Reid V. Attorney General

1963 Present : Basnayake, C. J., Abeyesundere, J., and G. P. A. Silva, J.

A. E. REID, Appellant, and THE ATTORNEY-GENERAL, Respondent

S. C. 15/1962-D. C. (Crim.) Colombo, 2090/N

Bigamy-Marriage (general)-Second marriage contracted by husband after conversion to Islam-Second wife also a convert to Islam-Validity of the second marriage -Marriage Registration Ordinance, a». 18, 64-Muslim Marriage and Divorce Act-Kandyan Marriage and Divorce Act, 8. 6-Penal Code, s. 362 B.

A man who has contracted a marriage under the Marriage Registration Ordinance does not commit bigamy if, while his marriage is subsisting, he embraces Islam, and marries under the Muslim Marriage and Divorce Act a woman who has also embraced Islam.

The appellant, when he was a Roman Catholic, married his first wife on 18th September, 1933, under the Marriage Registration Ordinance. While his wife was still living he married again under the Muslim Marriage and Divorce Act. He and his second wife became converts to Islam on 13th June, 1959 and registered their marriage under the Muslim Marriage and Divorce Act on 10th July, 1959.

Held, that, although the proximity of the date of the second marriage to the date of conversion gave room for the suspicion that the change of faith was with a view to overcoming the provisions of section 18 of the Marriage Registration Ordinance, the second marriage was valid. Accordingly, the appellant could not be convicted of bigamy under section 362 of the Penal Code.

APPEAL from a judgment of the District Court, Colombo. This case was reserved by Tambiah, J. (G. P. A. Silva, J., agreeing), in the following terms, for hearing by a fuller Court:-

"In this case an important question of law arises. The accused appellant, it is admitted, was married to Edna Margaret Fredrica Reid nee De Witt under the provisions of the Marriages (General) Registration Ordinance No. 19 of 1907 and while this marriage was subsisting he married Fatima Pansy Reid under the Muslim Law after he had become a Muslim. The question is whether he committed bigamy after he became a Muslim in contracting a second marriage while the first marriage contracted under the Marriages (General) Registration Ordinance was still subsisting. This question depends on the interpretation this Court has to place on Section 18 of the General Marriages Ordinance. In Haji Mohamed v. Benedict1[(1961) 63 N. L. R. 505.]the converse position arose. In this case a married man who became a Muslim at the time of the marriage and married a second time while the earlier marriage was subsisting is said to have committed an offence under Section 362 (B) of the Penal Code. In view of the various important points involved in this case my brother and I agree that this is a matter that should be heard by a fuller bench.

We have no power to refer it to a fuller bench. Therefore we bring this matter to the notice of His Lordship the Chief Justice for him to refer it to a fuller Court, if he thinks it fit to do so."

C. S. Barr Kumarakulasinghe, with S. Kanagaratnam and C. W. Perera, for Accused-Appellant.

Vincent T. Thamotheram, Deputy Solicitor-General, with G. P. S. de Silva, Crown Counsel, for the Attorney-General.

Cur. adv. vult.

July 11, 1963. BASnayake, C .J.-

The question for decision on this appeal is whether a man who has contracted a marriage under the Marriage Registration Ordinance commits bigamy if, while his marriage is subsisting, he embraces Islam and marries under the Muslim Marriage and Divorce Act a woman who has also embraced Islam.

Briefly the facts are as follows :-The appellant Alien Ellington Reid alias Ibrahim Reid was convicted of bigamy, an offence punish­able under section 362 (B) of the Penal Code, in that, while his lawful wife Edna Margaret Fredrica De Witt was living, he married Fatima Pansy. He has been sentenced to undergo a term of three months' rigorous imprisonment.

The appel

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