Kandiah ©. Thangamany
1953Present: Nagalingam A.C.J.S. KANDIAH, Appellant, and THANGAMANY, RespondentS. C. 819—M. C. Vavuniya, 25,250
Marriage—Presumption of marriage by habit and repute—Not applicable wherecohabitation follows a marriage ceremony which is invalid.
The presumption of marriage by habit and repute cannot prevail wherethere is evidence that the parties had gone through a marriage ceremonyand that the solemnization was invalid for the reason that one of the partieswas, at the time of the ceremony, already lawfully married. Cohabitationof the parties and general recognition of them as husband and -wife subsequentto the dissolution of the prior marriage are inadequate in law for the applicationof the doctrine of presumption of marriage.
.^^.PPEAL from a Judgment of the Magistrate’s Court, Vavuniya.
A., who was' married to B., instituted divorce proceedings againsther. Pending the action for divorce A. purported to marry C. accord-ing to Hindu rites and lived with her as husband and wife. There was
NAGALHTGAM A.C. J.—Kandiah v. Thangamany
no fresh ceremony, either according to custom or under the MarriageRegistration Ordinance, subsequent to the dissolution of the marriageof A. wi£* B- In the present case the question arose whether C. couldclaim maintenance as wife from A. It was contended that the co-habitation of A. and C. after the dissolution of the marriage betweenA. and B., coupled with the circumstance that A. and C. were recognizedby friends and relatives as man and wife, entitled C. to gain the statusof a lawful wife.
T. W. Bajaratnam, for the defendant appellant.
K.Sivasubramania.m, with D. S. Nethsingha, for the applicant respon-dent.
Cur. adv. milt.
September 17, 1953. Nagaiungam A.G.J.—
This appeal involves a determination of the question as to what extentthe presumption of marriage by habit and repute could be held to prevailwhere a<Jmit.^ed6ly there is evidence that the marriage ceremony gonethrough by the parties is invalid, and further whether, after the factorrendering the marriage, invalid has ceased to be operative and co-habitation continues, such co-habitation attended by recognition bymembers of the families of the parties as husband and wife is adequatein law for the application of the doctrine of the presumption of marriage.
The question arises on the application for maintenance made bj^ theapplicant on behalf of herself and her children on the ground that sheis the lawful wife of the defendant and that the children were lawfullybom in wedlock to him. The learned Magistrate has very carefullyanalysed the evidence and arrived at certain findings of fact with whichI see no reason to disagree. Briefly stated, the facts are : The defendantwas anterior to the dates material to these proceedings a widower. Onthe 28th February, 1948, he married one Ponnammah under the GeneralMarriage Registration Ordinance, and the solemnization of the marriageis evidenced by the certificate of marriage D5. Though the marriagewas solemnized between the defendant and Ponnammah, the partiesnever lived together, and the defendant shortly thereafter instituteddivorce/proceedings against her, and decree nisi dissolving the marriagewith Ponnammah was entered on 6th May, 1949 ; the decree was madeabsolute only on 2nd February, 1953. After the defendant had institutedthe action for divorce against Ponnammah, he would appear to havemarried the applicant according to Hindu rights. The marriage withthe applicant took place in January, 1949, that is to say, subsequentto the institution of the divorce proceedings against Ponnammah butprior to even the decree nisi dissolving his marriage.with the defendantbeing entered in the action.
It is conceded on behalf of the applicant that the marriage accordingto custom between her and the defendant having taken place at a timewhen the defendant was a married man having a lawful wife living,
NAGALINGAM A.C. J.—Kandiah v. Thangwmany
namely Ponnammah, the marriage according to custom cannot bevested with any legality ; so that the marriage was void and of noeffect. The appellant must, therefore, be regarded at the date she wentthrough the marriage ceremonies with the defendant as having gonethrough proceedings which did not culminate in the normal legal conse-quences that flow from a lawful marriage. She would, therefore, be in thesame position as a mistress and would have no legal rights agaifist thedefendant.
Counsel for the applicant, however, contends that the co-habitationof the applicant and defendant after the dissolution of the marriagebetween defendant and Ponnammah coupled with the circumstancethat the applicant and defendant were recognized by friends and relativesas man and wife would at least from that day enable the applicant togain the status of a lawful wife. I do not thinlc that this contention issound. Counsel relied upon the case of Breadelbane Peerage Claim1,where it was held that living together of parties subsequent to theimpediment which rendered the marriage solemnized between them.invalid had been removed was sufficient to vest the union with legality.But that was a Scotch case and the judgment quite clearly indicates■that under the Scotch Law no previous ceremonies are' required for thevalidity of a marriage, and the mere consent of the two parties is all that is.required for a valid marriage, and where the two parties continue to livetogether as a result of such mutual agreement, a valid marriage is deemedto subsist between them. See the case of Weerapperuma v. Weerap-peruma 2. The learned Magistrate himself has been persuaded to follow"the principle laid down in the former case, and he has on that basis heldthe applicant to be a lawfully married wife.
Under our law, however, some antecedent public ceremony, publicin the sense of a ceremony in the presence of relatives, friends or thirdparties, has to take place before the mere circumstance of the partiesliving together as man and wife followed by recognition of their livingtogether as man and wife by friends and relations can form the basisof a deduction that there was a lawful marriage between the parties.It is not unimportant to stress that the fact of two parties living togetheras man and wife and their being recognized as such by friends andrelations gives rise to a presumption—and a presumption only—ofmarriage. It does not prove the fact of marriage, and the presumptionis not an irrebuttable presumption but one which may be disproved.
In this case, as observed earlier, the only evidence of any antecedentTeligious ceremony was of one which was invalid. There was no cere-mony, either according to custom or under the Ordinance subsequentto the dissolution of the marriage of the defendant with Ponnammah.Therefore the living together of the defendant with the Applicant asman and wife even if it is assumed that they lived together subsequent tothe dissolution of the defendant’s marriage with Ponnammah cannotlead to a presumption of marriage being drawn, for there is positiveevidence that there was no valid marriage between the parties.
L. R. (1872) 2 H. L. S. G. 269.
s (1938) 39 N. L. R. 433.
Panditha v. de Zoysa
I need only observe further that the application of the applicant wasmade on 16th September, 1952, even at a date anterior to the orderabsolute dissolving the marriage of the defendant with Ponnammahwas entered, clearly showing that there is no room even for the argumentthat the applicant and the defendant lived together as man and wifeafter the impediment whieh rendered their marriage void had beenremoved.
therefore, hold that the applicant is not the wife of the defendantand is not entitled to an order for maintenance, and set aside the orderof the Magistrate to that extent.
The children are, however, entitled to an order in their favour thoughillegitimate. The defendant describes himself as an Ayurvedic physician,and the order of the learned Magistrate indicates that the defendanthas a financial capacity*of paying at least a sum of Rs. 37 a month towardsthe maintenance of his dependants. I think in all the circumstancesof this case the amount fixed by the learned Magistrate for the main-tenance of the two children is low. I would fix the maintenance for the•elder child Thevamalar at Rs. 20 a month and for the younger childRavendran at ."fls. 15 a month. The order will take effect from the date•of the juclgmem? of the lower court.
In view of the fact that the defendant himself has on more than oneoccasion both in the course of these proceedings and in other proceedings•described the applicant as his wife, I think the proper order to make withregard to costs is that the parties should bear their respective costs of-appeal.
Appeal partly allowed.