013-NLR-NLR-V-56-P.-SIVAKKOLUNTHU-et-al-Appellant-and-KAMALAMBAL-et-al-Respondent.pdf
82
StvakboUmthu v.,Kamdhtmbdl
1968Present: Gunasekara J. and Pulte J.P. SIVAKKOLUNTHU et al., Appellants, and KAMALAMBAL el al.,
Respondents
S. C. 98—D. C. Jaffna, 1,156
Evidence—Marriage contracted in a foreign country—"Way of proving it—Decree forjudicial separation—Scope of its relevancy as evidence—Estoppel—Res judicata—“ Privies in interest ”—Evidence Ordinance, e. 41 <2ji (c).
In proceedings taken to administer the intestate estate of one R., each of twopersons, K. and P., claiming to be the widow of the deceased, applied for lettersof administration. K. alleged that she married the deceased in India on the11th December, 1929, under the provisions '©f the Indian Christian MarriageAct. P. alleged that K. was not validly married and that she was the lawfulwidow by reason of her marriage to the deceased which was registered on the3rd March, 1930, and solemnized according to Hindu rites in September of thesame year. The' principal contest was whether K. had contracted a validmarriage with the deceased. The trial Judge held that K., as widow, was'entitled to letters of administration.'•'
.• '’v
In a suit brought by P. in 1937 against the deceased for separation a mensa
et thoro the deceased had admitted that he was lawfully married to P. andcounterclaimed a dissolution of the marriage on the ground of malicious desertion.In his evidence the deceased had also admitted that he had been intimate withK. both before and after he was married to. P. K. also gave evidence. Sheadmitted Sexual intimacy with the deceased Prut, in order to save the deceasedfrom a prosecution for bigamy, falsely denied that she was married to*him.A decree for separation was then entered as between P. and the deceased.
PULLE J.—Sivakkolunthu v. Kamalambal
53
Held, (i) that although the evidence given by the deceased and K. in the suitfor judicial separation raised a strong presumption that they had not contractedu marriage in J929, evidence could be given in the present administrationproceedings so as to displace that presumption.
tliat it was not essential that K. should loud expert evidence to provethat all the provisions of the Indian Christian Marriage Act requisite for a validmarriage had been complied with. Xf the certificate of marriage ir| the formprescribed by the Indian Christian Marriage Act was propoily produced, theCourt was entitled to hold upon that oertiticate and the oral evidence thatK. contracted a valid marriage with the decoas d.
that the decree entered in the suit for judicial separation was not onewhich could come within the'terms of sect ion 41 (2) (c) of the Evidonco Ordinance ;it could not, therefore, operate in the present action as conclusive proof thatP. was the lawful wife of tire deceased.
that the oonduct of K. in wilfully concealing her marriage in the suit forjudicial separation could not operate us an estoppel against her in the'presentaction.
that the decree entered in the suit for judicial sopurul ion could not oporuteus res judicata against K.’b children.
,/^.PPKAL front a judgment of the District Court, Jaffna.
C. Thiagalingain, Q.C., with O. T. Samaraivickreme and T. I’nratha-lingam, for the 9th and 10th respondents, appellants.
//. 1'. 1‘erera, Q.C., with H. W. Tambiah, (J. tihanmvganayagam andFelt* Dias, for the 1st to 0th respondents.
Cur. adv. vuU.
Octoltor 30, 1953. Pulle J.—
This appeal relays to proceedings taken to administer the intestateestate of one V. S. Ramanathan who died on the 29th October, 19-43.Two jtersons claiming to be the widows of the deceased applied for lettersof administration. One of them Kamalambal alleged that she marriedthe deceased in India on the 11th December, 1929. Tho other namedParupathy alleged that Kamalambal was not validly married anti thatshe was the lawful widow by reason of her marriage to the deceased whichwas registered on the 3rd March, 1930, and solemnized according to Hinduriles in September of the same year. Kamalambal had four childrenby the deceased. Parupathy had none. The^learned District Judgeheld Kamalambal as widow to be entitled to .letters of administration.Parupathy has not appealed. The appellants before us are two interven-ients who claimed shares in the estate as heirs on the basis that thodeceased was lawfully married to Parupathy and died issueless.
The principal contest was whether Kamalambal had contracted avalid marriage with the deceased. If this question was answered in
2*J. N. B 39236 (10/64)
54
PULliE j.—Sivakkolunthu v. Kamalambal
favour of Kamalambal it was argued both here and below that the decreeentered in a suit brought by Parupathy in 1937 against the deceased forseparation a mensa et thoro and the evidence given therein by Kamalambalprecluded her and her children from maintaining that she was marriedto the deceased.
It may perhaps be convenient to deal first with the proceedings forjudicial separation as they have a bearing both on the issue of fact asto whether Kamalambal was lawfully married to the deceased and onthe issues of law as to the legal results flowing from the decree in thatCase.
In District Court Jaffna (Divorce) case No. 15 Parupathy alleged,among other things, that she was lawfully married to the deceased in193<> and that thereafter he deserted her and, since May, 1931, lived inadultery with Kamalambal. She prayed for a decree for separationand alimony. The deceased admitted in his answer that he was lawfully•married to Parupathy and counterclaimed a dissolution of the marriageon the ground of malicious desertion. In his evidence the deceasedadmitted that he was intimate with Kamalambal both before and afterhe was married to Parupathy. He denied having even gone through aceremony of marriage with her. Kamalambal also gave evidence. Sheadmitted sexual intimacy with the deceased but denied that she wasmarried to him. On the 22nd December, 1939, a decree for separationwas entered and it was affirmed in appeal in 1941.
The pleadingB and the evidence given by the deceased and Kamalambalin the divorce proceedings raise, in my opinion, a strong presumptionthat they had not contracted a marriage in 1929. The question fordetermination is whether the evidence of their marriage given in theproceedings under appeal was such as to displace that presumption.
The evidence leaves no room .for doubt that on the 11th December,1929, Kamalambal and the deceased went through a ceremony of marriagein a place called the Heart of India Mission church at Bangalore. Theevidence of Kamalambal on this point is corroborated by a retiredminister of Church, one Rev. Paul Ratnasabapathyf who was one of theattesting witnesses. He has identified his own signature and that ofthe pastor who officiated which appear on the original of a certificateof marriage in the form prescribed by the Indian Christian Marriage Act,1872. There waB also produced an extract A2 from the register akeptin the church purporting to be a certified copy of the registration ofthe marriage. Of the grounds taken in the petition of appeal one wasthat the evidence adduced to prove that the deceased became a Christianbefore his marriage was insufficient and the other that there was noproof that one Rev. It. Manickam who solemnized the marriage wasauthorized to do so under the Indian Christian Marriage Act. On bothpoints there was oral evidence supporting Kamalambal which the learnedJudge seems to have accepted. Assuming that the marriage certificatewas properly admitted in evidence there was ample material on whichthe Judge could have come to a finding that the deceased was a Christian• at the time ef his marriage with Kamalambal and that Rev. K. Manickam
FULLS J.—Sivakkolunthu v. Kamalambal
55
was duly authorized to solemnize the marriage. The oral evidence ofRev. Ratnasabapathy is specific that he had himself seen the Rev.Manickam officiating as registrar of marriages for about two years andthat the registrar who officiated at the marriage of Kamalambal was thissame Rev. Manickam.
Another ground urged in appeal is that expert evidence had not beencalled to prove that all the provisions of the Indian Christian MarriageAct requisite for a valid marriage h^d l>een complied with. Speaking formyself I feel, in view of the conduct of Kamalambal and the deceasedin deliberately concealing from the Judge who tried the suit for judicialseparation the fact that they had gone through a ceremony of marriagein Bangalore, that it would have been more satisfactory had expertevidence been called. Their conduct is calculated to raise the suspicionthat at the time the matrimonial suit was heard they did not believethey were validly married. No authority, however, was cited that ina case of this type the only way of proving that two persons had contracteda valid marriage in a foreign country is by calling an expert on the lawsof that country. Our attention has been called among others to thefollowing cases, namely, Roe v. Roe 1, Browning v. Browning * andDe Mowbray v. De Mowbray 3 in which certificates of marriage wereaccepted in England as proof of marriages in St. Helena, Bulawayo andCeylon respectively. In Brown v. Brourn 4 the Judge thought it properto call for evidence that a Gold Coast Ordinance was in force in order toapply the provisions of section 40 of that Ordinance. Assuming that thecertificate of marriage A2 was rightly admitted it is impossible to saytliat the trial Judge was wrong in holding upon that certificate and theoral evidence that Kamalambal contracted a valid marriage with thedeceased.
The final question in regard to the proof of marriage is whether thecertificate of marriage A2 ought to have been admitted in evidence.The certificate is in the form prescribed by the Indian Christian MarriageAct and is an exact copy of what purports to be the original certificateitself marked Al. On the face of A2 is a certificate by one Rev. W.Borthwiek, the Superintendent of the Heart of India Mission, that it isa true copy of the original marriage certificate. There is a further certi-ficate under the seal of a notary public to the effect that A2 is a trueextract and copy of the original certificate of marriage and that it hasbeen duly certified by Rev. W. Borthwiek, the officer having the legalcustody of the original. The notary’s certificate purports to be oneunder section 78 (6) of the Indian Evidence Act. Although it was arguedin appeal that there was no formal proof that the Indian ChristianMarriage Act was the one applicable, the argument in the lower courtappears to have proceeded on the basis that that Act was applicable.No material was placed before us to show that if Kamalambal and thedeceased were Christians in December, 1920, the celebration of theirmarriage was governed by any other Act. In my opinion the objectionto the admission of the certificate A2 fails.
1 (1916) 115 L. T. 792.
* (1918) 35 T. L. R. 159.
1 (1920) 37 T. L. R. 830.1 (1917) 116 L. T. 702.
56
PULLE J.—Sivakkolunthu v. Kamalambal
There remain for consideration three other issues raised on behalfof the parties ■who contested the claim of Kamalambal and her childrenof whom the latter were named as 1st to 4th respondents to her applicationfor letters of administration. These issues are—
“ (0 Does the decree in case No. 15 (Divorce) of this Court operateas a bar to the petitioner’s claim in view of section 41 of theEvidence Ordinance ?
“ (ii) Are the respondents 1 to 4 the lawful heirs of the deceasedKamanathan ?
“ (iii) If so, are they estopped by the decree in case No. 15 (Divorce)of this Court ? ”
The argument on issue (i) was that in case No. 15 the court entereda decree for separation in the exercise of its matrimonial jurisdiction andthat os that jurisdiction was exercised on the basis that Parupathywas the wife of the deceased the decree is conclusive proof that Paru-pothy was, to the exclusion of Kamalambal, the lawful wife. It is notnecessary to discuss all the submissions on this for the reason that thepoint is directly covered by the authority of the Divisional Bench judg-ment of Punckirala v. Kiri Banda et al. *. It was held in this casethat the provision in section 41 which applies to matrimonial suits isin sub-section 2 (c) and that it provides that a judgment or order ordecree in the exercise of matrimonial jurisdiction is conclusive proofthat any legal character which it takes away from any person ceased atthe time from which such judgment, order or decree declared that it hadceased or should cease. It is obvious that the decree for judicialseparation is not one which would come within the terms of section 41(2) (c) of the Evidence Ordinance. It also follows that if section 41 (2)(c) could not be invoked to defeat Kamalambal’s claim to be the lawfulwife of the deceased, issue (ii) was also rightly answered in favour of herchildren.
In appeal the argument on issue (iii) which raised an estoppel againstthe children of Kamalambal went beyond its terms. It was argued thatthe conduct of Kamalambal in wilfully concealing her marriage estoppedher from denying that Parupathy was the lawful wife. In my opinionthe appellants were not entitled to take this point as the facts whichconstitute an estoppel should be specially pleaded. Odgers on Pleadingand Practice 13th ed. p. 177. No issue was raised at the inquiry as towhether the conduct of Kamalambal operated as an estoppel. Evenassuming that such an issue was specifically Taised, it could not be saidthat the conduct of Kamalambal amounted to a representation to Paru-pathy intended to be acted upon to her detriment. Kamalambal wascalled as a witness in case No. 15 and she committed perjury to save thedeceased from a prosecution for bigamy. Her conduct really resultedin Parupathy obtaining an order for alimony.
Whether the decree in case No. 15 operates as res judicata againstthe children is a question which must be answered in their favour. Thechildren- were complete strangers to the suit instituted by Parupathy• (1921) 25 N. L. R. 228.
PULLS J.— Vitharne u. de Zylva
67
against the deceased on the basis that she was lawfully married to thedeceased. To avoid confessing to a crime the deceased falsely admittedthat she was his wife. The children are not, upon the death of thedeceased, seeking to succeed to property or money which was the subjectof adjudication in case No. 15. In other words it cannot be said that thechildren were identified in interest with the deceased in his litigationwith Parupathy as to make them privies in interest of the deceased.{See Taylor on Evidence, Vol. II, p. 1059.)
In the result the appeal fails and should be dismissed. As the deceasedand Kamalamhal must be held responsible for this litigation it seems tome that the costs of the appellants here and below should be paid out ofthe estate. The order made by the District Judge as to costs will standvaried so as to give effect to this.
05i»n.ski; aka J.—I agree.
Appeal dismissed.