1961 Present: Basnayake, C.J., Gunasekara, J., and T. S. Fernando, J.

KATCHI MOHAMED,

Appellant, and A. F. C. BENEDICT (Inspector of Police),
Respondent

S. C. 1169-M. C. Colombo, 42574/B

Marriage-Muslim marriage-Second marriage by husband to a Roman Catholic- Bigamy-"Marriage Registration Ordinance (Cap. 112), ss. 18, 64-Penal Code, s. 362B.

A married man who belongs to the Muslim faith at the time of his marriage and who subsequently marries a second time, under the Marriage Registration Ordinance, a person not professing Islam, while his previous marriage is subsisting commits thereby the offence of bigamy within the meaning of section 362B of the Penal Code.

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

Nimal Senanayake, for Accused-Appellant as amicus curiae.

D. St. C. B. Jansze, Q. C., Attorney-General, with V. S. A. Pullenayegum, Crown. Counsel, and M. Hussein, Crown Counsel, for Complainant-Respondent.

Cur. adv. vult.

December 20, 1961. BASNAYAKE, C.J.-

The question that arises for decision on this appeal is whether a married person who belonged to the Muslim faith at the time of his marriage and who became a Roman Catholic and married a second time while his previous marriage was subsisting has thereby committed the offence of bigamy.

Briefly the facts are as follows :-The appellant who was a Muslim by the name of Katchi Mohamed married Asiya Umma on 3rd March 1947 at Mannar according to Muslim rites. They lived together till 1954. In that year he left Asiya Umma and 011 18th November married Felicia Therese Benedict at St. Lucia's Cathedral, Kotahena. He went through the ceremony of conversion to Catholicism at St. John's Church, Mutwal, about two months before his marriage. At and after that ceremony he assumed the name of James Merrial Gunaratnam under which name he went through the second marriage ceremony. He described himself as a bachelor and Ceylon Tamil,

The accused admits that he assumed the name of Gunaratnam because he was told that the priest would not perform the ceremony of marriage unless he changed his name. He also admits that he went to two churches, one at Kotahena and the other at Mutwal, and that he first went to the church at the latter place and that he was named Gunaratnam after he went to the church at Mutual. He stated that he was a Muslim even at the time of the trial, the change of name and marriage in church notwithstanding.

It was submitted that under our law it is legal for a Muslim to have more than one wife and that the appellant being a Muslim his second marriage did not constitute the offence of bigamy. There is no evidence nor was it contended that a Muslim cannot change his religion and become a Roman Catholic. When a Muslim becomes a Roman Catholic he is no more a follower of the Prophet and does not thereafter enjoy the rights and privileges of a Muslim. The moment the appellant became a Roman Catholic he ceased to be a person who was in law entitled to have more that one wife and when he married a second time as a Roman Catholic he committed the offence of bigamy. The section under which the appellant is charged (s. 362 B of the Penal Code) reads-

" Whoever, having a husband or wife living, marries In any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. 

Exception:-This section does not extend to any person whose marriage with such husband or wife has been declared void by a court of competent jurisdiction, nor to any person who contracts a marriage during the life of a former husband or wife, if such, husband or wife, at the time of the subsequent marriage, shall have been continually absent from such person for the space of seven years and shall not have been heard of by such pe