089-NLR-NLR-V-29-NAVARATNE-v.-KUMARIHAMY-et-al.pdf
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Present: Schneider J. and Maartensz A.J.
1927
NAVARATNE v. KUMARIHAMY et al.
174—D. C. Kegalla, 7,745.
Kandyan minor—Contract to marry—Ordinance No. 3 o/ 1870.
A contract to marry is not enforceable against a- Kandyan minor.
^ PPEAL from a judgment of the District Judge of Kegalla.
H. V. Perera, for plaintiff, appellant.
Hayley, K.C. (with Navaratnam) for the 1st defendant, respondent.Iyer (with Arulanandan), for 2nd defendant, respondent.
October 27, 1927. Schneider J.—
It is only a question of pure law that we need consider for thedecision of this appeal. It is this. Is a contract to marry enteredinto by a minor enforceable against the minor? That question1 (1874) L. R. 9 Q. B. 400.• (1896) 2 N. L. R. 235.
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has been considered and decided in the negative in Hendrick Sinnov. Haramanis Appu and Sirimalhamy1 by two very eminent Judgesof this Court. Budd Phear C.J. in the course pf his judgment said:“ Although she appears to be of age to enter into the marriagecontract she is not a major to bind herself by a preliminary agree-ment to marry. ” That, in my opinion, if I may say so with alldeference to the learned Chief Justice from whose judgment thepassage is taken, is a correct statement of the law. The appellant’sCounsel sought to differentiate the present case. He argued thatthe female in the present case at the time she made the promiseto marry the plaintiff was of the age of nineteen years and couldhave contracted a lawful marriage according to the provisions ofthe Amended Kandyan Marriage Ordinance, No. 3 of 1870, bywhich she is governed, without the previous consent of parent orany otfier person; whereas in the case cited the female party notbeing a major could not contract a marriage without the consent of.her father according to the provisions of the Ordinance applicableto her. There does exist between the two cases the differenceindicated by Counsel, but to my mind that does not matter. Thesame principle is applicable to both cases. The capacity to enterinto a contract to marry must be determined according to the lawin regard to capacity to enter into contracts generally. If underthis law a minor cannot enter into a contract enforceable againsther, she cannot also enter into a contract to marry. It was conceded,and rightly, that the Ordinance No. 7 of 1865, which fixes twenty-oneyears as the legal age of majority, applies also to persons governedby the Kandyan law. If the argument is sound that the requirementas to consent makes the material difference between the two cases,it .must follow that a person not governed by the Kandyan law whois a minor can enter into a binding contract to marry providedshe enters into it with the consent of the person, whose consentthe law requires to be obtained to enter into a lawful marriage.The very case cited above shows that such a contract is not enforce-able. A contract to marry is in no wise different from any othercontract in so far as the Kandyans are concerned. The rights andliabilities of the parties to such a contract must be deermined bythe contract itself, and the validity of the contract must be deter-mined in the same way as the validity of any other contract.
The appeal fails, and I dismiss it with costs.
Maartensz J.—I agree.
1987
SCHNEIDER
J.
Navaratnev.
K-umarihamy
(1879) 2 S. C. C. 136.
Appeal dismissed.