131-NLR-NLR-V-58-THE-QUEEN-v.-E.N.-ASSEN-MOHIDEEN.pdf
[In the Court of Criminal. Appeal]
1957 Present:Basnayake, C. J. (President), Weerasooriya, J., and' Sinnetamby, J.THE QUEEN v. E. N. ASSEN MOHIDEENAppeal JVo. 5 of 1957 with Application No. 5 of 1957S. C. 17—hi. O. Colombo, 24,0S3JA
Evidence Ordinance—Section 120—Married woman—Marriage subsequently annulled—Competency to testify against former husband.
In criminal proceedings for violcnco inflicted on a person other than theaccused’s wife, a witness who was the wife of the accused at the time of the non-summary inquiry is competent to give evidence for the prosecution at tho trialif, prior to tho date c-f tho trial, she obtained an order of nullity in respect ofher marriage with the accused.
A ..TaPPEAL, nith application for leave to appeal, against a conviction ina trial before the Supreme Court.
K.Chararanatnullit (Assigned), for Accused-Appellant.
A. C. Alles, Acting Deputj' Solicitor-General, with P. Colin-Thome,Crown Counsel, for Attorney-General.
[February 25, 1957. Basnayake, G.J.—
The only point that arises for decision in this appeal is whether theevidence of the witness Eahuma Bcebi was rightly admitted at thetrial of this case. This witness was the wife of the appellant at the timeshe was examined in the Magistrate’s Court at the preliminary inquiryunder Chapter XVII of the Criminal Procedure Code. When she wascalled to give evidence for the prosecution at the trial she was not his wifeas she had obtained an order of nullity in respect of her marriage with theappellant. It would appear that Baliuma Bcebi’s marriage with theaccused Mas registered on 10th March 1955. On 12th July 1955 anapplication Mas made by her to the Ivathi Court for an order of nullity,on the ground that her marriage had been registered under duress andbefore she had attained puberty. Summons u*as issued on ISth July.On 20tli July the parties M ere present and the Ivathi tried to bring about areconciliation and as he failed to do so he fixed the case for 25th August1955. On that day the Ivathi again tried to bring about a reconciliationwhich he failed and he fixed the case for 11th September 1955. On thatday too the Ivathi made a further attempt at reconciliation but as he wasunsuccessful he put off the case for 2nd October. Attempt at reconcili-ation having again failed he postponed the case for 16th October. Onthat day the applicant applied for a postponement on the ground that itwas the month in which the Prophet Mohamed’s birthday occurred and
the ease was postponed to 27th October and on that day to 24th Novem-ber 1955, on which day the ease was partly heard and-the hearing wasadjourned till ISth December 1955. On 12th December 1955 tlioappellant murdered Rahuma I3cebi‘s mother. The decree for nullityof the marriage was not entered till ISth March 1959.
•Section 120 of the Evidence Ordinance provides that the wife of anaccused is competent to give evidence only if called by him except wherehe is accused of using violence on her. In the instant case Baltuma33ecbi was not the appellant’s wife on .‘3rd January 1957, the date of thotrial, and her evidence was rightlj' admitted. The fact that her marriagehad not been dissolved at the time she was examined in the Magistrate’sCourt docs not in our view render her evidence inadmissible at the trialwhen the bar against her competency as a witness no longer existed.The effect of a decree of nullity of marriage is that the marriage is regardedas never having taken place.
The appeal is therefore dismissed and the application refused.
Appeal dismissed.