Punchi Nona V. Charles Appuhamy

1931 Present: Akbar J. and Maartensz A.J.

PUNCHI NONA v. CHARLES APPUHAMY.

44-D. C. (Inty.) Negombo, 2,772.

Marriage-Presumption arising from habit and repute-Evidence by alleged wife-Rebuttal.

A, who was married to T, lived with P, as her associated husband After T's death, A and P continued to live as husband and wife. A, who gave evidence, did not state that a customary marriage had taken place between P and herself after T's death.

Held, that, under the circumstances, the presumption of marriage by habit and repute did not arise.

APPEAL from a judgment of the District Judge of Negombo.

M. T. de S. Amarasekera, for appellant.

H. V. Perera, for respondent.

September 7, 1931. AKBAR J.-

In this case the only point for decision in appeal is whether the petitioner was the lawful wife of one Peeris, the deceased intestate in this case. The petitioner gave evidence, in which she stated that one Thepanis, a brother of Peeris, was married to her and that he was her husband, but that according to custom Peeris was also an associated husband of hers. She considered both of them as her husbands. It is clear that according to law Thepanis being married to this woman, her association with Peeris was adulterous in spite of the so-called custom. She had 8 children, all during Thepanis' lifetime, and these children were regarded as Thepanis' children. Thepanis died in 1916 and the petitioner continued to live with Peeris as his wife. There was evidence to prove that Peeris and the petitioner were regarded as husband and wife. The District Judge has held in favour of a presumption of marriage between Peeris and the petitioner, because he thought effect should be given to the so-called custom of having associated husbands. It is clear, however, from the evidence of this woman that she considered both Thepanis and Peeris as her husbands and that she continued to live with Peeris without going through any formality of marriage according to custom. It is argued that this evidence of cohabitation was sufficiently strong to raise the presumption that Peeris and the petitioner lived together in consequence of a valid marriage and not in a state of concubinage. The case of Gunaratna v. Punchihamy 1[15 N. L. R. 501.] is against the contention of the respondent. In that case too the woman was alive and went into the witness box to give evidence. As Mr. Justice Pereira stated, " No marriage can be contracted or constituted by cohabitation, habit, and repute. Evidence of cohabitation, habit, and repute merely gives rise to a presumption of marriage, and this presumption, as has been held in numerous cases, is a presumption that can only be displaced by means of strong and cogent evidence to the contrary. In the present

case whether the respondent was married to the deceased is best known to her; the issue is framed whether she ' was lawfully married to the deceased '; she gets into the witness box to prove the affirmative of the issue; but she does not take upon herself to say in plain language that she was married to the deceased according to native rites and customs. On the contrary, her evidence unmistakably points to the fact that there was no such marriage. She begins her evidence giving full details of the circumstances in which she and the deceased began to live together, and it is manifest from these details that there was no ceremony, no native rite or custom, observed to constitute them (the respondent and the deceased) wife and husband. That being so, I consider that the presumption arising from evidence of cohabitation and habit and repute (I have dealt with the question of the weight to be attached to that evidence already) has been effectively rebutted ".

Mr. Perera who appeared for the respondent, whilst admitting that this case was against him, contended that the later case of Dinohamy v. Balahamy 1[29 N. L. R. 114.] decided by the Privy

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