020-NLR-NLR-V-25-THIAGARAJA-v.-KURUKAL.pdf
( 89 )
Present: Porter and Schneider JJ.
1923.
THIAGARAJA .v. KURUKAL.
60—D. C, Jaffna, 4,971,
Brahmin marrying a girl of eleven years according to Hindu rites—Subsequent cohabitation of spouses for several years—Is marriagevalid ?—Marriage Ordinance applicable to Hindu marriages—Recognition of marriage according to Hindu rites is only as tosolemnization.
A Brahmin married a, girl when she was eleven years and onemonth old according to Hindu customary ceremonies. The spousescohabited after the female had attained puberty and lived forsome years as husband and wife, and were received as such bytheir relations and friends.
Held, that the marriage was not valid. Subsequent cohabita-tion did not render the marriage valid ab initio.
“ The recognition of customary marriages is a recognition only of thecustom as to the mode of somenization and nothing else. The MarriageOrdinance must be regarded as applicable to all marriages in regardto all other matters about which it contains express provisions. Theprovisions of the Ordinance as to the prohibited age of marriage (section16), prohibited degrees of relationship (section 17), incest (section 18),re-marriage (section 19), dissolution of marriage (section 20), suitsto compel marriage (section 21), legitimation by subsequent marriage(section 22), consent to marriage of a minor (section 23), are applicableto all marriages however solemnized.”
Hayley (with him J. E. Obeysekera and Nadarajah), for appellantAndanadan (with him Ramachandra), for respondent.
ryiHE facts appear from the judgment.
( 90 )
1928.
Thiagarajav. Kurukal
July 4,1923. Schneider J.—
The District Judge has found that the intestate Supdrakurukka!was a Brahmin, apd had beep married in September, 1909, to oneChelamma, when she was elevep years and one month old, accord-ing to Hindu customary ceremonies. He also found that thespouses cohabited after the female had attained puberty, that theylived together for some years as husband and wife, and were re-ceived as such by their relations apd friends. The findings of thelearned District Judge were not seriously challenged, even if theyhad beep challenged, I would have accepted them as they arewarranted by the evidence.
The only question of law submitted for our decision was whetherthe marriage in question was a valid one. The learned DistrictJudge had held that it was invalid, inasmuch as the female partyhad not completed her twelfth year at the date of the marriage asrequired by section 16 of the Marriage Registration Ordinance,No. 19 of 1907. But he also held that the marriage was renderedvalid by the subsequent cohabitation. For this proposition oflaw he cites the following passage from 2 Pereira’s Laws of Ceylon,p. 215 : “ Although the want of age avoids the marriage, cohabita-tion after the attainment of the age of puberty renders the marriagevalid ah initio.” For the appellant it was contended that themarriage in question was invalid as being obnoxious to the pro-visions of section 16 of the Ordinance already mentioned. Thiscontention arid the ground upon which the District Judge decidedthe case raises two questions. First, whether the Ordinance,No. 19 of 1907, applies to the marriage of the intestate, and, next,whether the subsequent cohabitation rendered that marriage validah initiOy even if it were invalid according to the provisions of thatOrdinance. It was contended on behalf of the respondent thatthe provisions pi section 16 of the Ordinance did pot apply to themarriage in question, because the parties were Brahmins, andaccording to their customary law the females should be marriedbefore they attain the age of puberty, which, in all cases, wouldmean before they attain twelve years of age, apd, next, thatf al-though the marriage was solemnized according to customary law,it was still a valid marriage, although pot solemnized according tothe provisions of the Ordinance, and that, therefore, section 16would pot apply to such a marriage.
Neither of these arguments appears to me to be sound. In thepreamble of the Ordinance it is set out that it is “ expedient toconsolidate and amend the language relating to marriages in thisIsland other than the marriages of Kandyans or of Muhammadans. *5It is dear, therefore, that the Ordinance does pot exclude Hindumarriages from its provisions, apd that Hindus are governed by itsprovisions. That marriages solemnized according to custom arerecognized as valid by decisions of this Court is not an argument
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which supports the contention that the provisions of section 16 donot apply to such marriages. The reason why customary marriagesare recognized is that the Ordinance does not render registrationnor solemnization according to the provisions of the Ordinancecompulsory. The recognition of such customary marriages is arecognition only of the custom as to the mode of solemnization andnothing else. The Ordinance must be regarded as applicable toall marriages in regard to all other matters about which it containsexpress provisions. Customary law must cede to Statute law.It seems to me that the provisions of the Ordinance as to the pro-hibited age of marriage (section 16), prohibited degrees of relation-ship (section 17), incest (section 18), re-marriage (section 19),dissolution of marriage (section 20), suits to compel marriage(section 21), legitimation by subsequent marriage (section 22),consent to marriage of a minor (section 23), are applicable to allmarriages however solemnized. The Ordinance defines marriageas “any marriage save and except marriages contracted underand by virtue of the Ordinance No. 3 of 1870, entitled “ An Ordinanceto amend the Laws of Marriage in the Kandyan Provinces ” andexcept marriages contracted between persons professing the Muham-madan faith.’’ That definition indicates that the term marriageis not restricted to marriages solemnized under the provisions ofthis Ordinance. The sections I have mentioned contain no limita-tion of the term marriage, whereas in a number of other sectionsthe language expressly indicates that their provisions are limited tomarriages solemnized under the provisions of the Ordinance, as,for example, sections 24, 43, and 44.
The argument that according to their custom Brahmin girlsshould be married before they attain puberty, and that, therefore,•it is not possible in their cases to observe the provisions of section 16,is one which should be addressed to the Legislature, it is irrelevantwhen the only question is the interpretation of the Ordinance.In my opinion, therefore, section 16 does apply to the marriage inquestion, and the mairiage was invalid, as the female party hadnot completed twelve years of age.
There then remains the question whether the subsequent cohabi-tation rendered the marriage valid. In my opinion it did not.The word “ valid ” as used in section 16 must be given the samemeaning, which it seems to have in a number of other sections ofthat Ordinance, and which it has in ordinary legal language whenapplied to marriage. A valid marriage is one recognized by law,an invalid marriage is one which is void. That seems to be theonly meaning, which can be attached to the word “ valid ” as usedin section 19, which enacts that “ no marriage shall be valid whereeither of the parties thereto shall have contracted a prior marriage,which shall not have been legally dissolved or declared void.”The same inference may be drawn from the language of section 43,
W*-
1923.
SCHKEIUEB
J.
Thiagarajav. Kurukal
( 92 )
1923.
SCHNELDKR
J.
Thiagaraja,v. Kurukal
where the words used are “ null and void,” and the language ofsection 44 where the word used is “ valid.” The passage reliedupon by the learned District Judge is a statement of the law madeby Burge as recognized by the Roman-Dutch law. Even if theOrdinances dealing with marriage had not repealed, the Roman-Dutch law of marriage almost in toto, it seems to me that such aprovision in that law cannot be recognized, as it would be inconsis-tent with the express provision in the Ordinance that marriageduring non-age is not valid. But, as a matter of fact, the effect ofthe legislation in regard to marriages in this Island has been to repealall those portions of Roman-Dutch law on the subject in regard tomatters which arc expressly dealt with by legislation. The agelimit, which is to be found in the present Ordinance and in theOrdinances preceding it, corresponds with the limit to be found inthe Roman-Dutch law, and it seems to indicate that the Legislaturewas not unmindful of the provisions of that law as regards theprohibited age for marriage. The fact that the Legislature did notat the same time adopt the provision that cohabitation of personsmarried during non-age after the female party had attained pubertyrenders the marriage valid ab initio, is clear indication that theLegislature was not disposed to adopt that provision of the Roman-Dutch law. In the amended Kandyan Marriage Ordinance, No. 3of 1870, section 12, there is an express provision on this point.It enacts “ no such marriage shall be valid to which the male partyis under sixteen years of age, or the female under twelve years ofage; but if the parties shall have continued to cohabit as husbandand wife for one year after they shall have attained these ages,respectively, or if a child shall have been bom to them during thenon-age of both or either of them, such marriage shall, in eithercase, cease to be impeachable and invalid on the ground of non-age.”From this enactment the inference may rightly be drawn that wherethe Statute law declares a marriage not to be valid if contractedduring non-age, and sees reason for modifying the declaration thatthe marriage shall be invalid, it would do so in express terms.
I would, therefore, hold that the marriage in question was notvalid. I would accordingly set aside the order of the learnedDistrict Judge, with costs, and remit the case for proceedingsin due course.
Poetee J.—I agree.
Set aside.
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