071-NLR-NLR-V-73-M.-A.-PATTISON-Appellant-and-KALUTARA-SPECIAL-CRIMINAL-INVESTIGATION-BUREAU.pdf
H. N. G. FERN AXDO, C.J.—Pattison v. Kaiulara Special Criminal 309
Investigation Bureau
1970Present: H. N. G. Fernando, C.J.
M. A. PATTISON, Appellant, and 1C ALUTARA SPECIAL CRIMINALINVESTIGATION BUREAU, Respondent
8. C. 715160—M. O. Kaiulara, 33775
Penal Code—Section 362B—Charge of bigamy—Burden of proof—Evidence Ordinance,s. 10S.
TlTioro, in a prosecution for bigamy, the dofonco of the accused is based onthe Exception to section 3G2B of the Penal Code, namely that the accused whocontracted a second marriage did not know that bis first wife had been alive atany time during the preceding seven years, the bunion is on Mio prosecution toprove knowledge on the part of tho accusod that his first wife had been alivewhen he contracted his second marriage.
ApPEAL from a judgment of the Magistrate’s Court, Kalutara.
No appearance for the accuscd-appcllant.
Kumar Amarasekera, Crown Counsel, for the Crown.
Cur. adv. vult.
September 4, 1970. H. N. G. Fernando, C.J.—
Tho appellant has been convicted on a charge of bigamy in respectof a marriage contracted by him in February 1900. His first wife,whom he had married in 1945, had in fact been alive in 1960, and shegavo evidence at this trial. According to her, she had lived with theaccused in her home at Dodangoda until 1952 ; at that stage, 6ho left theaccused and has since then lived with another man at Maharagaraawhich is 35 miles away from her own village; the people of her village,did not know where she resided, and letters addressed to her at hermother’s house were not delivered to her; 6he herself had never seen thoaccused after tho separation in 1952.
'400 H. X. G. KEKXA.XDO, C.J.—Buitiscn v. Kaluiara Special Criminal
Investigation Bureau
The second wife testified that- the accused informed her before thesecond marriage in 1960 that he had previously been married. Thi3information was conveyed to the Registrar, who suggested to the accusedthat he furnish an affidavit- in terms of the Exception to s. 362 B of thePenal Code. The accused then furnished the affidavit Dl, in which hoaverred the fact of the former marriage and separation ; and statedthat he did not know whether his first wife was alive, and had beenunable to trace.her whereabouts.
The accused gave evidence at the trial to the effect that ho had madeinquiries for his first wifo from her mother and others in her village.Tho mother had told him that she herself did not know the whereaboutsof the first wife. This evidence as to the mother’s statement 6tooduncontradicted. It is not hearsay, because the accused relied at thetrial, not on the truth of the mother’s statement-, but on the fact thatslie made it.'
. In rejecting the defence based on tho Exception to s. 362J3, the learnedMagistrate holds “ Here is_a person who accordingly to his own affidavit.Dl had stated that his wife separated from him of her own will.Subsequently, he makes rather futile attempts to search for tho wife.The defence has not placed before this Court any evidence that the wifeof the accused was continually absent, for.a space of seven years, andthat she was not heard of as been alive within that time ”.
The terms of the Exception to s. 362B require proof of two matters ;—
that at the time of the subsequent marriage the first wife had been
continually absent from tho accused for the space of sevenyears ; and
that the first -wife had not been heard of by the accused as being .
alive during the seven years.
The first wife’s evidence clearly established tho first matter, namelythe simple fact that she had been “ absent from tho accused ” eversince 1952. If, as she and the accused both stated, the two had neverbeen together or. even seen each other between 1952 and 1960, then shehad obviously been “ absent from the accused ” for the eight years.The learned Magistrate misdirected himself when he thought thatthere was no evidence of this simple fact of “ absence " for seven years ;what had to be proved was “absence from the accused, and not absolutenon-existerce.
As to the second matter, the Magistrate’s opinion is that the accusedhas." placed no evidence that the first wife was not heard of as beingalive ”, after 1952. Involved in this opinion is a misdirection in law
401
H. X. G. FERXAXDO, C.J.—Pattison v. Kalutara Special Criminal
. . Investigation Bureau
for here also the matter to be established is only that she had not been. heard of as being alive by the accused. The Exception docs not requireproof that the former wife had not been heard of as being alive even byother people.
It’appcars that the Exception in our s. 362B was based on the Provisoto s. 57 of the English Offences against the Person Act of 18G1, whichpermits a similar exception to a charge of bigamy, namely that theaccused who contracted a second marriage did not know that his firstwife had been alive at any time during the preceding seven years. Inthe case of R. v. Curgertcen1 the question whether the burden of provingthis lack of knowledge lay on the accused was specially reserved, andwas decided by a Bench of five Judges. Their decision was that *'it iscontrary to the general spirit of the Eng'ish law that the prisonershould be called on to prove a negative The acquittal of the prisonerwas upheld because the prosecution had not proved knowledge on hispart that his first wife had been alive when he contracted his secondmarriage. The harshness, and even the absurdity, of any other view isdemonstrable. If, as in the instant case, it turns out- that a man’sfirst wife was in fact alive when he contracted a second marriage, proofthat no one knew of that fact would be impossible unless the -wife hadled a hermit’s existence.
Section 10S of the Evidence Ordinance provides that when a personhas not been heard of for seven j’ears by those who would naturallyhave heard of him if he had been alive, the burden of proving that he isalive is shifted to those who affirm that he is alive. In the instantcase, the accused did make.inquiries from the first wife’s mother andpersons in her village, and according to the available evidence thoseinquiries did not reveal that she had been heard of during the sevenyears preceding February 1960 by persons who would naturally haveheard of her. Hence, if the question whether she was alive had arisen ina Court of law in February 1960, s. 10S- would probably have operatedto place the burden of proof on the part)' who affirmed that she wasalive. Tho operation of s. 10S illustrates the reasonableness of the rulingin R. v. Curgertcen.
The accused in this case proved his good faith by disclosing the factof his former marriage both to the intended second wife and to theRegistrar. In fact the Registrar advised him to contract the secondmarriage. In these circumstances, it is pleasing to know that- the lawaccords with St. Paul’s advice that “ it is better to marry than to burn ”.
The appeal is allowed, and the accused is acquitted.
Appeal allowed.
* (IS66) 1 O. O. R. I.