B ASNAYAKE J.—Ponnammah v. Rajah via si n gh am
1948Present.- Basnayake J.
PONNAMMAH, Appellant, and RAJAKULASINGHAM, RespondentS. C. 488—M. C. Batticcdoa, 4,731
Births and Deaths Registration, Ordinance—Certificate signed by AdditionalAssistant Provincial Registrar—Not prima facie evidence—-Section 42—Customary marriage among Hindus—Tying of thali not always essential.A certificate of death under the hand of a person who describes himselfas an Additional Assistant Provincial Registrar is not prima facieevidence under section 42 of the Births and Deaths Registration Ordinancebecause it is not certified by a prescribed officer.
A person who alleges that the thali ceremony is essential to a validmarriage in the community to which the parties belong should proveit as a question of fact.
Ratnamma v. Rasiah (1947) 48 N. L. R. 475, doubted.
Appeal from a judgment of the Magistrate, Battioaloa.
P. Na.varatnarajah, for the applicant, appellant.
M. D. H. Jayawardene, for the defendant, respondent.
Cur. adv. vult.
July 14, 1948. Basnayake J.—
The appellant who claims to be the wife of the respondent who is aVillage Headman, asks for an allowance for her maintenance undersection 2 of the Maintenance Ordinance, on the ground that the respondenthas neglected to maintain her. The appellant and the respondent areHindu Tamils residing in the Eastern Province. It appears that theywere married according to Hindu rites on January 29, 1940. Theappellant’s case is supported by the evidence of several witnesses, suchas the Village Headman of her division at the time of her marriage, aretired Apothecary and his wife, and one of the dhobies who performedcertain customary functions at the wedding. The Village Headmanand the Apothecary appear to be responsible and leading men in the area.The former is related to the respondent, and the latter to the appellant.They all testify to the fact that a marriage between the appellant andthe respondent was celebrated, that the customary rites including theicalam and Tcurai ceremonies were performed, and that among the weddingguests were the Headman and teachers. But the witnesses state, andthe appellant admits, that the thali ceremony was not performed. Therespondent neither gave nor called evidence. The case therefore restson the uncontradicted evidence of the appellant and her witnesses.
At the end of the appellant’s case the proctor for the respondentproduced a death certificate which he informed the court was the deathcertificate of the respondent’s first wife. He stated that that certificateshows that the respondent’s first wife died on October 2, 1940. If thatbe so the respondent’s marriage with the appellant on January 29, 1940,was during the life-time of his first wife. The object of producing this,document appears to be to show that the marriage with the appellantis invalid by operation of section 17 of the Marriage Registration Ordinancewhich says : “ No marriage shall be valid where either of the partiesthereto shall have contracted a prior marriage which shall not have beenlegally dissolved or declared void.”
B ASNAYAKE J.—Ponnammah v. Rajahulasingham
The appellant, who is an aunt of the respondent’s deceased wife wasduring her life-time closely associated with the family and was in factlooking after the respondent’s children. Although there is no evidencethat the first marriage was a legal marriage, the appellant has notchallenged it. In fact her evidence goes to show that it was a propercustomary marriage, for she says that the thali ceremony was performedat the respondent’s first marriage although it was not performed at her■own.
Even if the death certificate filed of record relates to the respondent’sfirst wife, it is contradicted by the oral evidence of the appellant and twoof her witnesses. According to them the first wife of the respondentdied somewhere about September, 1939, whereas the certificate of deathindicates that the person referred to therein died in October, 1940. Thedeath certificate D1 has not been formally proved and produced as anexhibit, nor is there evidence that the death certificate relates to therespondent’s first wife. The respondent could have produced it andgiven evidence that the particulars therein refer to his deceased wife,or he could have called a witness who knew the facts to speak to itsidentity. He has not done so.
Although under section 42 of the Births and Deaths RegistrationOrdinance, a copy or extract purporting to be under the hand of theRegistrar-General or his Assistant or of the Provincial Registrar or theAssistant Provincial Registrar or purporting to be made under the handof a Registrar and countersigned by the Registrar-General, ProvincialRegistrar or Assistant Provincial Registrar shall be received as primafacie, evidence of the death to which it refers without any further or otherproof of such entry, such copy does not become evidence in any legalproceedings unless it is tendered in evidence through a witness whodeposes to the fact that it is the certificate of death of the personmentioned therein and that he or she is the identical person whose deathis in question. Here we have no such evidence. The only evidenceon record as to the date of death of the respondent’s first wife is that ofthe appellant and her witnesses, which must be accepted in the absenceof any evidence to the contrary. I observe that the document D1 doesnot even satisfy the requirements of section 42, for it does not purportto be under the hand of any one of the officers designated therein. It issigned by an officer who describes himself as Additional AssistantProvincial Registrar, which is not one of the offices mentioned in thesection. The document cannot therefore be received as prima facieevidence of the death to which it refers because it is not certified by theprescribed officer. It is only documents which satisfy the requirementsof section 42 that can be so received.
Even though the document has not been properly certified and provedto be the death certificate of the respondent’s first wife, the learnedMagistrate has not only acted on it but has accepted it as if it wereconclusive proof of the date of death of the respondent’s first wife. Acertificate of death given under section 42 if properly proved andidentified is only prima facie proof of the fact of death but not primafacie proof of the date of death1. Ordinarily, prima facie means until
Silva v. Weinman (1894) 3 S. O. R. 82.
Jbetchtman Chetty v. JPe,rera (1881) 4 S. C. C. 80.
BASISTAYAKE J.—Pomnaimnah v. Rajakulaaiflgham
the contrary is proved1. In this instance not only is there no evidencethat the certificate relates to the deceased wife of the respondent, butthe oral evidence proves the contrary.
It now remains for me to consider whether the appellant is the wife ofthe respondent. There is no evidence from the respondent on this point.He does not deny she is his wife, but in the course of the cross-examinationof the appellant and her witnesses it was elicited that the thali ceremonydid not take place at his marriage -with the appellant. Learned counselfor the respondent referred me to the case of Ratnamma v. Rasidh 2. Thatis a case in which a symbolic thali was tied in place of the gold thali.My brother Dias held on the expert evidence in the case that the symbolicthali was sufficient compliance with Hindu marriage rites. Learnedcounsel relies on the following statement in my brother’s judgment:“ It is clear that the tying of the thali is an essential requirement for thevalidity of a marriage between Hindus according to customary rites andif this is not done the marriage ceremony is bad.” This statement isapparently based on the decision of the District Judge in the case ofTeywane v. Sidembrenader Cande.r3. I find myself unable to regard thejudgment of the District Court as a binding authority for the propositionstated by my brother esj^ecially as it appears from the same report thatthe decree of the District Court was reversed by this Court.
In the instant case there is no expert evidence either way, nor is thereany evidence that according to the custom of the community of Hindus towhich the appellant and the respondent belong the thali ceremony is asine qua non of a valid marriage. The decisions in Mutukisna’s Thesa-wal&me relate to the laws and customs of Jaflha, while the parties to thisaction are natives of the Eastern Province. It appears from Mutukisna’sThesawaleme that, even in Jaffna, the tying of the thali is not a customcommon to all Hindu communities and that there are certain communitiesat whose marriage ceremonies the thali is not tied. In the case ofSenien Tamby v. Annama i, a case involving the. validity of the marriage ofHindu Tamils resident in Batticaloa, the marriage was held to be valideven though there was evidence, as in this case, that no thali was tied.The case of Sastry Velaider Aronegary v. Sembecutty Vaigalie 5, an appealto the Privy Council from Ceylon cited therein, must be noticed in thisconnexion. Sir Barnes Peacock says at page 371 :
“ It is evident from the parties going through the form of marriagethat they intended to be married ; and if they were not marriedaccording to the strict custom, it was not in consequence of then-wish that it should be so. It appears clearly that they did consider,that a valid marriage had taken place.”
A custom is a question of fa.ct and must be proved by him who allegesit to exist. Similarly a person who alleges that a certain customaryceremony is essential to a valid marriage must prove that it is so.
Liversidge. v. Anderson (1942) A. C. 206 at 224.
(1947) 48 N. L. R. 475.
2 Mutuhisna’s Thesawaleme, p. 211.
(1900) 1 Browne's Reports, p. 28.
(1881) 6 App. Cos. 364.
JPeiria v. Ratndbarthi Ar'alchy
In the case of the King v. Perumal1 (three Judges), the Indian case•of Brindabun Chandra Kumnokar v. Chundra Kurmokar2 was cited withapproval. There it was held that when the fact of the celebration ofthe marriage is established it will be presumed, in the absence of evidenceto the contrary, that all the necessary ceremonies have been compliedwith. A similar principle was stated in the case of Spivack v. Spivack 3where it was laid down that the detail and strictness of proof of a marriagerequired in a criminal prosecution for bigamy is of a totally differentstandard from that required before a Magistrate who is dealing with thequestion of the maintenance of a wife alleged to have been deserted.
In civil cases, where there is evidence of the fact of a Ceremony ofmarriage, followed by cohabitation of the parties, everything necessaryfor the validity of the marriage will be presumed in the absence of decisive•evidence to the contrary, even though it may be necessary to presume thegrant of a special licence. The burden of impeaching the factum of amarriage and the presumption of law “ semper praesumitur promatrimonio ” lies upon the impeaching party. In this case there isevidence of a customary marriage and subsequent cohabitation of theparties. The respondent has failed to discharge his burden. I agreewith the learned Magistrate’s finding that there was a valid customarymarriage.
Por the above reasons the appeal is allowed and the judgment of thelearned Magistrate is set aside. The case will go back for the learnedMagistrate to determine the amount of maintenance he should orderhaving regard to the circumstances of the parties.
PONNAMMAH, Appellant, and RAJAKULASINGHAM, Respondent