Types of Marriage

According to the Customary

provisions Marriages
Substantive
- Minimum age
requirements GL &
In GL, KL & ML - Consent
TL
-Prohibited
Procedural
relationships
Requirements
- Prior ML
marriages

GL & TL KL ML
 Customary Marriages.
Why customary marriage recognize.

• No provision in MRO that state, unregistered customary

marriages are unlawful, therefore courts have given legal
recognition to the practice of solemnizing customary
marriages.
• S.46 of the MRO cites instances which make any marriage
which has been solemnized ‘knowingly and wilfully’
disregarding the provisions of the Ordinance invalid.” However
None of these instances include the failure to register a
marriage as a ground.
• Nicholas de Silva v. Shaik Ali (1895) 1 N.L.R. 228 court held that
a marriage solemnized by a catholic priest according to
customary rites is not invalid due to failure of registration.
• MMDA contains a specific provision declaring
that nothing in the Act should be construed to
render valid or invalid by reason only of
registration or non registration.(Section 16)
• KL- registration is compulsory and therefore no
customary marriage recognise. Podinona Vs
Herathhami (1985)2 Sri L R 238 held that a
marriage between two Kandyan parties
solemnized according to customary rituals and
not registered was invalid
3 Issues.
1. What if Core requirements (Substantive) fails in a customary
marriage?
2. What if parties purposefully avoid the procedural
requirements?
3. What should parties do in a customary marriage?
 What if Core requirements (Substantive)
fails in a customary marriage
• Examples:
• Thayagaraja Vs Kurukkal (1923) 25 N.L.R 89
Tamil person had contracted a customary Hindu marriage with a
girl aged 11 years and 01 month and had lived with her as
husband and wife even after the girl had come of age, the court
held that the marriage was invalid as the wife was below the
minimum age of marriage at the time of marriage.
• Kandiah v. Thangamany (1953) 55 N.L.R. 569, a man who had
previously married, had contracted a customary marriage with a
woman before obtaining the decree absolute in the divorce
action. The court held his second purported marriage was invalid
as he had contracted it while his first marriage was subsisting.
• In conclusion
• customary marriage is only a recognition of the custom as to the
mode of solemnization.
 What if parties purposefully avoid the
procedural requirements in a CM.
• In Wijegunawardene v. Gracia Catherine (1984) 2 Sri L.R. 381
(Court of Appeal) and Gracia Catherine Vs Wijegunawarden 1986
(2) Sri L.R. 190 (Supreme Court)
plaintiff had given notice of marriage to the Registrar of
Marriages and later went to the Church subsequently with the
defendant to get the marriage solemnised.
mass was held, prayers were read, the priest took a ring and
put it on the defendant's finger and obtained the signatures of
both parties to a book kept in the Church. Candles and oil lamps
were burning in the church during the ceremony.
No certificate issued by the Registrar was given to the priest
and the book signed by the parties was not one kept in
compliance with the provisions of the Marriage Registration
Ordinance.
Disputes.....??????whether married or not ????
Court of Appeal- Wijegunawardene v. Gracia Catherine
(1984)
• that there was no marriage between the parties as
they had not properly registered their marriage
following the procedure laid down in the MRO and the
ceremony conducted at the church was a religious
ceremony and not a customary ceremony. it would
become valid provided it was solemnized according to
customary rites and ceremonies.
Supreme Court - Gracia Catherine Vs Wijegunawarden
1986
• plaintiff who carried the burden of proving the non-
observance of customary rituals failed to discharge his
burden and therefore held that there was a valid
customary marriage
• See the 2001 amendment--- page 18 of the Course
book for new development.
• Chellappa v. Kumaraswamy (1915). 18 N.L.R. 435
• Bridegroom, who had given notice of marriage, took part in the
marriage ceremony where Hindu customary rites were observed.
• The Registrar of Marriages was present to register the marriage.
After the conclusion of the marriage ceremony, a dispute arose
between the bridegroom and the father of the bride regarding the
dowry.
• Thereafter the bridegroom left the house without attending to the
registration of marriage.
• After about one month both the bride and the bridegroom started
living as husband and wife.
• When the validity of their marriage became as issue, the court held
that the failure to register the marriage did not affect the validity of
the Hindu customary marriage solemnized on the day of wedding.
In conclusion
• Still the marriage is valid if they have completed the requirement of
customary marriage. p18
• Burden of proof ????????
 What should parties do in a
customary marriage?
• Sri Lanka is a Multicultural country.
• No exact nature to customary marriages.
• Court interpretations are important to identify.
• tying of thali – must in Jaffna but not in Batticaloa
(Ponnammah v. Rajakulasingham (1948), 50 N.L.R. 135
• Ratnammah v. Rasiah (1947) 48 N.L.R. 475
• tying of a symbolic thali was sufficient and that the
intention behind the act is more important than the
act itself and that there had been a valid customary
marriage between the parties
• Soosaipillai v. Parpathipillai (1985) (2) Sri L.R. 55
• wife, she brought evidence to the effect that Kalam ceremony
was conducted on the day of her marriage. some minimum ritual
would be necessary by way of constituting the bare essentials of a
valid customary marriage and that in the present case it was the
ceremonial partaking of a common meal of rice and seven
vegetables in the presence of relations constituted a valid
customary ceremony.
• However Selvaratnam v. Anandavelu (1941) 42 N.L.R. 487
• basic ingredients and fundamental rituals of a valid
Hindu customary marriage had not been observed.
There was no kurukkal present, no dhobi, no tying of a
thali.. There was no music. There were no sign of
camphor being burnt or coconut being broken or a brass
pot with mango leaves. The court held that failure on
the part of the parties to the marriage to observe
essential requirements of a valid Hindu customary
marriage rendered the marriage null and void.
• Buddihist: Poruwa ceromany
Sophia Hamine v. Appuhamy (1922) 23 N.L.R. 353
• poruwa ceremony was observed, the fingers of both
parties were tied and water was poured on the fingers
in the presence of relatives and that thereafter the
parties lived as husband and wife. It was held that valid
customary rites had been observed
• But it should be noted that non-performance of
poruwa ceremony per se would not render a
customary marriage as invalid.
• Catholic parties: Wijegunawardene v. Gracia
Catherine and Gracia Catherine Vs Wijegunawarden and
2001 amendment