Kandiah, S. V. Thangamany

1953 Present: Nagalingam A.C.J.

S. KANDIAH, Appellant, and THANGAMANY, Respondent

S. C. 819-M. C. Vavuniya, 25,250
 

Marriage-Presumption of marriage by habit and repute-Not applicable where cohabitation follows a marriage ceremony which is invalid.

The presumption of marriage by habit and repute cannot prevail where there is evidence that the parties had gone through a marriage ceremony and that the solemnization was invalid for the reason that one of the parties was, at the time of the ceremony, already lawfully married. Cohabitation of the parties and general recognition of them as husband and wife subsequent to the dissolution of the prior marriage are inadequate in law for the application of the doctrine of presumption of marriage.

APPEAL from a judgment of the Magistrate's Court, Vavuniya.

A., who was married to B. instituted divorce proceedings against her. Pending the action for divorce A. purported to many C. according to Hindu rites and lived with her as husband and wife. There was

no fresh ceremony, either according to custom or under the Marriage Registration Ordinance, subsequent to the dissolution of the marriage of A. with B. In the present case the question arose whether C. could claim maintenance as wife from A. It was contended that the cohabitation of A. and C. after the dissolution of the marriage between A. and B., coupled with the circumstance that A. and C. were recognized by friends and relatives as man and wife, entitled C. to gain the status of a lawful wife.

T. W. Rajaratnam, for the defendant appellant.

K. Sivasubramaniam, with D. S. Nethsingha, for the applicant respondent.

Cur. adv. vult.

September 17, 1953. NAGALINGAM A.C.J.-

This appeal involves a determination of the question as to what extent the presumption of marriage by habit and repute could be held to prevail where admittedly there is evidence that the marriage ceremony gone through by the parties is invalid, and further whether, after the factor rendering the marriage invalid has ceased to be operative and co-habitation continues, such co-habitation attended by recognition by members of the families of the parties as husband and wife is adequate in law for the application of the doctrine of the presumption of marriage.

The question arises on the application for maintenance made by the applicant on behalf of herself and her children on the ground that she is the lawful wife of the defendant and that the children were lawfully born in wedlock to him. The learned Magistrate has very carefully analysed the evidence and arrived at certain findings of fact with which I see no reason to disagree. Briefly stated, the facts are : The defendant was anterior to the dates material to these proceedings a widower. On the 28th February, 1948, he married one Ponnammah under the General Marriage Registration Ordinance, and the solemnization of the marriage is evidenced by the certificate of marriage D5. Though the marriage was solemnized between the defendant and Ponnammah, the parties never lived together, and the defendant shortly thereafter instituted divorce proceedings against her, and decree nisi dissolving the marriage with Ponnammah was entered on 6th May, 1949 ; the decree was made absolute only on 2nd February, 1953. After the defendant had instituted the action for divorce against Ponnammah, he would appear to have married the applicant according to Hindu rights. The marriage with the applicant took place in January, 1949, that is to say, subsequent to the institution of the divorce proceedings against Ponnammah but prior to even the decree nisi dissolving his marriage with the defendant being entered in the action.

It is conceded on behalf of the applicant that the marriage according to custom between her and the defendant having taken place at a time when the defendant was a married man having a lawful wife living,

namely Ponnammah, the marriage acco

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