Law of Divorce - Civil Procedure Code, Ss. 607 - Marriages (General) Ordinance, S. 18 - valid marriage before another marriage - null and void
IN THE SUPREME COURT OF THE DEMOCRATIC SOCIALIST REPUBLIC
OF SRI LANKA
SC/APPEAL/211/2012
Before - Priyasath Dep P.C., J.
Priyantha Jayawardena P.C., J &
Anil Gooneratne J.
Counsel - Kaushalya Nawaratne with Mokshini Jayamanne and
Yoddhya Thambavita instructed by Sivananthan & Associates for the Plaintiff- Respondent-Appellant.
Malin Rajapaksa for the Defendant-Appellant-Respondent
Decided on - 02.05.2016
Anil Gooneratne J.
This was an action filed in the
District Court of Negombo for a declaration that the marriage between the
Plaintiff-Respondent-Petitioner and the Defendant-Appellant-Respondent was ab
initio null and void. The circumstances under which relief was sought was on
the basis that the Defendant-Appellant-Respondent (hereinafter referred to as
Respondent) had contracted two marriages which had not been legally dissolved
or declared void by a court of competent jurisdiction and as such the purported
marriage between Plaintiff-Respondent-Petitioner (hereinafter referred to as
the Petitioner) and the Respondent was invalid and thus null and void. Learned
District Judge delivered judgment on or about 08.12.2006 in favour of the
Petitioner. In the appeal to the High Court, the learned District Judge’s
judgment was set aside by judgment delivered by the High Court on 06.10.2012
(X6)
Supreme Court on 04.12.2012
granted Leave to Appeal on question of law stated in paragraph 15 (a) and (b)
of the petition dated 22.12.2011. The said questions are:
15.(a)(i) In terms of the provisions of Section
18 of the Marriages (General) Ordinance No. 19 of 1907 as amended read together
with the provisions of Section 607 of the Civil Procedure Code, is it
imperative for any husband or wife to present a Plaint praying that his/her
marriage may be declared null and void on any of the ground recognized by the
law applicable to Sri Lanka?
(ii) If the above question is
answered in the affirmative, is the Defendant precluded in law from asserting
that the marriage between the Petitioner and the Respondent is valid in law?
(b) Are the provisions of Sections Section 18 of the
Marriages (General) Ordinance No. 19 of 1907 as amended read together with the
provisions of Section 607 of the Civil Procedure Code, applicable only to parties
where there is a “valid” marriage?
The position of the Petitioner
very briefly was that the Respondent had
contracted two previous marriages with one Jeinul Abdeen Mohamed Ishak and one
Ratnayake Mudiyaselage Gnanasena. Petitioner argues that both marriages
subsisted at the time of the purported marriage between the Petitioner and the
Respondent. It is simply the basis of the Petitioner that the purported
marriage between the Petitioner and the Respondent is null and void and no
force or avail in law. I observe that by law and fact it would not be
permissible for any person or citizen of our country, other than those who
profess the Islam faith to contract marriages in the manner alleged above by
the Petitioner. However the case between parties seems to have gone a long way
and finally reached the Apex Court due to the prevailing circumstances of the
case for which some members of the society or community may fault the legal
fraternity in this country.
There are some primary facts
that need to be understood prior to considering the questions of law on which
leave was granted. Petitioner and Respondent by Marriage Certificate P1 were
married to each other, by October 1992. However the facts placed before this
court reveal that the Respondent was earlier married on or about November 1977
to one Jeinul Abdeen Mohomed Ishak (P2 certificate) and on or about August 1985
to Rathnayake Mudiyanselage Gnanasena (P3). It is also stated that by 4th of March 1983
Respondent obtained a divorce from the said Jeinul Abdeen Mohamed Ishak in D.C
Gampaha Case No. 23883.
In the District Court four
admissions were recorded mainly on aforesaid matters other than the question of
divorce referred to above. However the learned District Judge had arrived at a
conclusion that the marriage between the Respondent and the abovenamed Jeinul
Abdeen Mohamed Ishak was dissolved by a Court of competent jurisdiction. This
court has no reason to dispute the trial Judge’s findings on that aspect of the
dissolution of marriage. As such from the point of view of the Respondent there
would not be a bar for her to contract the second marriage between herself and
Rathnayake Mudiyanselage Gnanasena. However at the trial before the District
Court the second marriage of the Respondent was considered to be invalid in
view of the evidence that transpired in the trial court that the said Gnanasena
was also legally married to another person called Leela Gunarasekera. There is
some evidence that transpired in the trial court that the said Lela Gunasekera
had been separated with Gnanasena for a period of over seven years.
The material placed before this
court indicates without a shadow doubt that the Respondent was well aware of
the fact that she was already married to a person called Gnanasena at the time
and period she thought it fit subsequently to marry the Petitioner. As such the
several events that flow from and in between P1 to P3 in which ever
chronological order, (before I consider the legal provisions) I observe that
the sacred Institution of Marriage was made to suffer due to unacceptable and
in a way immoral acts or conduct of persons, involved as litigants or lay
witnesses in the District Court.
There is
present and can be found an element of illegality in the contracts of marriages
referred to above. The repeated marriages within intervals create some
confusion. If the argument goes to the extent that the last marriage before the
marriage in question was invalid, how should the law consider it? Does the law
encourage a wrongdoer to contract an illegal marriage at a certain point of
time and permit another marriage to occur subsequently, having taken advantage
of an illegal marriage and announce to the world that the former marriage was
void.
Contracts are illegal because
they are forbidden by Statute or because they are contrary to public policy,
which is a common law concept. A contract is contrary to public policy when it
is in the public interest that it should not be enforced.
Illegality is a matter of
degree, varying according to the granting of the legal prohibition. Two general
categories of illegal contracts can be distinguished. Some illegal contracts
contain an element of obvious moral turpitude; in others such taint is absent….
The courts treat contracts of the latter category more leniently than contract,
of the former class. Pg. 85 – Charlesworths
Mercantile Law 12th Ed. By Clive M. SCHMITTHOFF
This court no doubt has to
examine the relevant portions of evidence that was led in the District Court.
Plaintiff-Petitioner having produced the relevant Marriage Certificates P1 –
P3, stated that after he got married to the Respondent in 1992, there were
problems between both of them and as such instituted divorce proceedings on or
about 2001/2002. When these proceedings were pending the Petitioner came to
know that the Respondent had contracted two previous marriages and thereafter
he withdrew the first divorce case. Having obtained information of two prior
marriages the Petitioner instituted another divorce case which is the case in
question. The above items of evidence remains un contradicted and no doubt
suggest the extent to which the Petitioner was misled. The Respondent party led
the evidence of two official witnesses and that of Gnanasena, whom the learned District
Judge reported facts and directed the police to conduct investigations
regarding witness Gnanasena’s acts and conduct of contracting two marriages,
with a view of initiating criminal proceedings, against him. I would welcome
the step taken by the learned District Jude in this regard to directed the
police to take the required steps according to law. This is a step taken by
court to protect the society from such evils and a lesson to others behaving in
such an awkward manner, irrespective of ones strata in life. The Respondent
chose not to give evidence.
I have
perused the entirety of the written submissions of both parties in all the
courts concerning the divorce case. The position projected on behalf of the
Respondent party is that Gnanasena was already married to one Leela Gunasekera
and that marriage was not dissolved. As such an attempt made by the Respondent
to demonstrate that since the marriage between herself and Gnanasena was void
abintio due to the position of witness Gnanasena, the marriage in question
remain intact between the Petitioner and Respondent. This position is untenable
in law. I reject the entirety of the reasoning and judgment of the learned High
Court Judge in this regard. It is scandalous to appreciate such a view.
Respondent’s position as stated above is an abuse of the process of law.
The substantive law and the
procedural law on this subject is contained in Section 18 of the General
Marriages Ordinance and Section 607 of the Civil Procedure Code.
Section 18 reads thus:
“18 - No marriage shall be
valid where either of the parties thereto shall have contracted a prior
marriage which shall not have been legally dissolved or declared void.”
It is the submission of the
Petitioner that although the provisions of Section 18 of the said Ordinance
stipulates provisions as aforesaid, the Defendant-Respondent is duty bound to
comply with the provisions of Section 607 of the Civil Procedure Code and
thereby to obtain a Judgment and Decree declaring that the said marriage
between the Defendant-Appellant and the said R.M. Gunanasena is null and void.
In other words, the provisions of Section 18 of the said Ordinance shall be
read together with and/or interpreted in conjunction with the provisions of
Section 607 of the Civil Procedure Code, which reads thus:
Section 607 reads thus:
Section 607(1) –
“Any husband or wife may
present a Plaint to the District Court within the local limits of the
jurisdiction of which he or she (as the case may be) resides, praying that his
or her marriage may be declared null and void;
(2) Such
Decree may be made on any ground which renders the marriage contract between
the parties void by the law applicable to Sri Lanka”.
The Petitioner’s submissions on
this aspect of the above provisions of law connecting with Respondent’s acts
and conduct is relevant in the context of the case in hand.
I state that Section 18 is not
at all ambiguous. It is crystal clear. It simply states that a marriage is
valid only if one of the contracting parties or both have not entered into a
previous marriage. If either of them have contracted a previous marriage same
has to be dissolved by a Court of Competent Jurisdiction prior to the marriage
in question or the marriage relied upon by the parties. If not the contract of
marriage would be invalid. When a statute is clear and could be easily
understood further explanations, interpretations are not necessary. The
intention of the legislature must be deduced from the language used. I refer to
the General Principles of Interpretation by Maxwell on The Interpretation of
Statutes 12th Ed. Pg. 28 ….
If there is nothing to modify,
alter or qualify the language which the statute contains, it must be construed
in the ordinary and natural meaning of the words and sentences. The safer and
more correct course of dealing with a question of construction is to take the
words themselves and arrive if possible at their meaning without, in the first
instance, reference to cases.
I have in this Judgment
observed that the Respondent Party misled the Petitioner. The Respondent either
knowingly or unwillingly had not disclosed her marriage to Gnanasena until the
Petitioner discovered such marriage which induced him to file a divorce case.
Law cannot be so ignorant to recognise the fact that Gnanasena was already
married to another and by that to permit the Respondent to take mean advantage
to regularise the marriage between the Petitioner and the Respondent.
I would at this point of the
Judgment wish to put the record in its correct perspective having considered
the following positions reflected in the Text Book on Family Law – 6th Ed.
Jonathan Herring.
At pg. 53
The law relating to marriage
draws an important distinction between those marriages which are annulled and
those which are ended by divorce. Where the marriage is annulled the law
recognises that there has been some flaw in the establishment of the marriage,
rendering it ineffective. Where there is a divorce the creation of the marriage
is considered proper but subsequent events demonstrate that the marriage should
be brought to an end.
At pg. 55
A void marriage is one that in
the eyes of the law has never existed. A voidable marriage exists until it has
been annulled by the courts and, if it is never annulled by a court order, it
will be treated as valid. This distinction has a number of significant
consequences:
1. Technically, a void marriage
is void even if it has never been declared to be so by a court, whereas a
voidable marriage is valid from the date of the marriage until the court makes
an order. That said, a party who believes his or her marriage to be void would
normally seek a court order to confirm this to be so. This avoids any doubts
over the validity of the marriage and also permits the parties to apply for
court orders relating to their financial affairs.
At pg. 59
If at the time of the ceremony
either party is already married to someone else, the ‘marriage’ will be void.
The marriage will remain void even if the first spouse dies during the second
‘marriage’. So, if a person is married and wishes to marry someone else, he or
she must obtain a decree of divorce or wait until the death of his or her
spouse. If the first marriage is void, it is technically not necessary to
obtain a court order to that effect before marrying again, but that is normally
sought to avoid any uncertainty. In cases of bigamy, as well as the purported
marriage being void, the parties may have committed the crime of bigamy. Chris
Barton has argued that there is little justification for making bigamy a crime
and instead more could be done at the time of marriage to check whether parties
are free to marry.
The above material obtained
from the English Law attitudes would have a universal application, and there is
no prohibition to draw a parallel to our local conditions, from above. Material
placed before this court indicates that the Petitioner was misled to a great
extent by the Respondent. The Respondent’s record indicates her ability to
contract marriages but with no respect to the Institution of Marriage and she
entered into such marriage contracts at any cost disregarding good moral
conduct. It is no doubt illegal and contrary to public policy as it would not
be in the best public interest to contract a marriage whilst another marriage
is pending, and not dissolved according to law.
I reject Respondent’s
contention that it was not necessary to obtain a Decree from court to have the
previous marriage dissolved, for the reason that marriage between the
Respondent and Gnanasena was in any event null and void. The said Gnanasena was
already married at the time and period when the Respondent entered into a
contract of marriage with him. Non-disclosure of the above position by the
Respondent to the Petitioner is to take undue advantage and circumvent the law.
A man or woman cannot be permitted to take advantage of his own wrong. Brooms
Legal Maxims 10th Ed pg. 191 “no
man can take advantage of his own wrong” If the Respondent was genuine in her
approach a proper disclosure should be made and should have taken the proper
legal steps as per Section 607 of the Civil Procedure Code.
It is relevant in the context
of this case to extend the maxim on ‘approbate and reprobate’. Where one party
is permitted to remove the blind which hides the real transaction the maxim
applied that a man cannot both affirm and disaffirm the same transaction, show
its true nature for his own relief and insist upon its apparent character to
prejudice his adversary. The maxim is founded not so much on any positive law
as the broad and universally applicable Principles of Justice 20 NLR at 124.
I would for
more clarity on the issue reproduce the views of the learned District Judge as
contained in the following extract from the Judgment of the District Court…
The question of law raised in this appeal are answered as follows in
favour of the Petitioner.
15(a)(i) Yes. In the context
and circumstances of the case in hand Respondent should have resorted to the provisions
of Section 607 of the Civil Procedure Code to dissolve her previous marriage
with Gnanasena prior to entering into a marriage with the Petitioner. If not it
amounts to an abuse of the process of law.
(ii) Yes
15. (b) It is available to both
a husband or wife to have the marriage dissolved on any ground which renders
the marriage contract between them void by law.
In all the facts and
circumstances of the case, I set aside the Judgment of the High Court and
affirm the Judgment of the learned District Judge dated 8th December 2006.
As such the appeal is allowed with costs, as per the prayer to the Petition of
Appeal dated 22.12.2011.
Appeal
allowed.
Priyasath Dep P.C., J.
I agree.
Priyantha Jayawardena P.C., J.
I agree.
thanks
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