Lesson 02

BMAHH Balasuriya
LL.B.(Hons)(Colombo)
LL.M. in IL(KDU)(Reading)
 Introduction

 “Marriage is not a mere ordinary private contract between the parties, it is a
contract creating a status and gives rise to important consequences directly
affecting society at large. It lies indeed at root of civilized society.”
-Weatherly v. Weatherly (1879)-
 Marriage is an voluntary agreement between two consenting parties like any
other private commercial contracts.
 But marriage cannot be entered into subject to conditions and objective of
marriage cannot viewed merely in terms of rights and duties.
 Mutual rights and duties of spouses spotted by law.
 Although marriage is contractual in nature, it differs from an ordinary
private contract in following ways;
 Ordinary contracts are formulated on the bedrock principle of „doctrine
of freedom of contract‟ that allows parties to specify their own terms and
conditions without being restricted by government intervention.
However, marriage contracts need to conform to certain formalities
specified by law, and cannot be subjected to any conditions.
 Marriages of people who do not govern under any

special law – General Marriage Ordinance, No.09 of
1907

 Marriages of Kandyan People – Kandayan Marriage

and Divorce Act, No.44 of 1952

 Muslim People – Muslim Marriage and Divorce Act

No.13 of 1951
 Marriage under General Law

 In order to enter into a valid marriage, parties have to adhere to
certain requirements in the statues.

 If parties are not compliance with certain requirements, the

marriage become null and void.

 A marriage can be Null and Void,

1. Void ab initio - Marriages that are invalid

2. Voidable - Marriages that can be abolish
 Null/Void Marriage

 A marriage would be regarded as null (void) in following
situations;
1. If the marriage was contracted when one or both parties
contracted a second marriage while already Marriage.
(Bigamy)( Sec.18)
2. If one or both parties failed to give fully informed consent to
the marriage due to reasons such as insanity, intoxication,
misrepresentation, fraud, duress etc. (Sec.20(1))
3. If the marriage is within the prohibited decree of relationships.
(Sec.16)
4. If one or both parties are below the marriageable age. (1995
Amendment)
5. If the proper procedure of a marriage ceremony were not
followed. (ex: Wijegunawardena v. Gracia Catherine)
 Voidable Marriage

 A marriage could be voidable under following situations
1. If either party was impotent at the time of the marriage
and therefore the marriage was not consummated.
2. If, at the time of the marriage, either party was incapable
of sustaining a normal relationship due to a psychiatric
illness, personality disorder, or sexual orientation.
3. Duress
4. Mistake
5. Prenuptial sturprum ( Ex: Nawaratnam v. Nawaratnam)
What we are going to learn?....

 Types of Marriage
 Registered marriage
 Customary Marriage
 Marriage by Cohabitation and Repute

 Capacity to Marry
 Minimum Age
 Prohibited Degree of Relationship
 Subsisting Prior Marriage
 Consent
 

1. Capacity to Marry
 1. Prohibited Age of Marriage

 Every person has a age limit to enter into a marriage contract.
 Sec.15 of GMO No.19of 1907
Male – 16years old Can get married
Female – 12 years old
 Thyagaraja v. Kurukal ( Schenider J) 25 N.L.R. 89
-The marriageable age in the Sri Lankan Ordinance was the same as in the
Roman-Dutch Common Law.
- But it was not so, in common law it is 14 yrs for males and 12yrs for
female.
- But in this case court accepted the age limit required in the GMO of 1907.

 This situation was changed with the influence of international

instruments. Ex: CEDAW, UNCRC, UDHR, women’s Charter
 But after the Marriage Registration Amendment Act No.18 of
1995
 Section 02 of Amendment Act of 1995,
“ No Marriage contracted after the coming into force of this action
eighteen years of age” 
shall be valid unless both parties to the marriage have completed

Ex: Gunaratnam v. Registrar General (2000) N.L.R. 202

 Even though this situation has been changed, this section
contradict with section 22 of the Act.
 Sec.22 – Any perosn under 21 yrs old can get married with the
consent of his father or if not mother, or a guardian.
 1995 amendment act only replaced the minimum age of
marriage (sec.15) but it did not amend section 22.
 Sec.22 was amended under Amendment Act no. 12 of 1997 as
18 years.
 However, the contradiction between Sec. 15 and 22 is still
remain. Because even though sec.15 says the minimum
marriageable age is 18 yrs old, sec.22 stating that minor (under
18 yrs old) could enter into a marriage with the consent of their
parents.
 Gunaratnam v. Registrar General (2000) NLR 202
Facts :
• Male -15 yrs
• Female – 14 yrs 
• Even though parents consented for marriage , Registrar refused to
register the marriage.
 In this case, petitioner argued that even though sec.15 prohibited
marriages under 18 yrs old, in accordance with Sec.22 under age
person also could get into marriage contract with the consent of
their parents.
 But Thilakarathna J:
“…Since the prohibited age of marriages has been raised to 18 yrs of
age, the absolute bar to marriage must necessarily override the
parental authority to give consent to the marriage of a party. It was
not relevant whether parents agreed or did not agree to the marriage
of their children , only persons who had complete 18 yrs of age could
enter into a valid marriage..”
Kandyan Law
• Section 4 (1) of KMDA –


“No Kandyan marriage contracted after the coming into force of this
subsection, shall be valid if, at the time of marriage-
(a) either party thereto is under the lawful age of marriage; or
(b) both parties thereto are under the lawful age of marriage “.
• Section 66 (Interpretations Section) as amended by the Act No. 19
of 1995 –
““lawful age of marriage” in relation to the male party and the female party to
the marriage, means eighteen years of age”.
However, KMDA also provides specific provisions that validate
marriages between persons below the statutory minimum age under
following circumstances;
Section 4 (2) & (3) –
(a) if both parties thereto cohabit as husband and wife, for a period of one year
after the party aforesaid has attained the lawful age of marriage ; or
(b) if a child is born of the marriage before the party aforesaid has attained the
lawful age of marriage.
 Accordingly, a Kandyan marriage contract entered into by persons of whom
either one of them or both were under 18 years of age at the time of the
marriage could successfully validate their marriage despite the statutory
minimum age requirement, upon fulfillment of either of the above conditions.


 This provision, which was found in KMDA prior to the amendment in 1995,
was left unchanged even after the statutory minimum age was raised to 18
years. Thus, regardless of whether it was an oversight, as the law stands today,
parties who contract a marriage under Kandyan Law disregarding the
statutory minimum age, can validate their marriage subsequently, under the
above provision.

Muslim Law

 The aspect relating formalities of marriage under Muslim Law are governed by
Muslim Marriage and Divorce Act (“MMDA”) and principles of Islamic law.
 However, neither the MMDA nor the said principles specify a minimum age to
marry for Muslim persons.
 Nevertheless, Section 23 of MMDA provides that if the girl to the marriage has
not attained the age of 12 years, the authorization of the Quazi for the area
where the girl resides should be obtained.
 This leads to the conclusion that even girls who have not attained the age of 12
could enter into marriage with the approval of the respective Quazi.
 In this regard, one should also note that Section 363
of the Penal Code specifies that any sexual
intercourse by a man with a female below the age of

16 amounts to statutory rape which is punishable by
imprisonment.

 However, the law also recognizes an exception to the

above Section which states that sexual intercourse is
permitted where the girl is over 12 years of age and
she is the wife of the man.
2. Prohibited Decree of Marriage

 General law/ RDL prohibited Marraiges between
persons closely related by blood or by affinity due to
the following reasons,
- Blood Relations (Consanguinity) – Prohibited due to
moral reasons
- Affinity (Between those closely related by marriage)
 GMO – Sec.16,
 Sec.16 GMO
 No marriage shall be valid—
(a) where either party shall be directly descended from the other; or


(b) where the female shall be sister of the male either by the full or
the half-blood, or the daughter of his brother or of his sister by
the full or the half-blood, or a descendant from either of them, or
daughter of his wife by another father, or his son's or grandson's
or father's or grandfather's widow; or
(c) where the male shall be brother of the female either by the full or
the half-blood, or the son of her brother or sister by the full or the
half-blood, or a descendant from either of them, or the son of her
husband by another mother, or her deceased daughter's or
granddaughter's or mother's or grandmother's husband.
Sec.17 GMO
 Any marriage or cohabitation between parties standing
towards each other in any of the above-enumerated degrees
of relationship shall be deemed to be an offence, and shall
be punishable with imprisonment, simple or rigorous, for
any period not exceeding one year.
 Section 364 (A) Penal Code amended by Act No.23 of
1995 1995 prohibits sexual intercourse between inter
alia persons related to each other even by adoption,

under the offence of incest.
 Ex: Abeyratna v. Peiris
 3. Second Marriages / Subsisting Prior
Marriage

 “Polygamy is expressly prohibited by the marriage
registration ordinance which that no marriage shall be
valid there either of parties their shall have contract a fire
marriage which and shall have been legally dissolved..”
- Shirani Ponnambalam-
 Sec. 64 – Interpretation section
Marriage means any marriage, save and except marriages
contracted under Kandyan Law and Muslim Law.

 Sec. 18 GMO – second marriage without legal dissolution

of first marriage invalid.
Kandyan Law

 Sec.6 of Kandyan Marraiage and Divorce Ordinance –

- No Kandyan marriage shall be valid-


(a) if one party thereto has contracted a prior marriage ; and (b) if the other party to such
prior marriage is still living, unless such prior marriage has been lawfully dissolved or
declared void.

Muslim Law
 According to Mohammedan Code of 1806 – Muslim men can be married to 4 women
 Sec.24 MMDA - Muslim Law which allows a Muslim man to marry up to 4 women
provided that he is capable of fulfilling his matrimonial obligations towards each
woman
 Reid v. Attorney General (1963 65 NLR 97
• Catholic, contracted a marriage under the General Law (i.e. MRO). Thereafter, he
converted to the Muslim faith and married another woman who has also converted to
Muslim faith, without dissolving the first marriage.
• Held: A marriage registered under MMDA is not a ―marriage‖ within the expression
in the MRO. Therefore, the second marriage was valid.

 Section 362 (B) of the Penal Code provides for the offence of Bigamy. Accordingly,
―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 or either description for a term which may
extend to seven years, and shall also be liable to fine‖.
 4. Consent

 As „Marriage‟ is a union that has a significant place
in society, the consent of both parties is crucial to
maintain the stability of the marriage relationship
and to receive the necessary social recognition.
 Marriage is a union that has a significant place in
society.
 Therefore, the consent of both parties is crucial to
maintain the stability of the marriage relationship
and to receive the necessary social recognition.
  of the
Consent
Consent
parties

Prenatal
Consent
 Consent of the parties

 GMO - Sec.24 – In every notice of marriage parties have to
give there written consent.
 Sec. 34-35 - contain mandatory provisions where parties to
the marriage are required to express their consent by way
of oral statements and signing the marriage register.
 Sec. 42 – A marriage cannot be dissolved on the ground
that there was no consent at the time of the marriage.
 But if one or both parties have given their consent to the
marriage due to reasons such as insanity, intoxication,
misrepresentation, fraud, duress etc. (Sec.20(1)) – Null and
void.
 Prenatal Consent

 GMO – Sec. 22(1) –
Any perosn under 21 yrs old can get married with the
consent of his father or if not mother, or a guardian.
 1995 amendment act only replaced the minimum age of
marriage (sec.15) but it did not amend section 22.
 Sec.22 was amended under Amendment Act no. 12 of
1997 as 18 years.
 However, the contradiction between Sec. 15 and 22 is still
remain. Because even though sec.15 says the minimum
marriageable age is 18 yrs old, sec.22 stating that minor
(under 18 yrs old) could enter into a marriage with the
consent of their parents.
 Gunaratnam v. Registrar General
 Kandyan Law
KMDA – Sec. 22 (2), (3) and 23 (1) (b) (C) ) contain
mandatory provisions where parties to the marriage are

required to express their consent by way of oral
statements and signing the marriage register.
 Muslim Law
 Sec 18(1)(b) of MMDA - Under Muslim Law, the consent of the Bride
is rather undermined as it is her Wali (i.e. Male Guardian) who
generally signs the marriage register on behalf of her


 However, it is provided that where the wali is a person other than
her father or paternal grandfather, the bride shall also sign the
declaration made by such wali.
 With regard to Muslims belonging to Shaffie Sect, it is provided
under Section 25 (1) that;
“no contract of marriage of a woman belonging to the Shaffie sect is valid under
the law applicable to that sect, unless-
(a) a person entitled to act as her wali-
(i) is present at the time and place at which the contract is entered into; and
(ii) communicates her consent to the contract and his own approval thereof”.

(If parties entered into marriage with out the consent as well as presence of the
wali, that marriage consider as invalid )

 However, where the woman has no Wali or where the Wali

unreasonably withholds his consent, the respective Quazi has the
authority under Section 47, to authorize the marriage and thereby
dispense with the requirements of Wali‟s presence and consent.
 
Thank You