SOPHIA HAMINE v. APPUHAMY

099-NLR-NLR-V-23-SOPHIA-HAMINE-v.-APPUHAMY.pdf


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[Fuii Bknoh.]
Present: Ennis, Do Sampayo, and Sohneider JJ.
SOPHIA H AMINE v. APPUHAMF.
141 and 144—D. G. Negombo, 1,859.
A
Louxountry Sinhalese resident in the K Kandyan Provinces—DoesOrdinance No.. 3 of 1870 apply to them f—Marriagcby custom—Ordinance No. 2 of 1895.■* v*.
Ordinance No. 3 of 1870 id applicable to Kandypns and not toLow-country Sinhalese resident in the Kandyan Provinces.
Since the repeal of section 15 of Ordinance No. 2 of 1895, it isopen to Low-country Sinhalese resident in the Kandyan Provincesto establish a marriage by custom.
r|^HE facts appear from the judgment.
A. St. F-«Tayawardene, K.C. (with him B. L. Pereira, Bodrigo,and H. V. Perera), for appellants in No. 141 and respondents in No.144.—The deceased though a Low-countiy Sinhalesewas a resident ofthe Kandyan Provinces at the time of his marriage. So OrdinanceNo. 3 of 1870, which requires that all marriages should be registeredto be valid (section 11), applies to this case. x Marriages governedby this Ordinance are defined in section 4, which does not excludethe case of a Low-country Sinhalese marrying a Kandyan.
[Schneider J.—What is the object of section 25 ? Is not that arecognition of customary marriages 7]
That section applies only to marriages contracted between 1859and 1870, and not after the coming intoM^pcftatioimf this Ordinance.The definition of marriage is the same in Ordinance No. 3 of 1870as in Ordinance No. 13 of 1859. But the schedule to the latterOrdinance contains a column for the description of-parties as<c Kandyans or not/’ thus clearly contemplating the^base of non-Kandyans coming within this Ordinance. Case oijNardyanee v.Muttusamy1 cannot be considered an authority,' as the partiesconcerned were Indian immigrant coolies who 'cbn never properlybe said to be residents of the’Kandyan Provinces.
Even if it be held that this marriage cofire/ under the generalmarriage law of the Colony, Ordinance No. 2 of 1895, which was theOrdinance in force at the time of deceased’s marriage (August 21,
1 {1894) 8 8. C. R. 125.
28-14–22/453
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Sophia^Bam&new.Appukonty
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ib valid .under this Ordinance unless it be regis-
. The preamble to this Ordinance shows that the. object was
dbbsolidate and amend the law relating to the registration ol^ftfirnb&es.” So the whole law relating to the solemnization ofjg£mages must be found in this Ordinance, which has by implicationUoMed the common law. The preamble is similar to that foundun the Civil Procedure Code and the Criminal Procedure Code,which respectively contain the whole law on the subject.
[Db Sampayo J.-«3ection 15, which made registrationcompulsory,
{.repealed by Ordinance No. 10 of 1896.]
It repeal has been ineffective, as the provisions regarding the
•of notice and the other preliminary steps are still in force.
Rule tfer^egards the interpretation of a Code is laid down in Bankof England v. Warlianu.1 Counsel also cited 23 Gal,. 663 at p 571.
[Ennis J.—Does not section 43 contemplate the possibility ofcustomary nSarriages ?J
That section must be read with the repealed section 15, whichprohibited customary marriages. The marriage will be valid if theparties did not know of the requirements of the law [Greaves v.
Bawa, K.C. (with him H. J. C. Pereira, K.C., Samarawickreme,and Croos-Dabrera), for respondents in No. 141 and appellants inNo. 144.—There was no interference by the Legislature with theKandyan marriage laws till Ordinance No.-13 of 1859, which,as its -preamble clearly shows, relates to Kandyans only. At the time ofthe repeal of this Ordinance by Ordinance No. 3 of 1870 there vims awell-defined class of people who were residents of the KandyanProvinces, i.e., the Kandyans as defined in Ordinance No. 23 of 1917.Further, there are certain sections which cannot possibly relate toothers than Kandyans, e.g.9 sections 15-25.
On the second point there is ample authority for the propositionthat customary marriages are valid under the general marriage law,[Tisselhamy v. Nonnohamy;3 Semen Tamby v. Annama ;4 D. C.Colombo, 59,572;6 Babina v. Dingi Baba >6 VaUiammai v.Annammai; 7 6 S. G. C. 121; 1 C. W. B104).
Jayawardene, in reply.
Cur. gdv. vuU.
Jnly 17,1922. Ennis J.—
These are two appeals arising out of a'judgment of the DistrictCourt of Negombo in the matter of the last will and testament of oneDon Carolis Appuhamy. Sophia Hamine, asserting that she was thewidow of the deceased Don Carolis Appuhamy, applied for letters
1 (JMM) L. B. A. C.,p. 107, at p. 144.
• 2 P. A D. 423.
*(1897)2N.L.B. 362.
*(1900) 1 Br. 28.
61 Br. App. A 1.
8 (1882) 6 S. C. O. 9.7 (1900) 4 N. L. B. 8.
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of administration, with tiftgUrill annexed/to his estate. She saidthat she and her son, the first respondent in the ease, were the heirsof Don Carolis Appuhamy, and she prayed that the second respond-ent should he appointed guardian ad Utem of the first respondent,.who was a mihor. The second respondent was duly appointedguardian ad Utem, and certain hdded-respondents intervened,asserting that the will propounded was a forgery, and that SophiaHamine was not the lawful wife of the deceased Certain issueswere framed, and the learned Judge held that the will propoundedwas a forgery, but that Sophia Hamine was the lawful wife of DonOarolis Appuhamy. The first four added-rfespondents appeal, in. appeal No. 141, from the finding that Sophia Hamine was the lawfulwife of Don Carolis Appuhamy, and, in appeal No. 144, SophiaHamine appeals against the finding that the will was a forgery.
Mr. Bawa, for the appellant in No. 144, suggested that it would beunnecessary for him to argue that appeal if he were successful inappeal No. 141, so appeal No. 141 was considered
Mr. A. St. V. Jayawardene set out the following grounds ofappeal:—
That the evidenoe did not prove that there had been a
marriage by custom;
That the parties were resident in the Kandyan Province, and
that had there been a marriage by custom it was invalid,as Ordinance No. 3 of 1870 applied; and
If Ordinance 3 of 1870 were held not to apply, then a
customary marriage, if any, was null and void by virtueof the provisions of section 34 of Ordinance No. 2 of 1895,which was in force at the time of'the,marriage, viz.,August 21,-1907.
The appeal was not seriously pressed on the first ground. Asthere is a strong finding of fact by the learned Judge and evidencewhich supports it, I wquld accept the finding that a.customarymarriage was entered into by Sophia Hamine and Don CarolisAppuhamy by means of a porutace ceremony in the house of Sophia’smother in Anuradhapura, when, in the presence of relatives, thefingers of the bride and bridegroom were tied together by thread,water poured over them, and other customary rites performed, andthat thereafterthe parties lived together as man and wife, and wererecognized as man and wife by their relatives, friends, and othersuntil Carolis died on April 15,1920.
On the second ground it was conceded that the parties were notKandyan,but Low-country Sinhalese,and it appears that they wereliving in the Kandyan Province at the time of the marriage. Itwas contended on these facts that the parties were “ residents in the
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8opMaHamine r.Appuhamy
Kandyan Provinces,” and as such subject to the Ordinance Ho* 3 of1370, under whioh the marriage was not registered, and was there-fore not valid by virtue of section 11 of that Ordinance.
In the case of Narayanee v. Muttusamy (supra) it was held that thewords “ residentsmthe Kandyan Provinces ” found in the definitionof “ marriage ” in section 4 of the Ordinance must be interpretedas meaning Kandyans. The section reads as follows:—
“ The word * marriage * shall mean marriage contracted by andbetween residents in the Kandyan Provinces other thanmarriages under the Marriage Ordinances in force in theMaritime Provinces of this Island, or marriages betweenpersons commonly known as Europeans or their descend-ants, or persons commonly known as Burghers, ormarriages between any such persons and any Sinhalese(whether of the Maritime or Kandyan Provinces), ormarriages between persons professing the Muhammadanfaith.”
It seems to me that this is not an appropriate case for a consider-ation of the question as to the persons subject to the operation of.the Ordinance No. 3 of 1870, for the question really iB whether themarriage in question is invalid under section 11 of the Ordinance,which declares:—
“ Except as is hereinafter provided, no marriage contracted sincethe Ordinance No. 13 of 1859 came into operation, or tobe hereinafter contracted shall be valid, unless registeredin manner and form as is hereinafter provided in thepresence of any Registrar . . . .”
Marriage is a contract between two parties, and by the Kandyanmarriage custom it could be dissolved by mutual, consent. ThisKandyan custom was a special custom,'and such marriages wouldnot be regarded as marriages by and for Europeans and Burghers.The Ordinance No. 3 of 1870, which followed others to much thesame effect, was to make provision for proof of such marriages andto make registration necessary to the validity of such marriages.When, therefore, the Ordinance defined marriage (in an Ordinance“ to amend the laws of marriage in the Kandyan Provinces ”) asmarriages between persons “ resident in the Kandyan Provinces ”other than (briefly) European and Burghers, the exclusion meantthat Europeans and Burghers could not contract a valid marriageby Kandyan custom, and when the definition proceeded to .exclude“ marriages under the Marriage Ordinances in force in the MaritimeProvinces of this Island,” the Ordinance of 1870 would be one toamend the laws of marriage with regard to marriages other thanmarriages under the Marriage Ordinance in force in the MaritimeProvinces.
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Marriages by and between residents in the Kandyan Provincesunder the marriage law in force in.S^gJ$aritime Provinces were notaffected by the Ordinance No. 3 of 1370, and- were, therefore, notinyalid under section 11 of that Ordinance.
That this was the intention of the Legislature is borne out byOrdinance No. 14 of 1909, which was enacted to remove doubts as towhether persons who might lawfully have contracted a marriageunder the Ordinance No. 3 of 1870 could contract a valid marriageunder the general marriage law. It was declared that they could,and that no marriage solemnized and registered under the generalmarriage law should be deemed to be invalid, because the partiesthereto were persons who might lawfully have married under'theOrdinance No. 3 of 1870.
I am of opinion, therefore, that the Legislature intended thespecial Kandyan Marriage law and the general law of Ceylon to runconcurrently and alternatively in the Kandyan Provinces.
The marriage in this case was not solemnized or registered inaccordance with the requirements of either Ordinance. It remainsto he considered whether the marriage is valid under the general lawof marriage, which, at the rime of the marriage, was the OrdinanceNo. 2 of 1895. This Ordinance (since repealed and subsequentlyre-enacted by Ordinance No. 19 of 1907) was the General MarriageOrdinance in force on August 21,1907, the date of the marriage inthis case, and in section 4 it defines “ marriage ” for the purposeof the Ordinance as—
“ Any marriage, save and except marriages contracted under andby virtue of the Ordinance No. 3 of 1870 ”
The Ordinance No. 2 of 1895, when enacted, contained thefallowing section:—
“ No marriage contracted after this Ordinance comes intooperation shall be valid unless it shall have been dulysolemnized by a minister or a registrar and registered inmanner and form as is hereinafter provided.
“ Provided that nothing herein contained shall be construed torender invalid, merely by reason of its not having beenregistered, any marriage between persons professing theHindu religion not domiciled in this Island, or to precludeany legal evidence other than that of registration frombeing adduced in proof of such marriage.”
This section was repealed the following year by Ordinance No. 10of 1896.,
It was argued that the Ordinance No. 2 of 1895 was aff< consoli-dating” Ordinance, and as such superaeded marriages which dependfor their validity upon rites and customs not mentioned in theOrdinance. It is difficult to see how ibis argument is tenable sincethe repeal of section 15, It is to be observed that the Ordinance is
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one “ to consolidate and amend the laws relating to the registrationof marriages . , . ISjjgjgdefhntion of marriage in section 4of the Ordinance is wide enough to cover a marriage which dependsfor its validity upon custom, and, since the repeal of section ]£,registration is not a necessary element to the validity of a marriage.Section 39 merely makes the entry in the register the best evidenceof a marriage, and does not preclude any legal evidence other thanregistration being adduced in proof of a marriage. ,
In the case of (hinaratne v. Punchihamy,* Pereira J. expressed theopinion—
“ That it was open to parties to contract a .marriage according tonature, rites, and customs quite independently of the Ordi-nance (of 1863), and that marriages contracted accordingto such rites and customs …. were not invalidby reason of the provisions of the Ordinance of 1865 bringdisregarded.”
The Ordinances referred to were repealed in 1895. In Vatti-ammai v, Annammdi (supra) it was held that there can be lawfulmarriage in Ceylon without registration under the local Ordinances.I mention these two cases, although it was conceded by Mr. A- St. V.Jayawardene at the hearing of the appeal that prior to 1859 therewere two forms of marriage, customary aiu^sta^tory. I am unableto see that the position has been altered by the enactment ofthe Ordinance No. 2 of 1895.^
A marriage valid by native custom is a marriagecc under ” section4 of the Ordinance, although not under the provisions of the Ordi-nance as to form and registration.
I am unable to see how section 34 can apply to the present case, asthe marriage under consideration does not purport to have beencontracted under the provisions of the Ordinance.
In view of the conclusion I have come to, I would dismiss theappeal No.141, with costs, and, adopting the suggestion of Mr. Bawa,would dismiss appeal No. 144 without any order as to costs.
DeSampayoJ.—
It has been well proved that the usual ceremonies attending amarriage among the Sinhalese according to custom were fullyobserved in the case of Ariyappernma Aratchige Don Carolis Appu-hamy and Wijesinghe Aratchige Sophia Hamine, whose marriageis now in question, that these two persons intended to marry eachother when, they went through the customary form, and that theythereafter lived together as husband and wife, and were sociallyacknowledged as such until the death of Don Carolis Appuhaxny.If a customary marriage was valid, there is no question that they
Mtm) 16 N, L. R. SOI.
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were lawfully married, and that Sophia Hamine, who is the petd- ±922.turner in this suit, and Don Hendrick, the first respondent, who is ^their son, are the heirs of Don Carolis Appuhamy. But&frfcain j.views as regards the law on the subject, which have beei* jubihitted~—
on behalf of the appellants, who claim to be the sole heirs of Don Hamtoe v.Carolis Appuhamy, and dispute the status of Sophia Hamine and ApfvhamyDon Hendrick, have to be considered.*
Don Carolis Appuhamy and Sophia Hamine were Sinhalese o£#helow-country. The former was a trader at Anuradhapuia, anfl 4helatter was the widow of one Don Pedrick, and at the time ofgjbeirmarriage, which took {dace at Anuradhapura on August 21f #R)7,both of them were resident at Anuradhapura^ It'is contend#* onbehalfof the appellants, in the first place, that,being resident yfihinthe Kandyan Provinces, they could only &ave lawfully marked inaccordance with the provisions of the Ordinance No. 3 of'^870,
• which makes registration essential to the validity of a marriage.
That Ordinance defines the word “ marriage/’ as*' marriage, con-tracted by and between “ residents in the Ktnd^&n Provinces,”other than marriages under the Marriage Ordinance in force in theMaritime Provinces of the Island, and marriage between certainpersons which need not be specified for the present purpose. Whatis the meaning of the expression “ resident in the Kandyan Pro-vinces ” in the context ? The Ordinance ever since it has beenenacted has been understood to be an Ordinance for the regulationof marriages among the “ Kandyans ” only, but as the Sinhalese ofthe Maritime Provinces are not among the excepted persons in thedefinition of the word “ marriage,” it is now, and, so far as I know,for the first time, argued that such Sinhalese, if they are resident inthe Kandyan Provinces, can only validly contract a marriage byregistration under the Ordinance. There is no provision in theOrdinance for marriages to be celebrated by a Christian Minister asin the General Marriage Ordinance, and so, if the argument in thiscase is sound, Christians are obliged to marry before the Registrar,though this may be contrary to the precepts of their religion. Inregistering a marriage the parties must state, the nature of themarriage, that is to say, whether it is to be in diga or in binna, whichis a peculiarity unknown to, and the effect of which is repugnant to,the social ideas of others than Kandyans. Again, a marriage isdissolved, not by a decree of Court, but by a mere entry in theregister, and the grounds of divorce, inter alia, are (1) inability tolive happily together and (2) mutual consent. Jf^the Legislatureintended to subject the Sinhalese of the Maritime Provinces to these^strange consequences, simply because they may happen to be resi-dent in the Kandyan Provinces, the Ordinance must be given thisextended operation. But I do not thinjtythere was any such inten-tion. The Ordinance No. 3 of 1870 is afit isexpresAy declared to be“ The Amended Kandyan Marriage Ordinance.” It is an amendment
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of and a substitution for the Ordinance No. 13 of 1859 withwhich it is closely interwoven. Section 8 provides for marriagesbefore the Ordinance No. 13 of 1859 if contracted according to thelaws, institutions, and oustozns in force “ among the Kandyans1’at the time of the contract. Here the expression “ among theKandyans ” is noticeable. Section 10 declares registrations madeby registrars without the legal proof of marriage required by section19 of Ordinance No. 13 of 1859 should he deemed good and validregistrations. Section 11 regularizes marriages which were con-tracted since the Ordinance No. 13 of 1859, and which were invalidfor want of registration under that Ordinance. It is clear that thescope and object of the Ordinance No. 3 of 1870 are the same asthose of the Ordinance No. 13 of 1859. Now, the preamble of thelatter Ordinance is as follows
“ Whereas it was agreed and established by a Convention signedat Kandy on March 2, 1915, that the dominion of theKandyan Provinces was vested in the Sovereign dl theBritish Empire, B&ving to all classes of people in thoseProvinces the safety of their persons and property withtheir civil rights and immunities according to the laws,institutions, and customs established and in force drnongthem . . .. :
“ And whereas the custom of the Kandyans …. permitsa man to have more than one living wife, and a woman tohave more than one living husband:
“ And whereas this custom is wholly unsuited to the presentcondition of the Kandyans, and is in no way sanctioned bytheir national religion . . . :
“ And whereas from the circumstances mentioned the marriagecustom of the Kandyans is become a grievance and anabuse, and a large and influential portion of the Kandyanpeople have petitioned for the redress and .reform of thesame:"
“ And whereas it is expedient, in order to such redress andreform, that Her Most Gracious Majesty should, inaccordance with the said Convention, make provisionthrough the Legislature of this Island for the contractingand solemnization of marriages within the said Provinces,and for the registration of such marriages, and for thedissolution of such marriages, and for other mattersrelating to the same: ”
This recital and the provisions which follow put it beyond doubtthat the Ordinance was intended to be applicable to Kandyans alone.And yet the word “ marriage.”.in the Ordinance is defined as mean-ing marriage contracted and solemnized by and between “ residentsin the Kandyan Provinces.” The word “ resident ” in the context,
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considering the scope and purpose, of the Ordinance, most neces-sarily mean “ Kandyan,” and oannot include Sinhalese of theMaritime Provinces, who have nothing to do with the Kandyancustom of marriage which the Ordinance was enacted to reform.This being so, the Ordinance No. 8 of 1870, when it defined marriageas marriage contracted by and between “ residents in the KandyanProvinces,” meant the same thing. ThiB also was so decided inNarayanee v. Muttuswamy (supra), in which Lawrie A.O.J. deliveredthe principal judgment, and whioh, therefore, is of special Value asan authority. I think the first argument in support of the appealmust be rejected.
The next argument may be disposed of very 'shortly. It wascontended that even under the General Marriage Ordinance, No. 2 of1895, which was in operation at the time of the marriage betweenDon Carolis Appuhamy and Sophia Hamine, the only valid form ofmarriage was that provided by the Ordinance. It was said that, asthe preamble of the Ordinance showed that it was intended “ toconsolidate and amend the law relating to the registration ofmarriages,” the Ordinance constituted a Code, and that no otherform of marriage than that thereby provided could be recognized.I do not think that there is any magic in the word “ consolidate.”The nature of the provisions of the Ordinance must also be lookedat, in order to conclude that it intended to lay down the whole lawon the subject. There might be some force in the argument if theOrdinance stood as originally enacted. Ifar section 15 of the Ordi-nance made registration under it essential to the validity of themarriage, hut that section was soon repealed by the OrdinanceNo. 10 of 1896. After tins repeal there is left only the provision ofsection-69 (1) which declares that the entry in the registrar’s hook" shall constitute the registration of the marriage, and shall be thebest evidence thereof before all Courts and in all proceedings inwhich it may be necessary to give evidence of the marriage.” ThisOrdinance as amende! does not exclude other recognized forms ofmarriage, and a customary marriage may, therefore, be proved andestablished. This principle has been affirmed by the Privy Councilin Arumogam v. Vaigali,1 and by a Full Bench of this Court inVaUiammai v. Annammai (supra).
therefore, think that the District Judge was right in holdingthat Don Carolis Appuhamy and Sophia Famine were lawfullymarried, and I agree that appeal No. 141 should be dismissed, withcosts.•'
'With regard to appeal No. 144, which is concerned with the ques-tion of the validity of a will propounded as the will of Don CarolisAppuhamy, counsel intimated to us that it would be necessary toargue it only if the other appeal succeeded. In the circumstances,we need only dismiss it without any order as to costs.
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Sophia I have had the advantage oi perusing the judgments oi myHamine v. brothers ifrvnig and De Sampayo, and I am of opinion that thereAppuhamy ^j can QgefoUy add to what they say. I therefore agree
with the orders they direct should be made as regards both appeals;
Appeal dismissed.