PETITIONERS NATALIE ABEYSUNDERE v. CHRISTOPHER ABEYSUNDERE AND ANOTHER
SUPREME COURT
G. P. S. DE SILVA, CJ.,
WADUGODAPITIYA, J.,
PERERA, J.,
WIJETUNGA, J. AND
SHIRANI BANDARANAYAKE, J.
S.C. APPEAL NO. 70/96
HIGH COURT GALLE NO. 5/94
M.C. GALLE NO. 6403
OCTOBER 13 AND 14, 1997
Penal Code, S. 362 B - Bigamy - Muslim Marriage contracted during the subsistence of a monogamous marriage - Validity of the second marriage -Marriage Registration Ordinance, Sections 18, 19 (1), 35 (1) , 35 (2) and section 64.
The accused-respondent and his first wife the appellant both Roman Catholics were married under the Marriage Registration Ordinance. During the subsistence of the first marriage, the accused registered a marriage with one Miss Edirisinghe under the Muslim Marriage and Divorce Act. The accused was convicted of the offence of bigamy. His defence was that prior to his second marriage, both he and Miss Edirisinghe had embraced Islam; and as such, the second marriage was valid.
(1) Section 18 of the Marriage Registration Ordinance prohibits polygamy and sections 18, 19 (1), 35 (1) and 35 (2) read together show beyond doubt that the Ordinance contemplates only a monogamous marriage; and the respondent could not, by a unilateral conversion to Islam, cast aside his antecedent statutory liabilities and obligations incurred by reason of the prior marriage. The rights of the respondent are qualified and restricted by the legal rights of his wife whom he married in terms of the Marriage Registration Ordinance.
(2) The second purported marriage of the respondent during the subsistence of the prior marriage contracted under the Marriage Registration Ordinance is void, notwithstanding the respondent's conversion to Islam. Attorney-General v. Reid (1966) 67 NLR 25 P.C. and Reid v. Attorney-General (1964) 65 NLR 97 SC overruled.
Cases referred to:
1. Attorney-General v. Reid (1966) 67 NLR 25 P.C.
2. Weatherley v. Weatherley (1879) Kotze 71.
3. Niboyet v. Niboyet 4 PD 1 (Court of Appeal).
4. King v. Perumal (1912) 14 NLR 496 (Full Bench).
5. Pasmore and others v. Oswaldwistle Urban District Council (1898) A.C 387, 393.
6. Reid v. Attorney-General (1964) 65 NLR 97 SC.
7. Smt Sarla Mudgal, President, Kalyani and Others (Petitioners) v. Union of India and others (Respondents) AIR 1995 SC 1531.
APPEAL from the High Court, Galle.
Ranjit Abeysuriya, PC with M. Markhani, Priyadharshani Dias and Mrinali Talgodapitiya for the appellant
D. S. Wijesinghe, PC with Jayantha de Almeida Gunaratne, Dhammika Dharmadasa and Upul Ranjan Hewage for the respondent
B. P. Aluvihare, SSC for the Attorney-General.
R. K. W. Goonesekera as amicus curiae.
Cur. adv. vult
December 16, 1997.
G. P. S. DE SILVA, CJ.
The accused-respondent (hereinafter referred to as respondent) was convicted of the offence of bigamy (s. 362 (B) of the Penal Code). The charge was that on 6.10.85 he contracted a second marriage with Kanthika Chitral Saranalatha Edirisinghe whilst his lawful wife Natalie Manel Antoinette Abeysundera was alive. These proceedings were instituted by the Police in the Magistrate's Court of Galle.
The offence of bigamy as set out in section 362 (B) of the Penal Code reads thus:
"Whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment . . ."
The ingredients of the offence are (i) at the time of his second marriage the accused already has a spouse living, (ii) the accused purports to marry a second time during the subsistence of the prior marriage, (iii) the second marriage is void by reason of its taking place while the prior valid marriage remains undissolved.
In the present case there is no dispute that the ingredients (i) and (ii) above have been established by the prosecution. The matter in issue is the third ingredient of the offence enumerated above.
The first marriage was solemnised at All Saints' Church. Borella on September 27, 1958, (vide marriage certificate P1). Admittedly, the respondent and his wife (who is the present appellant) were both Roman Catholics. The respondent was an engineer serving at the Colombo Municipal Council. He worked at the Colombo Municipal Council until his retirement in 1975. Thereafter he worked abroad for two years and upon his return to Sri Lanka joined the "DFCC" in August, 1979. While working at the "DFCC", he developed a friendship with Miss K. C. S. Edirisinghe. In 1980 the respondent instituted divorce proceedings against the present appellant in the District Court of Colombo. The action, however, was dismissed on September 4, 1985 (P2). The respondent did not prefer an appeal against the judgment dismissing his action. On September 26, 1985, he gifted his 'matrimonial home" to Miss K. C. S. Edirisinghe (deed of gift P3).
At the trial before the Magistrate's Court he made a statement from the dock and asserted that both he and Miss Edirisinghe were converted to Islam in March 1985. On October 6, 1985, for the second time the respondent got married and it was to Miss K. C. S. Edirisinghe, under the Muslim Marriage and Divorce Act (P4 the certificate of marriage dated 6.10. 85 and P5 the declaration dated 6. 10. 85 by the bridegroom in terms of section 18 (1) of the Muslim Marriage and Divorce Act).
As stated earlier, the Magistrate convicted the respondent on the charge of bigamy; he was sentenced to a term of 18 months rigorous imprisonment suspended for a period of five years and a fine of Rs. 2,000 was also imposed. The respondent preferred an appeal to the Provincial High Court of Galle.
His appeal was successful, the conviction and sentence were set aside and he was acquitted. With the leave of this court, the aggrieved party N. Manel A. Abeysundera has preferred the present appeal.
To be continued
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