SENEVIRATNE VS PREMALATHA

SENEVIRATNE
VS
 PREMALATHA

SUPREME COURT
PRIYASATH DEP. PC J.
PRIYANTHA JAYAWARDENA, PC J.
ANIL GOONERATNE .J
SC AP 211/2012
SCHCCALA 541/2011
WP/HCCA/GAMP. 164/2006(F)
DC NEGAMBO 2566/SPL
JANUARY 21, 2013
FEBRUARY 28, 2013
MARCH 3, 2016

General Marriages Ordinance Section 18 - Civil Procedure Code, Section 607(1) - Should these provisions be read together - Is Section 18 ambiguous? - Intention of the legislature to be deduced from the language used? - Law related to marriage - If a subsequent marriage is void abinitio, whilst the 1st marriage is in force, does the 1st marriage remain intact?

In an action filed for a declaration that the marriage was ab initio null and void, the Trial Court held in favour of the Plaintiff. The High Court (Civil Appeal) set aside the said Judgment. The Plaintiff sought relief on the basis that Defendant had contracted two marriages one with Ishak, the other with Gnanasena which had not been legally dissolved or declared void by a Court. and as such the purported marriage was invalid and not legally dissolved The Defendant - Respondent contracted two marriages with one Ishak and other one with the one Gnanasena - both marriages have not been declared void. It was contended that, though the provisions of Section 18 of the General Marriage Ordinance lay down a certain legal position, the Defendant is duly bound to comply with Section 607 of the Code and obtain a Judgment and Decide declaring that the marriage between the Defendant and Gnanasena is noil and void - and that Section 18 and Section 607 should be read together.

HELD:

Per Anil Gooneratne, J

"The position of the Respondent is that Gnanasena was already married to one Leele and that marriage was not dissolved and since the marriage between herself and Gnanasena was void abintio the marriage in question remains intact is untenable in law - It is scandalous to appreciate such a - view, it is an abuse of the process of law"

[1] The Respondent has misled the Petitioner, the Respondent cither knowingly or unwillingly had not disclosed her marriage to Gnanasena until the Petitioner disclosed such marriage which induced her to file a divorce action.

[2] Section 18 is not ambiguous It is crystal clear. It simply states that the marriage is valid only if one of the contracting parties or both have not entered into a previous marriage When a statute is clear and could be easily understood further explanations, interpretations are not necessary.

[3] The Respondent should have resorted to the provisions of Section 607 to dissolve her previous marriage with Gnanasena prior to entering into a marriage with the Petitioner, if not it amounts to an abuse of the process of the law.

[4] Void Marriage is one that in the eyes of the law has never existed. A voidable marriage exists until it has been annulled by court.

[5] If a person is married and wishes to marry someone else, he or she must divorce or wait until the death of their spouse.

The Defendant is precluded in law in asserting that the Marriage is valid in law.

APPEAL from the Judgment of the High Court of (Civil Appeal) Gampaha.

Kaushalya Nawaratne with Mokshini Jayamanne and Yoddhya Thambavita for the Plaintiff- Respondent - Appellant.

Malin Rajapaksa for the Defendant - Appellant - Respondent

May 02, 2016

GOONERATNE J.

This was an action filed in the District Court of Negombo for a declaration that the marriage between the Plaintiff-Respondent-petitioner and the Defendant-Appellant-Respondent was ab initio null and void. The circumstances under which relief was sought was on the basis that the Defendant-Appellant-Respondent (hereinafter referred to as Respondent) had contracted two marriages which had not been legally dissolved or declared void by a court of competent jurisdiction and as such the purported marriage between Plaintiff-Respondent_Petitioner (hereinafter referred to as the Petiti

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