Dingirihamy V. Mudalihamy

1912 Present: Pereira J. and Ennis J.

DINGIRIHAMY v. MUDALIHAMY et al.

209-D. C. Kurunegala, 4,402.

Kandyan marriage - Entry in marriage register that marriage was " bina " is not conclusive evidence of " bina " marriage-Effect of registration - Marriage dating back to date of native ceremony - Daughter marrying in " diga " after father's death loses right to paternal inheritance.

Per PEREIRA J. and ENNIS J. with diffidence :-

(1) The fact that a marriage of Kandyans is described in register of marriages as a bina one is not evidence marriage ; evidence is admissible to contradict the and to prove that the marriage was diga.

Per PEREIRA J. with diffidence :-

(2) The registration of a marriage among Kandyans has the effect of making the marriage date back to the actual native ceremonies performed for the purpose of constituting the marriage. .

Per PEREIRA J. and ENNIS J.-A woman who after her father's death that is to say, after she has actually inherited her father's property, marries in diga, forfeits her rights already acquired.

THE facts are set out in the judgments.

Morgan de Saram, for plaintiff, appellant.

Allan Drieberg, for first and second defendants, respondents.

V. Grenier, for third defendant, respondent.

Cur. adv. vult.

October 15, 1912. PEREIRA J.-

In this case the plaintiff's marriage appears to have been registered in 1907, but the customary ceremonies appear to have been performed many years before that. I have read the evidence carefully, and I am inclined to think that its weight is in favour

of the contention that those ceremonies were ceremonies proper to a diga marriage. In the register, however, the marriage is entered as a bina marriage, and a question arises here, in view of section 39 of the Kandyan Marriage Ordinance, whether the entry in the register is not conclusive on the question as to the nature of the marriage. That section enacts that if it does not appear in the register whether the marriage was contracted in bina or in diga, such marriage shall be presumed to have been contracted in diga. That being so, if it does appear in the register whether the marriage is contracted in diga or in bina, it may well be argued that that entry has a greater effect than that of a mere presumption. It may be said that the entry is conclusive on the question as to the nature of the marriage, but I see that the question has been considered by Moncreiff J. in Ukku v. Kiri Honda,1 and by my brother Wood Renton in Ram Etana v. Nikappu,2 and that they are of opinion that the entry in the register may be rebutted by evidence. I think that the entry in the register in the present case is sufficiently rebutted by evidence. It has also been held in the first case cited above that the registration of a marriage dates back to the actual native ceremonies performed for the purpose of constituting the marriage. I adopt this view also, although I felt it a little difficult to reconcile it with the fact that the ceremony prescribed by section 20 of the Ordinance reads like a ceremony intended to constitute a marriage for the first time. If the woman had already been taken by the man to be his wedded wife, I thought there would be incongruity in the question-" Do you take this woman to be your wedded wife? "-given in section 20.

Then comes the question whether a woman who, after her father's death, that is to say, after she has actually inherited her father's property, marries in diga, forfeits her rights already acquired. On this question the decision in Meera Saibo v. Punchirala3 is in point

I would dismiss the appeal.

ENNIS J.-

The points for determination in this appeal are whether a form of marriage gone through according to Kandyan custom about the year 1885 is valid under the Ordinance No. 3 of 1870, and if not a valid marriage, whether it has any effect. There seems no reason to doubt that the particular form of marriage

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