010-NLR-NLR-V-79-2-RANHETIDEWAYALAGE-RANA-Defendant-Appellant-and-RANHETIDEWAYALAGE-KIRIBINDU.pdf
A-BJwlO "isJeJ&Ay, i.—I'av/z v. Kirzbinau
1978Present: Thnmolheram, J., Ismail, J. and
Weeraratne, J.
RANHETIDEWAYAI-AGE RANA, Defendant-Appallant. .
■. 1 • • .: ;and
RAJNHETIDEW AYAL AGE KIRIBINDU, PlaintiS-Respondent
S. C. 185/71 (F)—D. C. Kegalle L/16312
Kandyan Law Declaration and Amendment Ordinance (Cap. 59), section- 9 (1)—Marriage contracted in “ dig a ” by daughter of-deceased—Continued residence – in “ mulgedera ”—Whether such daughterforfeits rights to • inherit father’s estate—Change in the lawbrought about by statute—Effect of dissolution of marriage.
The question that arose in this case was whether the plaintiff whowas a person subject to the Kandyan Law was entitled to succeedto the inheritance of her father inasmuch as she had married in“ diga ”. There was a finding of fact that the plaintiff althoughmarried in “ diga ” did not shift her residence from the “ mul-gedera”. The defendant was the elder brother of the plaintiffand the plaintiff’s position was that though she was married in“diga” she had remained in the “mulgedera” to look after threeminor children of the defendant whose wife had died shortly beforethe plaintiff’s marriage. The plaintiff’s husband also died beforeher father. The provisions of Kandyan Law Declaration, and Amend-ment Ordinance (Cap. 59) were applicable.
Held (Weeraratne, J. dissenting) : That the plaintiff was' entitledto succeed to her father’s inheritance.
After a consideration of the authorities the following proposi-'' fcions of law were laid down by Thamotheram and Ismail, JJ.:,
The character of a marriage at the time of contracting- is a
question of fact and must therefore remain the same beforeand after dissolution. The same marriage cannot be digabefore dissolution and not diga after.
The certificate of marriage is the best evidence of it.
While the marriage lasts the consequences of marriage flowing
from the character of marriage cannot be changed.
After dissolution of marriage the diga married woman can re-
gain her lost rights by change of residence, etc.
The husband’s rights flowing from the character of marriage
cannot be affected by dissolution.
Cases referred to:
Kalu v. Howwa Kiri, (1892) 2 C.L. Rep. 54.
Fernando v. Silva, 4 C.W.R.. 9.
Punchi Menika v. Appuhamy, 19 N.L.R. 353.
Seneviratne v. Halangoda, 22 N.L.R. 472.
Mampitiya v. Wegodapela, 24 N.L.R. 129.
Chellapah v. Muiiapitiya Rubber Co., 34 N.L.R. 89.
James v. Meddv.ma Kv.mc.rihomy, 58 N.L.R, 560.
I *—A 43468 (79/07)
74
THAMOTHERAM, .1.—Aana v. Kiribindu
PPEAL from a judgment of the District Court, Kegalle.
W. Jayewardene, Q.C., with J. W. Subasingiie andMiss S. Fernando, for the defendant-appellant.
C. Ranganathan. Q. C.. with C. R. Gunaratne, for the plaintiff-respondent.
Cur. adv. vult.
March 1, 1978. Thamotheram, J.
The plaintiff-respondent who is the younger sister of thedefendant-appellant instituted this action- for a declaration oftitle to a half share of the land called ‘ Gallajjewatta ’ and fordamages for wrongful possession of her share by the defendant.
The plaintiff averred that the property in«suit belonged to herfather and that though married in diga she did not leave theMulgedera and thus she became entitled to a share of the pater-nal land called ‘ Gallajjewatte ’ on her father’s death.
‘ The defendant-appellant filed answer denying the right of theplaintiff to inherit from “her father as she had contracted a digsmarriage in her father’s lifetime after January, 1939.
The defendant had married and lived in the Mulgedera with-'his wife and children. The plaintiff and her-parents too livedin that house. Shortly before the plaint'ff got married the defen-dant’s wife died. The plaintiff married in 1939. The marriagecertificate stated that the marriage was in diga. Thereafter theplaintiff’s husband Piyasena also died. Soon after her father alsodied. The plaintiff’s position was that although she married indiga she remained in the' Mulgedera to look after the threeminor children of the defendant.
The learned judge held that on the evidence for the plaintiff'which he accepted the plaintiff did riot shift her residence thoughthe marriage was registered as a diga marriage.
The argument in appeal proceeded on the basis of this findingand the question was—as the plaintiff did not leave the Mulgederanotwithstanding her diga marriage, had she forfeited her rightto the inheritance of her father’s estate ?
We are called upon in this case to interpret section 9 (1) ofthe Kandyan Law Declaration and Amendment Ordinance (Cap.59) Vol. 3 NLE. In doing so we have to keep-in mind the objectof this Ordinance which is stated to be “ An Ordinance to declareand amend the Kandyan Law in certain respectsIt is neces-sary therefore to first state what the law was before 1.1.1939 inregard to the subject dealt by that section.
THAMOTHKRAM, J.—Rana e. Kiribindu16.'
“ A marriage in diga is when a women is.‘given away; andis according to the terms of the contract removed frpip/.herparents abode* and is settled in the house, of the husband.
The conducting of a, wife to and living in the husband’shouse, or in any family residence of his, or if- he does notown a house and lands, the taking her as his wife, and thecpnducting away from her family- to. ax place of lodgingconstitutes a diga marriage. The predominant -idea is ‘thedeparture or removal from the family or ancestral'hornei
A plurality of daughters in a family necessitates this mode 'of marriage with regard to the majority of them,, the-common property being too limited in extent to be .enjoyed .by a numerous. family. The marriage of the daughters'-and. •the departures from the parental residence generally operatea – forfeiture’ of the inheritance and thereby reduce – thenumber of-the shareholdings,—Modder page 229. •‘
A digamarriage always .involves forfeiture. It is the goingsout in diga that works the forfeiture that is to say the womanshould be conducted by or go out to .live with a'man as his .
* Wife: Kalu v-. Howwa' Kiri, (1892) 2 CJL.R-. page 54 ”
Hayley states in his book on Kandyan. Law—
“There are two distinct forms, of marriage. called respec-tively diga'and binna. In the former which is: the-.usual typeof alliance in a-patriarchal system the husband , conductshis bride to his own house or that of .his-parents, .and; shebecomes, so long as the marriage subsists, a member of hisfamily. The latter is perhaps the older form. In' modem •times it is usually entered into only where the -bride: is: an.heiress the husband is brought to the house of the. wife onher relations. The essential factor being. his residence orproperty belonging to the wife’s family not necessarily ofher father. He continues throughout the alliance in a subordi-nate and somewhat humiliating position”— Hay ley,KandyanLaw, page 193:
In H. P. James v. Medduma Kumarihamy, 58 N.L1R. 560,Sansoni, J. said—
“ On production of the certificate of registration ofmarriage in diga the court must in law draw the! inferencethat the bride left the Mulgedera and forfeited her paternalinheritance in accordance with the contract, unless .the con-trary is* proved by the party who denies that the forfeiture
76
THAMOTHERAM, J.—Bcma v. Kiribindu
took place. This may be proved by facts which court wouldrecognise as sufficient to rebut the inferrence. The certifi-cate raises what Lord Denning has termed a “compellingpresumption which would give rise to a separate issue onwhich the legal burden is on the other party to prove thatthere was no forfeiture.”
I therefore have no hesitation in holding on the strength oithese authorities, that in cases governed by the amendedKandyan Marriage Ordinance of 1870 the production of a digamarriage certificate is of itself sufficient to prove not only thatthe wife was married in diga but also that she forfeited herpaternal inheritance. The burden thereafter- shifts to her or tothose claiming through her to prove that the subsequent conductof the parties was such that no forfeiture in fact took place.
In Fernando v. Bandi Silva, IV Ceylon Weekly Reporterpage 9 at 10—The question was whether a Kandyan womancan regain binna rights by readmission into the family of herbrother after her father’s death. Woodrenton, C.J. said—
“ The underlying principle is that the forfeiture by amarriage in diga of the rights of the diga married daughterto a share of the inheritance may be set aside by her read-mission into the family, even though both the marriage indiga and the resumption of her relations with the Mulgederatook place after her father’s death because that forfeitureis due not so much to the marriage as to the severanceeffected by the marriage of the daughter’s connection withher father’s house.”
Woodrenton, C.J. in the case quoted his own words in anearlier case—
“ The question at issue in the present case is whether awife married in diga can regain even after her father’s. death binna rights during the lifetime of her husband andwithout any divorce from him or remarriage in binna bymaintaining a closer and constant connection with theMulgedera.
A daughter married in diga forfeits her interest in herpaternal inheritance^ not by virtue of that marriage butbecause it involves a severance of her connection with herfather’s house. If that connection is re-established on itsoriginal bas;s and if the diga married wife is once morereceived into the family as a daughter it is only reasonablethat she should enjoy a daughter’s rights of• inheritance.”
THAMOTHERAjVI, J.—Rana v. ■ Kiribindu
77
In this same case cited by Woodrenton, C.J., Sampayo, J. said—^
“ The point to be kept in view in all cases, I think is thatthe essence of a diga marriage is the severence of thedaughter from the father’s family and her entry into that ofthe husband and her consequent forfeiture of any share inthe family property, and the principle underlaying theacquisition of binna rights as I understand it is that the, daughter is readmitted into the father’s family and restoredto her natural rights of inheritance. ”
Shaw, J. in Fernando v. Bandi Silva while agreeing withWoodrenton, C.J. said the same point has very recently been verycarefully considered by the Court in the case of Punchi MenikeV. .Appuhamy, 19 N.L.R. 353, where it was held that binna rightscan be reacquired after the father’s death if the diga marrieddaughter is readmitted into or with the consent of her family,and resumed her position in the family.
In Seneviratne v. Halangoaa, 22 NL.R. 472, Sampayo, J. said : —The question whether the character of a Kandyan marriage can__be„proved by oral evidence to be other than that stated in theregister was recently considered by the Chief Justice and EnndSf-
J.in Mampitiya v. Wegodapela. The learned judges have heldthat in section 39 of the Kandyan Marriage Ordinance, No. 3 of1870, which declares that the.entry in the register shall be thebest evidence of the marriage and of the other facts stated there-in and that if it does not appear in the register whether themarriage was in binna or diga, such marriage shall be presumed'to have been contracted in diga until the contrary is proved.The expression ‘best evidence’ is used' in the English Lawsense, and excludes all evidence of an inferior character; I cer-tainly accept this ruling with reference to the KandyanMarriage Ordinance because under section 11 of the Ordinanceregistration is the .only valid form of marriage for Kandyansand further because section 39 itself indicates the exceptionalcase in which oral evidence may be admitted.
The only consequence of a diga married daughter preserving ,or subsequently acquiring binna rights is that the forfeiture ofthe rights of paternal inheritance does not take place, but sheinherits as though she was married in binna. It does not alterthe character of the marriage itself. The diga marriage remainsa diga marriage so jar as other results oj such marriage are .con-cerned. The husband does not cease to be a diga married husbandand begin to be a binna married husband.
In Mampitiya v. Wegodapela, 24 N.L.R. 129, Bertram C.J. said—“ By contracting a marriage in diga, in which the bride’sfamily participated, the parties bound themselves to each
1 **—A 43416 (79/07)
THAMOTHERAM, J.—Rana v. Kiribindu
-other and the family, that the bride should be conducted inaccordance with custom and should settle in the house ofher husband. But if this for whatever reason was not doneif with the acquiescence of her family, the bride remained inthe Mulgedera then that forfeiture was never consummated.A diga marriage ceremony does not itself work a forfeitureirrespective of the subsequent action of the parties.”
Ennis, J.—
“ The forfeiture of the bride’s rights in the paternal estateturns on the question of fact whether the bride left theparental home in accordance with the contract. In theabsence of evidence there would be a presumption that theterms of the contract relating to residence had been carriedout, but I see no good reason for excluding oral testimonyrelating to the carrying out of this term of the contract, whichwas not, a matter of fact, occurring at the time of thecontract.”
J1
In Chellapah v. Kuttapitiya Rubber Co., 34 N.L.R. 89, Garvin,S.P.J. said—
“ Where a.Kandyan woman whose marriage was registeredas. diga avoids a forfeiture of her rights in the parental-inheritance by preserving or subsequently acquiring bjnnarights, it does not alter the character of the marriage itself.
: In such a case the diga husband is heir to his child inrespect to land devolving on her from the mother who had■inherited the property by virtue of the retention of herbinna rights.”
s
,,..We -may now 'look at section 9 of the Kandyan LawAmendment 39 of 1938—(1) A marriage contracted after thecommencement of this Ordinance in binna or diga should be abinna or a diga marriage as the case may be.
This was the position before the amendment. It-was a questionirf fact whether at the time of the contracting of the marriagethe parties intended it to be diga and whether in fact thebride was conducted by the bridegroom away from her father’shouse.
After registration became compulsory the statement in thecertificate of registration as to the character of the marriage,whether it was in diga or in binna was made the best evidence ofthe fact. There arose the necessary inference that there was a•conducting away from the bride’s father’s residence where it wasstated in the certificate that the marriage was in diga and the
THAMOTHERAM, J.—JRanav. Kiribindu
79
reverse position where the marriage was stated to be inbinna. If the certificate of registration did not state the characterof marriage it was presumed that the marriage was in diga.
The position before the amendment under consideration in thisregard was that it was possible to contradict a certificate ofregistration which stated that the. marriage was in diga or inbinna by oral evidence. It was permitted to prove by oral evidencethat at the time of contracting the marriage' the bridegroom didnot lead the bride from her parental home and therefore themarriage was in fact not in diga and there was consequently noforfeiture of her paternal inheritance. The effect of the amend-ment was that it was no longer possible to prove the characterof marriage by oral evidence.
In this respect the law as it was before wgs amended. Thecharacter of the marriage contracted remained so during marriageand after dissolution,, it being a question of fact, the best andonly evidence of which was the certificate of registration.
For all purposes of the law governing the succession tothe estates of deceased persons. The question whether a marriagewas contracted in diga or binna is important mainly in regard tothe succession to the estate of deceased persons. Whether at thetime of contracting the marriage there was forfeiture of thebride’s paternal inheritance will depend^ on what the certificateof registration states to be the character of the marriage, it notbeing permitted under this amendment to contradict thecertificate of registration.
Could a bride married in diga regain her lost rights byreturning to her parential house after marriage ?
Before the amendment this was possible. But after theamendment this was not possible as the amendment states—
“No change after any such marriage and no conduct afterany such marriage of either party to that marriage or ofany other person shall convert or be deemed to convert abinna marriage or cause or be deemed to cause a personmarried in diga to have the rights of succession of a personmarried in binna or a person married in binna to have therights of succession of a person married in diga. ”
This part of the section clearly refers to a change after themarriage is contracted. The legal consequences of a diga or binnamarriage at the time of contracting is determined by thecharacter of the marriage of which the certificate of registrationis the best evidence. But whether there has been a. change aftermarriage is a question of fact which is made irrelevant by this
80THAMOTHERAM, J.—P.ana v. Kiribindu
£
amendment as far as the legal consequences which flow fromthe nature or character of the marriage. These remain so long asthe marriage lasts. No subsequent change can affect theconsequences which flow from the nature of the marriage itself.
The next question is if a subsequent change cannot affect theconsequences of marriage when contracting, should this be soeven after the marriage is dissolved ? The answer is to be foundin the following words of the section—
“ Until dissolution shall continue to he ”
“A marriage contracted after the commencement of thisOrdinance in binna or in diga shall be and shallcontinue to be a binna or a diga marriage for allpurposes of the law governing the succession to theestate of deceased persons.”
To my mind this is a limitation on the effect of a change ofresidence or conduct after marriage. Such subsequent change isirrelevant as long as the marriage lasts. After it is dissolved achange can alter the situation. A bride can regain her lost rightsafter the marriage tie is no more., but any rights of the husbandflowing from the character of marriage will not be affected.
In our view the words—“ Until dissolution” is a limitationimposed to permit persons re-acquiring lost rights after thedissolution of marriage. No doubt the Kandyan Law Commissionhad recommended a more far reaching change in the law butthe legislature had thought fit not to adopt the recommendationin its entirety. This is something the legislature can do, and mayhave had good reason for doing so.
We are therefore of the view that the learned Judge was rightin the order he made. On one point however, I disagree. Therecannot be two different and valid descriptions of the samemarriage. A particular marriage cannot he both hihna and digaat the time of contracting marriage.
We can lay down the following propositions—
The character of a marriage at the time of contracting
is a question of fact and must therefore remain thesame before and after dissolution. The same marriagecannot be diga before dissolution and not diga after.
The certificate of marriage is the best evidence of it.
While the marriage lasts the consequences of marriage
following from the character of marriage cannot bechanged.
WEERARATNE, J.—Rana v Kiribindu
81
After dissolution of marriage the diga married woman
can regain her lost rights by change of residence, etc.
The husband’s rights flowing from the character of
marriage cannot be affected by dissolution.
We agree with the order of the Judge and dismiss the appealwith costs.
Ismail-, J.—I agree.
Weeraratne, J.
I have had the advantage of reading Thamotherarn, J.’s judg-ment with which Ismail, J. has agreed. The careful detailing ofthe facts and the reference to the authorities relevant to thismatter in that judgment makes my task easier. I find myselfhowever taking a view different from that expressed by my twobrothers.
The question for decision in the present matter is one-of lawwhich the learned trial Judge has decided in favour of theplaintiff-respondent, namely, whether by reason of the .plaintiffKiri Bindu’s marriage in ,l diga ” she was entitled to succeed tothe inheritance of her father Ukkuwa. The following dates arerelevant in this connection—
The plaintiff married in “ diga ” on 27.7.39.
The plaintiff s husband died on 30.7.46 prior to the death
of her father.
The learned trial Judge having evaluated the evidence given bythe witnesses has found that the plaintiff continued to live inthe “ Mulgedara ”, although her marriage was registered in“ diga ”. I see no reason to disagree with this finding of fact,nor was it seriously contested before us.
The provision which is relevant to the question to be answeredand which is sought to be interpreted is section 9 (1) of theKanclyan Law Declaration and Amendment Ordinance(Cap. 59), which came into operation on 1.1.39. Learned Counselon both sides dealt exhaustively with the authorities relating tothe Kandyan Law prior to 1939. The said Ordinance (Cap. 59) isstated to be an “ Ordinance to declare and amend the KandyanLaw. ” It is relevant to mention in this connection that aSessional Paper was published in 1935 consequent to the setting-up of the Kandyan Law Commission. It would not be unsafe topresume that the amendment to the Kandyan Law were to someextent influenced by the findings of the Commission.
82
WEERAJRATNE, J.—Sana v. Kiribindu
It would be unnecessary for me to describe in any detail theKandyan Law that existed prior to 1939 in relation to binnaand diga marriges, since I find that the matter is fully discussed inThamotheram, J.’s judgment. I would however make referenceto De Sampayo, J.’s judgment in the case of Punchi Menika v.Appuhamy, 19 N.L.R. p. 353 where he states : —
“ The point to be kept in view in all cases, I think, is thatthe essence of a diga marriage is the severance of thedaughter from the father’s family and her entry into that ofthe husband, and her consequent forfeiture of any share inthe family property, and the principle underlying the acqui-sition of binna rights, as I understand it, is that thedaughter is re-admitted into the father’s family and restoredto her natural rights of inheritance ”.
As commented by learned Counsel the character of the marriageis not lost, but her rights to inheritance were regained. To des-cribe the state of the Kandyan Law prior to 1939, succinctlythere were two aspects of the Kandyan Law applicable at thattime, namely the opportunity to re-acquire binna rights duringmarriage, or even after the dissolution of marriage.
✓
Section 9(1) of the “ Kandyan Law Declaration and
Amendment Ordinance ” reads as follows : —
“ A marriage contracted after the commencement of. this Ordinance in binna or in diga shall be and until dissol-ved shall continue to be, for all purposes of the law governingthe succession to the estates of deceased persons, a binna ora diga marriage, as the case may be, and shall have full effectas such ; and no change after any such marriage in the resi-dence of either party to that marriage and no conduct afterany such marriage of either party to that marriage or ofany other person shall convert or be deemed to convert abinna marriage into a diga marriage or a diga marriage intoa binna marriage or cause or be deemed to cause a personmarried in diga to have the rights of succession of a personmarried in binna, or a person married in binna to have therights of succession of a person married in diga.”
In seeking to interpret this provision it would be appropriateat this stage to refer to certain paragraphs of the report of theKandyan Law Commission, since the Legislature certainly musthave had before it the Sessional Paper XXIV—1935 in whichcertain important recommendations were made by an eminentbody of commissioners who were knowledgeable and competentto present a report on the subjects under consideration.
VEERAJRATNE, J.-—liana v. Kiribindu
83
How then, did the Legislature address itself to the findings ofthis Commission in regard to the matters adverted to above.. Mr.
W. Jayewardene, Counsel for the defendant-appellant sub-mitted that section 9 of Chapter 59, gave effect to the recommen-dations of the Commission. Mr. C. Ranganathan, for the plaintiff-respondent on the other hand submitted that in section 9(1)there is a departure from the existing state of the Kandyan Lawand the only new element in section 9(1) is once the marriageis dissolved, when she can re-acquire binna rights.Mr. Jayewardene posed the question as to what is the mischiefwhich was sought to be remedied. Counsel in providing theanswer stated that the mischief the Legislature wished to dpaway with is the conflicting decisions regarding the state of thelaw.-
It would be seen that'the Commission commented that: —
“ The comparatively simple rule excluding the digamarried daughter from the inheritance has become compli-cated at the outset owing to modern ideas regardingmarriage. ”
Then referring to the decision is the case of Mampitiya v.Wegodapela. 24 N.L.R. 129. the Commission stated that—
“Notwithstanding the registration of the marriage as
a diga one, the Court allowed the fact that the daughtercontinued to live with her parents virtually to convert itinto a binna marriage, entitling her to a share in her father’sestate. The result of this decision is to allow proof in everycase of the nature of the marriage in order to contradict theregister, although section 89 of Ordinance 5 of 1870 says thatregistration of the nature of the marriage shall be the bestevidence. ”
Then at paragraph 171, the Commission states: —
“ As it is only in matters connected with succession thatthe difference between diga and binna marriages is ofimportance, we are of opinion that modern conditions makeit advisable to enact that a marriage registered as a binnamarriage should be deemed to be a binna marriage, andconversely that the exclusion of the daughter from theinheritance will only take place where there is a digamarriage valid in law. ”
At paragraph 174 the Commission after giving excerpts from"decided cases categorically states : —
“ … .We are of opinion that the time has come.when endmust be made of the nice questions which arise and the
84
WEERA.UATNE, J.—Sana: v. Kiribindu
'interminable argument and litigation that they give occasionto, on these cases continuing to be accorded legal recognitionand we would therefore recommend that it be declared thata-marriage registered as in diga or in binna shall for allpurposes be deemed to be a marriage in diga or binna asthe case may be, and that in no circumstances can a marriage,once registered as in diga he altered into a hinna one andvice ’versa. ”
Concluding this aspect of Kandyan Law, the Commissionat paragraph 175 sets out: —
“ We are of opinion that these recommendations if givenlegal effect will settle several vexed questions and close upfor all times a fertile source of litigation.”
. It is. indeed a well-known principle that you interpret a statuteto do away with the mischief it was sought to remedy.Mr. Jayewardene submitted that the mischief that was intendedto be remedied is the conflicting decision regarding the law. TheCommission finally expressed the view that once a Kandyanmarriage is registered as a binna or diga it must be regardedas so. He submitted that the legislature was giving effect tothe view expressed that the mischief must be put right and thelaw be made certain. The^then existing state was that it was opento a lady to establish that there was a re-acquisition of binnarights. Judges would have agreed and disagreed. Counsel thensubmitted that the operative clause of section 9(1) is the secondpart of it, commencing after a semi-colon : —
“ and no change after any such marriage in the residenceof either party to that marriage and no conduct after anysuch marriage of either party to that marriage or of anyother person shall convert or be deemed to convert a binnamarriage into a diga marriage or a diga marriage into abinna marriage or cause or be deemed to cause a personmarried in diga to have the rights of sucession of a personmarried in binna or a person married in binna to havethe rights of succession of a person married in diga.”
It must be noted that this part of the provision lays downalmost precisely what the Kandyan Law Commissioners haverecommended. Mr. Ranganathan however strenuously argued thatwhat is significant in the provision are the words “ or after•dissolution ”, in the first part of the section. He submitted thatthe only element which is touched in section 9(1) and departs■from the Commission’s recommendations are the words justreferred to above, by the inclusion of which a woman married
WEERARATXS, J.—Band v. Kiribindu
$5
in diga can return to her parental home and re-acquire her binnarights of inheritance after the dissolution of her marriage by thedeath of her husband. Mr. Rar.ganathan went on to state thewording of the provision does not permit her to do so during thesubsistence of her marriage.
.It seems to me that section 9(1) is capable of analysis to showthe real intention of the legislature and the mischief which wassought to be remedied.
Section 9(1) could be conveniently analysed as follows: —
(а) A marriage contracted after the commencement of
this Ordinance in binna or in diga shall be, for allpurposes of the Law governing the succession to theestate of deceased persons^ a binna or diga marriageand shall have full effect as such'.
(б) A marriage contracted after the commencement of
this Ordinance in binna or diga until dissolved shallcontinue to be a binna or diga marriage and shallhave full effect as such.
ft
In paragraph (b) until dissolved a binna or diga marriagecontinues to be a marriage. This is stating the obvious, becausewhen the “ marriage state ” subsists the marriage continues.The “ marriage state ” ceases on dissolution and therefore suchmarriage does not continue. Paragraph (a) now deals with thatsituation and for the purposes of this section when the “ marriagestate ceases by dissolution which can be by death of one ofthe spouses or by a decree of divorce it shall be considered amarriage although in fact the marriage ceased to exist.
This emphasises the view that once a diga marriage is con-tracted it will be a diga marriage for the purposes of this section,whether that marriage subsists at the time of succession ordoes not subsist (i.e. dissolved) at that time. This is the mischiefwhich the section sought tc remedy.
" The subsequent wording of this section : —
“ and no change after any such marriage in the residenceof either party to that marriage and no conduct after suchmarriage of either party to that marriage or of any otherperson shall convert or be deemed to convert a binnamarriage or cause or be deemed to cause a person marriedin diga to have the rights of succession of a person marriedin binna, or a person married in binna to have the rights ofsuccession of a person married in diga. ”
86
SAMARAKOON, C.J.—Dharmakeerthi Thc.ro v. Jinasiri The.ro
refers * to both these situations and sets out the legal effect ofsuch marriage.
The analysis of section 9(1) illustrated above, to my mindshows that the Legislature has certainly acted upon the recom-mendations of the Kandyan Law Commission.
For the reasons given I would allow the appeal and directjudgment to be entered for the defendant-appellant with costs.
Appeal dismissed.