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KARONCfflHAMI v. ANGOHAMI et al.
D. G., Kandy, 6,563.
Marriage of persons living in adultery—Illegitimate children—Donation
—Gift to concubine—Ordinances Nos. 6 of 1847 and 21 of 1844.
A man After the death of his wife cannot lawfully marry a womanwith whom he had been living in adultery during the lifetime of his-wife ; and children procreated in adultery do not become legitimateby the subsequent marriage of their father and mother.
A gift to a concubine as such and in contemplation of thecontinuance of the concubinage may be set aside.
– Bastards not begotten in adultery or incest are not prohibitedfrom taking under their parents’ will or deed ; and since the passing-of Ordinance No. 21 of 1844 a father may leave all his property tosuch illegitimate children either by will or act inter vivos to theexclusion of his legitimate ones.
Held by Bonser, C.J., and Withers, J., dissentiente Lawrie, J.,that Ordinance No. 6 of 1847 does not contain the whole law ofmarriage in force in Ceylon, and that the Roman-Dutch Law is stillin force in certain respects.
An action to set aside a deed of gift on the complaint of its beinginoffidosa is barred after the lapse of three years under section 11 ofOrdinance No. 22 of 1871.
HE facts of the case are stated in the judgment of his Lordshipthe Chief Justice.
Domkorst, for appellants.
Wendt, for respondents.
Cur. adv. vult.
March 24 andOctober 7.
26th January, 1897. Bonser, C.J.—
The facts are shortly these. One Sinho Appu, who was marriedin community of property to one Babahamy, contracted an illicitconnection with the first defendant, and by her had during thelifetime of his wife two children, the second and third defendants.After his wife’s death, which happened oh the 20th January, 1883,he went through the form of/marriage with the first defendantand subsequently to this had two more children by her, the fourthand fifth defendants. He died on the '24th November, 1887,intestate, and the first defendant gave birth to the sixth defendanton the 2nd October, 1888, that is to say, 313 days after SinhoAppu’s death.
Sinho Appu on the 19th of April, 1880, his wife Babahami beingthen alive, by a deed of donation gave five parcels of land valued atRs. 4,980 to the first and third defendants, describing them asmy
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“ wife and her child.” The consideration for the gift is expressedto be an agreement by the donees “ that the said Angohami should“ be obedient to me and render me every necessary assistance.”
Angohami was to “ possess the land during her life, and after“ that the above said child and any other children which she may" bear after this, and their heirs, descendants, and administrators“ are empowered to possess the said land.” . The deed containeda statement by Angohami that she accepted the gift.
The first plaintiff is the only child of Sinho Appu by his wifeBabahami, and the second plaintiff is her husband. They seek tohave the deed of donation set aside as illegal, and to have it declaredthat the intestate and Angohami were not lawfully married.
On this state of facts the two questions arise, which were arguedbefore us:—(1) Do the defendants or any of them take anythingunder the intestacy of Sinho Appu ? (2) Is the deed of donationinvalid to any, and what, extent ? As regards the sixth defendant,her birth occurred at such a distance of time after the death ofthe intestate that it would be little short of a miracle if she werehi$ child. I am of opinion that the District Judge rightly heldher not to be his child. As regards the second and third defendants,it is clear that being “ procreated in adultery ” the subsequentmarriage of their father and mother, even if legal, could not availto render them legitimate (see Ordinance No. 6 of 1847, section 31).As regards the first, fourth, and fifth defendants, their rights inrespect of the intestate’s estate depend on whether the marriage ofthe intestate with the first defendant was a valid and legal one ornot. This raises this important question: Can a man after thedeath of his wife marry a woman with whom during the lifetime*of his wife he has been living in adultery ? For an answer tothis question we must have recourse to the Roman-Dutch Law,which was stated by the Privy Council in the Le Mesurier case(1 N.L. R. p. 160) to be undoubtedly the matrimonial law applicableto British or European residents in Ceylon. The reasoning ofthe Privy Council shows that in this matter there is no distinctionbetween British and European residents and the other residentsin Ceylon, for when there is no special matrimonial legislation,
if the Roman-Dutch Law appplies to European residents it mustso apply, in the absence of special legislation, to other residents..I had at 6ne time thought that inasmuch as Appu Sinho wasa resident in the Kandyan distriqt and the first defendant wasa Kandyan, the marriage might have been celebrated under- the Kandyan Marriage Act, in which case it would haveb£en valid; and the second and third defendants, although-
March 24 andOctober 7.
January 26.Bonser, C. J.
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January 26.Boioeb, C.J.
bom in adultery, might have been legitimatized by the subsequentmarriage. But it appears that the marriage was not in factcelebrated under the Kandyan Marriage Act, but was celebratedunder the general marriage law of the Colony.
It would appear that according to the old Roman-Dutch Law,following the Canon Law, such a marriage was not forbiddenunless a promise of marriage had passed between the guilty partiesduring the lifetime of- the innocent spouse, or unless they hadbeen guilty of an attempt against such spouse’s life. Subsequently,however, by a Placaat of the 18th of July, 1674, such marriageswere altogether forbidden, and even if contracted were to be nulland void, should it subsequently appear that the parties had beenguilty of adultery with one another during the lifetime of thedeceased spouse. Voet thus forcibly states the reasons for, andthe object of, this law: Cum et ipsa advlteria latebras queer aid, etdandestina soleat esse inter adulteros fidei matrimonialis interpositioinsidiceque ac machinationes in conjugis insontis pemiciem structceignotce scepe, scepius difficilis probationis, satius postea ordinibusHolandice visum fuit, edicto suo matrimonia hujuscemodi in universumdamnare atque vetare, ac re ipsa contracta pro nvllis habere, si fortecrimen (i.e., adulterii) initio matrimonii ignoratum, postea manifestumfiat; ut ita in adulterii crimen prolapsi deterreantur ab insdiis insontistruendis nullum post hanc legem triumphum habituris; aut, simaxime desint insidice, careant saltern dilecti mcechi mcechceve'consortio,nec libere licenterque illis fruantur amoribus qui suum non honestatised sceleri initium debent. (Comm, ad Pand. 23, 2, 27.)
The annals of crime unfortunately afford many instances whichillustrate the policy of such an enactment. This law did notbecome obsolete, for Vanderlinden, in his Institutes of Hollandpublished in 1806 (Juta’s translation, p. 19), states that marriagesbetween persons who had previously committed adultery were■ void, and that no dispensation could be granted. It was suggestedthat this part of the Roman-Dutch Law of marriage had beenimpliedly repealed by Ordinance No. 6 of 1847, and reference wasmade to the case of Abeyeralne v. Perera and three others(3 Lor. 235), where this Court held that ‘ the marriage of awidower with his deceased wife’s sister, which was illegal byRoman-Dutch Law, was lawful since the passing of that, Ordinance.But that decision went on the ground that the 27th sectionwas “ introduced to establish the entire law as to the prohibited“ degrees of relationship,” and that therefore the omission ofrelations by affinity in the enumeration of the prohibited degreesshowed that the Legislature intended to remove the previously
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existing prohibitions against intermarriage between persons relatedto one another by affinity, and to render such marriages legal.
That case is no authority for the proposition that every marriagenot expressly forbidden by the Ordinance is allowed, but ratherpoints the other way. It cannot be assumed that the Legislatureintended tacitly to abolish a provision so well calculated to proteotthe lives of innocent spouses and to discourage immorality. Norcan it be successfully contended that that Ordinance was intendedto comprise the whole law of marriage in the face of expressdeclaration in section 54 that “ this Ordinance does not profess to“ treat of or declare the whole law of marriage.”
March 2 i andOctober 7.
January 26.Bonseb, C.J.
Nor does the fact that section 31—which declares that childrenare legitimatized by the subsequent marriage of their parents—commences with the words “ from and after the notification in the“ Gazette of the confirmation of this Ordinance by Her Majesty,”lead me, as it does my brother Lawrie, to the conclusion that theLegislature were of opinion that the Roman-Dutch Law of legiti-mation per subsequent matrimonium was not in force in this Colony,when I observed that the prohibition of incestuous marriagesbetween fathers and daughters and of bigamous marriages are alsomade dependent on the confirmation by Her Majesty of theOrdinance, for I cannot conclude that the Legislature thoughtthat such marriages were then legal. I am therefore of opinionthat the so-called marriage between Sinho Appu and Angohamiwas altogether null and void, and that neither she nor the fourthand fifth defendants, who were bora during that marriage, areentitled to any share of the intestate’s estate.
I now come to the second question.
It is quite true, as pointed out by this Court in Parasattyummah.v. Sathopulle (Bam. 1872, p. 67), that by the old Roman Law theprohibition of gifts by husbands to their wives did not extend togifts by a man to his concubine. But this freedom was restrainedby the later Emperors.
Constantine appears to have prohibited all gifts or bequests to
concubines and natural children.
Justinian relaxed this rale, with the result that if a man had
legitimate children he could not give his natural children or
concubine more than one-twelfth of his property, but if he had
neither* children ascendents he could give all his property to them.
The Roman-Dutch Law did not acknowledge the condition ofconcubinage, and placed concubines and other abandoned womenon the same footing (Qrotius, Intro. 1, 12, 5), and whatever the
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Homan Law may have been, by the Roman-Dutch Law, accordingMOctober <lf‘ 40 ^an Leeuwen (Cens. For. 4, 12, 11), quicquid concubinis qua
talibus, inter vivos donatur, aut per vltimam voluntatem relinquitur,January 26, ^ ^ fanquam, a personis turpibus atque indignis auferri et revocariBonser.O.J* potest. The words “ qua talibus ” are emphatic. It is not every
gift to a concubine that can be taken from her, but only suchgifts as are made to her in her capacity as a concubine and incontemplation of the continuance of the relationship.
In the present case the gift is made on the express condition of.the continuance of the connection, and is thus differentiated fromthe case of Parasattv.ummah v. Sathopulle. At the same time Imust confess that I do not understand that case, which seems tohave been decided not on the Roman-Dutch Law or the later-Roman Law, but on the Roman Law as it existed before Christianitybecame the established religion of the Roman Empires.
I am therefore of opinion that the gift to the first defendant isone that could be set aside and recalled. As regards the secondand third defendants, although by Roman-Dutch Law illegitimatechildren born ex profiibito concubitu were prohibited from takingany benefit under their parents’ will beyond bare maintenance(Orotius, Intro. 2, 16, 6, and Vanderlinden, Juta, p. 58), yet,according to Van Leeuwen, pro adulteririis et ex damnato legibuscoitu natis non habentur qui ex conjugato et soluta noli sunt, andthe prohibition did not extend to them (Cens. For. 3, 4, 39). Thesecond and third defendants are therefore in the same position asthe fourth and fifth defendants. What then is the law withregard to the power of a father to make provision for his illegitimatechildren ?
By the Roman-Dutch Law if a parent disinherited his legitimatechildren they were entitled to a querela inofficiosi testamenti, butOrdinance No. 21 of 1844 abolished that right and gave a testatorfull power of disposition in favour of “ such person or persons not“ legally incapacitated from taking the same as he shall see fit.”
By the words “ legally incapacitated from taking the same ”I understand to be meant incapable of taking by bequest from thetestator in any circumstances. Now, Vanderlinden, Juta, p. 68,states the law thus : “ Bastards begotten in adultery or incest may“ not be benefited (t.e., by the parents’ will) with more than that“ which is required for their necessary maintenance. One may“ leave to other illegitimate children as much as one -pleases,“ unless one has at the same time legitimate children, in which“ case only a one-twelfth part may be left to the former.” Itwould appear from this that ordinary bastards were not legally
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incapacitated from taking under their parents’ will, whereasadulterine or incestuous bastards were.
The effect therefore of the Ordinance No. 21 of 1844 is to givethe father the full power to leave all or any part of his property tothe former class at all events.
March 24and October 7.
January 26.Bonbkb, C.J.
Then, is there any difference between a will and a donatiointer vivos ?
According to Vanderlinden, Juta, p. 125, a donation could beimpeached '‘when the donation is so excessive that the children“ are thereby prejudiced in their legitimate portion, in which case“the whole gift is not annulled, but only the pars inofficiosa,”and Grotius, Intro. 3, 2, 19, thus states the law on this head:—“ But if a person makes a donation to one of his children or a“ stranger whereby his estate is so reduced that his children will“ not receive the legitimate portion to which they are entitled from“ their father’s estate in spite of the last will, the children who are“ thereby prejudiced may have the donation set aside in the same“ way as they might have the will set aside, and no further.”
The remedy given by law to the children was the querelainoffidosce donationis, of which Voet says, In plerisque cuminofficiosi testamenti qucerela pari passu ambvlat, adeo ut abinterpretibus traditum sit statuta de inofficiosis testamentis quiddefinientia, etiam ad inofficiosas donationes in dubio producendaesse et merito; cum enim ad intervertendam inofficiosi testamentiquerdam nonenelli patrimonia sua donationibus exinanirent,.deinde ejus, quod restabat, hortionem legitimam relinquerent(Comm, ad Pand. 39, 5, 36). This shows the close connectionbetween the two remedies, and that they were both based on oneand the same right, viz., the right of the children to havetheir legitimate share of their parents’ property. Indeed, thefather, instead of being regarded as the absolute owner of hisproperty, was considered in some sort as a joint owner with hischildren, who might assert their rights after his death by thequerela inofficiosi' testamenti, and even in his lifetime by thequerela inoffieiosce donationis if these rights were endangered byimproper donations. Now that Ordinance No. 21 of 1844 has.abolished the right of the children to a legitimate portion, andwith it the querela inofficiosi testamenti, must not the corres-ponding querela inoffidosce donationis be denied to have beenimpliedly repealed ? In my opinion the maxim cessante rationscessat lex applies, and there is nothing now to prevent a fatherfrom making provision either by will or act inter vivos for hisordinary illegitimate children, even to the extent of leaving hislegitimate children penniless and dependent on charity for
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their daily bread. Whether this liberty extends to adulterine andincestuous bastards (aduUerini et ex damnato legibus coitu nati)it is not necessary now to decide.
As regards the sixth defendant no law prevents her from receiv-ing a benefit from the intestate, who was not her father. Butwhether I am right or not in holding that the querela inofficiositestamenti no longer exists, it is clear that it would not be availablein the present case. By the Roman-Dutch Law the querela musthave been instituted within five years from the death of the donor.That period under our present law of prescription would be threeyears. This action was not commenced till the 31st January, 1893,and the donor died on* the 24th November, 1887. I am thereforeof opinion that the deed of donation cannot be set aside, and thedefendants are entitled to the property comprised therein.
An important question is raised by the eighth issue, whetherthe marriage between Sinho Appu and the defendant was a validmarriage, cohabitation having commenced during the lifetime ofBabahamy (that is, during the lifetime of Sinho Appu’s wife).
It is my opinion that the law as to the constitution of marriagebetween natives of Ceylon marrying in the Island is regulatedby Ordinances which contain the whole law on the subject.
There are three legal disabilities which render sane partiesincapable of, forming the contract of marriage. These are: (1) a. prior existing marriage ; (2) want of age ; (3) being within the'prohibited degrees of consanguinity. The Ordinances dealexpressly with these three disabilities. It was argued that therewas a fourth disability, which is not’mentioned in the Ordinances.
I may support my refusal to approve of this addition to ourstatute by pointing out how necessary it is that this branch of thelaw should be expressly declared in enactments accessible to andknown by all. Other parts of the law may be left to experts, but itshould be within the power of every man to ascertain for himselfwhether he may or may not lawfully marry the woman on whomhe has fixed his regard. The Ordinances profess to tell him agreat deal. It is natural to assume that they contain all the law onthe subject, because there is no reservation or reference to someother unexpressed law.
I would not add a disability to those expressly declared byOrdinance, and in this I follow the reasoning and the’ruling ofthis Court in the case of Abeyeratne v. Per era and three others(July 21,1859,3 Lor. 235).
I do not need to rest my judgment on a denial that the Dutch
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Law of marriage errs. I am of the opinion that the Dutch did notimpose their Christian views or law of marriage on the nativepopulation. There are abundant proofs in the history and law ofthe Island to show that natives, whether Sinhalese or Tamil, werepermitted the exercise of their peculiar customs and laws.' TheDutch and Burgher inhabitants who were Christians could marryonly those whom the Law of Holland permitted them to marry,but the natives were left to their own ceremonies and to their owncustoms. Even with regard to Dutchmen and their descendantsin Ceylon the statute which prohibited the marriage of those whohad lived in adultery was not part of the common Law of Holland :it was a change in the law made after the Dutch took the sea-board. of Ceylon. We were not referred to any authority for the pro-position that .changes by statute in the Dutch Law after theColony was established affected the Colony. Certainly it is therule in Colonies, that though they have the English Law, as itexisted when the Colony was formed, subsequent Acts of Parlia-ment do not affect the Colonies unless they are specially named.
In this case the parties to the marriage were not only SinhaleseBuddhists, but they resided, and the marriage took place, in theKandyan Province, within which Dutch men and Dutch Law hadnever any hold or footing, until by an unhappy Ordinance in1852 it was declared that the law of the maritime provinces wasto be the law of the Kandyan Provinces wherever the KandyanLaw was silent.
The Kandyan Law was not silent. As to the capacity to marryin that direction it was liberal', and knew but few restrictions, andthe fact that the man and woman had lived together. beforemarriage, so far from being a disqualification, would I think bythe Kandyans have been thought a good reason for making thewoman an honest woman as soon as possible—an opinion I heartilyhold, notwithstanding the later Puritan legislation of the Hollanders.
I rest my judgment on this proposition that the whole law asto ability and disability to marry applicable to natives of Ceylonis to be found in our statute law; that the old common law,
. whether Dutch or English, or Tamil or Kandyan, or of any placeor race in the Island, has been repealed and abolished.
These Ordinances permit an unmarried man of full age andunderstanding to marry an unmarried woman of full age andunderstanding, who does not stand to the man within theprohibited degrees enumerated in the Ordinance.
Appu Sinho and the defendant fulfilled these conditions. MyOpinion is that the marriage contracted by them was a validmarriage, and I would so answer the question put in the eighth issue
. March 24andOctober 7 *1807.
January 26-Lawrii, J.
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' March 24and October 7.
I am of the opinion that the two children bom in the lifetimeof Babahamy are illegitimate, and that the child bom afterAppu Sinho’s death cannot be regarded as his.
I am of the opinion that that part of this action which seeksto set aside the donation of 1880 is barred by the 11th section ofthe Prescription Ordinance.
The plaintiff, both in the Court below and in the petition ofappeal, urged that the deed of 1880 was a last will. If it be, thencertainly it must receive full effect, unless by that will AppuSinho dealt with more than his half of the goods in communion.The Ordinance of 1844 gives full powers of testing, and as a willspeaks as at the testator’s death, there can be no objection to thedefendant and her children taking under it. She was not at thatdate living in adultery. Babahamy was then dead.
In appeal the appellant abandoned the contention that the deedof 1880 was a will. He maintained that it was a donation void obturpern causam.
It is trite law that a contract tending to promote fornication orprostitution is absolutely null and void, and if the donor in thiscase instead of making an irrevocable donation had given , a bond,a promissory note, or a security for the payment of money, thewoman could not have maintained an action on it; but a completeddonation is a different thing.
I am of the opinion that the donation to the illegitimate childrenmentioned in the deed is good, and that they are entitled to theshare of land gifted to them. With respect to the defendant, Ithink she must bring the land then given to her into hotchpotch.If she prefers to keep that land she must treat it as part of thehalf of the goods of her husband to which she, as widow, isentitled.
It seems to me that advances made to a wife and childrenbefore the husband’s death must be treated as an advance, aninstalment of part of the share of that to which they succeed inthe event of intestacy.
This defendant cannot object to being placed in the sameposition as a widow to whom an advance has, by deed, been made.
I would give to the plaintiff as her mother’s sole heir half ofthe estate, in which I would include the lands dealt with by thedonation, after taking from that land the share given to theillegitimate children.
Then I would divide the other .half in two : half to go to thedefendant as widow, half to the plaintiff and the children bomafter the marriage of Appu Sinho and the defendant (excludingthe posthumous child).
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Two questions come up for decision in this case: one relatingto an act of donation by the late Sinho Appu, the other relatingto rights of succession and inheritance to his property.
The first cause of action depends on the validity of the said aotof donation.
Is it invalid in whole or in part, oT not at all ?
The action, so far as this question is concerned, is of a kindknown to the old law as querela inofficiosce donationis. Thiscause of action arose on the death of the donor, and was given tothe legitimate heir, whose right had been affected by the dis-position of the donor.
The remedy was open to the injured party for five years afterthe death of the donor. It seems to me unnecessary to discussthe interesting-points of law which this matter involves, for it isclear that the remedy under this head is barred by our Ordinancerelating to the limitations of actions,.No. 22 of 1871.
The next question is, Gan the first defendant and the otherchildren or any of them take anything of Sinho Appu’s estatewhich he left undisposed of ?
Sinho Appu was a low-countryman by origin. What thedefendants’ domicile of origin was does not appear. Thoughresidents at the time of their alleged marriage in the CentralProvince, they were not married in manner and form requiredby our law in Kandyan marriages. There was the form pre-scribed by law for natives of the maritime settlements. Theirstatus is governed by the law of those settlements.
The two children born in adultery certainly cannot take any- •
thing, for the alleged subsequent marriage of their father andmother cannot operate to legitimate them (see section 31 ofOrdinance No. 6 of 1847).
Was the second so-called marriage one that the law recognizes ?Our local statutes do not help us. The Ordinance No. 7 of 1840deals only with prohibited degrees. It does not touch this case.
We must therefore have recourse to the Roman-Dutch Law.According to Vanderlinden, p. 19, a marriage between those whohave previously lived in adultery is absolutely void. Sinho Appuwas living in adultery with first defendant before their so-calledmarriage. It is therefore void. The children of that marriage beingbastards, they can take nothing ab intestalo from their father’s estate.
In- the result I am of opinion that the defendants are entitledto the property comprised in the donation. The cost of the trialof the above question and of the appeal to be borne out of theestate of the late Sinho Appu.
KARONCHIHAMI v. ANGOHAMY et al