sc Natalie Abeysundere v.

Christopher Abeysundere and Another 185

NATALIE ABEYSUNDERE
v.
CHRISTOPHER ABEYSUNDERE AND ANOTHER

SUPREME COURT
G. P. S. DE SILVA, CJ.,
WADUGODAPITIYA, J.,
PERERA, J „
WIJETUNGA, J. AND
SHIRANI BANDARANAYAKE, J.
S.C. APPEAL NO. 70/96
HIGH COURT GALLE NO. 5/94
M.C. GALLE NO. 6403
OCTOBER 13TH AND 14TH, 1997.

Penal Code, S. 362 B - Bigamy - Muslim Marriage contracted during the

subsistence of a monogamous marriage - Validity of the second marriage -
Marriage Registration Ordinance, Sections 18, 19 (1), 35 (1) , 35 (2) and section
64.

The accused-respondent and his first wife the appellant both Roman Catholics
were married under the Marriage Registration Ordinance. During the subsistence
of the first marriage, the accused registered a marriage with one Miss Edirisinghe
under the Muslim Marriage and Divorce Act. The accused was convicted of the
offence of bigamy. His defence was that prior to his second marriage, both he
and Miss Edirisinghe had embraced Islam; and as such, the second marriage
was valid.
186 Sri Lanka Law Reports (1998) 1 Sri LR.

Held:

(1) Section 18 of the Marriage Registration Ordinance prohibits polygamy and

sections 18, 19 (1), 35 (1) and 35 (2) read together show beyond doubt
that the Ordinance contemplates only a monogamous marriage; and the
respondent could not, by a unilateral conversion to Islam, cast aside his
antecedent statutory liabilities and obligations incurred by reason of the
prior marriage. The rights of the respondent are qualified and restricted
by the legal rights of his wife whom he married in terms of the Marriage
Registration Ordinance.

(2) The second purported marriage of the respondent during the subsistence
of the prior marriage contracted under the Marriage Registration Ordinance
is void, notwithstanding the respondent's conversion to Islam.

Attorney-General v. Reid (1966) 67 NLR 25 P.C. and Reid v. Attorney-General

(1964) 65 NLR 97 SC overruled.

Cases referred to :

1. Attorney-General v. Reid (1966) 67 NLR 25 P.C.

2. Weatherley v. Weatheriey (1879) Kotze 71.
3. Niboyet v. Niboyet 4 PD 1 (Court of Appeal).
4. King v. Perumal (1912) 14 NLR 496 (Full Bench).
5. Pasmore and others v. Oswaldwistle Urban District Council (1898) A.C 387,
393.
6. Reid v. Attorney-General (1964) 65 NLR 97 S.C.
7. Smt Sarta Mudgal, President, Kalyani and Others (Petitioners) v. Union of
India and others (Respondents) AIR 1995 S.C 1531.

APPEAL from the High Court, Galle.

Ranjit Abeysuriya, PC with M. Markhani, Ms. Priyadharshani Dias and Ms. Mrinali
Talgodapitiya for the appellant

D. S. Wijesinghe, PC with Jayantha de Almeida Gunaratne, Ms. Dhammika

Dharmadasa and Upul Ranjan Hewage for the respondent.

B. P. Aluvihare, SSC for the Attorney-General.

R. K. W. Goonesekera as amicus curiae.

Cur. adv. vult.

sc Natalie Abeysundere v. Christopher Abeysundere and Another
(G. P. S. de Silva, CJ.) 187

December 16, 1997.

G. P. S. DE SILVA, CJ.

The accused-respondent (hereinafter referred to as respondent) was

convicted of the offence of bigamy (s. 362 (B) of the Penal Code).
The charge was that on 6.10.85 he contracted a second marriage
with Kanthika Chitral Saranalatha Edirisinghe whilst his lawful wife
Natalie Manel' Antoinette Abeysundera was alive. These proceedings
were instituted by the Police in the Magistrate’s Court of Galle.

The offence of bigamy as set out in section 362 (B) of the Penal
Code reads thus:

"Whoever, having a husband or wife living, marries in any

case in which such marriage is void by reason of its taking place
during the life of such husband or wife, shall be punished with
imprisonment . . .“

The ingredients of the offence are (i) at the time of his second
marriage the accused already has a spouse living, (ii) the accused
purports to marry a second time during the subsistence of the prior
marriage, (iii) the second marriage is void by reason of its taking place
while the prior valid marriage remains undissolved.

In the present case there is no dispute that the ingredients (i) and
(ii) above have been established by the prosecution. The matter in
issue is the third ingredient of the offence enumerated above.

The first marriage was solemnized at the All Saints’ Church, Borella,
on 27th September, 1958, (vide marriage certificate P1). Admittedly,
the respondent and his wife (who is the present appellant) were both
Roman Catholics. The respondent was an Engineer serving at the
Colombo Municipal Council. He worked at the Colombo Municipal
Council until his retirement in 1975. Thereafter he worked abroad for
2 years and upon his return to Sri Lanka joined the "DFCC" in August,
1979. While working at the "DFCC", he developed a friendship with
Miss K. C. S. Edirisinghe. In 1980 the respondent instituted divorce
proceedings against the present appellant in the District Court of
Colombo. The action, however, was dismissed on 4th September,
1985 (P2). The respondent did not prefer an appeal against the
judgment dismissing his action. On 26th September, 1985, he gifted
188 Sri Lanka Law Reports (1998) 1 Sri LR.

his "matrimonial home" to Miss K. C. S. Edirisinghe (deed of gift P3).

At the trial before the Magistrate's Court he made a statement from
the dock and asserted that both he and Miss Edirisinghe were converted
to Islam in March, 1985. On 6th October, 1985, for the second time
the respondent got married and it was to Miss K. C. S. Edirisinghe,
under the Muslim Marriage and Divorce Act (P4 the certificate of
marriage dated 6.10. 85 and P5 the declaration dated 6. 10. 85 by
the bridegroom in terms of section 18 (1) of the Muslim Marriage and
Divorce Act).

As stated earlier, the Magistrate convicted the respondent on the

charge of bigamy; he was sentenced to a term of 18 months rigorous
imprisonment suspended for a period of 5 years and a fine of
Rs. 2,000 was also imposed. The respondent preferred an appeal to
the Provincial High Court of Galle. His appeal was successful, the
conviction and sentence were set aside and he was acquitted. With
the leave of this court, the aggrieved party N. Manel A. Abeysundera
has preferred the present appeal.

When this appeal came up before a Bench of 3 Judges,

Mr. Abeysuriya, counsel for the appellant, at first stated that he would
accept the correctness of the decision of the Privy Council in Attorney-
Genera/ v. R e id (1>. However, at a subsequent stage of the argument,
counsel submitted that he would be challenging the correctness of
the decision of the Privy Council in Reid's case (supra). It was in
these circumstances that an order was made directing that this appeal
be heard before a Bench comprising five Judges (Article 132 (3) of
the Constitution). It is relevant to note that the principal reason for
the acquittal of the respondent by the Judge of the High Court was
the ruling given by the Privy Council in Reid's case (supra).

The material facts in the present case are almost the same as
the facts in Reid's case. Reid married Edna Margaret de Witt at St.
Mary's Church, Badulla, on 18th September, 1933. Both parties were
Christians at the time of the marriage and they lived together until
1957. In 1957 Reid's wife left him and obtained an order for main­
tenance against him in the Magistrate's Court of Colombo. On 13th
June 1959, Reid and a divorced lady named Fatima Pansy were
converted to Islam. On 16th July 1959, they got married in Colombo
and the marriage was solemnized by the Registrar of Muslim Marriages
under the provisions of the Muslim Marriage and Divorce Act, notwith-
sc Natalie Abeysundere v. Christopher Abeysundere and Another
(G. P. S. de Silva, CJ.) 189

standing the fact that Reid’s earlier marriage was subsisting. Reid was
indicted before the District Court of Colombo and was convicted of
the offence of bigamy under section 362 (B) of the Penal Code.
He appealed against the conviction to the Supreme Court and his
conviction was quashed. The Attorney-General appealed against the
judgment of the Supreme Court to the Privy Council. The Attorney-
General's appeal, however, was dismissed by the Privy Council. As
in the instant case, the only question that arose for consideration is
whether the third ingredient of the offence of bigamy was established.
Their Lordships of the Privy Council concluded that "whatever may
be the situation in a purely Christian country (as to which their
Lordships express no opinion) they cannot agree that in a country
such as Ceylon a Christian monogamous marriage prohibits for all
time during the subsistence of that marriage a change of faith and
of personal law on the part of a husband resident and domiciled there.
They agree with the observations of Innes, J. almost 100 years ago.
In their Lordships view in such countries there must be an inherent
right in the inhabitants domiciled there to change their religion and
personal law and so to contract a valid polygamous marriage if
recognized by the laws of the country notwithstanding an earlier
marriage. If such inherent right is to be abrogated it must be done
by statute. Admittedly, there is none . . . It follows that as the Attorney-
General of Ceylon cannot establish that this second marriage was
void by the law of Ceylon by reason of the earlier Christian monoga­
mous marriage the appeal must fail."

In order to consider the crucial question that arises for decision

in this appeal, namely, whether the second marriage was void, it is
first necessary to consider the nature of a contract of marriage and
in particular the precise character of the first marriage, which the
respondent contracted under the Marriage Registration Ordinance. It
is not disputed that the first marriage was a valid marriage'.contracted
in terms of the Marriage Registration Ordinance.

First, as to the general nature of the contract of marriage- .Wille

in Principles of South African Law, 5th edition states:

“Marriage is an institution which is regulated by the law, and

which confers a status on the parties to it. It is a juristic act sui
generis . . . The legal consequences of a valid marriage are that
a continuing collection of rights and duties, mostly reciprocal, are
190 Sri Lanka Law Reports (1998) 1 Sri L R.

conferred or imposed on the parties. This combination of rights

and duties is usually termed a relationship" (p. 89).

Kotze, J. in Weatherley v. Weatherley® stated :

"Marriage is not a mere ordinary private contract between the

parties, it is a contract creating a status and gives right to important
consequences directly affecting society at large. It lies indeed at
the root of civilized society."

Brett, LJ. in Niboyet v. Niboyef3> (Court of Appeal)

expressed himself in the following terms:

“Marriage is the fulfilment of a contract satisfied by the

solemnization of the marriage, but marriage directly it exists creates
by a law a relation between the parties and what is called a status
of each. The status of an individual, used as a legal term, means
a legal position of the individual in or with regard to the rest of
a community. That relation between the parties, and that status
of each of them with regard to the community, which are constituted
upon marriage are not imposed or defined by contract or agreement
but by law."

What then are the provisions of the law in terms of which the
respondent chose to enter into a contract of marriage on 27th September
1958? (i.e. the first marriage). The material provisions of the Marriage
Registration Ordinance are sections 18,19 (1), 35 (1) & (2) and the
definition of "marriage" contained in the interpretation section, namely,
section 64.

Section 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."

Section 19 (1) "No marriage shall be dissolved during the lifetime

of the parties except by judgment of divorce a
vinculo matrimonii pronounced in some competent
court."
sc Natalie Abeysundere v. Christopher Abeysundere and Another
________________ (G. P. S. de Silva, CJ.) ________ 191

Section 35 (1): “A marriage in the presence of the registrar shall,

except as hereinafter provided, be solemnized
between the parties at his office or station with open
doors, and between the hours of six O'clock in the
morning and six O'clock in the afternoon, and in
the presence of two or more respectable witnesses,
and in the following manner:

(2) The registrar shall address the parties to the

following effect:

"Be it known unto you, A, B and C, D., that by

the public reception of each other as man and wife
in my presence, and the subsequent attestation
thereof by signing your name to that effect in the
registry book, you become legally married to each
other, although no other rite of a civil or religious
nature shall take place; and know ye further that
the marriage now intended to be contracted cannot
be dissolved during your lifetime except by a valid
judgment of divorce, and that if either of you before
the death of the other shall contract another marriage
before the former marriage is thus legally dissolved,
you will be guilty of bigamy and be liable to the
penalties attached to that offence."

Section 64: "In this Ordinance, unless the context otherwise

requires -

"marriage" means any marriage, save and except

marriages contracted under and by virtue of the
Kandyan Marriage Ordinance, 1870, or the Kandyan
Marriage and Divorce Act, and except marriages
contracted between persons professing Islam."

There is little doubt that section 18 expressly prohibits polygamy

and sections 18, 19 (1) and 35 (1) & (2) read together show beyond
doubt that the Marriage Regisration Ordinance contemplates only a
monogamous marriage. As stated by Dr. H. W. Tambiah in his work
Laws and Customs of the Tamils of Jaffna, "by the General Marriage
Ordinance only monogamy is recognised . . ." (page 106). The
192 Sri Lanka Law Reports (1998) 1 S ri LR .

is bound to monogamy
respondent having solemnized his first marriage under the Marriage

the only mode

Registration Ordinance and, what is more,

vinculo matrimonii
by which such marriage could be dissolved is by a
"judgment of divorce a pronounced in some

statutory incidents
competent court". The obligation of monogamy and the mode of
dissolution of the marriage are the of the first
marriage which the respondent entered into with the appellant.

As rightly pointed out by Mr. R. K. W. Goonesekera, the judgment

of the Privy Council in Reid's case makes no reference at all to the
enactments which preceded the present Marriage Registration
Ordinance. Mr. Goonesekera drew our attention to section 28 of
Ordinance No. 6 of 1847.

The section reads thus:

“28. And it is further enacted, that no marriage solemnized

in any part of this Island, after the notification in the Gazette of
the confirmation of this Ordinance by Her Majesty, shall be valid
(except among Muhammedans) where either of the parties thereto
shall have contracted a prior marriage, which shall not have been
legally dissolved or declared void by decree of some competent
court. And every person, except a Muhammedan, who shall, after
such period as aforesaid contract a subsequent marriage, before
his or her prior marriage shall have been so dissolved or declared
void and every person except a Muhammedan, who shall marry
another whom he or she shall know to be bound by a previous
marriage not so dissolved or declared void, shall be guilty of
bigamy, and liable to imprisonment with or without hard labour for
any period not exceeding three years. Provided always, that no
person marrying a second time, whose husband or wife shall have
been continually absent from such person for the space of seven
years then last past, and shall not have been known by such person
to be living within that time, shall be deemed to be guilty of bigamy."

It is thus clear that as far back as 1847, our law made express
provision prohibiting polygamy (except in the case of Muslims) and
defining the offence of bigamy. A provision to the same effect was

King v. Perumal
found in section 19 of Ordinance No. 2 of 1895. Thus in 1911
Lascelles, CJ. in <4) (Full Bench) stated:
SC Natalie Abeysundere v. Christopher Abeysundere and Another
_______________________ (G. P. S. de Silva, CJ.)____________________ 193

"That polygamy has been prohibited and has been an offence

under the Municipal law of Ceylon for more than half a century,
except in the case of Muhammadans, is beyond all question" (at
page 505).

Having considered the statute law and rules of Private International

Law the learned Chief Justice went on to state -

polygamy is as obnoxious to the public policy of Ceylon as

"It is thus clear that, except in the case of Muhammadans,

to that of European States. . . In view of the circumstance that

polygamy is expressly prohibited by the Municipal law of the
Colony (except in the case of Muhammadans) I am clearly of
opinion that a polygamous marriage between persons who are not
Muhammadans is void in Ceylon . .

It is also relevant to note that Wood Renton, J. who was the trial
Judge in Perumal's case while "stating the case" in terms of section
355 (1) of the then Criminal Procedure Code expressed the view
that the Marriage Registration Ordinance, No. 19 of 1907 “not only
contemplates monogamous marriage alone but expressly prohibits
polygamy. . .".

It is therefore abundantly clear that the concept of monogamy and

the prohibition on polygamy was a part of our law relating to marriage
as long ago as 1847. Unfortunately, neither the relevant statutes nor
the Full Bench decision in Perumal's case were cited before the Privy
Council in Reid's case.

Perumal's case is important for another reason. Dealing with the

concept of a “Christian marriage" in relation to the rule of Private
international Law "under which the capacity to marry depends upon
the domicil of the parties" and the "well-recognized exceptions to the
rule," Lascelles, C.J observed:

"But the use of these expressions (the general consent of all

Christendom', ‘the law of God' and 'the law of Christendom') does
not imply that it is only in countries where Christianity is the
prevailing religion that polygamous and incentuous marriages are
beyond the pale of private international law. If a non-Christian
country has followed the rule of Christendom as to polygamy and
by its Municipal law has prohibited such marriages it surely stands
194 Sri Lanka Law Reports (1998) 1 S ri LR.

former
on the same footing as Christendom as regards the non-recognition

case the prohibition rests on grounds of public policy,

of polygamous marriages. The only distinction is that in the
whilst
in the latter case it is associated with the teaching of Christianity"
(at page 505).

Thus the submission of Mr. Goonesekera that prohibition against

polygamy (except in the case of Muslims) under our statute law
rests on grounds of public policy is well-founded. As stressed by
Mr. Goonasekera, the integrity of the institution of marriage is the
most important consideration. None of these matters were considered
by the Privy Council. The Privy Council was content to observe,
"whatever may be the situation in a purely Christian country (as to
which their Lordships express no opinion) they cannot agree that in
a country such as Ceylon a Christian monogamous marriage prohibits
for all time during the subsistence of that marriage a change of faith

Attorney-General v. Reid
and of personal law on the part of a husband resident and domiciled
there" (supra) at 32.

There is no question that Reid was free to change his faith, but

directly arose
the true question which arose for decision was whether Reid could
cast off the statutory obligations which from his previous

unilateral conversion to Islam. by his own

marriage in terms of the Marriage Registration Ordinance by the simple

act
expedient of Could he
overcome the incidents of the marriage he chose to contract in
terms of the Marriage Registration Ordinance? In my view, the answer
is emphatically in the negative. The statute expressly provides for the
mode of dissolution of the marriage, and that is the only mode provided
for by law. "The principle that where a specific remedy is given by
a statute, it thereby deprives the person who insists upon a remedy

Pasmore and others

of any other form of remedy than that given by the statute, is one

v. The Oswaldtwistle Urban District Council®.

which is very familiar and runs through the law".
The Privy Council in
Reid's case did not focus on the crucial question whether by a
unilateral conversion to Islam subsequent to a lawful marriage in terms
of the Marriage Registration Ordinance, Reid could absolve himself
of the statutory liabilities incurred and the statutory obligations under­
taken by him. The Privy Council overlooked the fact that the “rights"
of Reid were qualified and restricted by the legal rights of his wife
whom he married in terms of the Marriage Registration Ordinance.
sc Natalie Abeysundere v. Christopher Abeysundere and Another
(G. P. S. de Silva, CJ.) 195

Savitri Goonesekera in her work on the Sri Lanka Law on Parent

and Child relevantly states (commenting on Reid's case):

“In emphasizing the right of a person to change his personal

law by a unilateral act, the Privy Council seems to have been
influenced by the theory that the inhabitants of Sri Lanka have an
inherent right to change their religion and personal law. This view,
we have observed, is not correct with regard to other personal laws
(i.e. other than Muslim law) that apply in Sri Lanka. Besides, the
concept of the monogamous marriage, in the non-Muslim law on
family relations in this country, indicates that there is no absolute
right to convert to Islam and change one's personal law. . . In
Reid's case the Attorney-General argued that a marriage under the
General Marriages Ordinance created a status of monogamy which
could not be changed legally unless the marriage was dissolved
or annulled. The Privy Council rejected this argument stating that
whatever may be the situation in a purely Christian country . . .
in a country like Ceylon . . . a monogamous marriage (does not)
prohibit for all time during the subsistence of that marriage, a
change of faith and personal law. The Privy Council, we have
observed, was unaware of the fact that there are strict limitations
on the application of the other personal laws. In rejecting the
Attorney-General's argument, the Court refused to appreciate that

could be qualified in a non Muslim state, where

even the right of conversion to Islam and of becoming subject to

the monogamous marriage was the norm in the law on family

Muslim law

relations(at pages 56 and 57).

Again, the Privy Council in Reid's case failed altogether to
appreciate the significance of section 35 of the Marriage Registration
Ordinance in the context of a statute which recognizes only a
monogamous marriage. The comment of the Privy Council on section
35 reads thus :

"Their Lordships have not overlooked section 35 of the Marriage

Registration Ordinance which tends to support Mr. Littman's
argument, but the exhortation contained in the registrar's address
is no more than a warning and though it may be apt to mislead
the ordinary man or woman ignorant of the definition of marriage
contained in section 64, it cannot successfully be prayed in aid
196 Sri Lanka Law Reports (1998) 1 S ri L.R.

when considering whether the offence of bigamy has been

committed in terms of section 362 (B) of the Penal Code" Attorney-
General v. Reid (supra) at 32.

It is to be noted that section 35 contemplates the situation where

the Registrar addresses the parties to the marriage just before they
place their signature on “the registry book". They are unambiguously
told in simple language that the marriage intended to be contracted
cannot be dissolved except by a valid judgment of divorce and if either
of the parties contracts another marriage before the former marriage
is legally dissolved he or she will be guilty of bigamy. It is difficult
to understand what the Privy Council meant by saying that the
"exhortation" is apt "to mislead the ordinary man or woman". The true
meaning of section 35 is lucidly expressed by Savitri Goonesekera
in the following terms :

"He (the Registrar) is required to tell them that the marriage

can only be dissolved by a valid judgment of divorce, or death,
and that a marriage prior to dissolution amounts to bigamy. This
provision on the Registrar's directive is therefore not based on a
misconception of the law, as the Privy Council suggested. It is
an articulation of the concept that status of marriage acquired under
the General Marriages Ordinance prevents a spouse from contract­
ing a valid second marriage. Inasmuch as a subsequent marriage
under the Ordinance is declared void when a prior marriage has
not been legally dissolved, the statute contemplates the creation
of a monogamous marital s t a t u s (Sri Lanka Law on Parent
and Child, p. 58).

It is thus clear that the approach of the Privy Council to a pivotal

provision in the Marriage Registration Ordinance is fundamentally
flawed.

Mr. D. S. Wijesinghe for the respondent adopted the reasoning

of His Lordship Chief Justice Basnayake in Reid's easel® and strenu­
ously contended that the entirety of the Marriage Registration
Ordinance has no application whatever to persons professing Islam.
The respondent's second marriage was under the Muslim Marriage
and Divorce Act and ex facie it is a valid and lawful marriage. In
short, counsel’s submission was that the prohibition contained in
section 18 of the Marriage Registration Ordinance will not and cannot
apply to persons professing Islam. Reliance was placed on the definition
sc Natalie Abeysundere v. Christopher Abeysundere and Another
(G. P. S. de Silva, CJ.) 197

of "marriage" in section 64 of the Ordinance. Counsel for the Attorney

General agreed with the submissions of Mr. Wijesinghe.

Having cited section 18, His Lordship Chief Justice Basnayake

reasoned thus: “The section declares that no marriage" shall be vaild
when there is a prior 'subsisting marriage'. Now what is a marriage
for the purpose of section 18? That expression is defined in section
64 and it means 'any marriage save and except marriages contracted
under and by virtue of the Kandyan Marriage Ordinance 1870 or the
Kandyan Marriage and Divorce Act and except marriages contracted
between persons professing Islam. There is nothing in the context
of section 18 which renders the definition inapplicable". Mr. Abeysuriya
for the appellant submitted that the approach of His Lordship the Chief
Justice was "simplistic". Section 18 is an all-important provision of the
Ordinance. The section enshrines the concept of a monogamous
marriage and expressly prohibits polygamy. I therefore cannot agree
that "there is nothing in the context of section 18 which renders the
definition inapplicable". The definition of "marriage" applies "unless the
context otherwise, requires" (section 64). The Marriage Registration
Ordinance is founded on the concept of a monogamous marriage and
this is the relevant context. To have recourse to the definition of the
term "marriage", in the way suggested, would render a basic and
essential provision of the Ordinance largely nugatory. This is not a
permissible mode of interpretation. By reason of the definition of
“marriage", persons professing Islam cannot marry under the Marriage
Registration Ordinance. The true issue is not whether the respondent's
second marriage under the Muslim Marriage and Divorce Act is valid
or not, but whether by a u nilateral conversion to Islam he could cast
aside his antecedent statutory liabilities and obligations incurred by
reason of the prior marriage. As stated earlier, the answer is clearly
in the negative.

Mr. R. K. W. Goonesekera cited before us a recent judgment of

the Supreme Court of India which seems to me of decisive importance
- S m t S a rla M udgal, President, K a ly a n i a n d others (petitioners) v.
(respondents )m . The question that arose
U nion o f India a n d others
for decision was "whether a Hindu husband, married under Hindu law,
by embracing Islam, can solemnize a second marriage. Whether such
a marriage without having the first marriage dissolved under law would
be a valid marriage, qua the first wife who continues to be Hindu?
Whether the apostate husband would be guilty of the offence under
198 S ri Lanka Law Reports (1998) 1 Sri L f t

section 494 of the Indian Penal Code”? After a careful and a com­
prehensive consideration of the position under Hindu law, and the
Hindu Marriage Act 1955 as well as several decisions of the Indian
courts, Justice Kuldip Singh concluded that the “second marriage of
a Hindu husband after his conversion to Islam is a void marriage in
terms of section 494 of the Indian Penal Code". Justice Kuldip Singh
reasoned as follows :

“It is, thus, obvious from a catena of case law that a marriage
celebrated under a particular personal law cannot be dissolved by
the application of another personal law to which one of the spouses
converts and the other refuses to do so. Where a marriage takes
place under Hindu law the parties acquire a status and certain rights
by the marriage itself under the law governing the Hindu Marriage
and if one of the parties is allowed to dissolve the marriage by
adopting and enforcing a new personal law, it would tantamount
to destroying the existing rights of the other spouse who continues
to be Hindu. We, therefore, hold that under the Hindu Personal
Law as it existed prior to its codification in 1955, a Hindu marriage
continued to subsist even after one of the spouses converted to
Islam. There was no automatic dissolution of the marriage . . .
The position has not changed after coming into force of the Hindu
Marriage Act, 1955 (the Act) rather it has become worse for the
apostate . . . A marriage solemnized, whether before or after the
commencement of the Act, can only be dissolved by a decree of
divorce on any of the grounds enumerated in section 13 of the
Act . . . It is obvious from the various provisions of the Act that
the modern Hindu law strictly enforces monogamy. A marriage
performed under the Act cannot be dissolved except on the grounds
available under section 13, of the Act. In that situation parties who
have solemnized the marriage under the Act remain married even
when the husband embraces Islam in pursuit of other (sic) wife.
A second marriage by an apostate under the shelter of conversion
to Islam would nevertheless by (s/c) a marriage in violation of the
provisions of the Act by which he would be continuing to be
governed so far as his first marriage under the Act is concerned
despite his conversion to Islam. The second marriage of an apostate
would, therefore be (sic) illegal marriage qua his wife who married
him under the Act and continues to be Hindu. Between the apostate
and his Hindu wife the second marriage is in violation of the
SC Natalie Abeysundere v. Christopher Abeysundere and Another
(G. P. S. de Silva, CJ.) 199

provisions of the Act and as such would be non est. Section 494
Indian Penal Code is as under :

Marrying again during lifetime of husband or wife' - Whoever,

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

The necessary ingredients of the section are : (1) having a

husband or wife living; (2) marries in any case; (3) in which such
marriage is void; (4) by reason of its taking place during the life
of such husband or wife . . .

It is no doubt correct that the marriage solemnized by a Hindu

husband after embracing Islam may not be strictly a void marriage
under the Act because he is no longer a Hindu, but the fact remains
that the said marriage would be in violation of the Act which strictly
professes monogamy . . .

The expression "void" under section 494 I. P. C. has been used

in the wider sense. A marriage which is in violation of any
provisions of law would be void in terms of the expression
used under section 494 /. P. C.

“A Hindu marriage solemnized under the Act can only be

dissolved on any of the grounds specified under the Act. Till the
time a Hindu marriage is dissolved under the Act none of the
spouses can contract second marriage. Conversion to Islam and
marrying again would not, by itself, dissolve the Hindu marriage
under the Act. The second marriage by a convert would there­
fore be in violation of the Act and as such void in terms of
section 494 I. P. C. Any Act which is in violation o f mandatory
provisions of law is per se void.

The real reason for the voidness of the second marriage is the
subsisting (sic) of the first marriage which is not dissolved even
by the conversion of the husband. It would be giving a go-bye
to the substance of the matter and acting against the spirit of the
statute if the second marriage of the convert is held to be legal’ ,
(pages 1536 to 1537).
200 S ri Lanka Law Reports (1998) 1 Sri LR.

In my view, the reasoning of Justice Kuldip Singh set out in extenso

above is cogent and valid, and is clearly applicable to the facts of
the fact before us, and to Reid's case.

In the early part of his judgment Justice Kuldip Singh made a very

course of his
relevant observation which Mr. R. K. W. Goonesekera rightly emphasized
in the submissions. The issues that arise are concerned
with an institution of the utmost importance, namely marriage and the

The relation once formed, the law steps in

family. Said the learned Judge, “Marriage is the very foundation of

and binds the parties to various obligations and liabilities there­

the civilized society.

under. Marriage is an institution in the maintenance of which the public

at large is deeply interested. It is the foundation of the family and
in turn of the society without which no civilization can exist." (page
1533). These wider considerations, so relevant and important for a
correct appreciation of the issues involved, I say with the utmost
respect, were completely lost sight of by the Privy Council and His
Lordship the Chief Justice. To attempt to literally transpose the definition
of the expression “marriage" to the core provision in the Ordinance
(section 18) has the effect of emasculating the section. This approach
is wrong for it takes no account of the basic principle enshrined in
the Ordinance, the recognition of monogamy alone and the explicit
prohibition on polygamy.

For the reasons I have endeavored to set out above, I hold that
Reid's case [supra] was wrongly decided and must be overruled. As
stated earlier, the material facts in Reid's case and in the present
appeal before us are almost identical and the legal issues are the
same. I accordingly hold that the second purported marriage of the
respondent to Miss Edirisinghe during the subsistence of the prior valid
marriage contracted under the Marriage Registration Ordinance is void,
notwithstanding the respondent's conversion to Islam. It follows that
the charge of bigamy (section 362 (B) of the Penal Code) preferred
against the respondent is proved.

The appeal against the acquittal of the respondent by the Judge

of the High Court is accordingly allowed and the judgment of the High
Court is set aside. I affirm the conviction and the sentence imposed
by the learned Magistrate.
sc Wickrematunga v. Anuruddha Ratwatte and Others 201

Whilst thanking Mr. Abeysuriya, Mr. Wijesinghe and Mr. Aluvihare

for their assistance in this not altogether easy case, I wish to
place on record my deep appreciation of the assistance given by
Mr. R. K. W. Goonesekera who appeared as amicus on the invitation
of the court.

WADUGODAPITTYA, J. - I agree.

PERERA, J. - I agree.

WIJETUNGA, J. - I agree.

BANDARANAYAKE, J. - I agree.

Appeal allowed.