RABOT et al v. DE SILVA et al

016-NLR-NLR-V-08-RABOT-et-al-v.-DE-SILVA-et-al.pdf


1006.
January 2i.
( 82 )
RABOT et al v. DE SILVA et. al.
D. 0., Colombo 14,923.
Marriage between persons who had lived in adultery—Their capacity to take undereach other's wills—Civil Procedure Code, s. 712—Bight of respondents .to support, in appeal, decree on grounds decided against them by DistrictJudge—Presumption as to paternity of child of married woman—Impossibility of access.
Although under the Roman-Dutch Law persons who have lived ' in.'adultery with each other cannot take under each other’s will,- that;,,disqualification is according to the law of Ceylon removed by themarriage of those parties, and thereafter they may, like other spouses,take from each other either by will or ab intestato.
Defendants A and B claimed certain shares of the estate of C underhis will. The District Judge held that they were not entitled to theseshares, inasmuch as they were children of C bom to him in adultery,but that by the jus accrescendi these shares vested in defendant D, aco-devisee, and dismissed the plaintiffs claim. The plaintiff’s appealed.
– Held, that on this appeal it was competent to defendants A and B,notwithstanding that they themselves had not appealed, and notwith-standing that they had filed no objections under section 772 of the CivilProcedure Code, to challenge the .'District Judge’s decision as to theirpaternity, and to contend that they were not adulterine bastards, andto support the decree appealed from by claiming the shares devised tothem on that ground.
Sopi Nona v. Marsiyan (6 N. L. R. 379) followed on the question asto whether, in order to rebut the presumption that the father of a'married woman’s children is her husband, impossibility of access betweenhusband and wife or impotency should be proved.
I
N this case the paintLQs claimed an undivided fifth (shareof the estate of on© Vincent Perera, who had made a will
devising his whole estate to the first and second defendants to be
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held in trust for the third, fourth, fifth, sixth, seventh, and eighth i£5£.defendants. Vincent Perera had lived in adultery with the third January 2'6,defendant during the lifetime of her husband, Salman, and hadsubsequently gone through a ceremony of marriage with her.
The fourth, fifth, and sixth defendants were bom- to the thirddefendant before .such marriage. The eighth and ninth defend-ants were to be maintained by the third defendant out of the sharethat she was to get under the. will.
For the plaintiffs it was contended that the fourth, fifth, andsixth defendants being the issue of -the adulterous intercoursebetween Vincent Perera and the third defendant, neither theynor the third defendant could legitimately take under his will,and that his property therefore devolved on his heirs ab intestato,of whom the second plaintiff was one.-
The District Judge held that the third defendant had beenliving in adultery with Vincent Perera, and the two could nottherefore contract a valid marriage, nor could the third defendanttake under the will of Vincent Perera.
As to the fourth, fifth, and sixth defendants, it was at firstcontended for the defence that they were the Children of VincentPerera by the third-defendant; that Salman was not the husband ofthe third defendant; and that the third defendant never lived inadultery with Vincent Perera, but subsequently the contentionwas*that the third defendant was the wife of Salman, and that thefourth, fifth, and sixth defendants were the issue of the thirddefendant by Salman.
The District udge held that impossibility of access had notbeen shown between Salman and the third defendant before sheconceived the fourth defendant, and that the fourth defendant wastherefore to be presumed to be the child of salman, but as regardsthe fifth and sixth defendants he held that the evidence showedthat they were the children of Vincent Perera bom during hisadulterous intercourse with the third defendant.. On thesegrounds he held that the devise to the fourth defendant was valid,and that to the third, fifth, and sixth defendants invalid, but hefurther held- that the shares devised to the third, fifth, and sixthdefendants vested by the jus accrescendi in the fourth defendant,and dismissed the plaintiffs’ claim.
The plaintiffs appealed.
The case was first argued before Wendt, J., and Middleton, 3,by Walter Pereira,.- K.C., appearing with Domhorst, K.C., for theappellants, and Sampayo, K.C., for the respondents, and their lord-ships ‘delivered judgments in which they held that it was notopen to the fifth. and sixth defendants to contend that they
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were not the children oi Vincent Perera, inasmuch as they hadJanuary 26. neither appealed against, nor taken objection, under section 772 of1 the Civil Procedure Code, to the ruling of the District Judge, onthe evidence, that they were the children of Vincent Perera; thatthe shares devised to these defendants did not vest in the fourthdefendant by the jus accrescendi, But that the will having providedthat after the death of these devisees the shares devised to themshould be the property of their children, the trustees were to holdthese shares in trust for these children.
Counsel having pointed out that their lordships had dealt witha point that had not been argued in appeal, namely, whether aperson, while he cannot make a valid devise of property to hischildren bom in adultery, can make such a devise to the childrenof 6uch children, these judgments were recalled, and the case setdown for re-argument.
Walter Pereira, K.C. (appearing with Domhorst, K.G.), forappellants.—On the question decided against the appellants in therecalled judgments, namely, whether a person can make a validdevise in favour of the children of his adulterine bastards, Voet28, 2, 14 is in point. Here he deals with the right of incestuousand adulterine children to take under the will of their parents.He says that while under the Roman Law they could take nothing,the Roman-Dutch Law gave them the right to take only so muchas was necessary for their maintenance. He then goes on to saythat what is stated as to incestuous children extends to grand-children " proceeding from a tainted root ”, whether they werelegitimate children' of an incestuous child or incestuous childrenof a legitimate child. No doubt that in these latter remarks hedoes not expressly refer to children whose birth is tainted byan adulterous union, but it is clear from the context that Voet isdealing throughout the title with children of a union condemnedby law, and that he intends that what he says about incestuouschildren should apply to adulterine bastards as well. This ispractically the only point decided in the recalled judgments againstthe appellants, but he (Mr. Pereira) took it that the whole casehad to be re-argued,< and he. would proceed to the other pointsargued before. It is not open to the defendants to attack the Dis-trict Judge’s decision that the fifth and sixth defendants were thechildren of Vincent Perera. They had not appealed from it, andno objection had been taken to it under section 772 of the CivilProcedure Code, and he (counsel) submitted that the point hadbeen fully considered and decided against the respondents iq therecalled judgments.
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Then, as regards all th^ee children of the third defendant, the 1905.evidence shows that Salman had no access to her after she began January £5.■to live with Vincent Perera. It is not absolutely necessary toprove impossibility of access. Our law does not require it, nor isit a 'requirement under the English Law. Our law on the subjectis contained in section 112 of the Evidence Ordinance. Thatsection provides that a person born during the continuance ofa valid marriage between his mother and any man is conclusiveproof that he is the child of that man, unless it can be shownthat that man had no access to the mother at any time whensuch person could have been begotten; and as it has beenheld .by the Indian Courts (see The Law of Evidence by AmeerAli and Woodroffe, p. 670), the fact that there was no suchaccess may be proved by means of such legal evidence as isadmissible in every other case in which it is necessary to prove aphysical fact.' Under the English Law, as laid down in theBambury Peerage Case (1 Sim. & S. 153. See Morris v. Davies,
5 Cl. & Fin. 248), the presumption referred to above may berebutted by evidence of impotency and non-access. It may alsobe rebutted by all those circumstances which may have the effectof raising a presumption that the child is not the issue of thehusband. The expression “ non-access ” here was, no doubt, givenby Lord Bedesdale the meaning impossibility of access, but thatwas in view of what followed so as to distinguish the evidence of“ non-access ” first referred to from the evidence of the “ circum-stances ” referred to later. There is thus no reason to take overthe definition of “ non-access ” given by Lord Bedesdale andassume that, when our Evidence Ordinance required that it shouldbe shown there was no access, it meant that impossibility ofaccess should be shown. The case* of Sopi Nona v. Marsiyan(6 N. L. R. 379), is, however, against the appellants. Anyway, it iscontended that as regards the fifth and sixth defendants impos-sibility of access has been established and as regards the fourthdefendant it is clear that the circumstances show that access to thethird defendant on the part of Salman was highly improbable. If,then, tiie fourth, fifth, and sixth defendants were adulterinebastards of Vincent Perera and the third defendant had lived withhim in adullery, none of them could take under the will of VincentPerera either directly or indirectly through trustees. Counsel citedVan Leevwen’s Com., Kotze’s Trans, vol. I., 337 ; Maas. Qrot.
133 ; Grot. 2, 17, 6 ; Vander Linden, 1, 9, 4 ; Van Leeuwen’sCom., ifotze’s Trans, vol. I., p. 338 ; Morice on English and Roman-Duteh Low, p. 259.
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1905. Then as to the- jus accrescendi which the District Judge speaksJanuary 25. of, that has been practically. abolished by section 20 of OrdinanceNo. 21 of 1844. Even under the Boman-Dutch Law, inasmuch asthe third, fourth,, fifth, and sixth defendants were given separateshares, that is to say, a. specific one-fifth share each, there could beno jus aecrescendi (see Morice, p. 287, citing Voet, 30. 1, 59—62).
Then, the District Judge has held that the present action wasone in the nature of a querela de inofficioso testamento, and it Wascompetent to only such as were entitled to a legitimate portion,arid the plaintiffs were not such persons. It is submitted thatthe present action is not in the nature of a querela. The rightto legitimate portions was abolished by section 1 of OrdinanceNo. 21 of 1844, and the proceeding known as the querela deinofficioso testamento is not now open to anybody. This actionis not such a proceeding. It is merely an action for declaration oftitle as against the devisees utider the will on the . ground that,the devises being invalid, the plaintiffs have become entitledto a share of the estate by intestate succession.
Van Langenberg (with him E. W. Jayawardene), for res-pondents.—In the passage cited from Voet by Mr. Pereira (28, 2,14), at the place relied upon, Voet speaks of incestuous and not' adulterine grandchildren. As to the necessity of showing im-possibility of access to rebut the presumption that the husband isthe father of the wife’s offspring, it is submitted that the cake ofSopi Nona v. Marsiyan is in point, and, being a judgment of theCollective Court, is binding until reversed by the Privy Council.The evidence showed that not only in the case of the fourthdefendant,, but in the case of the fifth and sixth defendants as well,Salman had no means of access to his wife, the third defendant.It was competent to the respondents to raise this question as regardsthe fourth and fifth defendants in appeal under section 772 ofthe Civil Procedure Code. True, no appeal has been taken fromthe District Judge’s binding that as regards the fourth and fifthdefendants a case of impossibility of access had been made out,but it is competent to the respondents to urge that the evidenceshowed that there was no impossibility of access, and that on thatground the decree "could be sustained. Since the first argumentof this appeal the Supreme Court has held in 291, D. C., Kandy,6,563 (S N. L. R. 1), that a man can contract a valid marriage witha* woman with whom he lad lived in adultery. If then the thirddefendant and Vincent Perera were to be regarded as wife andhusband, they could succeed to each' other ab intestato underOrdinance No. 15 of 1876, and a fortiori they could take undereach other’s wills.
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Pereira, K.C., in reply.—The judgment in the Kandy case cited 1906.by the other side is still open to revision by the Privy Council. Jan‘uarVAnyway, all that was decided there was that a valid marriagecould be contracted by persons who had lived in adultery.
Non constat that they can take under each other’s wills. Theprovision of the Soman-Dutch Law that persons who had livedwith each other in adultery could not take under each other’s willswas intended as a punishment to them, and to discourage illicitintercourse of that sort. So that, even if marriage between suchparties has been legalized, there is no reason to assume that thedisability to take under will or by succession ab intestato has beenremoved.
Cur. adv. vult.
25th January, 1905. Middleton, J.—
In this case the second plaintiff was the wife of the first plaintiff,and niece and heir-at-law to one-fifth of the estate of VincentW. Perera, who died on 28th July, 1900. The first and seconddefendants were executors under the will of Vincent Perera, andhusbands of the fourth and fifth defendants, who, together with thesixth defendant, were children of Justina, the third defendant, whowas the widow of Vincent Perera. The seventh defendant wasthe husband of the sixth defendant, and the eight and ninth defen-dants were the adopted children of the deceased Vincent Perera.
The’ action was brought to vindicate the second plaintiff’s right,as a daughter of one of the deceased’s five brothers, to an undividedone-fifth of the estate of Vincent Perera as against the third;fourth, fifth, sixth, eighty and ninth defendants, and for a declara-tion that the bequest to his widow under the will of VincentPerera, dated 14th November, 1899, should be declared null andvoid on the ground that the third defendant before marryingdeceased had lived in adultery with him, and that the fourth, fifth,and sixth defendants were begotten in adultery.
It was at first denied by the defendants, but subsequentlyadmitted by them, that the third defendant was married to SalmanAppu on the 26th December, 1859; that Salman Appu died on the13th April, 1889; that fourth, fifth, and sixth defendants were bomin the lifetime of Salman Appu; and that Vincent Perera’s marriagewith Justina was registered on the 13th July, 1889.
It was alleged by the plaintiffs, and denied by the defendants^but held proved by the District Judge, that in the lifetime ofSalman the third defendant lived in adultery with the deceased'Vincent Perera; that Salman was the father of the fourth- defendantand that Vincent Perera was the father of the fifth and sixthdefendants bom to the third defendant before his marriage with her.
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1906. – The eighth and ninth defendants were children of one Simon, aJanuary 25. deceased child of the third defendant and Salman Appu.
Hjcddlkton, The will of the deceased bequeathed all his movable propertyto the third defendant described as his wife, and devised all his.immovable property to the first and second defendants in trust,for the use and benefit of his wife the third, and so-called daughters,tfie fourth, fifth, and sixth defendants.
The trustees were directed to pay one-fifth of the rents,, incomeand profits to the wife and each of the said daughters, and theremaining one-fifth was to form a fund, which, after paying forrepairs and taxes, was to be invested in land and the incomedivided equally among the wife and said daughters. The thirddefendant was required out of her share to to maintain the testator’sadopted daughters, the eight and ninth defendants. After thedeath of the last survivor of the wife and three daughters thetrust property was to devolve upon the descendants of thosedaughters and the two adopted daughters, these latter taking one-fifth between them, which, after their death, was to pass to thedescendant of the three daughters.
The learned District Judge held that the demises to the thirdand fourth defendants and to the trustees, except any in favour ofthe fifth and sixth defendants, were good; that the plaintiffs couldnot maintain the action even in respect of the shares of the. fifthand sixth defendants, as even if it were considered an action querelade inofficioso testamento it was not open to a niece; that the sharesof the fifth and sixth defendants would go by jus accrescendi tothe other devisees; that it was not proved that the fifth and sixthdefendants were entitled to take under the will, and dismissedthe action.
The plaintiffs appealed, and the case was argued before me andmy brother Wendt, and we delivered judgments, but recalled themupon representations made by counsel for the appellants.
Since those judgments it has been decided by a majority of theFull Court in 291, D. C., Kandy, 6,563, that the marriage of a manto a woman, with whom he has previously lived in adultery, afterthe death of her husband is a valid one, and the question left forour decision in this case are: —
(1) Can the children born of such a connection before themarriage and the widow take under the will of the husband ?
"(2) Does the incapacity, if it exists, extend to the grand-children ?,
Does the jus accrescendi apply here ?
What are the respondent’s rights under section 772 of tfie CivilProcedure Code, there being no cross appeal ?
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(5) Whether this was an action by way of querela de inoffioiosotestamenio?
I propose to consider the fourth point first and to examine what isthe respondent’s position under section 772, which runs as follows:—
” Any respondent, though he may not have appealed againstany part of the decree, may, upon the hearing, not only supportthe decree on any of the grounds decided against him in the Courtbelow, but take any objection to the decree which he could havetaken by way of appeal, provided he has given to the appellant orhis proctor seven days’ notice in writing of such objection.
“■Such objection shall be in the form prescribed under head (E)of section 758.”
On the former argument of this case it was held that respondentshad no right of appeal other than against costs upon the noticegiven. The section to my mind divides itself into two parts,Comprising support of and objection to the decree. No notice isrequired except upon an objection to the decree. Here there isno objection to the decree, but it is desired by the respondent tosupport it. The construction of the first part of the sectionappears to me to depend upon the meaning given to the word” grounds.” For tbe appellants it. is contended that “ grounds ”means “ruling,” and for the respondents that it means the basisof tbe ruling. By giving seven days’ notice the respondent maytake any objection to the decree which he could have taken byway of appeal, but without notice he may not only support thedecree on grounds decided in his favour in the Court below, whichgoes without saying, but also on the grounds decided against him.The respondents have given a notice, but they cannot take advan-tage of the latter part of the section, as the notice is confined tcan objection to the order as to costs.
The respondents, however, desire to support the decree, but inso far as the decree is based on a finding that the fifth and sixthdefendants are the children of Vincent Perera, they say that if theDistrict -Judge had held them to be the children of Salman Apputhe decree could equally be supported by them.
In fact, the respondents would support the decree on the groundsthat the fifth and sixth defendants are the children of SalmtgtAppu, which grounds the District Court decided against them.
It seems to me that the intention of the Legislature was to enablea respondent to say the Court took a wrong view of the facts or oflaw, although the decree was right, and to empower him to supportthe view he took in the lower Court and to show the Appeal Court
1905.
January SS.
MlDDLBTOlf,
J.
1906.
January $6.
^Middleton,
J.
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that that view would support the decree and would be the right,and proper view for it to take under the circumstances of the case.
It hardly seems reasonable that it should be obligatory on theAppeal Court to confirm a judgment on grounds which appear to-be manifestly wrong, and this would be the effect of upholdingthe contention of the learned counsel for the appellant. If I amrigh'T, then in my view of the meaning of this section it is open tothe respondents to contend that the learned. District Judge waswrong in finding that the fifth and sixth defendants were thechildren of Vincent Perera.
Upon the evidence given by the third defendant alone there isquite as much probability that they were the children of SaSmanAppu as of Vincent Perera on account of the possibility of accessand the ruling of the Full Court in Sopi Nona v. Mareiyan (6N. L. B. 379) applies. I therefore hold that the learned DistrictJudge was wrong in his finding as to the parentage of the fifthand sixth defendants, and I must hold that the presumption is- thatthey are the children of Salman Appu and not the issue of anadulterous intercourse.
This ruling would enable them to take indisputably under thewill of Vincent Perera.
It is, however, necessary to consider the case of the widowunder the first question, and it will be convenient to include thecase of the fifth and sixth defendants.
I incline to the view adopted by Bonser, C.J., as reportedin 2 N. L. B, 278, which seems to be founded on the opinion ofVoet 23, 2, 27, “that according to the old Roman-Dutch Lawfollowing the Common Law, such a marriage was not forbiddenunless a promise of marriage had passed between the guiltyparties during the lifetime of the innocent spouse, or unless theyhad been guilty of an attempt against such spouse’s life,” untilthe Placaat of the 18th July, 1674, took effect. In the case before usno suggestion of any attempt on the life of Salman Appu is made,and I fail to see why any promise of future marriage is to benecessarily presumed from such a connection as existed betweeuVincent Perera and the third defendant.
C
If such a connection was not prohibitus concubitus till thePlacaat of 18th July, 1674, and that Placaat, as I have already heldin the case of D. C., Kandy, 6,563 (8 N. L. B. 1-30), does not haveforce in Ceylon, then the third defendant will not be disentitledto take under the will of Vincent Perera.
Assuming that the learned district Judge was right in his con-clusion that the fifth and sixth defendants were the children ofVincent Perera, it would be difficult to resist the weight ofauthority from’Van der Lindeh (Juta, p. 58), and Van Leeuwen
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{Kotpe’s Translation, vol I., p, 338), adduced by the learned 1006.counsel .for the appellants, pointing to the incapacity of children' January 26procreated in adultery to take under the will of their parents, TiTmVi7^nffisinless it could , he held that those jurists were writing on‘ the 3.strength of the Placaat of 18th July, 1674, which I have held’doesnot apply in Ceylon.
. Grotius (:Introduction, 2, 16, 6; and Maas dorp’8 Translation,p, 133) speaks of children born ex prohibito concubitu, but if Iajn right in my opinion derived from Voet 23, 2, 27, the connectionhere was not prohibitus concubitus] and Grotius’ opinion does nothelp the appellants.
'So* far as I can ascertain from the translation by Herbert of‘ Grotius’ Introduction to Dutch Jurisprudence, which, appears tohave been written in 1620, there is no reference to any prohibitionof a marriage between persons who have lived previously inadultery, nor can I find any such prohibition in Van Leeuwen.
Taking the view I do of the law, it is not necessary to considerwhether incapacity attaches to the grandchildren, or if the jutaccrescendi applies, or if this is an action of the nature of. querela deinoffieioso testamento. I would hold, therefore, that the- third,fifth, and sixth defendants are not incapacitated from taking underthe will of Vincent Perera.
As,regards the fourth defendant, there is no reason to questionfire finding of the learned District Judge that, she was the daughterof Salman Appu, and I cannot think it could be seriously contendedthat she was estopped from asserting this by the fact that VincentPerera called her his daughter in the will. She is specificallynamed and described as the wife of Walter Clement de Silva, andI cannot see how the testator’s belief that she was his daughtercan affect her position as a legatee under his will.
In my opinion the judgment of the District Court should .bevaried only by ordering that the fifth and sixth defendants do takeunder the will and through the trustees, and that their shares donot go to the other devisees by the jus accrescendi. In all otherrespects the judgment will stand and the decree be affirmed, andthis appeal will be dismissed with costs.^
Gbeniee, A. j.—
Vincent William Perera, with' whose last will we have to dealin this case, died on the 28th July, 1900. The last will was dated the14th November, 1899. On the 13th July, 1889, the testator married-the third defendant, who had been previously married to one Salman;and – who predeceased her on the 13th April, 1889. The fourthdefendant has been found by the District Judge to be the child of
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1905.Salman and third defendant, andwas bom in 1872. It was alleged
January 26.that the fifth and sixth defendantswere the adulterine issue of testator
n-nunman, and third defendant. The fifth defendant was bora in 1878 and theA.J. sixth defendant in 1883. The eighth and ninth defendants are des-cribed in the will as the adopted daughters of the testator. Thefirst and second defendants are the trustees to whom the propertybelonging to the testator was devised to be hdd in trust for the use andbenefit of the third, fourth, fifth, and sixth defendants. The seventhdefendant is the husband of the sixth defendant. The fourth defend-ant is the wife of the firstdefendant, the fifth defendant
is the wife of the second defendant. The plaintiffs are-husband and wife, the second plaintiff being a niece of, thetestator and the only child ofJohn Henry Perera, one of the
brothers of the testator. The testator had five brothers and sisters, who-had predeceased him; and the plaintiffs alleged that at the death ofthe testator they became entitled to a fifth share of his estate, includingthe lands and premises in the schedule marked A annexed to theplaint. The plaintiffs base their claim in the present action againstthe defendants on the ground that the fourth, fifth and sixth defendantsare the adulterine issue of the testator and the third defendant, and!that they, together with the third defendant, were incapacitated from,receiving by will directly or indirectly from the testator, and byreceiving by succession directly or indirectly from the testator, anypart or share of his estate or any benefit or advantage thereof, exceptso much as is necessary for the personal maintenance of the fourth,fifth, and sixth defendants. The plaintiffs also alleged that thebequest, except as to personal maintenance, is illegal and absolutelyvoid, and that the will has no effect, except to the extent of vesting aright in the fourth, fifth, and sixth defendants to derive such main-tenance. The plaintiffs prayed for a declaration of title to an undividedone-fifth share of the testator’s lands and premises and for a declarationthat the bequest in the will of the share so claimed by the plaintiffsbe declared null and void.

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
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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-
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1906.
January 26.Gbbnier,
H-
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
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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,
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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.