Following the demise of his spouse, a man is prohibited from legally wedlocking a woman whom he was engaged in an extramarital relationship with during his wife’s lifetime. Furthermore, offspring conceived outside of marriage do not acquire legitimacy through their parents’ subsequent union. Moreover, there exists the potential to revoke a present bestowed upon a mistress if its purpose was to sustain the relationship.
In accordance with the ruling by Bonser, C.J., and Withers, J., dissenting Lawrie, J., it is permissible for illegitimate children who are not products of adultery or incest to receive inheritance from their parents through a will or legal agreement. The passing of Ordinance No. 21 in 1844 has allowed fathers to exclude their legitimate children and solely allocate their property to their illegitimate children. It is important to note that Ordinance No. 6 of 1847 does not encompass the entirety of current marriage law in Ceylon, as certain aspects still adhere to Roman-Dutch Law.
An action to void a gift deed due to it being considered inofficious is time-barred after three years according to section 11 of Ordinance No. 22 of 1871. The details of the case can be found in the Chief Justice’s judgment. Appellants are represented by Dornhorst while respondents are represented by Wendt. Court proceedings took place on January 26, 1897. Chief Justice Bonser provides a brief summary of the facts wherein Sinho Appu, who was married to Babahamy under joint ownership, engaged in an extramarital relationship with the first defendant resulting in two children, the second and third defendants.
After the death of his wife on January 20, 1883, Sinho Appu entered into a marriage with the first defendant. He had two more children with her, who are now the fourth and fifth defendants. Sinho Appu died on November 24, 1887, without leaving a will. Following his death, the first defendant gave birth to the sixth defendant on October 2, 1888, which is 313 days after Sinho Appu’s passing. On April 19, 1880, when his wife Babahami was still alive, Sinho Appu donated five parcels of land worth Rs. 4,980 to the first and third defendants, referring to them as “my” wife and her child.
The text expresses that the gift is contingent upon the agreement of the donees that Angohami should be obedient and provide necessary assistance. Angohami is granted possession of the land during her lifetime, and after her passing, the child mentioned above and any future children, along with their heirs, descendants, and administrators, are given authority to possess the land. The deed includes a statement by Angohami accepting the gift. The first plaintiff is the sole child of Sinho Appu and Babahami, while the second plaintiff is their spouse.
They want the deed of donation invalidated as illegal and to establish that the intestate and Angohami were not legally married. These two issues were argued before us:
- Do the defendants or any of them take anything under the intestacy of Sinho Appu ?
- Is the deed of donation invalid to any, and what, extent ?
The sixth defendant cannot be the child of the intestate because of the significant time gap between his death and her birth. The District Judge’s decision to not recognize her as his child is correct.
According to Ordinance No. 6 of 1847, section 31, the second and third defendants, despite their parents’ legal marriage following their birth out of wedlock, are not considered legitimate. The first, fourth, and fifth defendants’ inheritance rights rely on the deceased’s marriage with the first defendant being valid and legal. This raises an important inquiry: Is it permissible for a man to marry a woman after his wife’s death if they had been engaging in adultery while she was alive?
According to the Privy Council in the Le Mesurier case (I N. L. R. p. 160), the Roman-Dutch Law is the applicable matrimonial law for British or European residents in Ceylon. The Privy Council’s reasoning indicates that there is no distinction between British and European residents and other residents in Ceylon regarding this matter. If there is no specific legislation, the Roman-Dutch Law must apply to all residents in the absence of such legislation.
I previously believed that since Appu Sinho lived in the Kandyan district and the first defendant was also from there, their marriage might have been performed according to the Kandyan Marriage Act, making it legally valid. Additionally, I thought that the second and third defendants, who were born out of adultery, could have been legitimized by the marriage that followed. However, it seems that the marriage was not actually conducted under the Kandyan Marriage Act but instead adhered to the general marriage law of the Colony.
According to the old Roman-Dutch Law influenced by the Canon Law, a marriage was only forbidden if there had been a promise of marriage between the guilty parties during the lifetime of the innocent spouse or if they had attempted to harm the innocent spouse. However, a Placaat issued on July 18, 1674, completely prohibited such marriages and declared them invalid if it was discovered that the parties had committed adultery with each other while the deceased spouse was still alive.
According to Voet, the reasons for and the goal of this law are forcefully stated as follows: “Since adulterers are accustomed to seek hiding places and adultery itself is accustomed to be clandestine, and because plots and machinations are often formed to the detriment of innocent spouses, which are difficult to prove, it seemed better to the Dutch authorities to universally condemn and forbid such marriages by means of their edict, and to consider them null and void if the crime of adultery is discovered after the marriage has begun, in order to deter those who have fallen into the crime of adultery from constructing harmful plots thereafter. Or, if there are no plots, at least let them be deprived of the beloved companion of their illicit love affairs, so that they do not freely and licentiously enjoy passions that owe their origin not to honor but to wickedness.” (Comm. ad Pand. 23, 2, 27.) Unfortunately, there are many instances in crime history that illustrate the effectiveness of such a law.
According to Vanderlinden, in his 1806 publication called Institutes of Holland (translated by Juta, p. 19), this law was still in effect. Vanderlinden stated that marriages between individuals who had previously committed adultery were considered void under the Roman-Dutch Law, and no dispensation could be given. There was a suggestion that this aspect of the Roman-Dutch Law of marriage had been indirectly revoked by Ordinance No. 6 of 1847. The case of Abeyeratne v. Perera and three others (3. Lor. 235) was referenced to support this argument. The Court in this case held that the marriage between a widower and his deceased wife’s sister, which was deemed illegal under Roman-Dutch Law, became lawful after the passing of Ordinance No. 6.
But the decision was based on the fact that the 27th section was introduced to establish the complete law regarding prohibited degrees of relationship. Thus, the exclusion of relations by affinity from the list of prohibited degrees indicated that the Legislature intended to eliminate the previous restrictions on intermarriage between individuals related by affinity, making such marriages lawful.
The mentioned case does not serve as evidence that every marriage not explicitly prohibited by the Ordinance is permitted, but actually suggests the opposite. It should not be assumed that the Legislature intended to silently abolish a provision that effectively safeguards the well-being of innocent spouses and discourages immorality. Additionally, it cannot be argued successfully that the Ordinance was meant to encompass the entirety of marriage laws, especially considering the clear statement in section 54 that declares, “this Ordinance does not claim to discuss or state the complete law of marriage.”
Furthermore, my interpretation of section 31, which states that children are deemed legitimate after the marriage of their parents, is different from my brother Lawrie’s. I believe that the Legislature did not believe that the Roman-Dutch Law of legitimation per sub, sequens matrimonium was in effect in this Colony. This conclusion is based on the fact that the prohibition of incestuous marriages between fathers and daughters and bigamous marriages are also contingent on the confirmation of the Ordinance by Her Majesty. I cannot assume that the Legislature considered such marriages legal at the time.
In my view, the marriage between Sinho Appu and Angohami was invalid. Therefore, neither Angohami nor the fourth and fifth defendants, who were born during that marriage, have any right to inherit the intestate’s estate. Now, let’s move on to the second question. It is true that according to Parasattyummah v. Saikopulle (Bam. 1872, p. 67), under the old Roman Law, husbands were not prohibited from giving gifts to their wives, but this did not extend to gifts from a man to his concubine. However, this freedom was later restricted by the Emperors. Constantine, for example, prohibited all gifts or requests to concubines and natural children.
Justinian implemented a modification to this regulation: if a man had legitimate offspring, he could only allocate up to one-twelfth of his property to his natural children or concubine. However, if he did not have any children or ancestors, he could bestow all his property upon them. The Roman-Dutch Law treated concubines and other abandoned women in the same manner and did not acknowledge concubinage. According to Grotius (Intro. 1, 12, 6), under the Roman-Dutch Law, anything given specifically to concubines can be withdrawn and invalidated from them as if they were dishonorable and undeserving individuals, whether it was through donation during their lifetime or in a last will and testament. This aligns with Van Leeuwen’s perspective (Gens. For. 4,. 12, 11).
The phrase “qua talibus” is used for emphasis. Not all gifts given to a concubine can be taken away from her, but only those gifts that are given to her as a concubine and with the expectation that the relationship will continue. In this particular case, the gift is given with the explicit condition that the relationship will continue, distinguishing it from the case of Parasattyummah v. Sathopulle. However, I must admit that I do not fully comprehend that case, as it appears to have been decided based on pre-Christian Roman Law rather than the Roman-Dutch Law or later Roman Law.
It is my belief that the initial defendant’s gift can be voided and reclaimed. According to Roman-Dutch Law, offspring born from prohibited relationships are not entitled to any inheritance from their parents’ will, except for basic support (Grotius, Intro. 2, 16, 6; Vanderlinden, Juta, p. 58). However, Van Leeuwen argues that children born out of a dissolved lawful marriage should not be considered as products of an unlawful and condemned relationship (Gens. For. 3, 4, 39). This prohibition does not apply to the second and third defendants; hence they are in the same situation as the fourth and fifth defendants.
Under Roman-Dutch Law, legitimate children had the right to contest a father’s decision to disinherit them. However, this right was eliminated by Ordinance No. 21 of 1844, which gave the testator complete authority to distribute their assets to anyone not legally prohibited from receiving them. The phrase “legally incapacitated from taking the same” refers to individuals deemed unfit by the testator to receive the assets under any circumstances. According to Vanderlinden, Juta (p. 58), children born out of adultery or incest can only inherit what is necessary for their basic needs through their parents’ will and nothing more.
According to the law, illegitimate children can receive any amount of inheritance unless there are also legitimate children involved. In such cases, only one-twelfth of the inheritance is allowed for illegitimate children. This means that while regular bastards have the legal right to inherit from their parents’ will, adulterine or incestuous bastards do not. Consequently, Ordinance No. 21 of 1844 grants fathers full authority to leave their property to illegitimate children without considering the circumstances.
According to Vanderlinden, Juta, p. 25, there may be a distinction between a will and a donatio inter vivos. However, it is important to note that a donation can be contested if it unfairly diminishes the rightful portion of the children. In such situations, only the excessive part of the gift is considered invalid, as explained by Grotius in Intro. 3, 2, 19. If an individual’s donation significantly reduces their estate to the extent that their children are unjustly deprived of their rightful inheritance from their father’s estate, these affected children have the right to challenge and nullify the donation in much the same way they would invalidate a will.
The children were given the legal remedy known as the querela inofficiosae donationis. Voet states that in many cases, the querela inofficiosi testamenti and the querela inofficiosae donationis go hand in hand, to the extent that it has been handed down by interpreters that statutes defining inofficiosi testamentis also extend to doubtful inofficiosae donationes and rightfully so. Because if they were able to deplete their assets through donations to prevent the overturning of an inofficiosi testamenti, and then leave only their legitimate portion remaining (Comm. ad Pand. 39, 5, 36).
The text highlights the connection between two remedies, both based on the right of children to inherit their parents’ property. The father’s ownership of his property was seen as joint ownership with his children. The children could assert their rights after the father’s death through the querela inofficiosi testamenti or even during his lifetime through the querela inofficiosas donalionis if their rights were threatened by improper donations. With the abolition of the right of children to inherit a legitimate portion under Ordinance No. 21 of 1844, along with the elimination of the querela inofficiosi testamenti, it is arguable that the corresponding querela inofficiosos donationis has also been implicitly repealed.
In my opinion, the principle cessante ratione cessat lex applies, and there is currently no hindrance for a father to provide for his ordinary illegitimate children through a will or inter vivos act. This can even be done to the extent of leaving his legitimate children with no financial resources and reliant on charity for sustenance. It is not necessary to decide at this moment whether this liberty extends to adulterine and incestuous bastards (adidterini et ex damnato legibus coitu nati). In regards to the sixth defendant, there is no law preventing her from receiving a benefit from the deceased individual who was not her father. Regardless of whether I am correct or not in my belief that the querela inofficiosi testamenti no longer exists, it is evident that it would not be applicable in the current case.
According to the Roman-Dutch Law, the querela had to be initiated within five years after the death of the donor. In our current prescription law, this period would be three years. However, the action was not started until January 31, 1893, and the donor passed away on November 24, 1887. Therefore, I believe that the deed of donation cannot be invalidated, and the defendants have a right to the property mentioned in it. LAWRIE, J. – The eighth issue raises an important question regarding whether the marriage between Sinho Appu and the defendant was legally valid. This is because cohabitation began during the lifetime of Babahamy (which is during Sinho Appu’s wife’s lifetime).
My opinion is that the law regarding the constitution of marriage between natives of Ceylon who marry on the island is governed by Ordinances that encompass the entire law on the matter. There are three legal impediments that make mentally competent parties unable to enter into the marriage contract. These impediments include:
- a prior existing marriage;
- want of age;
- being within the prohibited degrees of consanguinity.
The Ordinances specifically address these three disabilities, but it was argued that there is an undisclosed fourth disability. I can justify my refusal to endorse this addition to our laws by emphasizing the importance of clearly stating this aspect of the law in accessible and widely-known legislation.
The law allows for certain matters to be determined by experts, but it is crucial for every individual to have the ability to determine whether they can legally marry the person they love. The Ordinances claim to provide extensive information on this matter. It is reasonable to assume that they encompass all the applicable laws, as there is no mention of any additional undisclosed laws. I believe it is unnecessary to impose any further restrictions beyond those explicitly stated in the Ordinances, aligning with this Court’s decision in the case of Abeyeratne v. Perera and others {July 21, 1859, 3 Lor. 235). It is not necessary for me to argue against any potential errors in the Dutch Law of marriage. In my view, the Dutch did not enforce their Christian beliefs or marriage laws on the indigenous population.
Throughout the history and legal system of the Island, there is ample evidence to demonstrate that both Sinhalese and Tamil natives were allowed to practice their unique traditions and laws. While the Dutch and Burgher inhabitants who followed Christianity were restricted to marrying according to the Law of Holland, the natives were free to follow their own customs and ceremonies. Even in the case of Dutchmen and their descendants in Ceylon, the law prohibiting marriage for those who had committed adultery was not a part of the common Law of Holland; it was a later amendment implemented after the Dutch gained control of the Ceylon coast.
The proposition that changes in Dutch Law after the establishment of the Colony affected the Colony has not been supported by any authority. In Colonies, it is generally understood that the English Law in effect at the time of formation applies, and subsequent Acts of Parliament do not impact the Colonies unless specifically addressed.
The individuals involved in this marriage were not only Sinhalese Buddhists, but they also resided and got married in the Kandyan Province. It should be noted that the Dutch men and Dutch Law did not have any influence or control in this area. However, in 1852, an unfortunate Ordinance declared that the law of the maritime provinces would be applied in the Kandyan Province when the Kandyan Law did not have any specific regulations. Despite this declaration, the Kandyan Law was not lacking in regulations. In terms of the ability to marry, it was quite inclusive and only had a few restrictions. Additionally, living together before marriage was not considered a disqualification; rather, the Kandyans viewed it as a valid reason for making the woman an honest woman as soon as possible. I personally agree with this viewpoint, even in light of the later strict legislation imposed by the Puritans from Holland.
I believe that the entire law regarding the ability and disability to marry for native Ceylonese individuals can be found in our statute law. The previous common law, whether of Dutch or English, Tamil or Kandyan origin, or from any other place or race within the island, has been repealed and abolished. These Ordinances allow a single man who is of full age and understanding to marry a single woman who is also of full age and understanding, as long as they are not within the prohibited degrees listed in the Ordinance. Both Appu Sinho and the defendant met these requirements. In my view, their marriage was valid and I would answer the eighth issue’s question accordingly. I believe that the two children born during Babahamy’s lifetime are illegitimate, and the child born after Appu Sinho’s death cannot be considered his.
I believe that the portion of this action that aims to invalidate the donation made in 1880 is prohibited by the 11th section of the Prescription Ordinance. The plaintiff asserted in the lower court and in the appeal petition that the 1880 deed was a final will. If it is indeed a will, then it must be given complete effect, unless Appu Sinho disposed of more than his share of the jointly owned goods in that will. The Ordinance of 1844 grants extensive testing powers, and since a will speaks at the time of the testator’s death, there should be no objection to the defendant and her children benefiting from it. She was not engaged in adultery at that time. Babahamy had already passed away.
The appellant in the appeal case no longer argued that the deed of 1880 was a will. Instead, he asserted that it was an invalid donation due to a wrongful cause. It is well-established legal principle that a contract designed to encourage fornication or prostitution is completely null and void. Even if the donor had made an irrevocable donation in the form of a bond, promissory note, or money security, the woman could not sue for its enforcement. However, a completed donation is a different matter. In my view, the donation made to the illegitimate children named in the deed is valid, and they have the right to receive their portion of the gifted land.
I believe the defendant should include the land given to her in hotchpotch if she wants to keep it. Otherwise, she should consider it as part of her late husband’s estate, which entitles her, as his widow, to half of the goods. Advances made to the wife and children before the husband’s death should be seen as partial inheritance. The defendant cannot object to being treated similarly to a widow who has received a deed of advancement. As her mother’s sole heir, I would grant the plaintiff half of the estate, including the donated lands, minus the portion given to the illegitimate children.
Then I would divide the other half into two parts: one part to be given to the defendant as the widow, and the other part to be given to the plaintiff and the children born after the marriage of Appu Sinho and the defendant (excluding the posthumous child). Withers, J. – Two issues arise in this case: one regarding a donation made by the late Sinho Appu, and the other regarding the rights of succession and inheritance to his property. The first issue depends on the validity of the mentioned donation. Is it completely invalid, partially invalid, or valid? The lawsuit, in relation to this question, falls under a category known as querela inofficiosce donationis in the old law.
The cause of action for this matter arose upon the death of the donor, and it was given to the legitimate heir whose right had been affected by the donor’s disposition. The injured party had a remedy available for a period of five years following the donor’s death. I believe it is unnecessary to delve into the legal intricacies surrounding this matter, as it is evident that the remedy provided in this aspect is barred by our Ordinance No. 22 of 1871, which pertains to the limitations of actions. Now we turn to the next question: Can the first defendant, along with the other children, or any of them, inherit any part of Sinho Appu’s estate that he did not distribute? It should be noted that Sinho Appu originated from the low-country.
It is not clear what the domicile of origin of the defendants was. Although they were residents of the Central Province at the time of their alleged marriage, their marriage did not adhere to the legal requirements for Kandyan marriages. There is a prescribed form of marriage for natives of the maritime settlements, which governs their status. The two children born out of wedlock are not entitled to inherit anything, as the alleged subsequent marriage of their parents does not legitimize them (as stated in section 31 of Ordinance No. 6 of 1847).
The second marriage that occurred, is it recognized by the law? Our local statutes do not provide assistance in this matter. Ordinance No. of 1840 only addresses prohibited degrees and does not address this particular case. Thus, we need to refer to the Roman-Dutch Law. As mentioned by Vanderlinden on page 19, a marriage between individuals who have previously lived in adultery is completely invalid. Sinho Appu was living in adultery with the first defendant before their so-called marriage, therefore it is null and void. Consequently, the children from that marriage are considered bastards and are unable to inherit anything from their father’s estate without a will. As a result, I believe that the defendants are entitled to the property included in the donation. The expenses of the trial regarding this matter and the subsequent appeal should be covered by the late Sinho Appu’s estate.
