WINDHAM J.—The Ping v. Peter Nonis.
Present: Howard C. J. and Windham J.
THE KING v. PETER NONIS
S. C. 126—D. C. Critn. AvissaweUa, 38,092.
Marriage Registration Ordinance (Cap. 95), s. 38 (1)—Entry in register—Charge ofbigamy—Entry not produced—Best evidence—Admissibility of oral evidence—Penal Code, s. 362 C.
The appellant was charged with bigamy. The prosecution produced noentry in the marriage register book in proof of the first marriage but calledinevidence the first wife and the officiating priest. This evidence was un-contradicted.
Held, that the first marriage was properly proved. The expression “ bestevidence ” in section 38 of the Marriage Registration Ordinance merely signifiesthat the entry in the register shall prevail over any other evidence as to marriagein case of conflict as to whether the marriage was celebrated at all or as toits character or any particulars regarding it.
November 10, 1947. Wendham J.—
The appellant was convicted of bigamy, contrary to section 362c of thePenal Code. The sole point arising on appeal is whether his first marriagewas properly proved, having in view section 38 (1) of the MarriageRegistration Ordinance (Cap. 95). Section 38 (1) provides as follows —“38.(1) The entry made by the registrar in his marriage register
– book under sections 32, 33 and 37 shall constitute the registration of themarriage, and shall be the best evidence thereof before all Courts andin all proceedings in which it may be necessary to give evidence of themarriage ”.
The prosecution produced no such entry in the marriage register book inproof of the appellant’s first marriage, nor even any copy of it, but theyproved the marriage aliunde, calling in evidence the first wife herself andthe officiating Catholic priest, both of whom testified to the marriageand both of whom the Court believed. The appellant neither gave norcalled evidence in contradiction, or at all.
It is argued for the appellant that this first-hand oral evidence of themarriage was inadmissible, because section 38 (1) states that the entryin the marriage register book shall “ constitute the registration of themarriage and shall be the best evidence thereof At this point I wouldstate that, from the context of the section, I consider that the word“ thereof ” means “ of the marriage ” and not “ of the registration of themarriage ” It is contended for the appellant that the phrase “ bestevidence ” of the marriage means the only admissible evidence of it.If this contention means that no marriage which, if registered, would beregistered under the Marriage Registration Ordinance (Cap. 95). can be
from a judgment of the District Judge, AvissaweUa.
Wanigatunga, for the accused, appeUant.
Boyd Jayasuriya, C. G., for the Attorney-General.
Cur. adv. milt.
WINDHAM J.—The King v. Peter Nonis.
proved except by production of the registration entry, then it cannotbe acceded to. For there would then be no means of proving such amarriage at all if it had not been registered, although such a marriageis none the less valid if not so registered. That it is valid though notregistered was laid down in Nicholas de Silva v. Sheik Alt1; it will alsobe noted that the Marriage Registration Ordinance (Cap. 95) lacks anyprovision similar to section 8 of the Kandyan Marriage Ordinance(Cap. 96) which renders Kandyan marriages void if not registered underthe latter Ordinance.
What, then, does “ best evidence ” in section 38 mean ? The sameexpression appears in the same context in section 36 of the KandyanMarriage Ordinance, which provides that—“ The entry as aforesaid inthe register of marriages and in the register of divorces shall be the bestevidence of the marriage contracted or dissolved by the parties and of theother facts stated therein … ” With regard to its meaning
in the latter section two cases are in point, namely, Mam.pitiya v.Wegodapola (unreported), followed in Seneviratne v. Halangoda2. In bothof these cases the question at issue, so far as concerns the meaning of“ best evidence ” in section 36, was whether the character of a Kandyanmarriage could be proved by oral evidence to be other than that statedin the register. And the decision in both cases was that it could not.In so deciding, the learned Judges said in the earlier case—and theirdictum was approved in the later one—that the expression “ bestevidence ” in the section was " used in the English law sense, andexcludes all evidence of an inferior character ”. But it seems to me clear,bearing in mind the point decided in those cases, that what the learnedJudges meant by the somewhat ambiguous phrase “ excludes all evidenceof an inferior character ” was not that the register entry is the onlyevidence which may be adduced to prove a marriage, but rather that itprevails over any other conflicting evidence as to the marriage. Section 8of the ~Kfl.ndya.Ti Marriage Ordinance, rendering void unregistered Kandyanmarriages, should not be allowed to confuse the issue. It is a provision ofthe substantive law, whereas section 36 is concerned with evidence only.The above meaning of “ best evidence ” is precisely the meaning whichI would give to it in the similar context of section 38 of the MarriageRegistration Ordinance (Cap. 95).
In any case what is the meaning of “ best evidence ” in the Englishlaw sense ? It certainly does not, and never did, mean that no otherdirect evidence of the fact in dispute could be tendered. Its meaning israther that the best evidence must be given of which the nature of thecase permits. If one were to apply that meaning of the phrase to thepresent case, it might be held that the entiy in the register ought to havebeen produced, since it would appear from the evidence of the first wifeherself that the marriage was registered. But the “ best evidencerule in England has been subjected to a whittling-down process for overa century, and today it is not true that the best evidence must be given,though its non-produetion where available may be a matter for commentand may affect the weight to be attached to the evidence which is producedin its stead. It should be noted at this point that the “ best evidence ”
1 (1895) 1 N. L. R. 228.* (1921) 22 N. L. R. 472.
Mammasalie v. The Inspector of Police, Kandy.
rule is not to be confused (as it often is) with the rules as to “ primary -evidence ”in connection with documents, and as to the exclusion of oralby documentary evidence, to which special considerations apply whichin this country are embodied in the Evidence Ordinance (Cap. 11)
It is true that the old rule of best evidence does to some extent survivein England in certain cases ; and one of these is the very one now underconsideration, namely, the pToof of marriage in charges of bigamy. But' in such cases it only survives to this extent, that strict proof of the marriageis required. Strict proof, however, is not confined to production of theregistration entry, but covers thov evidence of ah eye-witness to themarriage, which indeed is more direct 'evidence than a register entry—vide Rex v. Allison1.
I would therefore construe the expression best evidence ” in section38 of the Marriage Registration Ordinance as follows. :-^The registrar’sentry of the marriage in the register shall prevaii'over any other evidenceas to the marriage in case of conflict, i.e., conflict as to-whetherthe marriage was clebrated at all or as to its character or any^particularsregarding it. It would thus prevail as a matter of law over the evidenceof an accused in a bigamy charge who denied the marriage. But if theregistrar’s entry is not produced, whether or n^t the marriage was. in- factregistered and whether.or’not (if registered) the non-production of theentry is satisfactorily accounted,for, then the marriage may be provedby any other evidence affording strict proof, and this would include (asin the present case) the evidence of an eye-witness. The learned DistrictJudge was accordingly right in admitting and accepting the oral evidenceof the first wife and of the officiating priest (which be it noted was notcontradicted) in proof of the first marriage.
For these reasons this appeal must be dismissed, and the conviction andsentence confirmed^-
Howabd C.J.—I agree.