In re Dukhan [1942] FJLawRp 1; [1875-1946] 3 FLR 306 (17 February 1942)

[1875-1946] 3 FLR 306

SUPREME COURT OF FIJI

Civil Jurisdiction

re DUKHAN.

Corrie, C.J.

February 17, 1942

Marriage Ordinance, 1918-s.12 - Notice of Marriage - intended bridegroom already married according to Hindu law - refusal of Registrar-General to issue marriage certificate-whether prior marriage valid-whether the Court is - bound to follow a judgment given in its Criminal Jurisdiction.

In October 1939 Dukhan an Indian female filed with the Registrar General a Notice of Marriage and Declaration in accordance with s.12 of the Marriage Ordinance. The form stated that the applicant was "Married according to Hindu law about 14 years ago to one Sautu F/N Samthawan, but no longer living with him for the last three or four years". Dukhan applied to the Registrar-General for the issue of a certificate for marriage on 17th November 1939. The Registrar-General refused and Dukhan applied for and obtained a rule nisi for a mandamus.

HELD -The Court in its civil jurisdiction is bound by the rule of stare decisis to follow the judgment in R v. Surajpal [1934] 3 FLR - (according to which decision the prior marriage was valid.)

[EDITORIAL NOTE -This judgment follows the line of cases on the validity of Indian customary marriages:-

In re Sudman [1932] 3 FLR

R v Surajpal [1934] 3 FLR

R v Sarjudei [1937] 3 FLR

The point taken by the applicant as to the view to be taken in cases where the personal law of the parties allows polygamy is no longer answered by sub-s.(2) of s.63 of the Marriage Ordinance as the sub-section was repealed in the 1945 revision. See now the Marriage Ordinance Cap. 118 s.58 and the Penal Code Cap.5 s.171. R v Rama [1946] 3 FLR appears to overrule this decision.]

Cases referred to:-

(1) Newton v Cowie [1827] EngR 494; [1827] 4 Bing 234, 130 ER759; 13 Dig. 179

(2) R v Surarjpal [1934] 3 FLR

(3) R v Sarjudei [1937] 3 FLR

RETURN TO A RULE NISI FOR A MANDAMUS. The facts and arguments appear from the judgment.

S. Hasan for the Applicant.

The Attorney-General, E. E. Jenkins, for the Respondent.

CORRIE C. J.-On the 18th November, 1939, upon the motion of the present applicant, Dukhan, the daughter of Meloo, this Court granted a rule directed to the present respondent, the Registrar-General of Marriages, ordering him to show cause why a mandamus should not issue commanding him to issue a certificate of marriage to the Applicant. The facts which gave rise to this motion were as follows:

On the 26th October, 1939, the Applicant, in accordance with the provisions of s. 12 of the Marriage Ordinance 1918, had filed with the Respondent a Notice of Marriage and Declaration in the form prescribed in the schedule to the Ordinance. The name of the intended bridegroom was stated in the notice to be "Saran Singh fin Maiya Singh" and the condition of the Applicant was stated to be " married according to Hindu law about 14 years ago to one Santu f/n Samjhawan, but no longer living with him for the last three or four years."

On the 17th November, 1939, the Applicant applied to the respondent to issue to her a certificate for marriage under the Ordinance, but the Respondent refused. The grounds of his refusal were stated in a letter dated the 17th November, 1939, in the following terms:-

"With reference to your application for Certificates for Marriage in pursuance of notice of marriage given by you on the 26th October, 1939, I have to advise that, as you were married according to Hindu law about 14 years ago to one Santu f/n Samjhawan who is still alive, such a marriage is valid and legal according to the decision of the Supreme Court in Rex v Surajpal. As you are therefore already married, I am unable to issue a Certificate for Marriage under the Marriage Ordinance 1918 ....."

The Applicant thereupon commenced these proceedings.

On behalf of the Applicant MR Hasan has argued that the judgment of this Court in Rex v Surajpal is not binding upon the Court in its civil capacity.

Clearly, however, if the Court were now to grant the applicant's prayer and order the Respondent to issue a certificate for marriage and· the Applicant, in virtue of that certificate were to be a party to a marriage ceremony, she would in accordance with the judgment in Surajpal's case be liable to prosecution for bigamy, unless the effect of the judgment of this Court in these proceedings were to overrule the judgment in Surajpal's case. The Court therefore cannnot ignore the judgment in Surajpal's case, and is bound either to follow it, or, if sufficient ground be shown, to give a judgment which in effect must overrule it.

Mr. Hasan further argued that these are grounds which were not placed before the Court when Surajpal's case was argued, and to which in consequence the principle of stare decisis cannot apply; and that had they been before it, the Court must have come to a different conclusion.

The Court has had the advantage of hearing from the Attorney-General, who appeared on behalf of the Respondent, an account of the successive steps in the development of the law of this Colony with regard to the marriage of Indians.
It is suggested that had a statement of this nature been made to the Court in Surajpal's case, the decision in that case would have been different.

Upon perusal, however, of the report of Surajpal's case, I find that MR Grahame, who appeared for the defence, went fully into the earlier history of the law of marriage as regards Indians, and that it was with a full knowledge of that earlier law that the Court framed its judgment.

It was also suggested in argument that in Surajpal's case the Court had assumed, without any ground for so doing, that the law of this Colony would regard a marriage celebrated during the existence of a previous legal marriage as bigamous even when the personal law of the parties allowed of polygamy or polyandry.

That objection, however, is answered by the sub-section added to s.63 of the Ordinance of 1918 by s.3 of Ordinance 35 of 1929^[1],

"(2) Any person who shall knowingly and wilfully procure his or her marriage to be solemnized or registered during the existence of a legal marriage to which he or she is a party shall be guilty of the felony of bigamy if the spouses in the second marriage are different to the spouses in the legal marriage".-
I am thus unable to find that any matter has been placed before this Court in the course of these proceedings which was not before the Court when Surajpal's case was decided.

It follows that the rule stare decisis must prevail. That rule is stated in the 8th Edition of Broom's Legal Maxims, at page 121 in the following terms:-

"It is then an established rule to abide by former precedents, stare decisis, where the same points come again litigation, as well to keep the scales of justices steady, and not liable to waver with every new judge's opinion, as also because, the law in that case being solemnly declared, what before was uncertain and perhaps indifferent is now become a permanent rule, which it is not in the breast of any subsequent judge to alter according to his private sentiments."

The same rule was expressed by Best C.J. in Newton v Cowie, (4 Bingham 241, 130 English Reports, 762) when in dealing with a point raised in that case, he said:-

"I will first consider this in the authorities which are to be found. If these are consistent we are bound by them, even although our own minds do not approve the principles on which they rest. There would otherwise be no certain rule which could be known to those who are required to conform to the law."

The rule stare decisis has indeed already been applied to the judgment in Rex v Surajpal as it was upon that principle that the judgment in Rex v Sarjudei was based.

The rule granted by this Court on the 18th November, 1939, is discharged and the application dismissed.

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^[1] Rep. Vide Marriage Ordinance Cap.118 s.58 and Penal Code Cap.5 s.171.