[Full Bench.]

Sept.20,1911    Present: Lascelles C.J., Middleton J., and Grenier J.

THE KING v. PERUMAL.

[Crown Case reserved.]

Second Midland Circuit, Kandy, Case No. 8.

Indian Tamil settled at Kandy not governed by Tesawalamai-Polygamous marriage in Ceylon of Indian Hindu void-Burden of proof-Penal Code, s. 362.

A Hindu (Tamil) who was a native of Tinnevelly in South India, who had settled in the Central Province of Ceylon, was held not to be governed by the Tesawalamai.

A polygamous marriage between persons who are not Muhammadans is void in Ceylon, even though it is valid by the law of the country in which the husband has his domicile.

Where an accused, a Hindu, was charged under section 362 of the Penal Code, the prosecution led no affirmative evidence to prove the kurai ceremony at the time of the celebration of the first marriage; but a witness for the prosecution deposed that all that was necessary to constitute the marriage was done; he also said that the kurai ceremony was an important portion of the ceremony.

Held, that even if the kurai ceremony was an essential part of the marriage ceremony, that it was proved.

Lascelles C.J.-The fact of a marriage ceremony having been proved, it was incumbent on the accused, if he relied upon the omission of any essential detail in the ceremony, to make good his point and to show that the omission had in fact taken place.

THE facts are stated by Wood Renton J. thus: -

1. E. A. S. Awatta Perumal was tried before me and a Tamil-speaking jury on August 23, 24, and 25, 1911, on the following charges: -

(1) That on or about September 12, 1908, at Kandy, he being then lawfully married to one Kadirai, went through a form of marriage with one Catherine Gallway, " which second marriage was void by reason of its taking place during the life of the said Kadirai," and that he thereby committed an offence punishable under section 362 (b) of the Ceylon Penal Code; and

(2) That at the time and place aforesaid he concealed from the said Catherine Gallway his former marriage with the said Kadirai, and that he thereby committed an offence punishable under section 362 (c) of the Ceylon Penal Code.

2. Owing, as T was given to understand, to the illness of Catherine Gallway, she was not examined as a witness at the trial, and accordingly Crown Counsel withdrew the second count in the indictment.

3 The material facts as to the first count are these. Perumal is a Tamil resident in the District of Kandy, where he owns an estate. He is a Hindu by religion. On April 20, 1906, he contracted a valid marriage according to Hindu customary law with Kadirai, daughter of Arumugam Kalimuttu, kanakapulle on Choisy estate, which is about thirty miles away from Kandy. This marriage was not registered. After a few months Kadirai returned to her father's house, the suggestion being that Perumal had illtreated her. Perumal petitioned the Supreme Court for a habeas corpus to get his wife back. Both in his petition and in the affidavit supporting it he stated that she was his lawful wife, and had lived with him as such. The Supreme Court referred the parties to their civil remedy. Eventually Kadirai returned to her husband on a written undertaking by him to pay to her father a sum of Rs. 2,500, for which he granted a promissory note, by way of fine and maintenance money if she had occasion, through any fault of his to leave him again. After a time Kadirai once more left Perumal. Her father claimed the sum above mentioned, but it was not paid.

4. There is evidence that Catherine Gallway is a Burgher. The certificate of her marriage with Perumal, which was put in evidence at the trial, shows that she is a resident in Colombo. The marriage was, on September 12, 1908 celebrated under the provisions of Ordinance No. 19 of 1907. Perumal is described in the certificate as a bachelor. In answer to a question which I put to them, the jury found-a fact which is otherwis