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UKKU v. KIRIHONDA.C. B., Regatta, 4,433.
Kandyan Lata—Cohabitation before marriage—Subsequent registration—Ordi-nance No. 8 of 1870, ss. 11 and 89—Best evidence of marriage—Validation of what had been before a void marriage—Marriage t'rrbins or diga.
A Kandyan woman, having for two years cohabited with a Kandyan .man in the mulgedara or ancestral house of her father, went with thatman to his honse and lived in it for some years, and their marriage waathen registered. The marriage certificate described the marriage to be-in bina.
Held, that the entry in the register of marriages, good as it is primdfacie, may be rebutted by evidence which contradicts it.
Held also, per Moncrbiff, J., with diffidence, that the effect of regis-tration dates back to the original beginning of the connection betweenthe parties and validates what had been before a void marriage. Italso validates the legitimacy of the children born before the registration.
HE plaintiff claimed to be a daughter of one Lappaiya, whodied intestate about the year 1896, leaving as his heirs the
plaintiff, the t^ree defendants, and one Dingiri. The plaintiffalleged that the defendants were in wrongful possession of theshare belonging to her, and prayed for ejectment and declarationof title in her favour. The defendants pleaded that the plaintiff,during her father’s lifetime, was married out in diga, and thusforfeited her right to any share of her father’s estate.
The onus of proof being ruled to be on the defendants, theycalled, among other witnesses, their mother, who deposed that,after her husband’s death, she gave plaintiff out in diga; that theplaintiff and her husband left her house about twenty-eight yearsbefore action; and that the plaintiff took no produce from any ofthe lands claimed.
The plaintiff proved that after her father’s death one Pinacame and lived with her in bina in the mulgedara (ancestralhome) for two years; that she then went with her husband tolive on his property in the neighbourhood; that after living so forabout eight years, her husband registered her marriage eightyears before the present action; that she possessed the landclaimed in tatumaru; and that she was refused hei share lastyear.
The marriage certificate bore date 17th December, 1894, anddescribed the marriage registered to be bina.
The Commissioner (Mr. Allan Beven) believed the evidencegiven by the mother of the plaintiff, and held that the plaintiff wasmarried out in diga, notwithstanding the entry in the marriage
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certificate, which he thought was “ of not much importance,’’ and M02.was possibly intended to meet “future contingencies, especially September 22.as plaintiff’s husband lived so dose and could easily provepossession of the land.’’ He dismissed the plaintiff’s case.
The plaintiff appealed.4
Bawa, for appellant.—The plaintiff and her husband cohabitedfor some years before their marriage was registered, but suchcohabitation does not, as in the maritime provinces, constitutemarriage. The evidence of cohabitation in diga therefore countsfor nothing. The marriage certificate is the best proof in thecase, and it describes the marriage to be bina (Ordinance No. 3 of1870, section 39). The plaintiff is therefore entitled to herinheritance.
H. J. C. Pereira, for respondent.—The certificate of registrationdoes not exdude the reception of other evidence as to the realnature of the marriage. Assuming that the plaintiff’s cohabitationwith Pina before 1894 was not a marriage proper, it has beenfound that she was living in the house of her husband at thetime of the registration. The entry in the certificate that themarriage was bina was therefore wrong. It was intended todefraud the defendants. The registration of the marriage in 1894dates back to, and legalizes the de facto marriage which had alreadytaken place some years before.
Bawa, in reply.—The question of a bina or diga marriage isone of intention of the parties, and not residence here or there.
The declaration of their intention before the registrar is not to berebutted by proof that they lived away from the mulgedara.
There was no marriage before 1894, and the certificate is conclusiveas to the intention of the plaintiff and her husband to live inbina. How and where they lived previously to 1894 is notrelevant to the case.
22nd September, 1902. Moncreiff, A.C.J.—
The only question in this case is whether the plaintiff Ukkuwas married to Pina in diga or bina, A considerable body ofevidence on both sides was produced, but the Commissionerbelieved the story put forward by the defendant, viz., that Ukkuhad left the parental house many years ago and married in diga.
If the matter rested there, I should not feel justified in interferingwith the finding, although some of the reasons given by theCommissioner are not altogether convincing.
It is admitted on both sides that for a considerablenumber of years, at all events, the parties have been living
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away from the paternal residence. It is urged on behalf of theplaintiff that, whatever may have happened when she first livedwith Pina, the registration of her marriage in 1894 placed her andher husband on a different footing.
Reference wag made to section 39 of the Kandyan MarriageOrdinance, No. 3 of 1870, which provides that “ the entry(as aforesaid) in the register of marriages and in .the register ofdivorces shall be the best evidence of the marriage contracted ordissolved by the parties and of the other facts stated therein."
Among the facts stated in the register relating to this case we findthat the date of the marriage was the 17th December, 1894, andthat the marriage was in bina. Mr. Bawa urged that the entries?were conclusive. Ithink, however, that theevidenceof the
register, good as it is primA facie, may be rebutted by evidence;which contradicts it.
The point uponwhich Mr. Bawa hasendeavoured to
base his observation was that the marriage having taken,place in 18§4, andthe parties having declared whenentering,
into the marriage that the marriage was in bina, the questionwas settled by thedeclaration of the parties.. If heis right
with regard to the date of the marriage, I think it is possible thathis argument would hold, because if the parties married in 1894and at the time declared they were marrying in bina, and the dategiven was the real date of the marriage, I am not aware of anyreason to prevent them from doing what they intended to do,.i.e., to contract a marriage in bina; so that the argument putforward on the other side to the effect that, as the parties were’living together in 1894 in the husband’s house, a marriage in binacould not be set up, would probably fail. But Mr. Pereira furtherurged that the date of the marriage given in the register does notconclude the parties, and that the real date of the marriage isclearly shown from the terms of the Ordinance to mean the date-at which the parties began to treat themselves as married personsand to live as married persons.
Reference on that point was made to section 11, according to-which “ no jnarriage contracted since the Ordinance No. 13 of .1859came into operation, or to be hereafter contracted, shall be validunless, registered in the manner and form ” as therein provided.
The question is what the word " marriage ” means there.Mr. Pereira suggested, and with some reason I think, that it meansany connection instituted by rites or ceremonies which, accordingto custom, would be considered a valid marriage but for thespecial provisions of the statute law. If that interpretation of the-word is correct, I am inclined to think his argument to the effect
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that subsequent registration dates back to the institution of their IMS-irregular marriage is correot, because .the provision is to the effect Slumber 22.that something shall be valid upon registration, and that Monobbxvv,something is an irregular marriage, whioh is void for want ofA.C.J.
registration, and possibly took place some years before.
With some diffidence I am inclined to think that subsequent regis-tration does date back to the original beginning of the connectionbetween the parties, although it is quite true that the provisions ofsection 30 for rendering legitimate children procreated beforeregistration might suggest that the intention .of the Legislaturewas different. I therefore think there was in ibis case, and wasintended to be by registration under section 31 of the Ordinance,a validation of what had been before a void marriage—a validationdating from the time the void marriage was entered into, and avalidation also of the legitimacy of the children. On that viewof the matter, which 1 entertain with 6ome diffidence, I think theappeal should be dismissed, inasmuch as the question comesultimately to be, what the conduct of the parties was when theycame .to live .together.
UKKA v. KIRIHONDA