142-NLR-NLR-V-02-TISSELHAMY-v.-NONNOHAMY.pdf
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TISSELHAMY v. NONNOHAMY.
D. C., Badulla, Bf21 .
Marriage—Presumption from cohabitation and repute—Facts prima facie
giving rise to presumption of marriage.
A, a man of the low-country, goes up to Uva and settles downthere. He takes a woman, B, to his house, and she bears himchildren, who are treated as such by the parents. A and B livetogether until the latter sickens, and goes to her own peopleaccompanied by A, and dies. After her death their daughter isgiven away in marriage by the father publicly and on a big scale.The stepmother of the bride is present at the marriage andcountenances it—
Held, that by these facts the presumption of a valid marriagebetween A and B is primd facie established.
The argument that the presumption of marriage arising fromcohabitation and repute does not arise in a district where con-cubinage is not considered immoral is not to be favoured. ■
rjHHE facts of the case appear in the judgment of Withebs, J.
1897.
May 28 andJune 1.
Dornhor8t, for appellant.
Wendt, for respondent.
Cur. aiv. wtti.
(
1st June, 1897. Withebs, J.—•
The District Judge has decided that the first petitioner is notthe legitimate offspring of the late Baba Sinno and the late Saha^u,or, in other words, that her parents were not validly married.
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Is that decision right or wrong ? It would have helped me toanswer this question if the Judge had found which he consideredto be the true state of facts. The stories of the contending partiesdiffer materially, so much so that if I credited the respondents Ishould be disposed to endorse the decision appealed from. Inthis matter Kandyan witnesses came forward for the petitioner,appellant, and low-country witnesses for the respondent.
1897.
May 28 andJune 1.
WlXHSBB, J.
It is common ground that Baba Sinho was a low-country man,that he was quite a young man when he came to trade in Uva,and that he died a few years ago at an advanced age. It is fur-ther common ground that the petitioner, appellant, is the daughterof Baba Sinho and one Sahadu (of whose origin little is known),and that the parents lived together for a great many years andhad one or more children besides Tisselhamy, the appellant. Theylived together, say the Kandyans, as man and wife, as man andmistress say the low-country men. This is a faQon de parler.But the material difference to my mind is the end of this regime.
The witnesses for the petitioner, appellant, aged /men, andoccupying some of them respectable positions, concur in this thatSahadu died before' Baba Sinho cohabited with the respondentwhen he came out of jail, that she fell so sick—this was before thetrial—that her relatives fetched her home, and that Baba Sinhoaccompanied them, and that she died either before or duringBaba Sinho’s imprisonment.
I understand Tisselhamy, the petitioner, to say that she wasajbout six or seven years old then, and that she remembers accom-panying her father to her mother’s house on that occasion. Now,the respondent’s witnesses say that though Baba Sinho was a.wealthy man, and though Sahadu stayed in his house and carefullyminded his property of which he was in possession, yet that justbefore his term expired she ran off with a pauper named PodiSinho and took her two children with her. This I find it hard tobelieve. One witness says that Sahadu appeared when BabaSinho and Nonnohamy (the respondent) were living together, andthere was a quarrel when she disappeared again. Nonnohamyswears that Sahadu came to see them twice while she and BabaSinho were cohabiting’ As to dates, no one’s dates can be reliedon, for they are so vague. Now, I have little hesitation in accept-ing the story as told by the Kandyan witnesses, who seem to beabsolutely, independent witnesses. I take, then, these to be thefacts. . Baba Sinho lived for veryunany years with Sahadu as aman and woman do who are really married. He called her bythe respectful name of “ haminey,” to which in no case was sheentitled. Tisselhamy, the respondent, was their child, and treated
Vol. H.12(55)29
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1807.
May 28 andJune 1.
Withers-, J.
as each, and the girl was eventually given away by her father atwhat was "described as a “ big wedding,” which her stepmotherNonnohamy attended. Sahadu died before Baba Sinho began toassociate with Nonnohamy, whom he eventually married.
Now, Baba Sinho’s country was one where the law of mono-gamy prevailed, and where also the law presumed a valid marriagewhen a man and woman are proved to have lived together asman and wife. Given the facts as I take them to be, why shouldnot this presumption avail the appellant ? The District Judgethinks that that evidence is insufficient, that it wants the supportof facts expected and required in England, such as appearance inchurch together, visits together in respectable society, and soforth. Those are strengthening facts, but are they necessary ? Butthe Judge seems to think that if there was a backing up of likefacts in this case they would lose weight in Uva, where marriagewas then the exception and concubinage the rule ; but, as I havehad occasion to point out lately, my Lords of the Privy Councildid not favour the argument that the presumption of marriagedoes not arise in a district where concubinage is not consideredimmoral. I refer to the Batticaloa case of Sinne Pillai v. Sambo-nade reported in 50 L. J. P. 28.
The argument which impressed me most was this :“ But in a
“ country where a man might have more wives than one, and“ where marriage after the custom of the country was so lightly“ dissolved,” what repute could there be of marriage in the senseof a union of one man and one woman for their joint lives ? Fora Kandyan at that time to say that two persons were living asman and wife might mean anything, e.g., a wife of associatedhusbands or one of several wives belonging to one man. But all •the witnesses agree that Baba Sinho and Sahadu cohabited together.A man and a wife could not live in the same house other thanthose two did. Now, cohabitation is the cardinal element inthese cases—repute, reception, conduct, &c., are attendant circum-stances, and the union of all of course is stronger than cohabita-. tion alone. In other countries and with other people you wouldexpect more proof of attending circumstances, such as the Judgepoints out. But here a young man comes up from the low-country and settles down in Uva to make money if he can. Hesucceeds, and takes a woman to his house, and she bears' himchildren, whom they treat as children, and they live together tillshe sickens and goes to her own people accompanied by him, anddies. After her death their daughter is given away in marriageby her father. This is done publicly on a big scale, and thestepmother is there and countenances it. What more pr6of
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could be expected after so long a time ? These people could notvisit their Kandyan neighbours or be visited by them. Whyshould not a valid marriage be then presumed from the factswhich I have accepted ? I think it ought to be. The presumptionof a valid marriage is primd facie established. As Lord Lyndhurstobserved, “ it is not lightly to be repelled,” and it can only berepelled by evidence strong, satisfactory, and conclusive. (Morrisv. Davies, 4 C. L. and F. 163.)
If I believed the evidence that in Sahadu’s lifetime, and whilehis children were with her, Baba Sinho cohabited with anotherwoman intending to make her his wife, I should be inclined toconsider that the presumption of a valid marriage between BabaSinho and Sahadu had been repelled, but, as I have said before, Ido not believe that evidence. It certainly is not “ strong, distinct,“ satisfactory, and conclusive.” I am for setting the judgmenton this point aside, and declaring the. first petitioner to be thelegitimate daughter of the late Baba Sinho.
The question whether she is entitled to any part of the estatebelonging to Baba Sinho at his death conditionally or not is adistinct question, which has yet to be determined by the Courtbelow.
Lawkie, A.C.J., agreed.
♦
1807.
May 28 andJune 1.
Withers, J'