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“ succeeded under section 30 of Ordinance No. 15 of 1876 to the" whole property to the exclusion of her aunts.” He thereforeconsidered the claim of the defendants in case No. 1,685 to beright, and dismissed plaintiff’s action.
Plaintiffs appealed.
The case was argued on 16th and 21st May, 1900, beforeLawrie, J., and Moncrieff, J., who disagreed, and the casewas set down for argument before the Collective Court.
Wendt, A. A.-G., foi appellant.—Under Ordinance No. 13 of1863 parties to a marriage must give notice of marriage andmust marry either in a registered place of marriage as providedby the Ordinance or before a duly appointed registrar. InVairamuttu’s case, reported in 7 8. C. 0. 56, it was held that amarriage not registered in manner provided by the Ordinancewas not valid. Notice of marriage was given. There was noregistration of marriage after that. Hence there was no marriage.In an earlier case, Babina v. Drngi Baba, it was decided thatregistration was not necessary, but Your Lordships would notdecide so now. In the present case, evidence appears to havebeen led on the footing that a valid marriage could subsist inde-pendently of the Ordinance. All that evidence is inadmissible,because no marriage can take place save under the Ordinance.Even supposing that such evidence is admissible, it is insuffi-cient. There is no proof that the thali was tied; on the contrary,it is proved that the thali was not tied. The thali is an essentialelement in a Hindu marriage. The parties to this marriage areHindus. For want of proof of the essential elements of a Hindumarriage, the case fails even as one outside the Ordinance. Aru-mogam v. Vaiyali (2 N. L. R. 322), decided by the Privy Council,does not apply to the circumstances of the present case.
Sampayo (with Tiru-Navuk-Arasu), for respondents.—Thedecision in Arumogam v. Vaiyali admits proof of marriageotherwise than by registration. It is a very strong authority infavour of respondents. The Ordinance No. 13 of 1863 does Dotimperatively require registration as an essential condition of avalid marriage. The regulation No. 9 of 1822 and the OrdinanceNo. 6 of 1847 contain provisions requiring registration as a neces-sary step in a valid marriage. The Ordinance of 1863 mitigates theharshness of the old law by omitting the provision requiringregistration in every case of marriage. In the case of Babina v.Dingi Baba (5 S. C. C. 9) the point whether there can he a validmarriage outside the Ordinance was decided in the affirmative.
June 8.
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1900.The Ordinance in force when that case was decided was No. 13
June 8.0f 1863. The case reported in 7 S. G. C. 56 is not in con-
flict with the authorities cited. The parties there gave noticeof marriage as required by the Ordinance, but did not complete itby registration. The Supreme Court decided that when twoparties had given notice of a marriage under the Ordinance andhad then been married according to Hindu rites and cohabitedtogether for some years, but had not fulfilled any of the otherrequisites prescribed by the Ordinance, no valid marriage had beencelebrated. As to the want of the ihali ceremony, the womanwas a widow before she married Peria Tamby, and it is possiblethat a Hindu widow who marries a second time does not wear athali.
8th June, 1900. Bonser, C.J.—
The question in this case is as to the relationship between onePeria Tamby and Annammai, the first defendant in the case. Theyare both Tamils living in the Batticaloa District.
Peria Tamby was originally married to Annammai’s sister, andhad by her one daughter Tangamma. Peria Tamby and his firstwife jointly possessed a house and garden. Shortly after thedeath of his first wife, nearly twenty years ago, Annammai cameto live with her deceased sister’s husband. By the law of thisColony there is no objection to a man marrying his wife’s sister,and therefore there is nothing in the way of our presuming thatthis was a legal connection. She had seven children by PeriyaTamby. The evidence is that they were recognized by theirrelations and friends as husband and wife, i.e., as people who wereliving together in marriage, and not in concubinage. The propertysince Periya Tamby’s death has been enjoyed as though themarriage was a legal one.
A short time ago Tangamma died leaving three aunts surviving.
The plaintiff in this case obtained a judgment against one ofthese ladies, and the brilliant idea seems to have occurred to himthat, if he could establish that Periya Tamby and Annammai werenever married, and that their children were therefore illegitimate,he might be able to claim the house and garden as having passedto Tangamma, as being the only lawful child of Periya Tamby,and from her to his judgment-debtor, and he therefore seized theproperty. A claim was made by Annammai and her children,which was allowed. He then proceeded to bring an action undersection 247 of the Civil Procedure Code to have it declared thatthis property was liable to be -seized and sold in execution of hisjudgment against Tangamma’s aunt.
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The District Judge decided against him, and he has nowappealed to this Court. It seems to me that the appeal fails. Itwas attempted to be argued that there could not be any marriageexcept a registered marriage under the Ordinance of 1863; and ithaving been admitted in this case that the marriage was neverregistered, it was impossible to hold that a marriage ever existed.For my part I am unable to agree with the proposition that therecan be no lawful marriage unless that marriage be registered underthe Ordinance.
That was the law under the Ordinance of 1847, which expresslyprovided that all marriages should be invalid if not registered.That was found to be a burden greater than the people could bear,and in 1863 the Ordinance was re-enacted in substance with theomission of this disqualifying provision.
It was provided that it was the duty of persons who wished tomarry to follow a certain course of procedure. If they disregardthis provision, they will no doubt be liable for disobedience to adirect provision of the law, but there is no longer any enactmentwhich says that a marriage, where the formalities prescribed bythe Ordinance are not observed, is to be no marriage at all.
I think that the ordinary presumption in favour of marriage,which was held by the Privy Council (Sastry Velaiden AronegarySembecutty Vaigalu, 6 A. C. 364) to hold good in Ceylon amongstTamils, applies to this case.
The plaintiff’s own witness Kannapper Kandappen admitted incross-examination that “ Periya Tamby and Annammai lived as“ husband and wife; we used to visit them and recognize them as“ husband and wife.”
The presumption has not been rebutted, and therefore I am ofopinion that the judgment of the District Court is right andshould be affirmed.
Moncrieff, J.—
I am of the same opinion. If Ordinance No. 13 of 1863 hadsettled that marriages such as this were void, it would not havebeen necessary to provide by Ordinance No. 2 of 1895, section 15,that no marriage contracted after this Ordinance comes intooperation shall be valid, unless it shall have been duly solemnizedby a minister or a registrar and registered in manner and formas is hereafter provided.
On reading only the first twenty sections of .the Ordinance of1863 I might have thought that this Hindu marriage was void.The terms of the Ordinance are imperative, but when we come tosection 21 (the substituted section 6 of Ordinance No. 8 of 1865)
June 8.
Bonbeb, C.J.
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we dnd it is provided that “ if both the parties to any marriage“ shall knowingly and wilfully intermarry under the provisions
“ of this Ordinancewithout certificate of notice duly issued,
“ the marriage of such persons shall be null and void.”
In my opinion this Hindu marriage is a marriage “ under the” provisions of this Ordinance,” because section 7 flatly lays downthat “ in every case of marriage ” (except Kandyan and Moham-medan marriages) certain formalities shall be observed. In thiscase omission of the required formalities is not fatal to themarriage, because there is nothing to show that both the partiesknowingly and wilfully abstained from obtaining a certificate ofnotice duly issued. Section 21 is clumsily drafted.
Browne, A..J., delivered a judgment, which was not taken downin writing, affirming the judgment of the Court below.