Weerapperuma Et Al. V. Weerapperuma

1938   Present : Poyser S.P.J. and Maartensz J.

WEERAPPERUMA et al. v. WEERAPPERUMA.

160-D. C. Colombo, 7,550.

Marriage-Invalid by reason of legal impediment-Cohabitation in habit and repute-No presumption of marriage.

Where a marriage registered between parties is invalid owing to a legal impediment a presumption of marriage by cohabitation in habit and repute cannot arise.

THE petitioner claimed letters of administration to the estate of his deceased brother Dangedera Gamage Edwin Weerapperuma. The eighth respondent, Stella Weerapperuma, opposed the grant on the ground that she was the lawful widow of the deceased and had consequently a preferential claim to the letters of administration.

The eighth respondent was first married to Sathianathan who filed a divorce action against her. The decree nisi was entered on October 15, 1921. The decree was never made absolute.

On May 6, 1922, a marriage was registered between the deceased, Weerapperuma, and the eighth respondent, and they lived together up to the deceased's death which occurred on March 18, 1936. Sathianathan died on September 9, 1935.

The learned District Judge held that she was the lawful wife of the deceased and granted her letters. From this order the petitioner appealed.

N. E. Weerasooria (with him E. G. Wickramanayake), for petitioner, appellant-At the time of the marriage of the eighth respondent with the deceased, her marriage with Sathianathan was subsisting and not legally dissolved. After the death of the deceased an attempt was made to obtain a decree absolute in the divorce case, but the application was refused. In the course of that proceeding, the eighth respondent contended that the decree nisi should have been made absolute by the Court ex mero motu, and that the marriage was valid. The authorities are against that. (Sathiyanathan v. Sathiyanathan' [1 (1937) 9 C. L. W. 135]; see also Aserappa v. Aserappa' [ 2 (1935) 37 N. L. R. 372.]; Hulme-King v. De Silva [ 3 (1936) 38 N. L. R. 63.].)

It was admitted that there were no customary ceremonies at the second marriage.

[MAARTENSZ J.-How does that arise as the marriage had never been dissolved ?]

One cannot presume a lawful marriage when there was an impediment to the marriage although the parties lived as husband and wife.

H. V. Perera, K.C. (with him D. W. Fernando and K. Subramaniam), for the eighth respondent.-The learned District Judge held that the registration of the second marriage in 1922 constituted a good marriage but that view cannot be supported. The learned Judge is right on the ground of a marriage by habit and repute. The parties entered under

a form of marriage and lived as husband and wife. Though there was an impediment to the marriage, it can be presumed that there was a legal marriage when the impediment was removed.

[MAARTENSZ J-Did the parties realize that there was an impediment ?]
No. It is not necessary.

[POYSER S.P.J.-Can there be a presumption when there is definite evidence against it ?]

Yes. It can be presumed. Where there is no impediment, there must be some ceremony and must not be clandestine. It is merely a civil contract. The leading case is The Bredalbane Peerage claim [1 (1872) L. R. 2 H. L. Sc. 269.] In De Thoren v. Attorney-General [2 (1876) 1 A. G. 686.], the "parties went through a form of marriage though there was an unknown impediment. Everyone believed that the marriage was good. It is improbable that the parties would go through another form of marriage once the impediment was removed, and the House of Lords held that it was not necessary.

[MAARTENSZ J.-The Court shall presume that two people apparently living together were legally married.]

It is a presumption of law and cannot be rebutted by a presumption of fact. It can be rebutted only in a particular way. (Dinohamy v. Balahamy [3 (1927) 29 N. L. R. 114.]; Wilkinson v. Payney  [4 (1791) 4 Term 468.] ) In Gunar

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