LAW 2006 – Law on Family Relations and

Gender

S. Harsha Widanapathirana
Attorney-at-Law
LL.B(Hons) University of Peradeniya,
Adv.Dip.Mgt(cima),
Diploma in English(ICBT), CPIT(SLIIT)
 The Contract Of Marriage
Can Marriage Be Regarded As A Contract?
What Is A Contract?
A Voluntary, Deliberate, And Legally Binding Agreement Between Two Or More Competent Parties.
Contracts Are Usually Written But May Be Spoken Or Implied, And Generally Have To Do With
Employment, Sale Or Lease, Or Tenancy.
A Contractual Relationship Is Evidenced By (1) An Offer, (2) Acceptance Of The Offer, And A (3) Valid
(Legal And Valuable) Consideration. Each Party To A Contract Acquires Rights And Duties Relative To
The Rights And Duties Of The Other Parties. However, While All Parties May Expect A Fair Benefit From
The Contract (Otherwise Courts May Set It Aside As Inequitable) It Does Not Follow That Each Party
Will Benefit To An Equal Extent.
Good One To Know!. (2019). Retrieved From
Http://Www.Businessdictionary.Com/Definition/Contract.Html
Do you see marriage as a contract?
• Marriage in the civilized world can be regarded to possess the characteristics
that are seen in contracts.
• However, a marriage can be regarded more as a covenant rather than a mere
contract.
• If so, how can the marriage covenant be defined?
“It is the complete union of two people. When a couple is married, they are
not simply “allies” or “friends,” they are joined together as one and society is
obliged to recognize that they are one.”
• Marriage has its own legal aspects similar to that of contracts, but it can not
be regarded purely as a contract as there are legal as well as other elements
that contributes to the validity of the whole marriage relationship.
Example
You have a contract with
the bus conductor

Any difference?

Marriage also have a

contractual nature
 Marriage And Its Forms

Marriage

Registered Marriages Customary Marriages

Denotes marriages that are Customary marriages are

duly registered under the marriages that are duly
Provisions laid down by the conducted under traditional,
Marriage Registration cultural and customary
Ordinance No. 19 of 1907 practices.
 Registered Marriages
• The marriage registration ordinance does not contain specific provisions that invalidate customary
marriages. However, some of the section contained in the marriage registration ordinance suggests
the possibility of having valid customary marriages.
Example -
Section 41 of the Marriage Registration Ordinance
(1) The entry made by the registrar in his marriage register book under sections 34, 35, and 40 shall
constitute the registration of the marriage, and shall be the best evidence thereof before all
courts and in all proceedings in which it may be necessary to give evidence of the marriage. (2)
the copy substituted under section 37 (2) for the lost duplicate entry of a registrar shall for the
purposes of this section be deemed an original entry made by the registrar.
What is Best Evidence Rule in law? – “The best evidence rule is a legal principle that holds an original
copy of a document as superior evidence.”
 Implications Of Section 41

Section 41 of the Marriage Registration Ordinance Best evidence in the literal

(1) The entry made by the registrar in his marriage sense (under the literal rule,
register book under sections 34, 35, and 40 shall
the words of the statute are
constitute the registration of the marriage, and shall
be the best evidence thereof before all courts and in given their natural or ordinary
all proceedings in which it may be necessary to give meaning and applied without
evidence of the marriage. the judge seeking to put a gloss
(2) the copy substituted under section 37 (2) for the on the words or seek to make
lost duplicate entry of a registrar shall for the
sense of the statute.) does not
purposes of this section be deemed an original entry
made by the registrar. denote “only piece of
evidence”.
 Customary Marriages
• Sri Lanka is a multicultural multireligious community.
• Therefore, rites and customs involving marriage is also very diverse in nature. For
instance, customary practices that should be performed in a certain nuptial
ceremony vary due to differences in castes as well as communities.
• As a result, it is quite difficult for the legislature to determine what constitutes a
valid customary marriage.
Examples –
Thali ceremony – “the thali is a mark of respect, love and dignity which is presented
to the wife by her husband during the auspicious hour of the marriage day. It is a
revered symbol of Hindu marriage.”
Ponnammah v. Rajakulasingham (1948) 50 N.L.R.135 – Since the parties to the
marriage were natives of the Eastern Province, proof of the thali ceremony was not
insisted in determining the validity of the marriage.
Sinnaval v. Nagappu (1916) 1 Bal.N.of C. 26
The only piece of evidence that was there to prove the customary marriage was eating rice and
betel before the members of the family. Since it was proven by evidence that such practice was
sufficient to prove customary marriage between the parties, the marriage was accepted as a
valid customary marriage.
Sophie Hamine v. Appuhamy (1922) 23 N.L.R. 353
There was evidence of a poruwa ceremony between the parties at the bride’s house. Relatives
were present in the ceremony and the fingers of the bride and the groom were tied together by
a thread and water was poured over them. Apart from the aforementioned customary rite,
some other related customary rites were further performed. After the marriage took place, the
parties lived as husband and wife and they were recognized as husband and wife by their
members of the family, friends and other parties. The Supreme Court determined that it is
sufficient evidence to prove the customary marriage.
Silva v Shaik Ali – “Held that a marriage which was solemnized according to customary rites by
a catholic priest is not invalid due to failure to register.” (Ilfar Kalanthar)
• Selvaratnam v. Anandavelu (1941)42 N.L.R. 487
In this case the following factual circumstances were involved.
• There was no sign of a thali ceremony in the alleged Hindu marriage. Thali is usually
tied in every Hindu marriage.
• There was no evidence as per the presence of a priest in the ceremony and no dhoby or
barber was present to perform rituals as well.
• Furthermore, there was nothing which suggested the burning of camphor (to eliminate
evil eye) or a coconut being broken and many other rituals that usually take place as
necessary elements, as customs, in a Hindu marriage.
The Courts did not regard the marriage influenced by the aforementioned circumstances as a
valid customary marriage.
Why is the thali so important in Hindu marriages?
Ratnamma v. Rasiah (1947) 48 N.L.R. 475
A symbolic thali was referred by the courts as “the spirit and the intention behind the act that
matters”.
• Ponnammah v. Rajakulasingham (1948) 50 N.L.R. 135
In this case there was no evidence on the tying of the thali.
Failure to tie the thali alone is insufficient to rebut the presumption (the act of
believing that something is true without having any proof) of a valid customary
marriage which is duly followed by a celebration and cohabitation.
Justice Basnayake, in this case, held the opinion that a custom involved in a
marriage is treated as a question of fact (In law, a question of fact, also known
as a point of fact, is a question that must be answered by reference to facts and
evidence as well as inferences arising from those facts. Such a question is distinct
from a question of law, which must be answered by applying relevant legal
principles.)and the party claiming the existence and the need to perform the
custom should prove such fact. (Impeaching party should prove)
 Kandyan Marriages And Customary Marriages
3. Marriages between persons subject to Kandyan Law.
(1) subject to the provisions of this act—
(A) a marriage, between persons subject to Kandyan law, shall be solemnized
and registered under this act or under the Marriage Registration Ordinance;
and
(B) any such marriage which is not so solemnized and registered shall be
invalid.
(2) the fact that a marriage, between persons subject to Kandyan law, is
solemnized and registered under the Marriage Registration Ordinance shall
not affect the rights of such persons, or of other persons claiming title from or
through such persons, to succeed to property under and in accordance with
the Kandyan law.
• Therefore, with regard to the aforementioned facts, essentials of Customary Marriages
include;
a. Observance of customary rituals.
b. Performance of a nuptial ceremony.
c. Ceremony was concluded in the presence of family and friends.
• Examples for different traditions in marriages between various communities in Sri Lanka: -
• In Buddhist Customary Marriages – Poruwa Ceremony is considered as an essential
customary ritual
• In Hindu – typing of “thali”.
• Muslim – Nikah Ceremony. (“Nikah. The marriage contract is signed in a nikah ceremony, in
which the groom or his representative proposes to the bride in front of at least two
witnesses, stating the details of the meher. The bride and groom demonstrate their free will
by repeating the word qabul ("I accept," in Arabic) three times.”)
• Catholic – Rituals in the church.
(Ilfar Kalanthar, Customary Marriages in Sri Lanka)
 Presumption Of Marriage By Habit And Repute
• What is a habit?
Habits are routine behaviours done on a regular basis. They are recurrent and often
unconscious patterns of behaviour and are acquired through frequent repetition. Many
of these are unconscious as we don’t even realise we are doing them.
• Merriam-webster’s online dictionary defines habits as:
1. An acquired mode of behaviour that has become nearly or completely involuntary
2. The prevailing disposition (a person's inherent qualities of mind and character.) or
character of a person’s thoughts and feelings
3. A settled tendency or usual manner of behaviour
4. A behaviour pattern acquired by frequent repetition or physiologic exposure that
shows itself in regularity or increased facility of performance
What is a habit? Habit definition & meaning of habit. (2019). Retrieved from http://make-or-break-habits.Com/what-is-a-
habit/
• What is meant by repute?
1 : the character or status commonly ascribed to one : reputation
2 : the state of being favorably known, spoken of, or esteemed
Definition of REPUTE. (2019). Retrieved from https://www.Merriam-webster.Com/dictionary/repute
 In Simple Terms, Habit And Repute Means,
• When a couple is living together as husband and wife ,
• And where such couple is treated or accepted by their
friends, family and others in the society,
• The law will presume that there can/is be a valid
marriage;
• As opposed to a mere adulterous relationship or
• Cohabitation / habit.
 Habit And Repute In Brief

Habit Repute Habit and Repute

Living together as husband Acceptance by family, Helps the courts to presume

friends and others as that there is something more
and wife in the same house
husband and wife than just a adulterous
relationship
 What Is The Presumption Of Marriage By Habit And
Repute?
• “When a man and a woman are proved to have lived together as husband and
wife, the law presumes, unless the contrary is clearly proved, that they are
living together in consequence of a valid marriage.”
• This a presumption that can be relied upon where concubinage (a woman
who lives with a man but has lower status than his wife or wives.) is not
considered as an immoral act. See Tisselhamy v. Nonahamy (1897)2 N.L.R.
568
• Ponnambalam, S. (2003). Law and the Marriage Relationship in Sri Lanka (p.
78). Colombo: Stamford Lake.
 Piyadasa And Another Vs. Babanis And Another
Ranjith Silva, J.
Court Of Appeal. Imam, J. W. L. R, Silva, J. Ca 457/94(f). Dc Embil1pitiya 2389/P.
November 23, 2005. February 13, 2006. March 28, 2006.

According to the Roman Dutch Law there is a presumption in favour of

marriage rather than that of concubinage. When persons who were living
together as husband and wife were recognized as such by everybody in the
circle in which they move it created a presumption in favour of marriage and in
the absence of evidence in rebuttal to the contrary the court was entitled to
presume that the parties were duly married as required by law. In this case
there was ample evidence before the trial judge for him to have considered the
presumption.
 Is Habit And Repute Enough To Constitute A Marriage?

• No, it is not. Why?

Habit and repute is only a presumption that makes the judge presume the
possibility as per whether or not there was a marriage between parties. The
same was discussed in the case of Kandaiya v. Thangamani.
“An essential prerequisite for the adoption of this presumption is proof of
some antecedent ceremony of marriage. On other words, proof of
cohabitation, habit and repute give rise to a presumption only. It does not
prove the fact of marriage.”
 When Is This Presumption Important? When Can It Be
Used?
• Gunaratne v. Punchihamy (1912) 15 N.L.R. 501
When either party to a marriage is still alive at the time the case is heard before courts, the court
will not consider or make relevant the presumption of marriage by habit and repute directly.
In this case, Punchihamy, after the death of her first husband got married to another person. As a
lawsuit was filed to address the dilemma with the intestate property of her second husband, issues
came up as per the validity of her second marriage.
In this case, Punchihamy was unable to provide evidence with regard to any customary practices
performed when her marriage took place.
The courts, after considering the facts was of the opinion that habit and repute is only a
presumption which suggests the possibility of the existence of a marriage and the presumption can
be rebutted with evidence.
• Pereira J.
“Marriage by cohabitation, habit and repute is an expression that I do not quite
understand. No marriage can be contracted or constituted by cohabitation,
habit and repute. Evidence of cohabitation, habit and repute merely gives rise to
a presumption of marriage, and this presumption, as has been held in numerous
cases, is a presumption that can be displaced only by means of strong and
cogent evidence to the contrary. In the present case whether the respondent
was married to the deceased is bet known to her.. She gets in to the witness box
to prove the affirmative of the issue; but she does not take upon herself to say
in plain language that she was married to the deceased according to native rites
and customs. That being so, I consider that the presumption arising from
evidence of cohabitation and habit and repute has been effectively rebutted.”
Tisselhamy v. Nonahamy
• A moved to the Uva Province and started living together with a woman.
• They had a daughter named Tisselhamy and another child.
• After the death of A’s partner, he married another woman named Nonahamy.
• After A’s death, Nonahamy claimed that his first marriage was illegal; hence
Tisselhamy and her brother have no rights over the intestate property of A.
• Held –
Since there was enough evidence which suggested or established habit and
repute, the court determined that the presumption of marriage by habit and
repute is applicable.
 What Kind Of Evidence Was Available In Tisselhamy V.
Nonahamy?

• No evidence of a marriage ceremony

• Parties have cohabited for a very long / significant time
period
• After the death of the wife, the husband has given away their
daughter in marriage publicly and in high scale.
 Fernando V. Dabare (1961) 65 N.L.R. 282
• At the first hearing, the learned District Judge refused to presume the
existence of a marriage because there was no evidence of the solemnization
(duly perform (a ceremony, especially that of marriage)/ චාරිත්‍රානුකූලව
සිදුකරනවා) of marriage.
• Sinnatambi J., However, was of the opinion that “if one party to the marriage
was alive it would be necessary to establish the existence of the marriage
ceremony as a party to a marriage should be aware of it.”
• Sinnatambi J. Added that since the parties to the current marriage in issue is
not alive, evidence as per the solemnization of the marriage should not be
insisted. It is for such reasons the law has developed the presumption of
marriage by habit and repute.
 Can The Presumption Be Drawn From Negative
Evidence On General Acceptance?
Sediris V. Roslin (1977) 78 N.L.R. 547
The parties to the marriage belonged to two castes.
Evidence suggested that the man was treated by his relatives and friends as an
outcaste, he was not even invited to their functions.
In this case it was pointed out that the recognition of the
existence/presumption of a marriage can also be deduced by;
• Acceptance and approval
• Hostility (සතුරු බව/විරරෝධය/எதிர்ப்ப)
• Animosity
“ This negative conduct is exhibited only if the parties are married and not if they live
in concubinage.- Had Andiris Appu kept Dingihamy, who was of an inferior caste, as a
mistress only he would have been admitted in the society of his relatives and friends,
though Dingihamy would have been kept out. But, if Andiris Appu had married
Dingihamy, then of course he would have been ostracized(Excluded) by his relatives
and friends. In this case, the evidence of Pinonahamy, a niece of Andiris Appu, is that
Andiris Appu was never invited for any of the family functions or social occasions. This
animosity of Andiris Appu’s relatives and friends can be appreciated only in the
context of an inter-caste marriage between Andiris Appu and Dingihamy. This
circumstance tends to support the evidence of the plaintiff that his father’s relatives
and friends believed that Andiris Appu was married and demonstrated their
recognition of the marriage by outcasting Andiris Appu from their society. From this
conduct, it can be presumed that there was an inter-caste marriage.”
 Kandiah V. Thangamany (1953) 55 N.L.R. 568
• A’s Divorce action was pending.
• Given the aforementioned circumstance, A got into a marriage with C
according to Hindu rights and continued to live together.
• What about the validity of the Divorce? The existence of the first marriage is
still an impediment against the second marriage.
• After the impediment was duly dealt with, the parties to the second marriage
started living together and they were accepted by the relatives and friends as
husband and wife.
• The issue of the case was whether the second wife can be lawfully regarded as
A’s wife.
 Held
• “Under our law, however, some antecedent public ceremony, public in
the sense of a ceremony in the presence of relatives, friends or third
parties, has to take place before the mere circumstance of the parties
living together as man and wife, followed by recognition of their living
together as man and wife, by friends and relations, can form the basis of
a deduction that there was a lawful marriage between the parties. It is
not unimportant to stress that that the fact of two parties living together
as man and wife and their being recognized as such by friends and
relations gives rise to a presumption, and a presumption only, of
marriage. It does not prove the fact of marriage, and the presumption is
not an irrebuttable presumption but one which may be disproved. ”
 Soosaipillai V. Parapthipillai (1985) 2 S.L.R. 55

• Evidence suggested that there was a kalam ceremony plus, the

couple has lived together as husband and wife.
• Since there was a ceremony which was followed by cohabitation
of the parties the court was of the opinion that it is sufficient to
raise the presumption of marriage by habit and repute.
• The courts found it unnecessary to prove all the ingredients in
the kalam ceremony.
 Can A Kandyan Marriage Be Proved By Habit And
Repute?

• “A marriage between persons subject to Kandyan law if not

solemnized and registered under the Kandyan law or under the
Marriage Registration Ordinance will not be regarded as a valid
Kandyan marriage and the intestate succession to the property of
such persons will not be in accordance with the Kandyan law. The
necessary corollary of this would be that in such an event the law
applicable would be the common law.”
• See Podinona v. Herathhamy (1985) 2 S.L.R. 238
 To Sum Up
With reference to what has been discussed within the short discussion on Habit and
Repute;
• The presumption is used mainly to establish customary marriages. It is unnecessary
to prove registered marriages in this way as the marriage certificate will be the best
evidence in favour of the marriage.
• The presumption is of higher importance when two parties have been living for a
very long period of time and not among the living when the issues are brought to
the courts.
• At instances where both parties to the marriage in question is not among the living,
the presumption is raised without leading evidence on the performance of
customary rights.
• The presumption can still be applicable to Muslim customary marriages.
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