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IN THE SUPREME COURT OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA

SC/APPEAL/211/2012

SC/HCCA/LA No. 541/2011

WP/HCCA/Gampaha/164/2006 (F)
D.C. Negombo Case No. 2566/Special
In the matter of an application for Leave to
Appeal to the Supreme Court of the Democratic
Socialist Republic of Sri Lanka under Article 128
of the Constitution of the Democratic Socialist
Republic of Sri Lanka read together with Section
5C of High Court of the Provinces (Special
Provisions) (Amendment) Act No. 54 of 2006
against the Judgment delivered in Appeal No.
WP/HCCA/GAM/164/2006(F) on 11.11.2011.

Udagepolage Gunasiri Seneviratne

‘Yamuna’, Gulawita,
Walallawita.

PLAINTIFF

Vs.

Pattiya Widanage Carmen Premalatha

No. 8, Waagouwwa Cross Road,
Central Watte, Waagouwwa,
Minuwangoda.

DEFENDANT-APPELLANT

Va.

Udagepolage Gunasiri Seneviratne

‘Yamuna’, Gulawita,
Walallawita.

PLAINTIFF-RESPONDENT
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AND NOW BETWEEN

Udagepolage Gunasiri Seneviratne
‘Yamuna’, Gulawita,
Walallawita.

PLAINTIFF-RESPONDENT-PETITIONER

Vs.

Pattiya Widanage Carmen Premalatha

No. 8, Waagouwwa Cross Road,
Central Watte, Waagouwwa,
Minuwangoda.

DEFENDANT-APPELLANT-RESPONDENT

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

WRITTEN SUBMISSIONS TENDERED ON:

21.01.2013 (by the Plaintiff-Respondent-Petitioner)

28.02.2013 (by the Defendant-Appellant-Respondent)

ARGUED ON: 08.03.2016

DECIDED ON: 02.05.2016

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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
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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.

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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

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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.

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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
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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.

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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”,
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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
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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.
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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
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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…

wOslrKh jsiska fuysoS i,ld ne,sh hq;= jkafka tlS {dKfiak iy js;;
a l
s drsh

jsiska we;s lr .kakd ,o jsjdyh wOslrKhla u.ska jsiqrejd yer fkdue;s

wjia:djloS tlS js;a;sldrshg kej; jsdjdyhlg we;=,;a jsh fkdyelsh hk

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ldrKh hs. idudkH jsjdy wd{d mK;a 18 jk j.ka;shg wkqj mdraYjlrejka

jsjdyhlg we;=<;a jk wjia:dfjoS Ujqka Bg fmr we;s lr .kakd ,o jsjdyhla

ks;Hdkql+, f,i jsiqrejd yer fyda Y=kH njg m%ldYkhg m;a lr fkdue;s

wjia:djl tlS fojk jsjdyh j,x.= fkdfjs. fuysoS jHjia:dodhlh jsiska tlS

fojk jsjdyh we;s lsrsug fmr m, jk jsjdyh Y=kH njg m%ldY lr .ekSfus

wjYH;djla fmkaku
q s lr ;sfns. fus wkqj ienejska u js;;
a l
s drshg iy

{dKfiak w;r we;s jq jsjdyh kS;sh bosrsfha j,x.= jsjdyhla fkdfjs. kuq;a

tu moku u; isg js;;

a l
s rshg kej; jsjdyhlg we;=,;a jsh fkdyelsh.

js;;
a l
s drsh kej; jsjdyhg we;=<;a jSug kus tlS js;;
a l
s drsh {dKfiak iu.

jS. 2 f,alKh wkqj we;=,;a jq jsjdyfhka Y=kH njg m%ldY lrjd .; hq;=j

;snqKs. tfia m%ldY lrjd .ekSulska f;drj js;;

a l
s drsh me. 1 f,alKh u;

meusKs,slre iu. kej; jsjdyhlg we;=<;a jS we;. fuS wkqj idudkH jsjdy

wd{dmKf;a 18 jk j.la;h
s me. 1 orK jsjdyh iy;slh iusnkaOfhka o wod,

fjs. fus wkqj js;;

a sldrsh me 3 jsjdyfhka we;=,;a jq jsjdyh Y=kH njg

m%ldYhg m;a lrjd f.k fkdue;s nejska js;;

a sldrsh iy mmeusKs,slre me. 1

orK f,ALKh u; we;=,;a jq jsjdyh ks;Hdkql=,j j,x.= fkdjk Y=kH

jsjdyhla nj ;yjqre fjS.

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
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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.

JUDGE OF THE SUPREME COURT

Priyasath Dep P.C., J.
I agree.

JUDGE OF THE SUPREME COURT

Priyantha Jayawardena P.C., J.
I agree.

JUDGE OF THE SUPREME COURT

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