025-NLR-NLR-V-12-ROBOT-et-al.-v.-DE-SILVA-et-al.pdf
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In the Privy Council.
Ou Appeal from the Supreme Court of Ceylon.
Present: Lord Robertson, Lord Atkinson, Lord Collins, andSir Arthur Wilson.
RABOT et al. v. DE SILVA 'et al.
D. G., Colombo, 14,923.
Adultery—Marriage of persons -who have, lived in adultery—Validity—Bequests—Legitimacy of children—Non-access—Presumption—Ordinance No. 6 of 1341, s. 31.
According to the law of Ceylon parties who have lived in adulteryare not incapacitated from marrying one another or of takingtestamentary gifts from one another.
A
PPEAL from the judgments of the Supreme Court reportedin 8 N.L. R. 82 and 10 N. L. R. 140.
February 10, 1909. Lord Atkinson—
In this appeal the appellants challenge the validity of bequests byone Vincent Pereira to his widow and to two of her daughters. Thewidow, Justina, had first been married to Salman Appu, who died'in April, 1889, and in July of the same year, 1889, she was marriedto Vincent Pereira. Pereira executed the disputed will in November,1899, and he died in 1900.
Justina had for some years lived as Pereira’s mistress during the lifeof her first husband, and the two-daughters, whose legacies are indispute, were bom during this period. The bequests are challengedon the ground that the daughters were the fruits of adulterousintercourse, and that this invalidates the gifts. The question offact has first to be considered; and it is clear that, while Justinalived in Pereira’s house, the husband lived in the neighbourhood,and was not disabled from visiting her, nor was she disabled fromvisiting him, and Justina, who was examined as a witness at thetried, swears to connection with her husband at the periods in
1909.
February 10.
1909.
February 10.
Lobd
Atkinson.
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question, and asserts her inability to determine the paternity of thechildren.
The broader facts of the case make it impossible to declare thechildren to be proved to be the children of Pereira ; and, in theirLordship’s judgment, the decision of the Supreme Court of Ceylon,who reversed the trial Judge, was clearly right. Accordingly, thequestion of law does not arise as to the validity of the bequests tothe two children, the fifth and sixth respondents.
The remaining question is of the validity of the bequests to thewidow. In considering this question, it is to be remembered that, bythe time the will was executed, the first husband was dead, and Justinahad been made an honest woman of, so far as marriage could do it.
The appellants, indeed, dispute the validity of the marriage owingto the previous adultery. Obviously, however, as the bequest is toJustina by name, the primary dispute is on the appellant’s argumentthat, wife or no wife, Justina was disabled by her former adulteryfrom taking under the will of her paramour. Not the less, thevalidity of the marriage is a topic of crucial importance in thediscussion of the general doctrine invoked by the appellants. Thatgeneral doctrine which is strongly supported in Roman and Roman-Dutch text law, is represented as opposing to adultery so strong areprobation that, once adultery has been committed, there resultsto the guilty parties a:: incapacity ever to marry one another or totake testamentary gifts from one another.
The interesting discussion thus raised as to the doctrine of theRoman-Dutch Law on the article of adultery must not distractattention from the immediate and practical question, what is theliving law of Ceylon on the matter in hand ? Does the existing law'of Ceylon support the contention that past adultery affixes indeliblythe disabilities asserted ? To their Lordships it appears clear thatthe appellants are logically right in maintaining the invalidity ofJustina’s marriage, for no system of law has been put forward whichpermits a woman to marry her paramour and at the same timedisables her from receiving a bequest. If there had been authorita-tive decisions on specific questions on this subject, the debate ivouldbe different. But that is not the case, and the appeal of the appel-lants is made to doctrine and principle.
Now, that the existing marriage law of Ceylon does not adopt,but on the contrary repudiates, the doctrine and principle invokedis, in their Lordships’ opinion, demonstrated by Ordinance No. 6 of1847, which recognizes the marriage of adulterers as valid. Section31 provides : “ And it is further enacted that from and after thenotification in the Gazette of the confirmation of this Ordinance byHer Majesty, a legal marriage between any parties shall have theeffect of rendering legitimate the birth of any children who may havebeen procreated between the same parties before marriage, unlesssuch children shall have been procreated in adultery.”
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The case here contemplated is that of the marriage of adulterers ;1909.
and, on very intelligible grounds, children procreated in adultery are February 10.expressly denied legitimation. The necessary contemplation of the [_OBDOrdinance is that adulterers may lawfully marry, and the fact that Atkinson.this is assumed, and not enacted, gives to the Ordinance authorityas an exposition of the law.
A modem and specific authority, such as this, dispenses fromhistorical inquiry about Roman-Dutch Law generally, and dislodgesthe Roman-Dutch Law about the effects of adultery from thegoverning authority claimed for it by the appellants. That beingso, the respondents are entitled to prevail, and their Lordships willhumbly advise His Majesty accordingly.
The appellants will pay the costs of the appeal.
Appeal dismissed.
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