033-NLR-NLR-V-24-MAMPITIYA-v.-WEGODAPELA-et-al.pdf
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Present: Bertram C.J. and Ennis J.
MAMPITIYA v. WEGODAPELA et at.
293—D. C. Kandy, 27,829.
Kamlyan law—Regislered diga marriage—Bride continuing to live inmulgedera—No forfeiture of rights to paternal property—Meaningof " best evidence."
A Kandyan woman whose marriage was registered as a digamarriage, but who- continued to live in the mulgedera, was heldnot to have forfeited her rights in the paternal estate.
Bertram; C.J.—As between, or as against the parties, or theirrepresentatives ininterest, theregister of themarriage is conclusive
' of the intentionwith whichthemarriagewascelebrated, unless
the case is shown to be one of mistake or fraud, or can otherwise bebrought within the equitable exceptions of section 92 of the EvidenceOrdinance. Persons not parties, however,arenotboundbythe
register, but areentitled toshowthat thetruecharacter of the
marriage was not ih fact such as it is represented to be ….
11 By contracting a marriage in diga, in which the bride's familyparticipated, the parties bound themselvestoeachotherandthe
family that thebride should beconducted inaccordance with
custom, and should settle in the home of her husband. But if this,for whatever reason, was not done, and, if with the acquiscence ofher family, the bride remained in the mulgedera, then the forfeiturewas never consummated."
“ A diga marriage ceremony does not' of itself work a forfeitureirrespective of the subsequent action of the parties."
Ennis J.—Ibe forfeiture of the bride’s rights in the paternalestate turns on the question of fact, whetherthebrideleftthe
paternal home in accordance with the contract. In the absence ofevidence there would be a presumptionthatthetermsofthe
con'fract relating to residence had been carried out, but I see nogood reason for excluding oral testimony relating to the carryingout of this term of the contract, which was not a matter of factoccurring at the time of the contract.
HE facts are set out in the judgment of the Chief Justice.
Bawa, K.C. (with him E. W. Jayawardene and Amarasekera), forthe appellants.
H. J. C. Pereira, K.C. (with him Samarawichreme), for therespondents.
June 20, 1922. Bertram C.J.—
The question at issue in this case is whether the daughter of aKandyan family, who had married in diga, has in fact incurred theforfeiture, which such a marriage admittedly implies.
The bride’s family, which was one of some position, residednear Kandy. That of the husband, .which, though respectable, was
1 nn.i n^on/litm nn/1 1 ac
l^tln/1 nAA»
1982.
AO
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Ifttt. The lady’s father was dead, and the head of her house was herpwrT.w brother, the present plaintiff. The bridegroom was, at the time,CJ. a pupil at Trinity College, Kandy.
Mampitiya The marriage is registered as a diga marriage. Both partiesWcgodapela 8ave notice of the marriage on this footing. Both, in the presenceof witnesses, signed the register in which the marriage was formallydeclared to be in diga. But the learned District Judge, upon aconflict of evidence, has found in effect that the bride was never infact formally conducted tp her husband’s house; that she continuesto live in the mulgedera, where her first two children were boroand brought up; that she did not go to hev husband’s home, except,possibly for a visit, during the early days of her married life, andalso for a few months at a later date, during a period in which therewas a family estrangement, and in which her third child was bore-at her husband’s old home. During this absence the other childrenof the marriage remained with the wife's family. Apart from this,though her husband was from time to time living away from herin the discharge of minor official duties, she lived first at themulgedera of the family, subsequently at a neighbouring walauwapurchased by her brother, and afterwards again at the mulgedera,and (apart from the period of estrangement above referred to) shenever at any time cut herself off from the family circles.
The learned “Judge’s finding would no doubt have carried moveconviction, if the evidence of the husband had been supportedby that of the wife. But the wife, who was of all persons bestqualified to teil the story, was not called. The learned Judge,however, had to decide upon the material before him. He hadample grounds for the conclusion to which he came, and 1 do notthink that we should be justified in questioning, nor am I myselfdisposed to question, its correctness.
As to the nature of the marriage now in question, there can beno doubt. A marriage is a consensual contract.- If. there is anyquestion as to whether any particular marriage has a particularcharacter, that is a question of the intention of the parties. Theregistration, signed by both parties, declares it to be a marriagein diga. Section 39 of the Amended Kandyan Marriage Ordinance(No. 3 of 1870) enacts that the entry in the register shall be the “ bestevidence ” of the marriage contracted and of the other facts statedtherein. The expression “ best evidence ” is used in the sensewhich belongs to it in English law. It is of the essence of ’* bestevidence ” according to English law that it excludes all evidenceof an inferior character. The intention of the parties must, therefore,be ascertained by reference to the marriage register.
We have, however, to consider the effect of the cases in whichit has been decided, or observed, that the register is not necessarilyconclusive. Those cases are as follows:—Ukku v. Ktribanda,'
1 {1902) 6 N. L. R. 104.
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Bam Etana v. Nektrppu,1 Dingiri Hamy v. Mudali Hamy,* Sinno c.Appuhamy,3 Kiri Banda v. Silva * Dullewe v. Dullewe.* Two of thosecases, namely, Ram Etana v. Hekappu and Dullewe v. Dullewe (supra),were merely cases of obiter dicta, as the register was in the resulttreated as correct. The others were all cases in which the registeredmarriage took place many years after the original marriage cere-monial, and where it' seems to have been suggested that the parties,for reasons of their own, had misrepresented the character of theirlegal union.
As I understand the effect of the enactments and the cases, it isas follows: As between, or as against the parties, or their respectiverepresentatives in interest, the register of the marriage is conclusiveof the intention with which the marriage was celebrated, unlessthe ease is shown to be one of mistake or fraud, or can otherwise bebrought within the equitable exceptions of section 92 of theEvidence Ordinance. Persons not parties, however, are not bound.by the register, but are entitled to show that the true characterof the marriage was not in fact such as it is repi'esented to be.
No question of this sort arises here. The plaintiff does notchallenge the register; he insists on it. As to the parties to themarriage, their status and education preclude any idea that they,did not fully understand the effect of their own proceedings.
We start, therefore, with the conclusion that the marriageactually celebrated, according to the intention of the parties (audthose connected with them), was a diga marriage. The question,-therefore, arises: Does the mere celebration of such a marriage ofitself work a forfeiture, or is it necessary for this purpose that thebride should leave the house of her parents and settle in that ofher husband?
This is an important question. Singularly enough there appears■to be no direct authority on the point. I can find no case which iscertainly a case of a daughter formally married in diga, who fromthe inception of the marriage continued to live in the mulgedara, andwho was held (or not held) to have thereby retained her rights ofinheritance.
But there are certain obiter dicta bearing on the point, which areof the highest weight and importance. These dicta are as follows
(a) Per Lawrie J. in Kalu v. Howwa Kiri 0 at page 55: —
‘ ‘ The Ordinance now gives privileges to those who register theirmarriages, and especially to their children; but the lawas to the rights of daughters married in binna or in diga hasnot been changed, and the. old disability still attaches tothe act of being conducted from a father’s house by a manand the going with him to live as his wife in his house.**
1W.
Bebibam
c-r.
Mamptiiya
v.
Wegodapela
» [1911) 14 N. L. B. 289.* [1912) 16 N. L. B. 61.
311918) 1 Bat. N. C. 80.
(1913) 1 Bal. N. C. 83.
(1913) 1 Bal. N. C. 85.
[1892) 2 C. L. B. 54.
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192C.
Bertram
C.J.
Mampitiyn
v.
Wegodapela
Per De Sampayo J. in Menikhamy v. Appuhamy 1 cited i*>Modder’s Kandyan Law, p. 431:—
” It is ‘ the going out in diga ’ that works the forfeiture; that is tosay, the woman should be conducted by or go out tolive with a man as his wife. (Kalu v. Howwa Kiri (supra) )
…. But the forfeiture under the Kandyan law was
not based upon any circumstance of disgrace to the family,but rather upon the primitive idea of severance of familyties involved in a' woman going out, and becoming as itwere, a member of the" husband’s family. The principle isnever to admit a forfeiture unless the law is very clearon the point.”
Per Wood Renton C.-T. in Punchi Menike v. Appuhamy zat page 354: —
" The general rule undoubtedly is that when a woman marriesin diga, that is to say, when she is given away, and is,according to the terms of the contract, conducted fromthe family house, or mulgedera, and settled in that of herhusband, she forfeits her right to inherit any portion of herfather’s estate. But this forfeiture was an incident, not somuch of the marriage, as of the quitting by the daughterof the parental roof to enter another family.”
Per De Sampayo J. (Ibid., p. 358):—
” The point to be kept in view in all cases, I think, is that theessence of a diga marriage is the severance of the daughterfrom the father’s family, and her entry into that of herhusband and her consequent forfeiture of any share in thefamily property.”'
Both these last two dicta are cited and re-affirmed by WoodRenton C.J. in Fernando v. 'Bandi Silva.3 Such weighty andconsidered pronouncements by such eminent authorities, thoughdelivered obiter, can hardly fail to be decisive. I think, therefore,that we must take it to be the law that what works the forfeiture,is not the ceremony, but the severance. No doubt by contractinga marriage in diga, in which the bride’s family participated, theparties bound themselves to each other and the family that thebride should be conducted in accordance with custom, and shouldsettle in the home of her husband. But if this, for whatever reason,was not done, and, if with the acquiescence of her family, thebride remained in the mulgedera, then the forfeiture was neverconsummated.
This view of the law is confirmed by two circumstances. Thefirst is this: If a woman, without any legal marriage, leaves hermulgedera and settles in the home of a man, in a relationship of the
1 (1913) C. R. Ratnapura, 12,653.* (1917) 19 N. L. R. 353-
» (1917) 4 C. W. R. 9.
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sarofe nature' as a diga marriage, she thereby forfeits her right ofinheritance. (See Modder, p. 244, Kalu v. Howwa Kiri (supra) );and the other cases ‘felted under the same paragraph.) The second is,the circumstance that if a woman, duly married in binna subsequentlywithout any formal ceremony, or change in the registration, leavesher mulgedera and settles in the home of her husband, this of itselfworks a forfeiture. (See Modder, p. 247, and the MadawalatennaCase, Marshall, p. 329 ) It is also significant that if a daughtergoes out in diga of her own accord, that is to say. without ‘beinggiven away by any member of her family, the forfeiture is none theless affected. (See Meera Saibo v. Punchirala 1 and Bam Etana v.Nekappu (supra).) Forfeiture may, therefore, arise irrespective ofany formal marriage ceremony.
Mr. Bawa feels the force of these considerations, and endeavoursto meet it by the suggestion that though a severance from the mul-gedera itself works a forfeiture, yet, since the introduction of theregistration 'of marriages, an alternative method of effecting thesame result has been thereby introduced, and that now registrationof a diga marriage of itself also works a forfeiture. This contentionis no* supported by authority, and is in conflict with the view of thelaw laid down in the* authoritative dicta above cited.
We have also the analogy of the numerous cases where it has beenheld that if a daughter, under the requisite conditions, is receivedback in the mulgedera, or re-establishes a close connection with themulgedera, she may regain her binna rights. (See Punchi Menika v.Appuhamy and Fernando v. Bandi Silva (supra).) If, under certaincircumstances after celebrating and consummating a diga marriage,she may regain binna rights, surely a fortiori under appropriateconditions she may also retain them. -Indeed, in one particularclass of case, a retainer of binna rights has been allowed. It is wherea wife married in binna, subsequently goes away to her husband’shouse in diga, bqt leaves behind her a child of the marriage in themulgedera. This is held sufficient to preserve her binna rights.(See the Madawalatenna Case (supra).) Indeed, there are two casesin which a woman formally married out in diga retained from thebeginning her rights of inheritance, simply by leaving in the mulgederaa child, who was the. offspring of a former union. This unionwas in the one case illegitimate, in the other a previous binnamarriage. (See Uklcu v. Pingo 2 and Tikiri Kumarihamy v. LokuMenika.2) These two cases are, indeed, decisive that a diga marriageceremony does not of itself work a forfeiture irrespective of thesubsequent action of the parties.
With regard to the facts in the present case, the parties do notappear to have been conscious of the effect of their acts or omissions.The status of the wife never seems to have come into question.
1 (1910) 13 N. L. R. 176.* (1907) 1 L. L. R. S3.
3 (1875) Ram. 1872-76. p. 106.
1022.
Bebtium
C.J.
MarppUiya
v.
Wegodapela
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*88.
Bbbtram
0-J,
Mampitiya
v.
Wegodapela
Some of the acts and letters of her husband, as Mr. Bawa truly says,are not such as we would expect from a husband who consideredhimself settled in his wife’s household in binna. It is not tillquite recently that the couple woke to the idea that they had binnarights, and, as a result of this discovery, they have sold the wife’sshare in the ancestral walauwa, inherited by her brother, to aColombo proctor. This is from the family point of view an unfortunatesituation, but the fact remains that no effective step was ever takento bring about a forfeiture of the wife's interest.
I am of opinion, therefore, that the decision of the.learned DistrictJudge was right, and that the appeal should be dismissed, with costs.
Ennis J-—
In this case the plaintiff claimed a declaration of title to certainland against his sister, the second defendant, and her husband, thefirst defendant. The laud originally belonged to one Loku Kumari-hamy who, in 1863, gifted it to her son Tikiri Banda. Tikiri Bandadied in 1886, leaving a widow, a son (the plaintiff), and two daughters,the second defendant and another.. The plaintiff claims title outhe ground that the second defendant was married in dUja.
There were only two issues in the case: —
Was the second defendant married in diga ?
If so, did she thereby forfeit her rights to succeed to her
father’s estate?
It appears that the defendants were married on June 3, 1904.They severally gave notice of marriage (P 15, P 16). in which eachdeclared that the marriage was to be in diya, and the register ofmarriages sets out that the marriage was in diga.
Section 39 of the Amended Kandyan Marriage Ordinance, No. 3 of1870, enacts that: —
“ The entryin the register of marriages ….
shall be the best evidence of the marriage contractedand of the other facts stated therein. If it doesnot appear in the register whether the marriage wascontracted in binna or in diga, such marriage shall bepresumed to have been contracted in diga until thecontrary is shown.”
At the time of the enactment of the Ordinance, the English Dawof Evidence was in force under the Ordinance No. 3 of 1846, andsection 39 of the Ordinance No. 3 of 1870 was not affected by theEvidence Ordinance, No. 14 of 1895. The effect of the English rule,that the best evidence must be produced, was the exclusion of oralevidence where documentary evidence could be produced.
In the present case there can be no doubt that the parties intendedto enter into a diga marriage, and did contract a diga marriage atthe time the entry in the register was made, and, in my opinion,
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the register must be conclusive of that fact, but the question stillremains as to whether the bride thereby forfeited her rights of herfather’s estate.
In a series of cases, where a question of forfeiture was involved,evidence has been allowed to show that a marriage described in theregister as a binna marriage was in fact a diga marriage. On exami-nation these cases all appear to be cases in which the ceremonyof marriage, according to Kandyan custom, was gone through manyyears before the registration of the marriage between the partieswas made under the Ordinance No. 3 of 1870. In the later casesthe authority of the earlier ones was followed' with diffidence, andin the case of Dingirihamy v. Mudalihamy,* I myself adopted theview that such evidence should be allowed.
Modder in his book on Kandyan haw {2nd ed.t 229) speaks of adiga marriage in the following terms:—
“ A marriage in diga is when a woman is given away, and is,according to the terms of the contract, removed from herparent’s abode, and is settled in the house of her husband;
and binna marriage: —
“ A marriage in binna is when the bridegroom is received into thehouse of the bride, and, according to certain stipulations,abides therein. ”
From this it would seem that the definitions include not only thecontract of marriage between the parties, • but the subsequent carryingout of the terms of the contract relating to residence. The .AmendedKandyan Marriage Ordinance, 1870, made the validity of the marriageturn on the contract only, and section 39 by declaring that theentries in the register should be the “ best evidence ” of the marriagecontracted, and of the other facts stated therein cannot mean thatthe entries should be conclusive in matters of fact not existing at thetime of the entry. Now it has been held by De Sampayo J. in thecase of Menikhatny v. Appuhamy 2 (C.R. Ratnapura, 12,653) that theforfeiture of the bride’s rights in the paternal estate turns on thequestion of fact, whether the bride left the parental home in accord-ance with the contract. In the absence of evidence there would bea presumption that the terms of the contract relating to residencehad been carried out, but I can see no good reason for excluding oraltestimony relating to the carrying out of this term of the contract,which was net a matter of fact occurring at the time of the contract.
On the question of fact I see no reason to interfere with thefinding of the learned Judge that the second defendant had notsevered her connection with the mutgedera, although it would havebeen more satisfactory if the second defendant had given evidence.In the circumstances it would seem that there was a valid contract
* [1912) 16 N. L. R- 61-* S. C. C. Mins. June 101.1916.
IMS.
Ensh J.MampitiyaWtgodapd*
( 136 )
1922.
Ennis J.
of marriage in diga, but the term of the contract relating to residencewas not carried out.
__—~7,From the facts as found, a tacit consent by the plaintiff to
v/ ^ the residence of the defendants in the mulgedera must be inferred.'Wtqodapela In the circumstances the bride retained her rights of inheritance inher father’s estate. ,
I would dismiss the appeal, with costs.
Appeal dismissed.