Several objections were taken by the defendants in their answerto the form of action adopted by the plaintifEs, but ultimately thecase appears to have gone to trial upon two issues of fact, one ofthem being whether the third defendant was the lawfully marriedfvife of Halkege Samuel alias Salman Appu. During the courseof the trial it was, however, admitted that the third defendant wasmarried to Salman Appu on the 26th December. 1859; that SalmanAppu died on the 13th April, 1889; that fourth, fiffth, and sixthdefendants were born in the lifetime of Salman Appu; and thatVincent Perera’s marriage with Jusiina was registered on the 13th
( 93 )
July, 1889. Evidence then appears to have been led by the plaintiffs igos.to show that the fourth, fifth, and sixth defendants were the January 23.adulterine issue of the testator and the third defendant; and at asubsquent stage counsel agreed that the case should be decided A.J.on certain issues which practically depended upon two questions-—
whether or not the fourth, fifth, and sixth defendants werethe adulterine issue of the testator and the third defendant, and
whether the third defendant in the lifetime of her husbandlived in adultery with the testator.
The learned District Judge found as a fact that the third defen-dant in the lifetime of her husband did live in adultery with the testa-tor* and that the fifth and sixth defendants were the issue of suchadulterous intercourse, but that the fourth defendant was the son ofthe third defendant by h^er husband Salman. The District Judgeheld that the devise to the third and fourth defendants was good, butthe devise to the trustees, so far as the fifth and sixth defendantswere concerned, was bad. His ground for finding in favour of thethird defendant was that at the date of the will the third defen-dant was not living in adultery with the testator, that her positionwas that of a concubine, and that concubines are not legallyincapacitated from taking under a will, except on certain groundswhich did not exist here. He further held that the “ceremonyof marriage,’’ to adopt the language used by him, which the thirddefendant and the testator went through did not legitimize thefifth and sixth defendants, as it was not a lawful marriage, but wasone prohibited by law, because it was between persons who hadpreviously committed adultery.
The first question that arises for determination upon the appealin this case is whether the marriage of the third defendant withthe testator was void, for the reason given by the District Judge.
There can be no doubt whatever that under the Boman-DutchLaw a marriage like the one that the testator contracted with thethird defendant would be absolutely void, as that law penalizedadultery and regarded it as a crime. Such a marriage was noteven permitted by dispensation. (Van der Linden, Henry’s Trans-lation, p. 80). The point, therefore, is whether we are stillgoverned by the Boman-Dutch Law in this respect. Now, thetestator contracted .this marriage on the 13th July, 1889, wh^nOrdinance No. 6 of 1847 was in operation. There is provisionmade in section 27 of that Ordinance against the marriage ofpartieq within certain degrees of relationship. That sectionenacts that any marriage or cohabitation between such partiesshall be deemed to be an act of incest and punishable tpithimprisonment; but there is no provision against a marriage like10-
( 94 )
January 26.Gbbnier,
the one under consideration. But section 31 enacts that – " alegal marriage between any parties shall hare the' effect ofrendering legitimate the birth of any children who may havebeen procreated between' the same parties before 'marriagjeunless such children shall have been procreated in adultery,”Was this section intended to conserve tbs Boman-Dutch Lewonly to the extent that children bom in 'adultery could not belegitimized by the marriage of their parents, or was it intendedto go further, and, by implication, render a marriage betweenparties who had committed adultery void ? The obvious meaningof section 27 is that an incestuous marriage is not only absolutelyvoid, but the parties to it are criminally, liable when they contractone. Incestuous marriages and marriages between persons whohad committed adultery were probably regarded in the same lightby the Boman-Dutch Law, although there appear to have lpeenfrequent departures from the law by dispensations to personswithin the prohibited degrees. Now, section 31 clearly contem-plates the case of a marriage between persons who had committedadultery. It brands the issue of an adulterous connection asillegitimate; but does it render a subsequent marriage between theman and the woman not a legal marriage, to use the wordsemployed in section 31 ? Adultery is not a crime amongst us,and never was under our local Criminal Law since the Britishoccupation, but incest was always a crime and is so still. Thereis express provision made against incestuous marriages in section27. There is no such provision made against a marriage .betweenpersons, who had committed adultery. Is it ■ unreasonable toconclude from this that the Legislature drew a distinction between
these two kinds of marriages ? We find that children procreatedin adultery were affected with certain disabilities consequent ontheir being regarded as illegitimate; but there is not a word inthe whole of the Ordinances relating to marriage from which itmay be gathered that the Legislature intended that the marriageof persons who had committed adultery should ipso facto be voidas in the case of an incestuous marriage, nor that children bomof such a marriage*should be considered otherwise than legitimate.If the Legislature intended to place such a marriage in the samecategory as an incestuous marriage, I thnk that it would havesoid in unmistakable terms what it intended to say instead ofleaving such a vital part of the law of marriages to mere inferenceand implication. But beyond enacting that the subsequent marriageof persons who had committed adultery did not legitimize the <ch3drenprocreated during the adulterous union, our statute law says hot aword about the marriage itself being null and void. The reason is
( 96 )
obvious, for incest is a crime, and therefore there can be no marriage, 1906.whereas adultery was never punishable as a crime in this country after •lanuaryze.the British occupation, but was only good ground for a divorce a vinculo Gbemkr,matrimonii. Very often the only reparation that a man can make to the A&woman, whether married or unmarried, whom he has seduced, ismarriage. The English Law permits a marriage between persons whohave committed Httultery, after the first marriage has been dissolved bydeath or by the Divorce Court; but while in Ceylon the subsequentmarriage of persons who have procreated children, provided theywere not procreated in adultery, serves to legitimize them, it isnot so in England, where they are regarded as ' bastards. Andchildren procreated in adultery are not legitimized in England,as they are not in Ceylon, by the subsequent marriage of theparents. The provisions of section Si thus brought our law intoharmony with the English Law as regards the capacity of parentswho had committed adultery to marry, and when we considerthat our marriage laws affect Europeans to the same extent thatthey affect certain other sections of the community, it seemsabundantly clear that the object of section 31 was to rendermarriages between persons who had committed adultery legaland valid.
I had written thus far when I had the advantage of reading thejudgments of my brother Middleton and of Mr. Acting Justice deiSampayo in case No. 291, D. C., Kandy, 6,563 (8 N. L. B.
1-30). At the argument of this appeal I formed the sameopinion which I have now stated in writing, and I need hardlysay tta|t I agme with the statement of the law laid down in thatcase so far as regards the question as to whether pStsons who hadcommitted adultery could contract a legal marriage.
As I have already said, .the marriage of Vincent Perera with thethird defendant took place on the 13th July, 1889, and, such beingthe case, the marriage must be governed by Ordinance No. 15 of1876, which amended the law relating to the matrimonial rightsof married persons with regard to property and the law of inheri-tances As is well known, this Ordinance abolished community ofproperty, and in case of intestacy gave the surviving spouse theright to inherit one-half of the property of the intestate…Theexpression “ matrimonial rights ” in this Ordinance ha$ beendefined to mean the , respective rights and powers of marriedparties in and about the management, control,' disposition, andalienation of property belonging to either party or to which eitherparty may be entitled during marriage. The third defendant, inthis case, the marriage being a legal one, as I have already.held,
( 96 )
1906. became vested with all the rights and privileges of a wife so forJanuary 26. as her matrimonial status was concerned, and is distinctly capableGbenibb, ‘ therefore of taking, like any other wife, under her husband’s will.
A-J- I cannot accede to the contention that her wifehood, so to speak,was in any way affected or limited by reason of the fact that' shehad committed adultery with Vincent Perera during the lifetime ofher husband Salman. If the law gave her on her marriage withVincent Perera all the rights of a wife, she is entitled'to theenjoyment of those rights. On this part of the case I am – ofopinion that the bequest to the third defendant is a good one, andthat she is not incapacitated from taking under the will, oi thetestator..
Then, as regards the question as to whether the respondents hadarpr right of appeal other than as against costs upon the notice -given,I agree with my brother Middleton in the construction he" hasplaced upon the meaning and effect of section 758 (e). TheSupreme Court, when sitting in appeal, has large powers given it bylaw; and I would endorse the observations of my brother Moncreiffin D. C., Kalutara, 2,794 (Supreme Court Minutes, 23rd November,1904), as to the extent of those powers. It was, in my opinion,competent for the respondents to support the decree of the Courtbelow on the ground that the fifth and sixth defendants were thechildren of Salman Appu, although that ground was decidedagainst them by the District Judge. During the pendency of thisaction the Full Court had held in Sopi Nona v. Marstyan (6 N. L. R.379) that unless impossibility of access or impotency could beproved, conclusive proof was afforded that a person bom duringthe continuance of a valid marriage or within 280 days after itsdissolution, the mother remaining unmarried, was legitimate. Inthe case before me no such impossibility was attempted to beproved, and there was no suggestion of impotency. The fifth andsixth defendants must therefore be held to be the children offirman and the third defendant. I am the less reluctant to holdthis, because the third defendant herself swears that the fifth andsixth defendants were bom to Salman, and not to Vincent Perera.This finding, as well as the finding in regard to the third defendant,renders it unnecessary to deal with the other questions raised onthis appeal. The fourth defendant has been found by the DistrictJudge to be the daughter of Salman, and she is precisely in theslme position as the fifth and sixth defendants.
In the result I agree with my brother Middleton that thejudgment of the District Court should be varied to the6 extentspecified by him in his judgment, and that in other respects thejudgment will stand and this appeal be dismissed with costs.