1947 Present: Howard C. J. and Windham J.
 
THE KING v. PETER NONIS

S. C. 126-D. C. Crim.  Avissawella, 38,092.

    Marriage Registration Ordinance (Cap. 95), s. 38 (I) -Entry in register-Charge of bigamy-Entry not produced-Best evidence-Admissibility of oral evidence- Penal Code, a. 362 C.
 
The appellant was charged with bigamy. The prosecution produced no entry in the marriage register book in proof of the first marriage but called in evidence the first wife and the officiating priest. This evidence was un-contradicted.
 
Held, that the first marriage was properly proved. The expression " best evidence " in section 38 of the Marriage Registration Ordinance merely signifies that the entry in the register shall prevail over any other evidence as to marriage in case of conflict as to whether the marriage was celebrated at all or as to its character or any particulars regarding it.
 
APPEAL from a judgment of the District Judge, Avissawella.
 
H. Wanigatunga, for the accused, appellant.
 
Boyd Jayasuriya, C. C., for the Attorney-General.

Cur. adv. vult.

November 10, 1947. WINDHAM J.-
 
The appellant was convicted of bigamy, contrary to section 362c of the Penal Code. The sole point arising on appeal is whether his first marriage was properly proved, having in view section 38 (1) of the Marriage Registration Ordinance (Cap. 95). Section 38 (1) provides as follows :-
 
" 38. (1) The entry made by the registrar in his marriage register book under sections 32, 33 and 37 shall constitute the registration of the marriage, and shall be the best evidence thereof before all Courts and in all proceedings in which it may be necessary to give evidence of the marriage ".
 
The prosecution produced no such entry in the marriage register book in proof of the appellant's first marriage, nor even any copy of it, but they proved the marriage aliunde, calling in evidence the first wife herself and the officiating Catholic priest, both of whom testified to the marriage and both of whom the Court believed. The appellant neither gave nor called evidence in contradiction, or at all.
 
It is argued for the appellant that this first-hand oral evidence of the marriage was inadmissible, because section 38 (1) states that the entry in the marriage register book shall ': constitute the registration of the marriage and shall be the best evidence thereof ". At this point I would state that, from the context of the section, I consider that the word " thereof " means " of the marriage " and not " of the registration of the marriage" It is contended for the appellant that the phrase " best evidence" of the marriage means the only admissible evidence of it. If this contention means that no marriage which, if registered, would be registered under the Marriage Registration Ordinance (Cap. 95). can be

 proved except by production of the registration entry, then it cannot be acceded to. For there would then be no means of proving such a marriage at all if it had not been registered, although such a marriage is none the less valid if not so registered. That it is valid though not registered was laid down in Nicholas de Silva v. Sheik Ali1 ; it will also be noted that the Marriage Registration Ordinance (Cap. 95) lacks any provision similar to section 8 of the Kandyan Marriage Ordinance (Cap. 96) which renders Kandyan marriages void if not registered under the latter Ordinance.
 
What, then, does " best evidence " in section 38 mean ? The same expression appears in the same context in section 36 of the Kandyan Marriage Ordinance, which provides that-" The entry as aforesaid in the register of marriages and in the register of divorces shall be the best evidence of the marriage contracted or dissolved by the parties and of the other facts stated therein... " With regard to its meaning in the latter section two cases are in point, namely, Mampitiya v. Wegodapola (unreported), followed in Senev