[IN THE PRIVY COUNCIL]

1964

Present : Viscount Dilhorne, Lord Hodson, Lord
Guest, Lord Upjohn, and Lord Wilberforce

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

PRIVY COUNCIL APPEAL NO. 18 or 1964

S. C. 15/1962-D. C. (Grim.) Colombo, 2O90 / N

Bigamy-Christian monogamous marriage--Subsequent conversion of husband to Muslim faith-His right to contract a polygamous marriage-Marriage Registration Ordinance, ss. 18, 19 (1), 35 (2), 64-Muslim Marriage and Divorce Act-Penal Code, s. 362 B.

In a country such as Ceylon, where there are many races and creeds and a number of Marriage Ordinances and Acts, the inhabitants domiciled here have an inherent right to change their religion and personal law and so to contract a valid polygamous marriage. If such inherent right is to be abrogated it must be done by statute.

The respondent contracted a marriage on 18th September 1933 under the Marriage Registration Ordinance, according to Christian rites. On 13th June 1959 he and a divorced woman were converted to the Muslim faith. A month later they were duly married under the provisions of the Muslim Marriage and Divorce Act, notwithstanding that the earlier marriage was subsisting and had not been dissolved under section 19 of the Marriage Registration Ordinance, The respondent was at all material times domiciled and resident in Ceylon, Admittedly the conversion of the respondent to the Muslim faith was sincere and genuine.

Held, that the Muslim Marriage and Divorce Act makes full provision for a male Muslim inhabitant of Ceylon to contract more than one marriage. Accordingly, the respondent was not guilty of the offence of bigamy, because the second marriage was not void within the meaning of section 362 B of the Penal Code,

APPEAL by special leave, from a judgment of the Supreme Court reported in (1963) 66 N. L. R. 97.

Mark Littman, Q.G., with. M. P. Solomon, for the appellant.

E. F. N. Gratiaen, Q.C., with T. O. Kellock and M. I. Hamavi Haniffa, for the accused-respondent.

Cur. adv. vult.

December 15, 1964. [Delivered by LORD UPJOHN]-

This is an appeal by the Attorney-General of Ceylon, by special leave, from a judgment of the Supreme Court of the Island of Ceylon dated 11th July 1963 whereby the respondent's appeal against his conviction on the 23rd November 1961 by the District Court of Colombo of the offence of bigamy was allowed and the conviction was quashed.

The relevant facts are not in dispute. The respondent married Edna Margaret de Witt according to Christian rites at St. Mary's Church, Badulla, on 18th September 1933. Both were Christians at the time and they lived together as man and wife until 1957. There were eight children of the marriage. In May 1957 the wife left the respondent and obtained a Maintenance Order against him in the Magistrates Court of Colombo.

On the 13th June 1959 the respondent and a divorced lady of the name of Fatima Pansy were converted to the Muslim Faith. A month later on the 16th July 1959 they were duly married in the District of Colombo by the Registrar of Muslim Marriages under the provisions of the Muslim Marriage and Divorce Act, 1951, notwithstanding that the earlier marriage was subsisting.

On the 28th October 1961 the respondent was indicted at the instance of the appellant for the offence of bigamy under section 362 B of the Penal Code which so far as relevant is in these terms :-

"Whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place curing 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. "

He was duly convicted by Buultjens A. D.J. and sentenced to three months .rigorous imprisonment from which judgment, as already mentioned, he successfully appealed.

As the first Christian marriage was un