R v Sarjudei [1937] FJLawRp 3; [1875-1946] 3 FLR 210 (19 July 1937)

[1875-1946] 3 FLR 207

SUPREME COURT OF FIJI

Criminal Jurisdiction

R

v

SARJUDEI

Corrie, C.J.

July 19, 1937

Bigamy-Marriage Ordinance 1928-Validity of marriages solemnised according to Indian custom.

Sarjudei was married according to Indian custom on 4th February 1915. On 25th June, 1935 during the life of her husband by the marriage of 1915, she went through a form of marriage in accordance with the law of Fiji with another person. On 2nd January 1935 the husband by the marriage of 1915 obtained a rule nisi for dissolution of the marriage, citing as co-respondent the second "husband".

HELD –

(1) (Following R v Surajpal [1934] 3 Fiji LR-) that a marriage according to Indian custom before 1st April, 1929 (the date of coming into effect of the Marriage (Amendment) Ordinance 1928) is a valid marriage.

NOTE.-It was pointed out in this judgment that s.3 of Marriage Amendment Ordinance 1928 applied to persons married by Indian custom before the 1st day of September, 1929, (and not the 1st day of April, 1929 as was apparently thought in R v Surajpal).

(2) A marriage according to Indian custom is valid notwithstanding that it took place before and not after the enactment of the Marriage Ordinance, 1918.

[EDITORIAL NOTE -The comment in this judgment on a passage in R v Surajpal referring to s.3 of the Marriage Amendment Ordinance, 1928 seems to require explanation.

In R v Surajpal the validity of Indian customary marriages performed prior to 1st April, 1929 was upheld, 1st April, 1929 being the date on which the proviso to s.63 of the Marriage Ordinance, 1918, (which was in favour of the validity of such marriages) was repealed.

By the amending Ordinance (1928) which repealed the proviso in favour of such marriages it was enacted by s.3 (amending s.41 of the principal Ordinance) that:-

"It shall be lawful at any time on or before the 1st day of April, 1930 for any persons married according to Indian custom prior to the 1st day of September, 1929 to sign and subscribe a notice of their desire to have their marriage registered".

Vide Marriage Ordinance Cap. 118 s.42 which declares marriages so registered to be valid.

According to these decisions it would seem that:-

(a) An Indian customary marriage prior to 1st April, 1929 is valid irrespective of whether it is registered under s.3 of the Marriage (Amendment) Ordinance 1928.

(b) An Indian customary marriage between 1st April, 1929 and 1st September, 1929 is invalid (since the proviso was repealed on 1st April, 1929) unless it was registered under s.3 of the amending Ordinance of 1928 before 1st April, 1930.

(c) An Indian customary marriage after 1st September, 1929 is invalid.

Vide however R v Rama [1946] 3 FLR - where it is held that though a customary marriage is in some cases valid it is not monogamous.]

Cases referred to:-

(1) R v Surajpal [1934] 3 FLR-.

(2) Pap worth v Battersby Borough Council [1915] 84 LJKB 1881; on appeal [1916] 1 KB 583; 30 Dig 198.

PROSECUTION on a charge of bigamy. The facts fully appear from the judgment.

The Acting Attorney-General, T. T. Russell for the Crown.

L. Davidson for the accused.

CORRIE, C.J.-The accused is charged with having committed bigamy. The facts found by the Court are as follows:-

(1) That on the 4th February, 1915, a marriage between the accused Sarjudei and the witness Budhai was solemnised in accordance with the rites of Sanathan Dharm; and that such marriage was lawful in accordance with the personal law of the parties.

(2) That on the 25th June, 1935, a marriage between the accused Sarjudei and the witness Labbu was solemnised in accordance with the law of Fiji by the District Commissioner, Ba.

The attention of this Court has been directed to the judgment given by the Court in the case of Rex v Surajpal (21/1934). The material facts in that case were that Surajpal in 1927 was married by Indian custom to one Rampiari, the marriage being performed by two priests, one registered under the Marriage Ordinance 1918 and one unregistered. The marriage was not registered. In 1933, Rampiari being still alive, a marriage ceremony was solemnised between Surujpal and one Piyari. This marriage was celebrated according to the religion and personal law of the parties and in accordance with every requirement of the law of Fiji. Upon these facts the Court held that Surajpal was guilty of bigamy.

For the defence it has been argued that the case of the present accused is distinguishable from that of Surajpal on the ground that the first marriage ceremony in the present case was solemnised before and not after the enactment of the Marriage Ordinance 1918.

Having regard, however, to the ground upon which the judgment in Surajpal's case is based, this fact affords no defence to the present accused.

In the judgment in that case the Court held as follows:-

"It has been argued by learned counsel for the accused that the Marriage Ordinance 1928 shows that marriages by Indian custom solemnised before April 1st, 1930, are only legal if they have been registered under that Ordinance. I dissent from that view. The Ordinance says it shall be lawful etc. and is in fact a declaratory or enabling Ordinance and in no way renders illegal or void anything done prior to its enactment. The Marriage Ordinance 1928 repeals the proviso to s. 63 of the Marriage Ordinance 1918 and therefore at the present time the certificates for marriage and registration thereof are necessary for a legal marriage, but I am satisfied that in 1927 this was not so and accordingly I hold that marriages solemnised by Indian priests prior to 1st April, 1929, according to the personal law and religion of the parties and whether such priest was registered or not, are legal and valid provided always that the parties so intended.

It is clear that in so holding the Court based its judgment upon a ground which is equally applicable whether the first marriage ceremony took place before or after the Marriage Ordinance 1918. Actually s. 3 of the Marriage (Amendment) Ordinance 1928 applies to persons married by Indian custom before the first day of September (and not the first day of April) 1929; but with this amendment, the decision as to the law governing Indian customary marriages in this Colony must be held to be binding upon this Court in accordance with the principle expressed by Scrutton J., as he then was, in Papworth v Battersby Borough Council [1915] 84 LJKB page 1881 at page 1885: "My view of the judges of this division is that they follow and should follow the decision of another judge of the same division on a point of law, leaving it to the Court of Appeal to say whether or not that decision was wrong".

Apart from authority, however, it would introduce confusion into the administration of the criminal law of this Colony if this Court, having held in I934 upon the facts then before it, that an accused person was guilty, should now hold, upon a set of facts indistinguishable from the former, that another accused person is innocent.

It follows that it is unnecessary for the Court to express any view upon the learned argument put before it by the Acting Attorney-General as to the effect upon these proceedings of a decree nisi issued by this Court in favour of the witness Budhai against the accused Sarjudei decreeing the dissolution of their marriage.

The Court finds the accused guilty of bigamy.

SENTENCE.

It is clear that at the time of the second ceremony the accused was under the honest belief that she was free to marry so that her conviction does not call for more than a nominal penalty. The accused is sentenced to serve a term of 24 hours imprisonment and upon that sentence is entitled to be released forthwith.