and the
defendant did not take place on that day, or at any other time.
The legal issues in this appeal are interesting and important, and thefactual issues have been at the least interesting. On both aspects,counsel for both parties he ve been of great assistance to the Court.
The decree appealed from is set aside, and decree will be entereddeclaring that the plaintiff is not married to the defendant. The decreewill order payment to the plaintiff of taxed costs in both courts.
G. P. A. Silva, J.—I agree.
Appeal allowed.