Gunaratna V. Punchihamy

Present: Pereira J. and Ennis J.

GUNARATNA v. PUNCHIHAMY.

198-D. C. Matara, 1,893.

Marriage-Presumption of marriage from cohabitation, habit, and repute-Evidence that there was no registration or marriage according to native rites-Presumption rebutted.

The respondent (Punchihamy) sought to establish in this case marriage between herself and one Deonis (deceased). The evidence established the facts of cohabitation, habit, and repute, but the respondent, while giving evidence herself of the facts of cohabitation, habit, and repute, gave evidence also to the effect that in fact there was no marriage either under the Ordinance or according to native rites and customs.

Held, that the presumption of marriage from the evidence of cohabitation, habit, and repute was rebutted.

Pereira J.-After the coming into operation of the Marriage Ordinance of 1663 it was open to parties to contract a marriage according to native rites and customs quite independently of the requirements of the Ordinance, and marriages contracted according to such rites and customs were not invalid by reason of the Ordinance having been disregarded. From the decisions pronounced so far on the subject, however, it is difficult to say whether a marriage not duly solemnized and registered under the Ordinance was absolutely void, or void only if the parties professing to contract it according to statute knowingly and wilfully acquiesced in the irregularities mentioned in section 6 of the amending Ordinance of 1865.

No marriage can be constituted by cohabitation, habit, and repute. Evidence of cohabitation, habit, and repute merely gives rise to a presumption of marriage, and this presumption can be displaced by evidence to the contrary, but the evidence should be strong and cogent.

Ennis J.-The District Court held that the facts proved gave rise to a presumption in favour of Punchihamy, and appears to have been influenced by certain Scotch cases based on Scotch law, under which a mutual agreement to marry was the one essential to a lawful marriage. Among the Sinhalese it appears certain that some further formalities are required to constitute a lawful marriage.

De Thoren v. The Attorney-General1 distinguished.

THIS was an appeal from an order of the District Court of Matara holding that one Punchihamy (respondent) was entitled to letters of administration to the estate of one Deonis as his widow, as against a brother (appellant) of Deonis who had applied for administration.

1 L. R. 1 A. C. 686.

A. St. V. Jayewardene, for the appellant-In this case the presumption of marriage from cohabitation, habit, and repute does not arise. The respondent was not considered to have been married to Deonis even by her relations. The birth register show that Deonis and the respondent were not married at the date of the birth of the child.

In the cases relied on by the District Judge some sort of marriage ceremony was gone through, and it was apparent there was a clear intention of marriage. [Pereira J.-If one of the parties is alive and. gives evidence, but does not say that they were married., where does the presumption of marriage by cohabitation and repute come in.]

Bawa, K.C., for the respondent.-Although the wife says that no legal marriage has taken place, she does not say that no form of marriage was gone through. The appellant must prove affirmatively that there was no marriage according to village custom. Counsel cited Lapsley v. Grierson,1 Langham v. Thompson,2 De Thoren v. The Attorney-General,3 and the Breadalbane Case.4

A. St. V. Jayewardene (argument for appellant continued).-The authorities relied on relate to marriages in Scotland. No particular ceremony is necessary for constituting marriage in Scotland; habit and repute would be enough. [Pereira J.-Marriage is not constituted by habit and repute; it is only presumed from habit and repute.] No presumption arises when the parties are alive and can give evi

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