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SLR - 1984 Vol.2- P381

SLR - 1984 Vol.2, Page No - 381


WIJEGUNAWARDENA
v.
GRACIA CATHERINE
COURT OF APPEAL.
TAMBIAH, J. AND MOONEMALLE, J.
C.A.271/77 (F).
D.C. GAMPAHA 18633/D.
MAY 28, 29, JUNE 25 AND AUGUST 10, 1984

Divorce-Nullity of marriage-Marriage ceremony in Church- Validity-Marriage Registration Ordinance, Sections 23, 25,26,33,
34 (1), (2), (3), 5 (b), 41, 42, 43 and 46-Customary marriage-Burden of proof-Marriage by habit and repute.

The plaintiff-appellant filed this action praying for a declarationthattherewasno"marriage"betweenhimandthe
defendant -respondent and/or that it is null and void or in the alternative for adivorceonthegroundofconstructive
malicious desertion. On 24.7.1973 the plaintiff had given notice of marriage to theRegistrarofMarriagesandbelieving
that he had complied with the law regarding marriage he went to Church on 13. 8.1973 with the defendant togetmarriedand
there mass was held, prayers were read, the priest took a ring andputitonthedefendant'sfingerandobtainedthe
signatures of both parties to a book kept in the Church. CandlesanoillampswereburningintheChurchduringthe
ceremony. No certificate issued by the Registrar was given to the priest and the book signed by the parties was not onekept
in compliance with the provisions of the Marriage Registration Ordinance. Thereafter the plaintiff -appellant lived withthe
defendant as man and wife. On 13th July 1975 the plaintiff left the defendant after a quarrel with her and filed thisaction
thereafter.
Held-

(1) Before a Minister can solemnise a marriage in terms of s.34(l), there mustbeacertificateofthemarriage
notice which alone gives the Minister the authority tosolemniseamarriage.Intheinstantcasetherewasnosuch
certificate of notice given to him. The parties wilfully went through a marriage ceremony in Church knowing fullywellthat
no certificate had beenissued. Therefore the marriage is null and void in terms of section 46 of the MarriageRegistration
Ordinance.

(2)The evidence only proves that a ceremony took place according to the rules,customsandritesofthe Catholic
Church. It does not prove that a customary marriage took place. What was done was to conduct a form of religiousservicein
accordance with the customs and rituals of the Churchasthepartiesindicatedthattheirmarriagehadalreadybeen
registered.

(3)The burden was on the defendant to prove a customary marriage.

(4)In view of the admission that there was no valid marriageundertheMarriageRegistrationOrdinancethe only
presumption the parties can contend for is a presumption in favour of a customary marriage When a party fails to establisha
customary marriage the presumption of a valid marriage is rebutted and a marriage (by habit and repute)isnotestablished
by the parties living together as husband and wife.
Cases referred to :

(1)Nicholas de Silva v. Shaik Ali. (1895) 1 NLR 228.
(2)The Oueen v. Kantar Chinnatamby. 6 SCC 121
(3)Gunaratna v. Punchihamy. (1912) 15 NLR 501, 504.
(4)Sophia Hamine v. Appuhamy. (1922) 23 NLR 353, 361.
(5)Ponnammah v. Rajakulasingham. (1948) 50 NLR 135, 137.
(6)Ratnamma v. Rasiah. (194 7) 48 NLR 4 75.
(7)Dinohamy v. Balahamy. (1927) 29 NLR 114,116.
(8)Fernando v. Dabrera. (1961) 65 NLR 282, 284.

Dr. Colvin R. De Silva, with D. R. P. Goonetilleke, Terence Wickremasinghe, K. S. Tillekeratne and Miss Saumya deSilvafor
the plaintiff -appellant.

S. D. Jayasundera for the defendant-respondent.

August 29, 1984
TAMBIAH, J.

The plaintiff-appellant filed action against the defendant-respondent and prayed for a declaration that there is nomarriage
between them and or that their marriage is null and void or in the alternative, for adecreeofdivorce.Tosustainhis
prayer for a declaration, the plaintiff averred in his amended plaint that on 24th July, 1973, he gave notice of marriageto
the Registrar of Marriages and on 13th August, 1973, believing that he had complied withtheprovisionsoflawregarding
marriage, at about 8.30 p.m. he went to St. Anthony's Church atKongodamullawiththedefendantwiththeintentionof
getting married : that night, at the Kongodamulla Catholic Church,Rev.Fr.Batepolatookaringandputitonthe
defendant's finger and requested the plaintiff and the defendant to sign a book kept in the churchthat henowfindsthat
he and the defendant have signed a book which has not beenpreparedaccordingtoprovisionsoftheGeneral,Marriages
Ordinance that thereafter he applied for a certified copy of, the marriage Certificate and this wasrefusedbytheRev.
Father who is in charge of the registers at the Kongodamulla Church.

The plaintiff's alternative prayer for a decree of divorce was based on the following averments-that onoraboutthe13th
June, 1975, he was compelled to leave the matrimonial home as he found it difficult and dangerous to live with thedefendant
for the reasons thatthere were constant quarrels and disagreements between them, sheconstantlyabusedhiminindecent
language, she treated him disgracefully in the presence of others, she made false allegations that he associatedwithother
women, she failed to attend to his needs and to look after the household work, she got her brotherstoabuseandthreaten
him and she was always with a morose face and treated him with cruelty giving him pain ofmind.Heallegedthatshewas
guilty of constructive malicious desertion.

The defendant by her answer admitted the plaintiff's averment that they went to Kongodamulla Church atabout8.30p.m.on
13th August, and went on to state that she is the legal wife oftheplaintiffandthatthemarriagebetweenthemwas
solemnised by Rev. Father Batepola at the said Church that the marriage took place legally as well aswiththecustomary
ceremonies such as the function held at the Church on 13.8.73 they behaved as husband and wifebeforetherelationsand
the general public that if there was any legal defect in the solemnization of the marriage, itwasnotabartotheir
marriage. She asserted that she was a devoted and faithful wife. She denied that the plaintiff deserted her forthereasons
he had given and stated that the plaintiff had started a friendship with one Miyuri Gunaratne and as shedidnotagreeto
plaintiff's demand for a divorce, he neglected her, ill-treated and finally maliciously deserted her on 13th July, 1975.She
prayed for the dismissal of plaintiff's action.

At the start of the case, it was recorded that both parties admitted that there is no valid marriagebetweentheplaintiff
and the defendant under the Marriage Registration Ordinance. Thereafter, the case proceeded to trial on the followingissues
:-

1. Since the marriage that was intended to be solemnized between the plaintiff and the defendantunderthe Marriage
Registration Ordinance did not take place, can a declaration be obtained that the marriage was void and or thatnomarriage
took place between the plaintiff and the defendant ?

2. In the alternative, did the defendant behave in the manner as set outinparagraphs10to15ofthe amended
plaint ?

3. If issue 2 is answered in the affirmative, is the defendant guilty of constructivemalicious desertion ?

4. If so, can the plaintiff get a decree for divorce ?

5. Did there come into existence and continue, a marriage that was solemnized customarily and publicly ?

6. Did the plaintiff maliciously desert the defendant on or about 13th July, 1975 ?

7. If issues 5 and 6 are answered in the defendant's favour, should the plaintiff's action be dismissed ?

8. As there is no marriage registered under the Marriage Registration Ordinance, has the defendant a right inlaw to
frame issue 5 ?

Issues 1 to 4 and 8 were raised on behalf of the plaintiff and issues to 7 on behalf of the defendant.

The plaintiff, a Buddhist and a teacher in a tutory at Gampaha gave evidence, He gave his age as32yearsandstatedhis
wife was 36 years, There are no children by the marriage. He came to know the defendant in orabout1968andcommenceda
friendship. He wasliving in a rented house and the defendant's brothers, her parents andthedefendantherselfcameto
reside with him. He decided to marry her at the Kachcheri but she wanted to get married at theMiriswattaChurchtowhich
she belonged. As he was a Buddhist and felt shy IsgetmarriedattheMiriswattaChurch,thedefendant'smotherand
relations made arrangements to have the marriage at tho Kongodamulla Church as they knew the priest Rev. Fr.Batepola.He
gave notice of marriage and obtained a certified copy of same (P 1), and with a letter from the Rev. Fr. at Gampaha,hemet
Rev. Fr. Batepola and fixed 13th of August as the date for the marriage. On13th August, at about 7or7.15p.m.,he,the
defendant, her mother, the mother's elder sister, the defendant's brother and hersister-in-lawwenttotheKongodamulla
Church. Inside the Church, prayers were read, the Rev. Father put a ring on the defendant'sfinger,hereadsomethingin
English and Sinhala which he could not understand and thereafter they were conducted to the living room. He signed.Ittook
about two hours and it was 8 or 8.45 p.m. when all matters were over. There were candleslitandalsococonutoillamps
inside the Church.

He also gave evidence concerning the conduct and behaviour of the defendant and her family which compelled him toleaveher
on 13th July. On the 12th evening, there was a quarrel between them over the falseallegationthathewasfriendlywith
other women and he left the next day and never returned to her.

Under cross-examination, he admitted that after the wedding at Kongodamulla Church, he accepted the defendant ashislawful
wife and lived with her for two years with that knowledge and went about openly with that knowledge thathisparentsand
friends accepted them as lawful husband and wife that he had sexual intercourse with her. After he separated,hemetthe
Rev. Father at the Kongodamulla Church and applied for a marriage certificate in order to file anactionfordivorce.The
Rev. Father checked his books and said that no such marriage was registered and he looked into anotherbookandaskedhim
whether they came to Church after having get married somewhere else and he replied they weremairiedatthisChurch,and
that he had brought a notice of marriage with him. Then the Rev. Father said that he could remember seeingsomelongforms
and asked him whether this (Pl) was it. He answered yes. The mass was held in the Church. Thedateonwhichheleftthe
defendant was 13th July 1975, and not 13th June, 1975. It is a mistake. He denied the suggestion that he leftthedefendant
because of his fondness for Miyuri Guneratne.

The plaintiff's only witness Gunawardene gave evidence to support him in regard to issue No. 2.

Rev. Fr. Batepola gave evidence for the defendant. He knew that notice ofmarriagehadbeengiven.Hemarriedthemon
13.08.1973 and obtained their signatures and of the witnesses to the effect that they were married.Adocument(D1)which
defendant's attorney moved to mark in evidence was ruled out as it was not listed. The marriage tookplaceatabout4or
4.30 in the evening and lasted about 35 minutes. He explained to them what he did atthattime.Themarriagetookplace
before the altar. After the wedding took place according to the customs, he registered the marriage in the living roomwhich
adjoins the Church, having obtained their signatures.

Under cross-examination, the witness stated the following:-

1. There is only one type of wedding in a Church, which is done according to the directions of the Holy Catholic Church.

2. There are two books kept in the Church One book is kept according to the law of the State. Itisabookgivenbythe
Kachcheri. The other book is kept according to the law of the Church.

3. If a marriage that takes place in a Church is registered in the Kachcheri Book, it is the duty of the Priesttosenda
copy to the Kachcheri.

4. First of all, notice of marriage is given. Secondly a certificate from the Registrar is received. The Registrar givesthe
authority by a Certificate. If no such certificate is received, the marriage cannot be enteredinthebookgivenbythe
Kachcheri. If a marriage that takes place in the Church is entered in the Kachcheri Book, it is necessary to send acopyto
the Kachcheri.

5.The marriage has to be solemnized in the Church between 6 a.m. and 6 p.m. with all the doors of the Church open.

6.To the pointed question "Is there a marriage called customary marriage in Church ?", the witness answeredIttakesplace
according to the law of the Catholic Church" Such a marriage is not registered in the Kachcheri Book.
.
7.If both parties are christians and a marriage had taken place outside the Church they can be married again in Church if
the marriage is between a non-catholic and a catholic, they can be married again with the permission of the Archbishop.

When re-examined the witness stated the following :-

1.If parties are christians, they are married according to the law of the Church. If they are catholicandnon-catholicwe
marry them with the permission of the Archbishop. Religious customs are the same for both.

2.In my Church there are two books for registration of marriages. In one, the registration is done according tothelawof
the State. The other book is kept 1according to the doctrine - the canon Law of the Church.

3.In regard to the present marriage, he did not prepare the book according to the Law of the State but according totheLaw
of the Church. Both the plaintiff and the defendant signed thebook.Theyunderstoodthatamarriagetookplace.The
plaintiff was a Buddhist and the defendant a Roman Catholic. (An affidavit (D 2) signed by thepartiesto showthatthe
parties had got permission from the Catholic Church to marry was rejected by the Judge).

4.Before a marriage is solemnized according to the Law of theState,thepartiesareaskedwhethertheirmarriageis
registered. The plaintiff asked me to marry them in Church as the plaintiff had registered the marriage. Theplaintifftold
me that there was a marriage existing according to the Law of the State. That is why the marriage was registered in thebook
kept according to the law of the Church. The plaintiff did not bring a certificate. AcertificatefromtheStateisnot
necessary for a Church marriage. The couple is married on their mutual trust that they had got married according totheLaw
of the State.

The defendant then gave evidence and stated she got married at St. Anthony's Church and the Rev. Fr. Batepolaofficiatedat
the marriage. He explained about the gravity of the marriage. Thereafter theylivedtogetherfortwoyears,behavedas
husband and wife, and their parents and relations accepted them as husband andwife.Shedeniedthatsheneglectedher
husband or that she did not attend to the household work. The plaintiff left herbecauseofhisassociationwithMiyuri
Guneratne. She denied that the plaintiff left her for the reasons he had given. He said that she was older than him,hadno
children and he asked her to get separated from him in order to get married to Miyuri Guneratne. She had known theplaintiff
since 1964 and since 1965, for eight years, lived with him. in one house but separately. Before the marriage, theplaintiff,
she, her parents and her two brothers lived at two rented houses, at Weliveriya and Bendiyamulla andmovedintotheirnew
house which the plaintiff had built, on the day of their marriage.

The defendant called three other witnesses - Charles, a relative of the defendant, stated he knew both parties and onaday
in August 1973, he met the parties at a hotel and they were having tea. The plaintiff told him they had got married.Onhis
invitation, the parties visited his house twice or thrice.

Appuhamy, another relative of the defendant stated that in the presence of the plaintiff, the defendant toldhimtheywere
married and that on four or five occasions the parties visited his place.

The 3rd witness, Milton, a brother of the defendant, said that he was present at the marriageattheKongodamullaChurch.
Father Batepola officiated. It took place at 4 p.m. and lasted about an hour. It is incorrect to say it tookplaceat8,00
in the night.

The learned Judge observed in his judgment-

"His (Rev. Fr. Batepola's) evidence was that he performed a marriage between the plaintiff andthedefendantaccordingto
the customs of the Church. He also described the mass held. The mass had taken about 35 minutes. According totheplaintiff
there had been religious ceremonies in the Church, A mass had been held prayers were said and the ring had beenputonthe
defendant. The plaintiff once tried to say that the marriage was performed in the living room. It may bethatheattempted
to say so in order to minimise the dignity and sacredness of the ceremony. However the plaintiff had to admit thatthemass
was held, the marriage took place and the ring was put in the Church. In the Church there werecandleslitandoillamps
burning. The plaintiff also attempted to show that the mass was held at about 8.00 in the night. To dothat:theplaintiff
made use of the admissions made by the defendant in her answer. The defendant by her answeradmittedparagraph3of,the
plaint. In paragraph 3 among other things there appears that the plaintiff anddefendantwenttoKongodamullaChurchat
about 8.30 p.m. It appears that the defendant had not been much careful when answering. Paragraph 3 oftheplaintisalso
not devoid of such information. The plaintiff in his plaint has stated that he left the defendant on 13.6.75.Hesaidthat
it may be a mistake and that he left the defendant on 13.7.75. In evidence it was proved that the mass had beenheldbefore
nightfall. As stated by Rev. Fr. Batepola it had taken place at about 4-4.30 p.m.According to the defendant's brotherMilton
it was at 4.00 p.m.

Before the marriage was solemnized Rev. Fr Batepola had made the plaintiff and- the defendant understand whathewasdoing
and thereafter he had solemnized the marriage according to the customs of the church and the laws of the church.

You have to consider the question whether there exists a marriage between the plaintiff andthedefendantwiththeabove
facts in the background .......

There is enough evidence that the wedding took place in public and that the plaintiff and the defendant behaved as amarried
couple.... .

But in this case it has been proved that the plaintiff and the defendant were married at a Catholic Church accordingtothe
Catholic customs before a Catholic priest. Therefore it can be said that thiswasamarriagepreparedaccordingtothe
customs...

It is very clearly established that they have got married according to the Catholic customs as stated above .....

In the judgment in Nicholas de Silva v. Shaik Ali (1) it has been held that a marriage performed by aCatholicpriestdoes
not become void for the mere fact that it was not registered. Though that judgment has been given prior to our Ordinance,it
is even now accepted that a marriage which is performed according to the religious customs does not become void though itis
not registered. Considering the facts in this case and the law, it is certain that there hadbeenacustomaryandpublic
marriage between the plaintiff and the defendant."

As between the two versions as to why the plaintiff left the defendant, the learned Judge said-

"The evidence in this case reveals that the main reason for the present situation between the plaintiff and the defendantis
Miyuri Gunaratne. The plaintiff has left the defendant wilfullyandthedefendantcannotbeheldresponsibleforthe
plaintiff's act."

The learned trial Judge answered all the plaintiff's issues against him'thedefendant'sissueswereansweredinher
favour. Learned Counsel for the appellant did not canvass the finding of the learned trial Judge thatitistheplaintiff
who maliciously deserted the defendant on 13th July, 1975, but, he submitted thattheanswerstoissues1,5and8are
erroneous decisions.

The Marriage Registration Ordinance (L.E. Vol. 5, Cap. 112) prescribes certainpreliminariestobeobservedpriortoa
marriage under the Ordinance. Notice of marriage must be given to the Registrar of the division inwhichthepartieshave
dwelt or to the District Registrar in whose district they have dwelt (s. 23). Every Registrar to whom notice ofanintended
ma marriage is given is required to enter the particulars of the notice in the Marriage Notice Book (s.25).TheRegistrar
is bound, upon application of the party giving notice, to issue a certificate in the Form F in the 1st schedule (s.26).On
the production of the certificate of the Registrar, it shall be lawful for a marriage to be solemnizedbetweentheparties
by or in the presence of a Minister in a registered place of worship or other authorised placeorbyaRegistrarinhis
office, station or other authorised place (s. 33). A marriage in a registered place of worshipshouldbesolemnizedbya
Minister in a registered place of worship, with open doors and between the hours of 6 o'clock in the morningand6o'clock
in the afternoon, in the presence of two or morecrediblewitnesses,andaccordingtotherules,customs,ritesand
ceremonies of the Church, denomination, or body to which such Minister belongs (s. 34 (1 ) ). TheMinisterisrequiredto
enter in duplicate, in a book to be kept for that purpose, a statement of the particulars of the marriage, and thestatement
shall be signed by the Minister, the parties to the marriage, and by tworespectablewitnesseswhowerepresentatthe
solemnization and are personally acquainted with the parties (s. 34 (2),(3)).TheMinister,withinsevendaysofthe
solemnization of the marriage, shall send the duplicate statement of the marriage to the District Registrar whoisrequired
to enter the particulars of the marriage in the Marriage Register Book (s. 34 (5) (b) ). The entry in theMarriageRegister
by the Registrar shall be the best evidence of the marriage. (s. 41). Once a marriage is registered, s.42statesthatit
shall not be necessary, in support of such marriage to give proof of certain matters mentionedthereinandshutsoutany
evidence to be given to prove the contrary in any suit or legal proceedings touching the validity of such marriage.Wherea
marriage is contracted, but without the fault of the parties, it has not been registered or erroneously registered, thereis
provision for supplying the omission or correcting the error in the registration, by an applicationtotheDistrictCourt
(s. 43)s. 46 sets out the circumstances in which a marriage will be null and void. It states that if bothpartiestoany
marriage shall knowingly and wilfully intermarry under theprovisionsoftheOrdinanceinanyplaceotherthanthat
prescribed by the Ordinance, or under a false name or names, or except in cases of death-bed marriages,withoutcertificate
of notice duly issued, or shall knowingly or wilfully consent to or acquiesce in thesolemnizationofthemarriagebya
person who is not authorised to solemnize the marriage, the marriage of such parties shall be null and void.

In this case, notice of marriage was given and therefore parties intended to getmarriedundertheMarriageRegistration
Ordinance. It is the plaintiff's case that certain formalities prescribed by the Ordinance have notbeenobserved,namely,
the marriage was not solemnized in Church between the hours prescribed by s. 34 (1) and the marriage wasnotregisteredas
required by the Ordinance. The marriage solemnized by Rev. Fr. Batepola, according to the plaintiff, was therefore notlegal
and valid. The learned Judge has accepted the evidence of Rev. Fr. Batepola and thewitnessMiltoninpreferencetothe
evidence of the plaintiff, and has held that the marriage was solemnized before nightfallatabout4.00or4.30inthe
evening. I see no reason to interfere with this finding. As regards registration, and it is common ground thatthemarriage
was not registered, both learned Counsel conceded that registration is not essential to the validity of the marriage.

Learned Counsel for the defendant contended that it is the plaintiff's own evidence thatheconsentedtogetmarriedin
Church and that on that day, he went to Church with the defendant and his in-lawsin the church, there were candles litand
coconut oil lamps burningprayers were read, a ring was put on the defendant's finger and Mass washeld.Hesigned.Rev.
Fr. Batepola stated that the marriage took place before the altar. Therefore, learned Counsel said thattherewasavalid
marriage that has been solemnized according to the rules, customs, rites and ceremonies of the Church,intermsofs.34
(1).

Learned Counsel for the plaintiff argued that before a Minister can solemnize a marriage in terms of s. 34(1),theremust
be a Certificate of the marriage notice which alone gives the Minister the authority to solemnize amarriage.Theevidence
is, there was no such Certificate of Notice. I agree with this submission.

S. 33 says that upon the production of the Certificate by the Registrar, it shall be lawful for a marriage tobesolemnized
by a Minister. It is the certificate, then, that gives the Minister the authority to solemnize a marriage. Unlesss.33is
conformed to, the Minister cannot solemnize a marriage under s. 34.

In The Queen v. Kanter Chinnatamby (2) the respondent was indicted for bigamy. The indictment charged thattheaccusedhad
married Parupathi in June 1876, and that in April 1884, Parupathi being still alive,hehadmarriedValiamma.Noticeof
marriage between the accused and Parupathi under Ordinance No. 13 of 1883 was given, but the Registrar inevidenceadmitted
that he issued no certificate of the marriage notice to the parties. The marriage was solemnizedbytheRegistrarofthe
District. The question arose whether the marriage between the accused and Parupathi was invalid by reasonofthenon-issue
of the certificate of the marriage notice. The Supreme Court held that the issue of the certificate ofthemarriagenotice
is a condition precedent to the validity of marriage under the Ordinance.

In this case, according to the plaintiff, only a certified copy of the notice of marriagewasgivenbyhimtoRev.Fr.
Batepola. Rev. Fr. Batepola concedes that it is the certificate of the marriagenoticethatgiveshimtheauthorityto
solemnize a marriage under the Marriage Registration Ordinance. Though Rev. Fr. Batepola does not expresslysaythatthere
was no certificate of the marriage notice, this could be implied from his evidence. The plaintiffwasaBuddhistandthe
defendant a Christian. The parties told him that a marriage between them had already been registeredwith the permissionof
the Archbishop, he married them again in Church and made the necessary entries in the book kept,notundertheOrdinance,
but under the Laws of the Church. It follows from this item of evidence that if therewasacertificateofthemarriage
notice, he would have solemnized the marriage and made the entries in the book kept under the Ordinance. Thereisalsothe
admission by the parties before the trial commenced, that there was no valid marriage between the parties. Itaketheview
that there was no valid marriage under the Marriage Registration Ordinance between the plaintiff and the defendant.

S. 46 has to be considered. Learned Counsel for the plaintiff contended that the section does not apply to the presentcase.
For s. 46 to apply, he said, there must be a marriage and the parties must intermarry under the provisions of theOrdinance.
Alternatively, he submitted if the section does apply, the marriage is null and void, as Rev.Fr.Batepolasolemnizedthe
marriage without a certificate of the marriage notice and the Parties knew that there was no such certificate issued.

In my opinion, the case is governed by s. 46. The appellant's case was presentedtousonthefootingthatthoughthe
marriage was solemnized by Rev. Fr Batepola under s. 34 (1), he had not been dully empowered to solemnizethemarriage,as
he had no certificate of the marriage notice in his hands.

A husband or wife may present a plaint praying that his or her marriage be declared null and void. Such decreemaybemade
on any ground which renders the marriage contract between the parties void by the law applicabletoCeylon(s.607Civil
Procedure Code). The Marriage Registration Ordinance sets out various grounds on which a marriage may bedeclarednulland
void (see Sections 15, 16 and 18). S. 46 also is another such ground.

In Kanter Chinnatamby's case (supra), the Registrar of Marriages solemnized the marriage between the parties atthebride's
residence, without the certificate of the marriage notice being issued. The Supreme Court having held that themarriagewas
invalid, went on to consider the provisions of s. 6 of Ordinance No. 8 of 1865 (which is in terms identical with s.46)and
held that the marriage was valid, although the certificate of the marriage notice had not been issued to the parties andthe
marriage had been solemnized at an unauthorised place.

"Now it appears to me, that the intention of the Legislature as expressed in the 6th clause was,thatmarriagessolemnized
without the particular formalities referred to in that clause should nevertheless be valid unless the omissionwereknowing
and wilful........In the language of Lord Penzance, it was necessary show not only that boththeprisonerandParupathi
when they married knew that no certificate had been issued, and that no authority had been given to celebrate atotherthan
the prescribed places, but that knowing those facts they nevertheless wilfully intermarried."
( per Burnside, C.J at p.124)

So, it seems to me that the plaintiff can get a declaration that the marriage is null and void, onlyifitisestablished
that at the time Rev. Fr. Batepola solemnized the marriage, both parties knew that no certificate of the marriage noticehad
been issued, and yet knowing this fact, they nevertheless wilfully intermarried.

Notice of marriage was given and the parties decided to get married in Church. It is forthepartiestoobtainfromthe
Registrar the certificate and hand same to the Minister who was to officiate at the marriage. There is not awordintheir
entire evidence that they obtained one. At the trial of the case, both parties admitted thattherewasnovalidmarriage
under the Marriage Registration Ordinance. Rev.

Fr. Batepola states, and his evidence has been accepted by the learned trial Judge, that the parties represented to himthat
they were already married and that their marriage was registered. That is why no entries were made inthebookkeptunder
the Ordinance. The only conclusion I can come to is that the parties wilfully went through amarriageceremonyinChurch,
knowing fully well that no certificate had been issued. The plaintiff is entitled to a declaration that the marriage isnull
and void. The answer to issue (1) should have been "Yes".

I now come to issue No. 5.

The learned District Judge in his judgment adverted to the fact that a mass had been held, that prayers were uttered, thata
ring had been put on the defendant's finger, and that candles and oil lamps were burning inside the Church.Hestatedthat
it had been proved in the case that the plaintiff and the defendant were married at a Catholic Church accordingtocatholic
customs before a catholic priest, and that there is enough evidence that the weddingtookplaceinpublicandthatthe
plaintiff and the defendant behaved as a married couple. He concludes that there has been acustomaryandpublicmarriage
between the parties.

Learned Counsel for the plaintiff attacked this finding. He submitted that notice of marriage had beengivenandthatthe
parties intended the marriage to be solemnized under the provisions of theOrdinanceandthatitwasnotopentothe
defendant to prove a customary marriage that a marriage according to the customs, rites and ceremoniesofachurchdoes
not constitute a customary marriage assume that there is a Roman Catholic customary marriage, the evidence in thecaseis
insufficient to establish such a marriage - that Rev. Fr. Batepola's evidence destroys the defendant's case that there wasa
customary marriage between her and the plaintiff.

I cannot agree with the first submission. Parties may give notice to the Registrar oftheirintentiontomarry,andyet
later decide to solemnize their marriage according to the rites and customs of the communitytowhichtheybelong,quite
independently of the Ordinance. Such a customary form of marriage, if proved to have taken place,willconstituteavalid
marriage independent of registration.

Customary marriages are marriages contracted according to the native rites and customs. Allthereportedcasesdealwith
customary marriages among the Hindus and Buddhists of Sri Lanka. Both learned Counsel have not been able toreferustoa
single decided case which recognised a Roman Catholic customary marriage, nor have I been able to discover one.

Let me assume that there is acustomarymarriagecalledtheRomanCatholiccustomarymarriage.Marriagescontracted
according to native rites and customs must be "strictly proved" (perPereira,J.inGunaratnev.Punchihamy.(3)').A
customary marriage must be proved and established". (per Sampayo, J. in Sophia Hamine v. Appuhamy (4) ).

"A custom is a question of fact and must be proved by him who alleges it to exist. Similarly apersonwhoallegesthata
certain customary ceremony is essential to a valid marriage must prove that it is so."

(per Basnayake, J. in Ponnammah v. Rajakulasingham (5) )

The burden was on the defendant to prove a customary marriage. The defendant's evidence is not helpful at all. Allthatshe
states is that she got married to the plaintiff at St. Anthony's Church, that Rev. Fr. Batepola officiated andexplainedto
the parties about the gravity of the marriage. Rev. Fr. Batepola's evidence is hardly helpful. All thathestatesisthat
the marriage took place at 4 or 4.30 in the evening before the altar of the church and that the wedding took placeaccording
to the customs and the laws of the catholic church. But, this does not render it a customary marriage. The tying ofathali
is an essential element in a Hindu marriage (see, Ratnamma v. Rasiah, (6)). A PoruwaCeremony,wherethefingersofthe
bride and bridegroom are tied together and water poured over them is an important customary rite in a Buddhist marriage(see
Sophia Hamine v. Appuhamy, supra). If indeed there is a Roman Catholic customary marriage, there should be evidenceofwhat
are the essential requisites of such a marriage. All the evidence we have is that that evening a ceremony tookplacebefore
the altar of the church, in the presence of a few relations, where a ring was put, amassheld,prayersutteredandthe
solemnity of the marriage was-explained by the officiating priest. Thechurchwaslitbycandlesandoillamps.This
evidence only proves that a ceremony took place according to the rules, customs and rites of the CatholicChurch,interms
of s. 34(1). It does not prove that a customary marriage took place. it seems to methatthelearnedDistrictJudgehas
equated the celebration of a marriage according to the rules, customs and rites ofthechurch,withamarriagethatis
celebrated according to customary rites, and has thus confused one with the other.

Moreover, the evidence given by the defendant's own witness, Rev. Fr. Batepola, destroys thecaseofthedefendantofa
customary marriage between herself and the plaintiff, for, hesaysthatheconductedaformofreligiousservicein
accordance with the customs and rituals of the Catholic Church, and made the necessary entries in the Book kept accordingto
the Laws of the Church, as the parties indicated to him that their marriage was already registered.

The defendant has failed to prove a customary marriage and issue No. 5, should have been answered against her as "No".

It was submitted by learned Counsel for the defendant that the evidence establishes thatamarriagewassolemnizedbya
Minister of the Catholic religion, that thereafter the parties lived together as husband and wife fortwoyears,andthat
these facts give rise to the presumption that they were so living because of a validmarriage,whichpresumptionmustbe
rebutted by the plaintiff.This submission leads me on to consider the question whether in this case there is a marriageby
habit and repute.

" According to the law of Ceylon, where a man and woman are proved to have lived together asmanandwife,thelawwill
presume, unless the contrary be clearly proved, that they were living together in consequence of a validmarriage,andnot
in a state of concubinage."
(per Lord Shaw in Dinohamy v. Balaharny(7))

In view of the admission of parties that there was no valid marriage between them under the Marriage RegistrationOrdinance,
the only presumption that the defendant can contend for, is presumption in favour of a customary marriage.

"If a party seeks to establish a customary marriage by the performance of some religious ceremony and failsinthat,then,
the presumption is rebutted and the mere fact that the two persons subsequently lived together as husband and wifedoesnot
establish marriage."
(per Sinnatamby, J . in Fernando v. Dabrera (8)).

As I stated earlier, the defendant has failed to establish a customary marriage, and the presumption infavourofmarriage
is thus rebutted.

The appeal is allowed and the plaintiff is entitled to a declaration that the marriage between him and the defendant isnull
and void. There will be no costs of appeal.

MOONEMALLE, J. - I agree.

Appeal allowed.





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