141-NLR-NLR-V-14-THE-KING-v.-PERUMAL.pdf
( 496 )
Sept. 20,1911
[Full Bench.]
Present: Lascelles C.J., Middleton J., and Grenier J.
THE KING v. PERUMAL.
[Crown Case reserved.]
Second Midland Circuit, Kandy, Case No. 8.
Indian Tamil settled at Kandy not governed by Tesawalamai—Poly-gamous marriage in Ceylon of Indian Hindu void—Burden ofproof—Penal Code, s. 362.
A Hindu (Tamil) who was a native of Tinnevelly in South India,who had settled in the Central Province of Ceylon, was held not tobe governed by the Tesawalamai.
A polygamous marriage between persons who are not Muham-madans is void in Ceylon, even though it is valid by the law of thecountry in which the husband has his domicile.
Where an accused, a Hindu, was charged under section 362 ofthe Penal Code, the prosecution led no affirmative evidence toprove the kurai ceremony at the time of the celebration of the firstmarriage ; but a witness for the prosecution deposed that all thatwas necessary to constitute the marriage was done; he also saidthat the kurai ceremony was an important portion of the ceremony.
Held, that even if the kurai ceremony was an essential part ofthe marriage ceremony, that it was proved.
Lascelles C.J.—The fact of a marriage ceremony having beenproved, it was incumbent on the accused, if he relied upon theomission of any essential detail in the ceremony, to make good his■ point and to show that the omission had in fact taken place.
rj’HE facts are stated by Wood Renton J. thus :— 1
1. E. A. S. Awatta Perumal was tried before me and a Tamil-speak-ing jury on August 23, 24, and 25, 1911, on the following charges :—
That on or about September 12, 1908, at Kandy, he being then
lawfully married to one Kadirai, went through a formof marriage with one Catherine Gallway, “ which secondmarriage was void by reason of its taking place during thelife of the said Kadirai,” and that he thereby committed anoffence punishable under section 362 (6) of the Ceylon PenalCode; and
That at the time and place aforesaid he concealed from the
said Catherine Gallway his former marriage with the saidKadirai, and that he thereby committed an offence punish-able under section 362 (c) of the Ceylon Penal Code.
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2. Owing, as I was given to understand, to the illness of CatherineGallway, she was not examined as a witness at the trial, and accordingly TheHiingCrown Counsel withdrew the second count in the indictment.v. Perumal
3 The material facts as to the first count are these. Perumal is aTamil resident in the District of Kandy, where he owns an estate. Heis a Hindu by religion. On April 20, 1906, he contracted a validmarriage according to Hindu customary law with Kadirai, daughter ofArumugam Kalimuttu, kanakapulle on Choisy estate, which is aboutthirty miles away from Kandy. This marriage was not registered.
After a few months Kadirai returned to her father’s house, the sugges-tion being that Perumal had illtreated her. Perumal petitioned theSupreme Court for a habeas corpus to get his wife l>ack. Both in hispetition and in the affidavit supporting it he stated that she was. hislawful wife, and had lived with him as such. The Supreme Courtreferred the parties to their civil remedy. Eventually Kadirai returnedto her husband on a written undertaking by him to pay to her fathera sum of Bs. 2,500, for which he granted a promissory note, by way offine and maintenance money if she had occasion, through any fault of' his to leave him again. After a time Kadirai once more left Perumal.
Her father claimed the sum above mentioned, but it was not paid.
There is evidence that Catherine Gallway is a Burgher. Thecertificate of her marriage with Perumal, which was put in evidence atthe trial, shows that she is a resident in Colombo. The marriage was,on September 12, 1908 celebrated under the provisions of OrdinanceNo. 19 of 1907. Perumal is described in the certificate as a bachelor.
In answer to a quostioa which I put to them, the jury found—a factwhich is otherwise clear on the evidence, and which PerumaPs counseldid not contest—that it was a marriage celebrated, not in accordancewith Hindu rites, but under the municipal law of the Colony.
As the case presented various points of legal difficulty, I proposedto counsel on both sides to put, and did in fact put with their consent,to the jury the following questions :—
Did accused contract a lawful marriage with Kadirai on April
20,1906?
Did he go through a ceremony of marriage with Catherine
Gallway on September 12, 1908 ?
(8) Was Kadirai then alive, and was her marriage, if any, with
the accused still undissolved ?
Was accused at the date of the second marriage domiciled in
India or in Ceylon ?
Was the second marriage in accordance with Hindu rites or
not ?
This last question was added for the purpose of enabling the effectof the prohibition of polygamy in section 19 of Ordinance No. 19 of 1907to be considered, in view of the position of Catherine Gallway, whetherthe accused was domiciled in India or in Ceylon.
The jury answered the first question by a majority of 6 to 1 inthe affirmative, and the second and third unanimously in the affirmative.
As regards the fourth question, they held by a majority of 6 to 1 thatthe domicil of the accused at the date of the second marriage was inIndia and not in Ceylon. Their answer to the fifth was a unanimous37J. K. A 93348 (11/49)
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Sept. 20,1911
Thu Kinav. Perumal
finding that the marriage with Catherine Gallway was celebrated, not inaccordance with Hindu rites, but under the municipal law of the Colony.
In my view the finding of the jury in favour of an Indian domicilis against the weight of the evidence. But I have accepted it as correctfor the purposes of the present case. On the findings above stated,Perumal’s counsel raised three points of law :— '
(i.) That as there had been no affirmative proof on the part of theprosecution that the kurai ceremony, or presentation of thesacred cloth to the bride, had been performed at the marriageof Perumal and Kadirai, I ought to have ruled as a matterof law that there was no evidence on which the jury couldfind that a valid marriage had been entered into.
(ii.) That under section I., clauses 17 and 18, of the Tesawalamai,polygamy among Tamils is recognized, and that Perumal,as a Tamil, although not resident in the Northern Province,was entitled to the benefit of these provisions.
(iii.) That as a Hindu domiciled in India Perumal was entitled tocontract a polygamous marriage under the municipal lawof Ceylon, even with a person subject to that municipal law.
On the grounds to which I will refer immediately, I over-ruled all thesecontentions. The jury, on my direction, entered a unanimous verdictof guilty against Perumal, and I sentenced him to twelve months’ simpleimprisonment, imposing a lenient sentence in view of the finding,erroneous as I considered it, in favour of an Indian domicil.
In support of his argument on the first of the three points of lawabove mentioned, PerumaFs counsel referred to a note in Katiresu'sTesawalamai 19 of a ruling by Sir Joseph Hutchinson C.J. in the caseof Rex v. Palani,1 to the effect that the kurai ceremony is essential to avalid Hindu marriage. The facts of the case are not stated, and thereis nothing to show that Sir Joseph Hutchinson held that a valid Hindumarriage could not be proved, unless the witnesses stated positivelythat the kurai ceremony had been performed. In Perumal’s case thewitnesses stated that all the necessary ceremonies had been observed,and, as I have already pointed out, Perumal himself, in his applicationto the Supreme Court for a habeas corpus, and in his subsequent agree-ment with Kadirai’s father, himself treated the marriage as a lawful one.I dealt with this matter at length in my charge to the jury, a certifiedcopy of which accompanies this cas9, and need not repeat what is theresaid/ I should point out, however, that the witnesses to the marriage,who had stated that all necessary ceremonies were performed, were notasked in cross-examination as to whether the kurai had been omitted.See further on this matter Mayne's Criminal Law of Lidia, sections 63and 636.
It was not necessary to consider whether section I., clauses 17and 18, do in fact sanction polygamy among the Tamils to whom theTesawalamai applies, and I expressed no opinion on that point. ButI told the jury that the Tesawalamai had no application to a Tamil inthe position of Perumal.
In support of his argument on the third point stated in paragraph7 above, Perumal’s counsel contended (a) that under Hindu law andthe law of British India a Hindu domiciled in India may legally marry
1 S, C, C, Min., Feb.? 1907,
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any number of wives that he-pleases, and (6) that in accordance with Sept.20,1911the rule of private international law that domicil is the test of contrac- TheKindtual capacity he may exercise the same right under the municipal law perumalof Ceylon, which prohibits polygamy, even although the persons withwhom such marriages are contracted are domiciled in Ceylon, and,therefore, subject to its municipal law. In reply to a question thatI put to him on the point, he said that he was prepared to contend thata person, the law of whose domicil recognized incestuous or polygamousmarriages, could under the statute law of this Colony marry his sisteror contract any number of marriages that lie thought proper in theRegistrar-General’s Office at the same time.
I assumed for the purposes of this case that the Hindu law inforce in British India is as stated in the last paragraph. I held, how-ever, that as both the common law and the statute law (see OrdinanceNo. 19 of 1907, section 19) of the Colony prohibit polygamy,-save incases where special provision has been made in favour of a particularcommunity such as the Moors, and as there is no such provision to thebenefit of which Perumal was entitled, he could not contract under themunicipal law a marriage which the municipal law expressly prohibited,particularly with a person subject by domicil to that law. The casesto which Perumal's counsel referred, and of which Brook v. Brook? andSottomayer v. Be Barros* may be taken as instances, appeared to menot to apply. They merely decide that a contractual incapacityimposed upon a man by the law of his domicil is still binding on him,although no such incapacity is recognized by the lex loci celebrationis.
It does not follow—and there are, I think, authorities to the contraryas regards both polygamous marriages and immoral contracts—that aman can, by virtue of a capacity existing under the law of his domicil,take advantage of the provisions of the municipal law of the countrywhere he is residing to contract a marriage or enter into a contract whichthat law has expressly made illegal. I-referred, during the course ofthe argument, to the case of In.re BozzeUi’s Settlement, decided inEngland in 1902, as marking the furthest point to which, so far as I amaware, the English Courts have gone in support of the contention thatI am now dealing with. I could not obtain access to that decision inKandy. But so far as I recollect, the point decided was that a marriagewith a deceased wife’s sister validly entered into by the law of thedomicil of the contracting parties in the country of their domicilmight be recognized in England, in spite of the then existing prohibitionof such marriages there. I think that the Court in In re Bozzelli’sSettlement indicated that the decision would have been different, if theprohibition of the marriage had been of such a character as that withwhich we have here to deal. In any case In re BozzeM's Settlementappeared to me to constitute no authority for the proposition that aman enabled by the law of his domicil to contract polygamous marriagescould, under the provisions of a municipal law which, as is the casewith Ordinance No- 19 of 1907, not only contemplates monogamousmarriage alone but expressly prohibits polygamy, enter into a validpolygamous marriage with a person on whom that Jaw is binding.
N.
The questions for the Court are these :—
(1) Was I right in holding that, in spite of the absence of affirmativeproof by the prosecution of the kurai ceremony at the time
’ (1801) .9 II. L, C. 103 at pp. 207 and 260.
5 (1877) 3P,<bD, I,
( 500 )
of the celebration of the marriage between the accused andKadirai, there was evidence on which the jury could findthat a valid marriage between these parties had taken place ?
Was I right in holding that, even assuming that the provisionsof section I., clauses 17 and 18, of the Tesawalamai containa statutory recognition of polygamy, the accused was nota Tamil to whom the Tesawalamai applied, and was, there-fore, not entitled to the benefit of these provisions ?
Was I right in holding that the accused, whom the jury foundto have been and to be a Hindu domiciled in India, althoughresident in Ceylon, committed the offence of bigamy undersection 362 (b) of the Penal Code by his marriage withCatherine Gallway under the circumstances set out-in thiscase reserved ?.
H. A. Jayewardene (with him A. St. V. Jayewardene and Ccmake-ratne), for the accused.—The Judge should not have left to the jurythe decision of the question whether the first marriage of the accusedwith Kadirai was valid. The evidence adduced failed to establish thefact that the kurai ceremony was performed at the first marriage.Kurai ceremony is an essential portion of the marriage ceremony.(Rex v. Palani,1 Katiresu's Tesawalamai 19.) None of the witnessesfor the prosecution say that the kurai ceremony was performed.[Lascelles CJ.—You rely on an omission, to prove the invalidityof the marriage. The fact that there was a marriage ceremonyaccording to Hindu rites is proved. You should have proved theomission.] The first marriage was not a registered marriage ; it wastherefore incumbent on the prosecution to prove all the essentialsof a Hindu marriage ceremony.
Capacity to contract a marriage is governed by the law of domicil.All Hindus of India can marry more than one wife. The jury havefound that the domicil of the accused is India. The accused hastherefore committed no offence by his marrying a second time, evenif the marriage with Kadirai was a valid one. The second marriageof the accused is not void “ by reason of the first.”
Counsel cited Dicey on the Conflict of Laws 543 ; Burge, vol. III.,p. 240 ; Brook v. Brook ;2 Le Mesurier v. Le Mesurier ;3 In reBozzelWs Settlement;4 In re Cooke's Trusts ;5 Viditz v. O'Lagan ;6Cooper v. Cooper,7
It is true that in England a person cannot contract a polygamousmarriage, even though the law of the domicil of such person allowsit : but that, is because England is a Christian country. In Indiaand Ceylon the same rule will not apply. Counsel cited Gour'sPenal Code 1194, Mayne's Hindu Law 111, 3 Mad. H. C. App. 7,In re Chamia9s Jukni v. Queen Empress.9
1 C. C. Min., Feb., 1907.* (1887) '56 L. J. Chan. 637.
(1861) 9 H. L. C. 193 at pp. 207 and 266..• (1900) 2 Ch. 87.
:1 (1895) A. C. 517; 1 N. L. R. 160.7 13 A. C. 88.
* (1902) 1 Ch. D. 751.* 7 Cal, 354.
Sept. 20,1911
The Kinyv. Pennmtl
* 19 Gal, 627,
( 501 )
Clauses-17 and 18 of the Tesawalamai show that polygamy is Sept. 20,1911lawful under the Tesawalamai. The accused is governed by the The KingTesawalamai.v-
Walter Pereira, KjC., S.-G., for the Crown.—The very samewitness who says that the kurai ceremony was an essential part ofthe Hindu marriage ceremony says that all the necessary ceremonieswere performed. The fact that he did not specially mention thekurai ceremony when he enumerated the various rites performed atthe wedding is a pure oversight. The accused should have askedthe witness about the kurai ceremony if he wished to prove thatceremony was not performed.
Section 2 of the Penal Code makes the Penal Code applicable toall persons in the Colony (see Ratanlal's Law of Crimes, commentaryon section 2).
An act which is not an offence in the domicil of a person maybecome an offence if committed in England {Rex v. Esop1).
Section 3 of the Marriage Ordinance (No. 19 of 1907) definesmarriage as any marriage, except, the marriages of Kandyans andMuhammadans. Section 19 enacts : “ No marriage shall be validwhere either of the parties thereto shall have contracted a priormarriage which shall not have been legally dissolved or declaredvoid.” The second marriage of the accused is void by reason ofthe first, within the meaning of section 362 (b) of the Penal Code.
The rule as to domicil quoted by the other side would apply(if at all) only if both parties were domiciled in India, and not if theaccused only was domiciled there.
Counsel cited Halsbury's Laws of England, vol. VI., p. 254.
Jayewardene, in reply.
Cur. adv. vult.
September 20, 1911. Lascelles CJ.—
This is a case stated by my brother Wood Renton under section355 (1) of the Criminal Procedure Code on the conviction of onePerumal. The count of the indictment under which Perumal wasconvicted was in the following terms :—
That on or about September 12, 1908, at Kandy, you, havingyour wife living, to wit, one Kadirai, did marry one CatherineGallway, which second marriage was void by reason of its takingplace during the life of the said Kadirai, and that you therebycommitted an offence punishable under section 362(b) of theCeylon Penal Code.”
The questions of law reserved for decision are the following :—
“ (1) Was I right in holding that, in spite of the absence ofaffirmative proof by the prosecution of the kurai cere-mony at the time of the celebration of the marriage1 7 Car. and Payne 456.
38-
( 502 )
between the accused and Kadirai, there was evidence onwhich the jury could find that a valid marriage betweenthese parties had taken place ?
“(2) Was I right in holding that, even assuming that theprovisions of section I., clauses 17 and 18, of the Tesa-walamai contain a statutory recognition of poligamy, theaccused was not a Tamil to whom the Tesawalamaiapplied, and was, therefore, not entitled to the benefitof these provisions ?
“ (3) Was I right in holding that the accused, whom the juryfound to have been and to be a Hindu domiciled inIndia, although resident in Ceylon, committed theoffence of bigamy under section 362 (b) of the Penal Codeby his marriage with Catherine Gallway under thecircumstances set out in this case reserved ? ”
With reference to the first question, it is necessary to examine
the evidence of the witnesses by whom the marriage between theaccused and Kadirai was sought to be established.
Arumugam Kalimuttu, the father of Kadirai, describes themarriage ceremony. A holiday was given to the labourers on theestate in honour of the occasion, and the Assistant Superintendentattended the ceremony.
A Brahmin officiated, and broke a coconut and placed rice in frontof the bride and bridegroom. Fruit, betel, arecanuts, and moneypresented by the parents of the bride to the Brahmin were placedin front of the bride and bridegroom. The Brahmin sprinkled waterover the gifts and placed incense in fire before the parties. Then thethali was placed in a plate in the presence of the bride and bride-groom ; incense was burnt; the thali was given to the bridegroom,who tied it on the neck of the bride, in token that they were manand wife. Various ceremonies followed, which it is unnecessary toparticularize.
Kalimuttu, in his evidence, makes no mention of the kuraiceremony, or presentation of the sacred cloth to the bride. Incross-examination he was merely asked whether any other ceremoniesthan those which he had detailed were performed, and he answeredthe question in the negative. But the question whether the. kuraiceremony was performed was never specifically put to him.
VelupOlai Ramasamy, a kanakapulle, states that he was ac-quainted with the rites of a Hindu wedding, and all that is necessarywas done at the marriage between the accused and Kadirai. Incross-examination the witness stated : “ It is usual to give thewife the kurai, or sacred cloth ; that is as important as the thali"But here, again, the question whether the kurai was given was notdefinitely put to the witness. The inference which I should drawfrom the evidence is that the kurai was given on this occasion. Thewitness stated that the presentation of the kurai was as important
Sept. 20,1011
Lascezles
C.J.
The KingPerumal
( 503 )
as the thali, which is equivalent to stating that it is an essentialelement in the ceremony, and at the same time stated that all that wasnecessary was done at the marriage in question. He would hardlyhave made the latter statement if what he regarded as an essentialor at any rate an important, portion of the ritual had been omitted.
The position taken up by the learned counsel for the defendantis, in my opinion, untenable. There is abundant evidence thata marriage according to Hindu rites was celebrated with muchceremony between the accused and Kadirai. The evidence of thebride’s father and that of Velupillai Ramasamy was corroboratedby Mr. Marcel, the estate superintendent, who was present duringa part of the ceremony, which he believed at the time to be a validHindu marriage.
The case is thus widely different from Reg. v. Kallu1 and otherIndian cases noticed by Mayne in section 635 of his Criminal Lawof India, where the evidence of marriage consisted only of statementsby interested parties that the parties were husband and wife.
The fact of a marriage ceremony having been proved, it was, inmy opinion, incumbent on the learned counsel for the accused, if herelied upon the omission of any essential detail in the ceremony, tomake good his point, and to show that the omission had in fact takenplace. Instead of doing this, he cautiously refrained from askingthe witnesses whether the ceremony Was defective by reason of theomission of the presentation of the kurai, and now asks us to assumethe existence of the flaw on which he relies.
Taking into consideration the evidence which I have noticed,coupled with accused’s subsequent statement in the habeas corpusproceedings that Kadirai was his lawful wife, I am of opinion, on thefirst question, that the learned Judge was right in holding that therewas evidence on which the jury could find that a valid marriagebetween the parties had taken place.
The second question may be disposed of shortly. The accused isa Hindu, a native of Tinnevelly, who has settled in the CentralProvince of Ceylon. The collection of customary law known asthe Tesawalamai has no application whatever to such a person.
The Tesawalamai is described by Regulation No. 18 of 1806 as“ the customs of the Malabar inhabitants of the Province of Jaffna,as collected by order of the Governor Simons in 1706.” The appli-cation of the Tesawalamai has been rigorously kept within theselimits. It is well settled that the Tamil inhabitants of the Districtsof Trincomalee and Batticaloa, which were never included in theProvince of Jaffna, are not subject to the Tesawalamai. (Wella-pulle v. Sitambalam.-) Even with regard to the District of Mannar,now a portion of the Northern Province, it was at one time doubtfulwhether the Tesawalamai was in force, until the question was set
at rest by a decision of this Court.
1 J. L. R. 5 All. 233.
Sept. 20,1011
Lascelles
G.J.
The Kingv. Petumal
4 Ram. 72-76, 114.
( 504 )
Sept, zo, 1911Holding as I. do that the Tesawalamai has no application to the
Lascelles accused, it is not necessary to discuss the effect of clauses 17 and 18C-J- of that document.
The King With reference to the suggestion that the Hindu inhabitants ofv. Perumal Jaffna are permitted by these sections to contract polygamousmarriages, I only desire to avoid saying anything which may betaken to iend countenance to the suggestion that polygamy islawful to that section of the community under the Tesawalamai orotherwise.
The third question raises an interesting point of private inter-national law. Stated briefly, the position is as follows. Theaccused is a Hindu, and as such polygamy is permitted to him bythe law of British India. His domicil has been found by the jury,rightly or wrongly, to be Indian ; and it is conceded that, if theaccused had gone through the form of marriage with CatherineGallway in India, he could not have been convicted by a Court inBritish India under section 494 of the Indian Penal Code, whichcorresponds and is identical with section 362 (b) of the CeylonPenal Code. The q uestion is whether he can be convicted in Ceylonunder section 362 (b) of the Penal Code, the form of marriage havingtaken place in Ceylon.
Section 362 (b) is in the following terms : “ Whoever, having ahusband or wife living, marries in any case in which such marriageis void by reason of its taking place during the life of such husbandor wife, shall be punished with imprisonment of either descriptionfor a term which may extend to seven years, and shall also be liableto a fine.” The accused cannot be convicted under this sectionunless the second marriage took place “ in any case in which suchmarriage is void by reason of its taking place during the life ” ofKadirai. The crucial question for determination, then, is whetherthe marriage with Catherine Gallway is valid.
The statute law of the Colony appears at first to offer a readyanswer to this question. Section 19 of “ The Marriage RegistrationOrdinance, 1907,” enacts that “ no marriage shall be valid whereeither of the parties thereto shall have contracted a prior marriagewhich shall not have been legally dissolved or declared void.”
Under the interpretation section (3) the word “ marriage ” meansall marriages, except marriages under the Kandyan Marriage Ordi-nance and marriages between persons professing the Muhammadanfaith, so that the application of section 19 to Hindus, apart fromany question of domicil, cannot be doubted. But Mr. Jayewardenerelies on the rule of private international law, under which thecapacity to marry depends upon , the domicil of the parties. Theaccused, he argues, is a Hindu domiciled in British India ; as such itis not unlawful for him to marry during the lifetime of a former wife,and such marriage is therefore not an offence under section 362 (b)of the Penal Code. The rule of private international law on which
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Mr. Jayewardene relies is, of course, indisputable, but it is subjectto certain well-recognized exceptions, one of which is thus statedas a proviso to rule 169 of Dicey's Conflict of Laws: “ By the term‘ marriage ’ is meant in these rules marriage as understood inChristendom*,” i.e., “the voluntary union for life of one man and onewoman to the exclusion of all others.” “ Hence,” the learned authorcontinues, “rule 169 has no application to connections whichthough called marriages, either are not intended to be for life, orare made with a view to polygamy.”
It was objected by Mr. Jayewardene that the exception to whichI have referred is founded upon the teaching of Christianity, uponthe prohibition which Christianity is understood 'to have placedupon polygamy, and that there is no room for this exception in acountry like Ceylon, where Christianity is neither the State religionnor the faith of the majority of the population.
The position taken up is a curious one, and I do not see how theaccused could in any case claim the benefit of the rule of privateinternational law, and at the same time claim to be exempt from thelimitations attached to that rule.
It is true that in the leading cases on which the rule is founded(Brook v. Brook? Hyde v. Hyde? Sottomayer v. De Barros? In reBozzelli's Settlement* such expressions as “ the general consent ofall Christendom,” “ the law of God,” and “ the law of Christendom”are used to denote the principle on which polygamous and inces-tuous marriages are excluded from the application of the generalrule that the domicil of the parties governs the essentials of thecontract of marriage. But the use of these expressions does notimply that it is only in countries where Christianity is the prevailingreligion that polygamous and incestuous marriages are beyond thepale of private international law. If a non-Christian country hasfollowed the rule of Christendom as to polygamy, and by itsmunicipal law has prohibited such marriages, it surely stands onthe same footing as Christendom as regards the non-recognition ofpolygamous marriages. The only distinction is that in the formercase the prohibition rests on grounds of public policy, whilst in thelatter case it is associated with the teaching of Christianity.
The polygamy has been prohibited and has been an offence underthe municipal law of Ceylonfor more than half a century, except inthe case of Muhammadans, is beyond all question.
Section 28 of Ordinance No. 6 of 1847 declares that no marriageshall be valid (except amongst Muhammadans) if either of theparties has contracted a prior marriage which has not been legallydissolved or declared invalid, and the same section provides for thepunishment of the offence of bigamy. This prohibition has beencontinued in force under various Ordinances up to the present time.
Sept. 20,1911
LxscKLi.es
C.J.
The Kingi>. Perutnal
(187'9) 5 P. D. 94.1 (1902) 1 Ch. 751.
1(1S61) 9 H. L. C. 193.
(1866) L. B. P. M. 130.
( 506 )
Sept. 20,1911
Lascklles
C.J.
The Kingv, Perunwl
It is thus clear that, except in the case of Muhammadans, polygamyis as obnoxious to the public policy of Ceylon as to that of EuropeanStates.
The principle involved is fully stated in the following passage inthe new edition of Burge, vol. III., p. 257 :—
VI. Impediments by Lex Fori.—Polygamy, when the .validity of amarriage celebrated in one country is brought before the Courts ofanother it is necessary to consider the effect of the law of the tribunalas well as the personal law and law of the place of contract, and theCourt is entitled to apply the impedimenta dirimentia of its own law to thequestion whether a valid marriage has been created. It can refuse togive effect to the law under which the marriage was contracted if thatsanctions a violation of the precepts of the Christian religion or of publicmorals or of its own policy.
A marriage founded on polygamy, or winch is incestuous, will notbe recognized in any Christian country, although it may be warrantedby the municipal law of the country in which it was contracted or by thepersonal law of the parties. English Courts have thus declined toexercise jurisdiction over marriages which do not fulfil the essentialcondition of being “ an union for life of orie man and one woman to theexclusion of all others,” but will take cognizance of those having thischaracteristic, whether Christian or not; they have accordingly refusedto dissolve a polygamous marriage, such as that of Mormons, or anAfrican native marriage, but have recognized a marriage according toJapanese rites.
In view of the circumstance that polygamy is expressly prohibitedby the municipal Jaw of the Colony (except in the case of Muham-madans), I am clearly of opinion that a polygamous marriagebetween persons who are not Muhammadans is void in Ceylon,even though it is valid by the law of the country in which thehusband has his domicil. I therefore hold that my brotherWood Renton was right in holding that accused, by going throughthe form of marriage with Catherine Gallway in the circumstancesof the case reserved, committed the offence of bigamy under section362 (b) of the Penal Code. I would therefore affirm the convictionand sentence ; the sentence to run from the date when it waspronounced.
Middleton J.—
The accused was found guilty of contracting a bigamous marriagewith one Catherine Gallway under section 362 (b) of the Penal Codewhile his first wife Kadirai was alive, and. sentenced to twelvemonths'simple imprisonment.
The three questions propounded to us by the learned Judge whoreserved the case for our consideration were :—
“ (l) Was I right in holding that, in spite of the absence ofaffirmative proof by the prosecution of the kurai cere-mony at the time of the celebration of the marriage
( 507 )
between the accused and Kadirai, there was evidence onwhich the jury could find that a valid marriage betweenthese parties had taken place ?
“ (2) Was I right in holding that, even assuming that theprovisions of section I., clauses 17 and 18, ofthe Tesawalamai contain a statutory recognition ofpolygamy, the accused was not a Tamil to whom theTesawalamai applied, and was, therefore, not entitledto the benefit of these provisions ?
“ (3) Was I right in holding that the accused, whom the juryfound to have been and to be a Hindu domiciled in Indiaalthough resident in Ceylon, committed the offence ofbigamy under section 362 (b) of the Penal Code by hismarriage with Catherine Gallway under the circum-stances set out in this case reserved ? ”
The only questions raised on the argument before us were (1)whether the ceremony gone through by the convict with Kadiraiconstituted a valid Hindu marriage ; (2) even if the marriage werevalid according to the Hindu custom, did it render the secondmarriage with Katherine Gallway void by reason of its taking placeduring the lifetime of Kadirai ?
Upon the first question, the proof adduced by the prosecutionconsisted of the evidence of Kadirai’s father and a kanakapullecalled Velupillai Ramasamy, and the petition and affidavit ofthe accused to the Supreme Court acknowledging Kadirai as hislawful wife. In this connection I would refer to the case of Brindabun Chandra Kurmokar v. Chundra Kurmokar, &c.,1 when in a suitfor restitution of conjugal rights it was held that when the fact ofthe celebration of the marriage is established it will be presumed, inthe absence of evidence to the contrary, that all the necessaryceremonies have been complied with. This I think effectuallydisposes of the objection as regards the alleged failure to prove theperformance of the kurai ceremony.
I answer my brother Wood Renton’s first question in theaffirmative.
Upon the second question raised in argument before us, I thinkthe reasoning of the learned Solicitor-General must be adopted. Itis not contended that an alien is not amenable to the criminal lawof the Island, and even if it were, section 2 of the Penal Code isconclusive on the point.
The marriage of the convict with Kadirai being a valid one, section19 of the Marriage Ordinance, No. 19 of 1907, which applies to allpersons in Ceylon other than Kandyans and Muhammadans, enactsthat “ no marriage shall be valid where either of the parties theretoshall have contracted a prior marriage which shall not have beenlegally dissolved or declared void.”
1 (im) 12 Cal. 140.
Sept. 20,1911
Middleton
J.
The Kingv. Perumal
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Sept. 20,1911The valid marriage with Kadirai has not been legally dissolved or
MmnLKToN declared void, and therefore the form of marriage with KatherineGallway was invalid and void by reason of its taking place duringThe Kin# the lifetime of Kadirai, or, in other words, before the valid marriagev. Perumai with Kadirai had been legally dissolved by her death.
Section 19 of Ordinance No. 19 of 1907 in its effect forbidspolygamy in Ceylon by all persons subject to that Ordinance, andis merely a re-enactment of section 19 (I) of Ordinance No. 2 of1895. If, therefore, a. Hindu native of India validly married inCeylon, or even in India, assumed to contract a second marriage inCeylon, the first marriage still subsisting, his action in doing sowould be repugnant to section 19 of Ordinance No. 19 of 1907,and would, I think, render him amenable to the criminal law undersection 362 (b) of the Penal Code. He cannot, under the circum-stances, contract a valid marriage in Ceylon ; and if he goes throughthe form of marriage with another person during his valid marriage,he has acted in contravention of section 362 (b).
In my opinion section 19 of Ordinance No. 19 of 1907, inferentiallyrepeals any statutory recognition of polygamy to be derived fromthe Tesawalamai in favour of so-called Pagans, and I thereforeconsider this conclusion dispenses with the necessity for an answerto the second question from this Court ; and I answer the thirdquestion in the affirmative, and think that the conviction shouldstand.
Grenier J.—
The three questions reserved by the learned Judge who tried thiscase present, to my mind, no difficulties either as regards the law orthe facts, and I would unhesitatingly answer them in the affirma-tive. On the first question, I would say that there was evidenceof a positive and distinct nature that a valid marriage had takenplace between the accused and the woman Kadirai. Althoughthere was no specific affirmative proof that the kurai ceremony wasobserved, the whole body of evidence adduced by the prosecutioncontained sufficient materials on which the jury could base theirfinding that a valid marriage had taken place. I have do doubtthat had the witnesses been asked whether the kurai ceremony wasobserved, they would have placed the matter beyond dispute. Themarriage between the accused and Kadirai took place in 1906according to Hindu customary law, and I think it unreasonable toexpect persons who were present to describe or detail with scrupulousaccuracy everything that took place on the occasion, unless they,were unusually observant. They would know that the intention ofthe parties was to contract a marriage, and that certain ceremoniesin accordance with Hindu customs, appropriate to the event, wouldnecessarily be performed ; and unless their attention was subse-quently drawn to the ceremonies in detail, all they would be able to
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say would be that they were present at the marriage, and that it SeT>t- 20,1911took place with a due observance of the prescribed ritual. The ciwimin ,r.learned Judge was right in allowing the case to go to the jury on J7—:the question of the first marriage, and in refusing to rule as a matter t>. pfruuwiof law that there was no evidence on which the jury could find thata valid marriage had not been entered into.
On the second question, I fail to see how a native of SouthernIndia, whose domicil has been found to be outside Ceylon, canclaim to be governed by the Tesawalamai. Even if the Tesa-walamai applied to him, this is the first time I hear that polygamousmarriages are allowed under that system of law. Personally, I havenever heard or known of such marriages amongst the Tamils of theNorth, who have always, as far as I know, practised monogamy.
On the third question, I think that the accused, although he maybe entitled in his own country, according to the law of his domicil,to practice polygamy freely, our marriage laws present an insuper-able bar to his contracting a second marriage during the lifetime ofhis first wife, the first marriage not having been legally dissolved ordeclared void. There is special legislation in the case of Muham-madans, but there is absolutely none which applies to the class or■community to which the accused belongs, and which entitles him tocontract such a marriage as. he has contracted under our municipallaw with Catherine Gallway. The provisions of section 19 of Ordi-nance No. 19 of 1907 are too clear to permit of any doubt as to theaccused’s second marriage being a bigamous one. The convictionmust therefore stand.
Conviction affirmed.
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