. –v;.: -C. AMI/
BASNAYAKE, C.J.—Katchi Mohamed v. Benedict
1961 Present -: Basnayake, C.J., Gunasekara, J., and T. S. Fernando, J.KATCHI MOHAMED, Appellant, and A. F. C. BENEDICT(Inspector of Police), Respondent
S. C. 1169—M. C. Colombo, 42574/B
Marriage—Muslim marriage—Second marriage by htueband to a Roman Catholic—Bigamy—Marriage Registration Ordinance (Cap. 112), ss. 18, 64—Penal Code,a. 362B.
A married man who belongs to the Muslim faith at the time of his marriageand who subsequently marries a second time, under the Marriage RegistrationOrdinance, a person not professing Islam, while his previous marriage is sub-sisting commits thereby the offence of bigamy within the meaning of section362B of the Penal Code.
Appeal from a judgment of the Magistrate’s Court, Colombo.
Nimal Senanayake, for Accused-Appellant as amicus curiae.
D. St. G. B. Jansze, Q.C., Attorney-General, with V. S. A. PvMenaye-gum, Crown Counsel, and M. Hussein, Crown Counsel,for Complainant-Respondent.
Cur. adv. vult.
December 20, 1961. Basnayake, C.J.—
The question that arises for decision on this appeal is whether a marriedperson who belonged to the Muslim faith at the time of his marriage andwho became a Roman Catholic and married a second time while hisprevious marriage was subsisting has thereby committed the offence ofbigamy.
Briefly the facts are as follows :—The appellant who was a Muslim bythe name of Katchi Mohamed married Asiya Umma on 3rd March 1947at Mannar according to Muslim rites. They lived together till 1954.In that year he left Asiya Umma and on 18th November married FeliciaTherese Benedict at St. Lucia’s Cathedral, Kotahena. He went throughthe ceremony of conversion to Catholicism at St. John’s Church, Mutwal,about two months before his marriage. At and after that ceremonyhe assumed the name of James Merrial Gunaratnam under which namehe went through the second marriage ceremony. He described himselfas a bachelor and Ceylon Tamil.
B. 2372-2,033 (4/02)
BASNAYAJKE, C.J.—Kalchi Mohamed v. Benedict
The accused admits that he assumed the name of Gunaratnam becausehe was told that the priest would not perform the ceremony of marriageunless he changed his name. He also admits that he went to two churches,one at Kotahena and the other at Mutwal, and that he first went to thechurch at the latter place and that he was named Gunaratnam after hewent to the church at Mutwal. He stated that he was a Muslim even atthe time of the trial, the change of name and marriage in church notwith-standing.
It was submitted that under our law it is legal for a Muslim to havemore than one wife and that the appellant being a Muslim his secondmarriage did not constitute the offence of bigamy. There is no evidencenor was it contended that a Muslim cannot change his religion and becomea Roman Catholic. When a Muslim becomes a Roman Catholic he isno more a follower of the Prophet and does not thereafter enjoy therights and privileges of a Muslim. The moment the appellant became aRoman Catholic he ceased to be a person who was in law entitled to havemore that one wife and when he married a second time as a RomanCatholic he committed the offence of bigamy. The section under whichthe appellant is charged (s. 362 R of the Penal Code) reads—
“ Whoever, having a husband or wife living, marries in any casein which such marriage is void by reason of its taking place during thelife of such husband or wife, shall be punished with imprisonment ofeither description for a term which may extend to seven years, andshall also be liable to fine.
Exception :—This section does not extend to any person whosemarriage with such husband or wife has been declared void by a courtof competent jurisdiction, nor to any person who contracts a marriageduring the life of a former husband or wife, if such husband or wife,at the time of the subsequent marriage, shall have been continuallyabsent from such person for the space of seven years and shall nothave been heard of by such person as being alive within that time :
Provided the person contracting such subsequent marriage shall,before such marriage takes place, inform the person with whom suchmarriage is contracted of the real state of facts, as far as the same arewithin his or her knowledge. ”
Now the marriage of a person other than one who belongs to Islam isvoid by operation of section 17 of the Marriage Registration Ordinanceunder which law the appellant’s second marriage was solemnised, andwhich became applicable to him the moment he became a Roman Catholic.The appellant’s oral evidence, that he; divorced/his first wife in 1953 has.not been accepted and rightly too.
The appeal is dismissed.
GTJNASEKAJt A, J.—Katchi Mohamed v. 'Benedict
I agree that the appeal must be dismissed.
Mr. Senanayake advanced in support of the appeal an argumentbased on the definition of <c marriage ” in the Marriage RegistrationOrdinance1. In terms of this definition, unless the context otherwiserequires “ marriage ” means any marriage, save and except marriagescontracted under and by virtue of the Kandyan Marriage Ordinance,1870, or the Kandyan Marriage and Divorce Act, and except marriagescontracted between persons professing Islam. The word “ marriage ”occurs twice in what was section 17 and is now section 18 of the MarriageRegistration Ordinance. The section reads—
No marriage shall be valid where either of the parties thereto shallhave contracted a prior marriage which shall not have been legallydissolved or declared void.
It was contended by Mr. Senanayake that in each of the expressions “ nomarriage ” and “ a prior marriage ” the term “ marriage ” must beunderstood to ^exclude marriages contracted between persons professingIslam, and that therefore the second marriage was not rendered invalidby reason of the fact that it was contracted while the first was subsisting.
The Marriage Registration Ordinance is, according to its long title,
An Ordinance to consolidate and. amend the law relating tomarriages other than the marriages of Muslims and to provide for thebetter registration thereof.
It was necessary, therefore, that marriages of Muslims should be excludedfrom the operation of those provisions of the Ordinance that relate to thevalidity of marriages. Such provisions could relate only to marriagescontracted under the Ordinance, and the legislature excluded Muslimmarriages from their operation by the terms of the definition of “marriage”.It is manifest that when the Ordinance provides that “ no marriageshall be valid ” where it is contracted in certain circumstances the term“ marriage ” must be understood to exclude Muslim marriages. Thereference to “ a prior marriage ”, however, does not occur in a provisionrelating to. the requisites of such prior marriage or its registration andcannot be understood to contemplate only marriages contracted underthis Ordinance. In my opinion the context requires that in this express-ion the term “ marriage ” must be understood to mean any marriageand not any marriage except a Kandyan or Muslim marriage. I amtherefore unable to accept Mr. Senanayake’s contention.
We were invited by the Attorney-General to consider the effect of a
view that under the relevant Muslim Law a marriage is automatically
dissolved by apostasy. In my opinion the appellant’s own evidence and
the position taken by him both at the trial and in his petition of appeal
■ 1 "Cap.'95 of the 1938 edition of the Legislative Enactments, section 59 ;
Cap. 112 of the 1956 edition, section 64.
T. S. FERNANDO, J.—Kale hi Mohamed v. Benedict
render it unnecessary to discuss the question whether at the materialtime his “prior marriage ” had been dissolved by apostasy. Apart fromsome inadmissible hearsay, the only evidence adduced by the prosecutionon the question of apostasy was that of Felicia Benedict’s father, whosaid that the appellant “ was baptized about two or three weeks beforethe marriage ” and that “ the baptism took place at St. James’ Churchat Mutwal According to the appellant the effect of that ceremonyas he understood it was merely to change his name, and he did not atany time abandon the Muslim faith. The defence set up by him at thetrial and in his petition of appeal has been that he divorced his first wifein accordance with Muslim Law, and that being a Muslim he was in anyevent entitled to marry a second time while his first marriage was subsist-ing. There appears to be no reason why his evidence that he neverabandoned the Muslim faith should not be accepted.
T. S. Fernando, J.—
I agree with the judgment of my Lord, the Chief Justice, dismissingthis appeal for the reason that when the appellant married Felicia Benedicton 18th November 1954 under the Marriage Registration Ordinance,No. 19 of 1907, his previous marriage on 3rd March 1947 to Asiya Ummawho was alive on 18th November 1954 (and who is still alive) had notbeen legally dissolved. I desire only to add some observations in referenceto an argument addressed to us by Mr. Senanayake who appeared asamicus curiae in the absence of any counsel for the appellant.
Both the appellant and his wife Asiya Umma were persons professingIslam at the time of their marriage on 3rd March 1947, and their marriagewas registered under the provisions of the Muslim Marriage and DivorceOrdinance, No. 27 of 1929, an ordinance which applied only to subjects ofthe Sovereign professing Islam. In view of the definition of “ marriage ” insection 64 of the Marriage Registration Ordinance, the appellant and AsiyaUmma could not have had their marriage solemnized under the provisionsof that Ordinance. Although there is no legal impediment to a personprofessing Islam registering under the provisions of the Marriage Regis-tration Ordinance his or her marriage to a person not professing Islam, thequestion here is whether the marriage of the appellant to Felicia Benedictwas valid. Section 18 of the Marriage Registration Ordinance enactedthat “ no marriage shall be valid where either of the parties thereto shallhave contracted a prior marriage which shall not have been legallydissolved or declared void ”.
Mr. Senanayake, basing his argument on the definition of “ marriage ”in section 64 of the Marriage Registration Ordinance set out hereunder,viz.,
“ marriage ” means any marriage, save and except marriagescontracted under and by virtue of the Kandyan Marriage Ordinance,1870, or the Kandyan Marriage and Divorce Act, and except marriagescontracted between persons professing Islam ;
Seneoiratne v. Pertra
contended that the appellant had not contracted a “ prior marriage ** ■withAsiya Umma within the meaning of section 18 of the Marriage RegistrationOrdinance. It seems to me, however, that the expression “ marriage ”which occurs twice in section 18 does not bear the same meaning in eachinstance. What is, in section 18, declared not to be valid is a " marriage ”as defined in section 64; but a marriage in the expression “a prior marriage*’in the same section 18 is, in my opinion, not limited to a marriage asdefined in section 64, and the context requires that it be given its ordinaryand natural meaning and interpreted as denoting any legally recognisedmarriage. Otherwise, an acceptance of Mr. Senanayake’s argumentwould mean that whereas section 6 of the Kandyan Marriage and Divorce!Act, No. 44 of 1952, renders invalid a marriage between two persons!subject to the Kandyan law where one of the parties has contracted**®prior marriage which has not been lawfully dissolved or declared voMUthis consequence of the invalidity of the second marriage may be avoidby a Kandyan who has married another Kandyan under the KandyansMarriage Ordinance or the Kandyan Marriage and Divorce Act by thBisimple expedient of resorting to a registration of his or her second marriagelunder the Marriage Registration Ordinance.
KATCHI MOHAMED, Appellant, and A. F. C. BENEDICT (Inspector of Police), Responde