KARONCHIHAMI v. ANGOHAMI et al.
D. C., Kandy, 6,563.
Marriage of persons living in adultery-illegitimate children-Donation -Gift to concubine-Ordinances Nos. 6 of 1847 and 21 of 1844. A man after the death of his wife cannot lawfully marry a woman with whom he had been living in adultery during the lifetime of his wife; and children procreated in adultery do not become legitimate by the subsequent marriage of their father and mother. A gift to a concubine as such and in contemplation of the continuance of the concubinage may be set aside. Bastards not begotten in adultery or incest are not prohibited from taking under their parents' will or deed; and since the passing of Ordinance No. 21 of 1844 a father may leave all his property to such illegitimate children either by will or act inter vivos to the exclusion of his legitimate ones. Held by Bonser, C.J., and Withers, J., dissenliente Lawrie, J., that Ordinance No. 6 of 1847 does not contain the whole law of marriage in force in Ceylon, and that the Roman-Dutch Law is still in force in certain respects.An action to set aside a deed of gift on the complaint of its being inofficiosa is barred after the lapse of three years under section 11 of Ordinance No. 22 of 1871. THE facts of the case are stated in the judgment of his Lordship the Chief Justice. Dornhorst, for appellants.
Wendt, for respondents.
Cur. adv. vult.
26th January, 1897. BONSER, C.J.-
The facts are shortly these. One Sinho Appu, who was married in community of property to one Babahamy, contracted an illicit connection with the first defendant, and by her had during the lifetime of his wife two children, the second and third defendants. After his wife's death, which happened on the 20th January, 1883, he wont through the form of marriage with the first defendant and subsequently to this had two more children by her, the fourth and fifth defendants. He died on the 24th November, 1887, intestate, and the first defendant gave birth to the sixth defendant on the 2nd October, 1888, that is to say, 313 days after Sinho Appu's death. Sinho Appu on the 19th of April, 1880, his wife Babahami being then alive, by a deed of donation gave five parcels of land valued at Rs. 4,980 to the first and third defendants, describing them as " my " wife and her child." The consideration for the gift is expressed to be an agreement by the donees " that the said Angohami should " be obedient to me and render me every necessary assistance." Angohami was to " possess the land during her life, and after " that the above said child and any other children which she may " bear after this, and their heirs, descendants, and administrators " are empowered to possess the said land." The deed contained a statement by Angohami that she accepted the gift. The first plaintiff is the only child of Sinho Appu by his wife Babahami, and the second plaintiff is her husband. They seek to have the deed of donation set aside as illegal, and to have it declared that the intestate and Angohami were not lawfully married. On this state of facts the two questions arise, which were argued before us: -(1) Do the defendants or any of them take anything under the intestacy of Sinho Appu ? (2) Is the deed of donation invalid to any, and what, extent ? As regards the sixth defendant, her birth occurred at such a distance of time after the death of the intestate that it would be little short of a miracle if she were his child. I am of opinion that the District Judge rightly held her not to be his child. As regards the second and third defendants, it is clear that being " procreated in adultery " the subsequent marriage of their father and mother, even if legal, could not avail to render them legitimate (see Ordinance No. 6 of 1847, section 31). As regards the first, fourth, and fifth defendants, their rights in respect of the intestate's estate depend on whether the marriage of the intestate with the first defendant was a valid and legal one or not. This raises...
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