In Re Sudamma [1932] FJLawRp 3; [1875-1946] 3 FLR 147 (17 August 1932)

[1875-1946] 3 FLR 147

SUPREME COURT OF FIJI

Civil Jurisdiction

IN RE SUDAMMA

Maxwell Anderson, C.J.

August 17, 1932

Custody of infant - Rights of parents inter se - Marriage Ordinance, 1928^[1] - Validity of Hindu marriage questioned.

In this case the father of an infant aged about three years sought the custody of the child as against the mother who was living in adultery. The question was raised that the marriage was void under the laws of the Colony. Evidence was adduced that the marriage was celebrated by two Hindu priests registered as Marriage Officers under the Marriage Ordinance (No. 2 of 1918), as amended by Ordinance No. 27 of 1928. It was admitted that the marriage was valid under Hindu law.

HELD –

Despite the age of the child the Court will give the custody to the father if the mother is deemed not a fit and proper person to have such custody.

Obiter dictum.-Failure to obtain a certificate of marriage will not ipso facto render a marriage null and void.

[EDITORIAL NOTE-Vide Marriage Ordinance Cap. 118 (Revised Edition Vol. II p. 1176). The relevant provisions of the Marriage Ordinance in force at the time of this decision were substantially ,as in the present Ordinance except for s.42 (Revised Edition p. 1189) which was added by amendment in 1945 to replace the amendment of s. 41 effected by the Marriage (Amendment) Ordinance (1928) the amendment being otherwise spent.]

Vide also the cases of R v Surajpal [1934] 1 FLR, R v Sarjudei [1937] 1 FLR, In re Dukhan [1939] 1 FLR and R v Rama [1946] 1 FLR]

Cases referred to:-

(1) R v Gyngall [1893] UKLawRpKQB 95; [1893] 2 QB 232; 9 TLR 471; 62 LJQB 559; 69 LT 481 ; 28 Dig. 142.

(2) R v. Inhabitants of Wroxton [1833] EngR 536; 4 B. & Ad. 640; 27 Dig. 48; 110 ER 595.

(3) Thorpe v Taylor [1926] Ch. 689.

Hollins Crompton, for the Respondent. - The child is under three years of age. The mother is legal guardian. The interests of the child are paramount and it is of secondary importance whether the marriage is or is not valid. He referred to the Marriage Ordinance, s.3(27 of 1928), and to Thorpe v Taylor.

G. F. Grahame for the Applicant. - The marriage is valid. The mother is living in adultery and the father is the proper guardian. Reg. v Gingall [1893] 2 QB 242. The evidence of the marriage officer shows that no books or forms of certificate were issued at the time of the marriage.

MAXWELL ANDERSON, C.J. - This is an application by the husband Surajpal, that this child a boy of three, be discharged from the custody of his wife Rampiari.

The facts are that the parties were married in 1927 by a registered marriage priest under the Marriage Ordinance. No certificate for marriage was, however, obtained. The parties lived together for some time and a child was born in 1929. At some date in 1930 Rampiari left her husband, for reasons which have not been gone into in detail, and ultimately misconducted herself with one Atma Singh, with whom she is now living in adultery. She has up to the present retained the child.

It is urged by Mr.Crompton that owing to the age of the child it is in his interest that Rampiari should be given his custody. He bases his argument on the accepted principle that the Court should be guided above all by consideration of the welfare of the child. He has produced no argument other than that of age to rebut the prima facie right of the father and does not allege any misconduct or inability on the father's part which would disentitle him.

Against that, it is admitted that the wife is living in adultery, having left her husband without (so far as any evidence before me is concerned) sufficient ground. She is, I infer, likely to be outcast by the Hindu community to which the child would normally belong; there is some evidence that the man Atma Singh is of a different race and religion; there is no evidence that the mother has any means, and she appears to be dependent upon the generosity of the man with whom she is living. If she is given the custody of this child it is difficult to see what legal obligation there would be upon anybody to maintain it.

In order to deprive an innocent party of the custody of the children in favour of a party guilty of matrimonial misconduct, very exceptional circumstances must be shown. No such circumstances exist in this case.

In my view it is clearly in the interest of the child Sudamma that he should be restored to his father, whose parents will be able to care for him.

A great deal of argument has taken place as to whether this is or is not a valid marriage under the Ordinance. It is admitted that it is valid according to Hindu law, but I am asked to say that on account of the omission to obtain a certificate for marriage the marriage is void and a nullity for all purposes, and that the child must be regarded as illegitimate and in the same position as a child born of illicit intercourse. Taking the view I do of the facts it is perhaps unnecessary for the decision of this case that it should be made known that in my judgment failure to obtain a certificate does not ipso facto void a marriage and that only if it be proved that both parties wilfully and knowingly went through what they knew was an irregular marriage can it be made void (see R v Inhabitants of Wroxton, 4 B and Ad 640).1

I am far from satisfied that the parties have had the necessary knowledge or intent, but that point it is not necessary to decide.

The order of the Court is that Sudanuna is discharged from the custody of Rampiari, and Surajpal is entitled to his custody.

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^[1] Vide Editorial Note.