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King of England Henry VIII b. 1491 (r.1509-1547) who had six wives, Catherine of Aragon (m.

15091533), Anne Boleyn (m. 1533-1536), Jane Seymour (m. 1536-1537), Anne of Cleves (m. 1540-1540),
Catherine Howard (1540-1541) and Catherine Parr (m. 1543-1547), committed the offence of bigamy
by marrying his second wife, Anne Boleyn, a few months before his first marriage to Catherine of
Aragon was dissolved. He went through with the act of marrying pregnant Anne Boleyn when the
marriage to Catherine was subsisting.
The Penal Code of Sri Lanka defining the offence of bigamy or marrying again during the lifetime of
husband or wife lays down the law, relating to it, prescribes the punishment for the committing of
which, in the following terms, in Section 362B, that is to say, 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, that is to say, rigorous or
simple, for a term which may extend to seven years, and shall also be liable to fine.

The Penal Code pronouncing the exception to the above rule says, this Section does not extend to
any person whose marriage with such husband or wife has been declared void by a court of
competent jurisdiction, nor to any person who contracts a marriage during the life of a former husband
or wife, if such husband or wife, at the time of the subsequent marriage, shall have been continually
absent from such person for the space of seven years and shall not have been heard of by such
person as being alive within that time.
However, the proviso is added that the person contracting such subsequent marriage shall, before
such marriage takes place, inform the person with whom such marriage is contracted of the real state
of facts as far as the same are within his or knowledge.
The same offence is committed with the concealment of the former marriage from the person with
whom a subsequent marriage is contracted. Section 362C says, whoever commits the offence defined
in Section 362B, having concealed from the person with whom the subsequent marriage is contracted
the fact of the former marriage, shall be punished with imprisonment of either description, that is to
say, rigorous or simple, for a term which may extend to ten years, and shall also be liable to fine.

On marriage ceremony gone through with fraudulent intent without lawful marriage, Section 362D
says, whoever dishonestly or with fraudulent intention goes through the ceremony of being married,
knowing that he is not thereby lawfully married, shall be punished with imprisonment of either
description, that is to say, rigorous or simple, for a term which may extend to seven years, and shall
also be liable to fine.
The first requirement for the offence of bigamy to have been committed is that a previous marriage
recognized by the law should exist. It is sufficient, to constitute the offence of bigamy, for the first
marriage to be even a customary marriage as opposed to a marriage gone through in terms of the
procedure laid down in the General Marriage Registration Ordinance (1956). It is adequate if there
had been a marriage by repute existing supported by credible testimony.

In the case of Perumal (1911) 14 NLR 495, the accused a Hindu, who had gone through a customary
marriage performing the requisite Kurai ceremony, had been charged with having contracted a
polygamous marriage, and was convicted, in the lower court, of the offence of bigamy. In the Court of
Appeal, Lascelles CJ observed, setting aside the conviction: "The fact of a marriage ceremony having
been proved, it was, in my opinion, incumbent on counsel for the accused, if he relied upon the
omission of any essential detail in the ceremony, to make good his point, and to show that the
omission had in fact taken place". Middleton J said: "When the fact of the celebration is established it

will be presumed in the absence of evidence to the contrary that all the necessary ceremonies have
been complied with".
However, there is a subsidiary question relating to the method of proving the initial marriage. The
General Marriage Registration Ordinance (1956) says, the entry made by the Registrar of Marriages
in his marriage registration book...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.

And, in the case of Nonis (1947) 35 CLW 84 where the accused was charged with contracting a
bigamous marriage, the prosecution failed to produce the entry in the register to prove the accused's
first marriage having taken place and the first wife and the officiating priest testifying affirming it
having been solemnized was entertained by the Court.
Accordingly, clarifying the present legal position in this regard, Professor G.L. Peiris, in his expansive
thesis, on the criminal law of Sri Lanka, 'Offences under the Penal Code of Sri Lanka', which should
adorn every layman's library, says: "It may be noted that the legal requirement, so far as the offence of
bigamy is concerned, is that the first marriage should have been contracted, and not necessarily that
it should also have been registered. Thus as registration is not always a condition precedent of validity
of a marriage in Sri Lanka, registration, as such, cannot be treated as a 'factum probandum' in this
context".

However, registration of a marriage is a binding requirement for the purpose of proof of the marriage
having taken place under the Kandyan Marriage Ordinance. It is not compulsory for the same purpose
even under the Muslim Marriage and Divorce Act.

In de Silva v. Shaik Ali (1895) 1 NLR 228, Withers J. observed: "A marriage duly solemnized ... must
be taken to be good and valid in law". It was proved in this case that the marriage was solemnized but
not registered under the General Marriage Registration Ordinance. The Court said: "The attempt to
prove later marriages ... did not destroy the 'prima facie' case of legal marriage. If they were
contracted, they were bigamous".
Evidence other than
registration
Acknowledging the fact that registration of the first marriage is not sine qua non for validity save in the
case of marriages under the Kandyan Marriage Ordinance, it is left to be decided whether evidence
other than registration may be used to prove the existence of the first marriage.

The second requirement for the offence of bigamy is that the accused should purport to marry,
notwithstanding that his or her spouse is living.
The third requirement is that the subsequent marriage should be void by reason of its taking place
while a valid previous marriage exists. The difficulties that arise in Sri Lanka to decide whether a later
marriage is void are due to more than one legal system operating in the country. It is the personal law
of the accused that decides whether the later marriage during the lifetime of the previous husband or
wife is void or not.
In the landmark case of Attorney General v. Reid (1966) 67 NLR 25 the accused who had contracted
a marriage under the General Marriage Registration Ordinance later marries under the provisions of
the Muslim Marriage and Divorce Act. The accused who was convicted of bigamy by a District Court
was exonerated by the Supreme Court on appeal in Reid v. Attorney General (1964) 65 NLR 97 SC
and the decision was also confirmed on appeal to the Privy Council in Attorney-General v. Reid (1966)

67 NLR 25 PC.
The argument advanced before the Judicial Committee of the Privy Council by the Crown failed
mainly because the statute law of the country removed a marriage under the Muslim Marriage and
Divorce Act from the scope of the definition of "marriage" in the General Marriage Registration
Ordinance, with the result that an earlier Muslim marriage was not "void" in terms of Section 18 of the
Ordinance. The Supreme Court was of the opinion that: Persons professing Islam can now marry
under the Muslim Marriage and Divorce Act, so that marriages under the Act are not marriages within
the definition of the expression 'marriage' in the Marriage Registration Ordinance.
In the case of Obeyesekere (1889) 9 SCC 11, it was held that there was no conversion to the Muslim
religion at all. Dias J. held: "I think there was sufficient prima facie evidence to go to the jury that the
accused was not a Mohammedan. He was brought before the jury and they could see him; he bears a
Sinhalese name, and on both occasions on going through the ceremony of marriage he followed the
procedure prescribed by law for the marriage of persons other than Mohammedans".
Muslim Law
In the case of Kactchi Mohamed v. Benedict the accused an adherent of the Muslim faith at the time
of his first marriage later renounces Islam and contracts his second marriage under the general law
while the previous marriage was subsisting. Basnayake CJ in his judgment said: "There is no
evidence, nor was it contended, that a Muslim cannot change his religion and become a Roman
Catholic. When a Muslim becomes a Roman Catholic, he is no more a follower of the Prophet and
does not thereafter enjoy the rights and privileges of a Muslim. The moment (the accused) became a
Roman Catholic, he ceased to be a person who was in law entitled to have more than one wife and,
when he married the second time as a Roman Catholic, he committed the offence of bigamy".
In the case of Abeysundara v. Abeysundara 1998 SLR IV 185 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.

It was decided that (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, and (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.

The judgments in Attorney General v. Reid (1966) 67 NLR 25 PC and Reid v. Attorney General (1964)
65 NLR 97 SC were overruled by the decision in the case of Abeysundara v. Abeysundara. The
present legal position, consequent to this watershed decision, is that it is not possible to circumvent
the law by converting to Islam to contract a second marriage.

The Exception to Section 362B was applied in deciding the case of Pattison v. Katutara Special
Criminal Investigation Bureau. The accused who was convicted of bigamy married the second time in
1960 when his first wife was living having left him in 1952 and was living with another man in a village
thirty-five miles away. She herself had not seen the accused during the eight years of their separation.
On appeal H.N.G. Fernando CJ said: "If, as (the first wife) and the accused both stated, the two had

never been together or even seen each other between 1952 and 1960, then she has obviously been
'absent from the accused' for eight years. The Magistrate misdirected himself when he thought that
there was no evidence of this simple fact of 'absence' for seven years; what had to be proved was
absence from the accused and not absolute non-existence.