UNIVERSITY OF JAFFNA

DEPARTMENT OF LAW
FIRST-YEAR-FIRST SEMESTER
Legal Method – ALLMC11014
ASSIGNMENT – 01
Group - 09

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WORD COUNT - 3012

 1.INTRODUCTION

The process which the judges use to decide the present case by using a former case is simply
known as judicial precedent. If the facts are similar to each other decisions are considered as
precedent. The doctrine of judicial precedent involves an application named stare decesis. Which
the inferior courts are bound to apply the decisions of superior courts. Among the sources of laws,
judicial precedent considered as a primary source of law which derives from one of the great legal
systems which is called as the common law. This concept was influenced by the British who
arrived to Sri Lanka. There are several components in the doctrine of judicial precedent. They are
1. Ratio decidendi 2. Obiter dicta 3. Distinguishing 4. Overruling. In the four cases of KATCHI
Mohamed v. Benadict, Reid v AG, AG v Reid and Abeysundara v Abeysundara we can see several
components of judicial precedent took place.
 2.katchimohamed vs. Benadict (1961)63 NLR

2.1 Fact
The appellant who was a Muslim by the name of Katchi Mohamed married Asiya umma on 3rd
march 1947 at Mannar according to Muslim rites1. They lived together till 1954. In that year he
left Asiya Umma , without divorcing her , he converted to Catholicism , changed his name and on
18th November married Felicia therese Benedict under the No: 19 of Marrige Registration
Ordinance of 19072 at St. Lucia’s Cathedral , Kotahena.
2.2 Issue
I. According to 362 (B) of Penal Code3 whether or not Katchi Mohamed is guilty or bigamy
II. Whether or not Katchi Mohamed’s marriage to felicia therese Benadict is valid

2.3 Judgement
Appeal dismissed4. It is agreed that the appeal should be dismissed. No marriage shall be valid
where one of the parties has contracted a prior marriage which shall not be legally dissolved or
declared void.
2,4 Role of Judicial Precedent
In the Katchi Mohamed v A.F.C. Benedict case, it is not seen that the court used judicial precedents
to arrive at a decision5. Instead, it is seen here that decisions are made based on the existing law
and the interpretation of that law. In this case, representing the appellant, Mr. Nimal Senanayake
(amicus curiae) stated that the According to the section 64 of Marriage registration ordinance No.
19 of 19076,the provisions of that ordinance are applicable only to those who are married under
that ordinance the provisions contained therein do not include Muslims.Accordingly, the argument
of the appellant was that the word "marriage" mentioned in Sections 18 of this Act7 does not mean

1
Katchimohamed v. Benadict (1961)63 NLR
2 Marriage Registration Ordinance No.19 of 1907
3
Penal Code of Sri Lanka ,sec 362B
4
N1
5
ibid
6
N2, sec 64 ““ marriage” means any marriage, save and except marriages contracted under and by virtue of the Kandyan Marriage
Ordinance, 1870,* [* Repealed by Act No. 44 of 1952.]or the Kandyan Marriage and Divorce Act, and except marriages contracted
between persons professing Islam;”
7
N2 , sec 18 “No marriage shall be valid where either of the parties thereto shall have contracted a prior marriage
which-shall not have been legally dissolved or declared void “
"Muslim marriage". Section 188 states that a second marriage is invalid if there is a "prior
marriage". But the contention of the appellant was that "Muslim marriage" does not apply to "pre-
marriage" here.

But the court rejected it and said that although the provisions and restrictions contained herein are
not applicable in the marriage of two Muslims according to Muslim law, the provisions of this Act
are applicable to anyone who marries under this Act, as stated in Section 189 of this It cannot be
said that " prior marriage" does not include Muslim marriages. Gunasekara J. stated that “In my
opinion the context requieres that in this expression the term ‘marriage’ nust be understood to
mean any marriage and not any marriage except a Kandyan or Muslim marriage” 10. Accordingly,
it was also said that "prior marriage" applies to any type of marriage.It is clear from this that instead
of using judicial precedents in this judgment, decisions have been made by giving priority to the
existing law and interpreting it.

8
ibid
9
ibid
10
N1 (507)
 3.Reid v. Attorney – General (1964) 63 NLR
3.1 Fact
The appellant Allen Ellington Reid Alias who was a Roman Catholic married his first wife Edna
Margaret Fredrica De Witt at St.Mary's church, Badulla on 18th of September 1933 under the
11
Marriage Registration ordinance. His second wife also Christian, her maiden name was pansy
Mary Clair Von Haght12. Appellant and his second wife both embraced Islam on 13th of June 1959
and he married her under the 13Muslim marriage and divorce act on 16th of July 1959 while his
first wife still alive.
3.2 Issue
Is a man who is married under the Marriage Registration Ordinance guilty of bigamy if, while his
marriage is still existent, he embraces Islam and marries under the Muslim Marriage and Divorce
Act a woman who has also embraced Islam, even though the marriage is still in existence14?
3.3 Judgement
An individual who is a male Muslim citizen of Ceylon who wishes to marry more than one woman
is fully allowed to do so under the divorce Act. It follows that the respondent was not guilty of the
offense of bigamy, since the second marriage was not void within the meaning of the penal code15
at the time of offense.
3.4 Role of Judicial Precedent
3.4.1. Ratio Decidendi
In this case when the judge delivered the judgement he did not apply any decisions of previously
decided cases. In this case judges used only existing laws when they arriving to decision.
Here,
Judges referred the penal code16 sections and marriage ordinances17.

11
N2
12
Reid v AG (1964) 65 NLR 97 S.C
13
Muslim Marriage and Divorce Act no.13 of 1951
14
N11
15
Penal Code of Sri Lanka
16
ibid
17
N2/N13
Section 362(B) of penal code18 says whoever contracts another marriage while his/her first
husband/ wife still alive shall be Void and shall be punishable with imprisonment for a term which
may extend to 7 years, and also be chargeable to fine.

Section 18 of Marriage divorce ordinance19 coded that If there is a previous valid marriage, the
second marriage is invalid. Now the appellant’s second marriage was registered under the Muslim
Marriage and Divorce Act20. Persons professing Islam can now marry only under the Muslim
Marriage and Divorce Act21. So that marriages under that Ac22t are not marriages within the
definition of the expression “ marriage ” in the Marriage Registration Ordinance23. In this
judgement judges gave priority to the principle of laws not to the judicial precedent. Therefore
judges pronounced the judgement in the favour of Reid.

3.4.2 Distinguishing
In the case of Hajji Mohammed vs Benedict24 the converse position arose. In the comparison of
Reid vs AG25 and Hajji Mohammed vs Benedict26, there can be identified the concept of
distinguishing.
Fact and issues are different in each cases.
In the case of Reid vs AG27, a married man who became a Muslim at the time o f the marriage and
married a second time while the earlier marriage was subsisting. However in the case of Hajji
Mohamed vs Benedict28, The accused was a Muslim he married to a Muslim wife according to
Muslim customs. Subsequently he became a Catholic and married a Catholic woman while his
first marriage was still subsisting. It was held that he was guilty of bigamy. Therefore here the

18
N3
19
N7
20
N13
21
ibid
22
ibid
23
N2
24
N1
25
N11
26
N1
27
N11
28
N1
Reid vs AG29 case was not binded with the decision of the Hajji Mohammed vs Benedict30 because
of distinguishing.

4.Attorney General v. Reid (1966) 67 NLR 25 P.C

4.1 Fact
Fact was same31 as Reid vs AG32. Reid was indicted before the District Court of Colombo and was
convicted of the offence of bigamy under Penal Code section 362(B) 33. He appealed against his
conviction to the Supreme Court and his conviction was quashed. This is a special appeal by
Attorney General of Ceylon, by special leave, from a judgment of the Supreme Court of the Island
of Ceylon.
4.2 Issues
I. Whether Reid’s second marriage is valid or invalid which was done during the subsistence of first
marriage?
II. Whether a person could be convicted of bigamy if his second marriage was done after converting
to a faith which recognizes polygamy?

4.3 Judgment
Since Attorney General of Ceylon couldn’t establish that the second marriage was void by the law
of Ceylon by reason of the earlier Christian monogamous marriage34. The judgment was given
reaffirming the judgment that was given by Reid v Attorney General35 making that respondent was
not guilty of the offence of bigamy. So the Attorney General’s appeal was dismissed by the Privy
Council36.

29
N11
30
N1
31
AG v Reid (1966) 67 NLR 25 P.C.
32
N11
33
N3
34
N31
35
N11
36
N31 (32)
4.4 Role of Judicial Precedent
4.4.1 Ratio Decidendi
In finding that the respond was not guilty of bigamy, the Judicial committee relied on 2 Indian
decision,
M.H.C.R. VII. In 1866, Hindu who become Roman catholic and married under catholic faith. Then
he reverted to Hinduism and married again37. Inner J. examined38 (9 Geo IV c.74 sec.70) according
to this if a Christian person get married to the another person while his/her first marriage wife or
husband still alive, it is guilty and polygamy as an offence exists only by the statutes, and there is
no statute applicable. In this case accused was not Christian, the statutes had no application.
In Datta v Sen3940 Henderson J followed to evaluate the inherent right of humans to change their
faith and follow the personal laws with accordance to their religion by considering the judgment
in the case Advocate-General of Bombay v Jimababai.
Sir Jocelyn Simon P. also in the case Cheni v Cheni41 mentioned the polygamy marriages are valid
according to the change of faith and personal laws as they wish.

4.4.2 Distinguishing
In this case42 of Emperor v Lazar43 where Hindu women had been found guilty of bigamy, the
judges, in that case, referred to the Reg v Allen44 as a ratio but in Reg v Allen the judges declined
to follow the 3 M.H.C.R VII case. They found the accused guilty of bigamy which means the Reg
v Allen case distinguishes the former case of 3 M.H.C.R VII.
Privy council free from binding of stare decisis.
By considering the abovementioned ratios their lordship in AG v Reid dismissed the appeal45.

37
N31 (30)
38
ibid
39
Ibid (31)
40
Datta v Sen (1939) I.L.R.2 (Cal.) 12.
41
Cheni v Cheni 2 W.L.R.17.
42
N37
43
Emperor v Maridos Lazer (High Court of Judicature at Bombay) No 07-01-1926
44
Reg v Allen (1872) LR 1 CCR 367
45
N31 (32)
 5. Natalie Abeysundere v Abeysundere (1998)1 SLR
5.1 Issue
An Action taken by the Victimised Wife Against the second marriage of the husband who
converted to Islam without obtaining a divorce while the first marriage was still in existence46.
5.2 Fact
The material facts in the present case are almost the same as the facts in Reid's case47. The accused-
respondent and his first wife the appellant both Roman catholics48 were married under the marriage
registration Ordinance49 on 27/9/1958.
On 2/6/1980 Abeysundere filed divorce action against his wife. ( the plaintiff appellant ) However
the divorce action was dismissed on 4/9/198550. During the subsistence of the first marriage51 the
accused registered a marriage with one miss Edirisinghe under the Muslim marriage and divorce
Act52. Prior to his second marriage both He and Miss Edirisinghe had embraced Islam. Although
plaintiff Appellant is the legal wife of Abeysundara.
5.3 Judgement
"Reid case was wrongly decided and must be overruled, as stated earlier, the material facts in
Reid's case and in the present appeal before us are almost identical and the legal issues are the
same.The second purported marriage. during the subsistence of the prior valid marriage contracted
under the marriage Registration Ordinance (No19 of 1907 )is void.why notwithstanding the
respondent's conversion to Islam. It follows that the charge of bigamy section 362(B) of the Penal
Code preferred against the respondent is proved."
Held the conversion is not genuine therefore he is convicted of offence punishable bigamy53.

46
Natalie Abeysundere v Cristopher Abeysundere (1998) 1 SLR
47
N11
48
N46 (187)
49
N2
50
ibid
51
N46 (188)
52
N13
53
N46 (200)
5.4 Role of Judicial Precedent
While looking at this case on the basis of Judicial Precedent under the concept of "Distinguishing"
of Stare decisis, the issue, fact ,decisions in some previous cases have been compared with the
present case and the differences have been identified and decided.
1. Valken v Berger
2. Wassenear v Jamson
3. Evans v Evans and platts
4. Strydom v saayman (1949)
5. Reid v AG
Essentially abeysundere v. abeysundere case overruling54 Reid v AG. the Issue and facts in both
the cases are similar.but the earlier cases decision of Reid v AG was Not followed in the present
case the reason is because it was wrongly decided and it has been set aside as an " Abrogated
decision"

54
N46 (200)
 6.Comparison and Contrast

In Katchi Mohamed vs Benadict55 case the muslim appellant Katchi Mohamed performs first
marriage according to muslim rites on 3rd march 1947. Later he left his first wife without divorcing
her and converted to Catholicism , changed his name in 1954 and a second marriage was performed
under No. 19 of 1907 Marriage Registration Ordinance56. In the case of Reid v. AG57 the Catholic
man got married first under the No: 19 of 1907 Marriage Registration Ordinance58. Married a
second time under the muslim rites without divorce from first marriage. He converted to Islam
with his second wife and changed their names before marriage.

There are three elements to prove the bigamy under the section 362B of penal code59. Katchi
mohamed has fulfilled all these three points. Here the first element is fulfilled as the wife of the
appellant's previous marriage is alive. The second element is also satisfied because he contracted
a second marriage. The third element is that the second marriage should be void by reason of its
taking place during the life of the first husband or wife. It was also fulfilled. Therefore he has
committed the offence of bigamy. But reid fulfilled the first 2 of these. Point 3 is met but reid is
exempt as bigamy is not a crime under the Muslim law.

Reid v AG and abesundara vs abeysundara cases fact based on ratio decidendi the underlying
cause in both cases was conversion.
“In the instant case Ameer, the Muslim Priest at Vekanda Mosque has testified to the fact that he
converted to Islam both the appellant and his second wife on 13th June 1959, and that on 16th July
1950 he registered their marriage which according to the notice given to the Quazi of the area
under the Muslim Marriage and Divorce Act60 was a Notice of Intention to contract a second or
subsequent marriage61. The proximity of the date of the second marriage to the date of conversion

55
N1
56
N2
57
N11
58
N2
59
N3 ” Whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of
its taking place during the life o f such husband or wife, shall be punished with imprisonment o f either description
for a term which may extend to seven years, and shall also be liable to fine.”

60
N13
61
N11 (99)
gives room for the suspicion that the change of faith was with a view to overcoming the provisions
of section 18 of the Marriage Registration Ordinance62. But that circumstance does not affect the
validity of the second marriage” According to the evidence of the Quazi and the priests, they were
confirmed that this conversion was bona fide63.
In Reid v AG64 the accused was saved from guilt by the fact that his conversion was bona fide but
in the case of Abeysundere v Abeysundere65 his conversion is not genuine.
Abesundara Vs Abeysundara66
the accused's affairs with another woman during the subsistence of first marriage makes him
decide to Marry second time. but as divorce did not get it, he converted to Islam and got married
for the second time to escape from that matrimonial crime. Therefore it is clear in this case that his
intention to convert is completely in marriage and not in religious involvement and he falls under
the offence of bigamy (section 362(B)of penal code67).

According to the Reid v. AG case68, three elements under 362B of the penal code69 must be
fulfilled to be a begamy. Here the first element is fulfilled as the wife of the appellant's previous
marriage is alive.The second element is also satisfied because he contracted a second marriage.The
third element is that the second marriage should be void by reason of its taking place during the
life of the first husband or wife.But the court pointed out that this third element is not complete.The
reason for this is that under section 18 of the Marriage Registration Ordinance70, any marriage
performed when there is a pre-validated marriage is not a valid marriage, but section 6471 defines
"marriage" in relation to this Act exclude Muslim marriages and Kandyan marriages. The court
pointed out that a person who has embraced the Muslim faith can marry under the Muslim
Marriage and Divorce Act72, since that marriage does not apply to section 18 of the Marriage

62
N7
63
A. E. REID, Appellant, and THE ATTORNEY-GENERAL, Respondent S.C. 0. 15 | 1962—V. 0. (Crim.) Colombo,
2090|N
64
N11
65
N46
66
ibid
67
N3
68
N11
69
N59
70
N7
71
N6
72
N13
Registration Ordinance73, and the appellant, who was married under the Muslim law, can have a
second marriage under the Muslim law. It is also possible that the third element mentioned above
is not proved and therefore he is not guilty under begamy74.

Likewise, in the case of AG V. Reid75, which was discussed in the privy council, the privy council
confirmed the above fact and said that Sri Lanka is a country where different races live, and that
marriage can be registered under three laws. The privy council also pointed out that it cannot reach
a decision that only monogamous marriage should be practiced in Sri Lanka as in a fully Christian
country76.

But In the case of Abeysundere v. Abeysundere77 case which overruled the AG V. Reid case78 ,
the above matters are discussed more widely, and the court pointed out that a marriage is an
agreement between two people and that both parties are bound to keep the provisions included in
this contract79. Accordingly, the court points out that two parties married under the Marriage
Ordinance Act are bound to each other as a compromise to observe the terms under that
Act.Accordingly, the court points out that one person cannot withdraw from the agreement and
unilaterally convert to the Muslim religion and enter into a second marriage. The reason for this is
that in relation to the marriage contract entered into by both parties under the first marriage, in the
marriage registration ordinance 18, 19 (1) and 35 (1) and (2) read together80, both parties have
agreed not to perform a second marriage despite the first marriage being valid. Because Therefore,
the court pointed out that even if someone converts to the Muslim religion, he cannot unilaterally

73
N7
74
N11 (99)
75
N31
76
N31 (32)
77
N46
78
N31
79
N46 (190) “Brett, LJ. in Niboyet v. Niboyef3> (Court of Appeal) expressed himself in the following terms:
“Marriage is the fulfilment of a contract satisfied by the solemnization of the marriage, but marriage directly it exists
creates by a law a relation between the parties and what is called a status of each. The status of an individual, used as
a legal term, means a legal position of the individual in or with regard to the rest of a community. That relation
between the parties, and that status of each of them with regard to the community, which are constituted upon
marriage are not imposed or defined by contract or agreement but by law.”

80
N2 , Sec 18/19(1)/35(1)/35(2)
avoid this agreement. There is little doubt that section 1881 expressly prohibits polygamy and
82
sections 18, 19 (1) and 35 (1) & (2) read together show beyond doubt that the Marriage
Regisration Ordinance contemplates only a monogamous marriage

Critique and Recommendation

The Judicial Precedent is a distinguish source of law which prevails in the legal system of Sri
Lanka that provides a great support to preserve the value of law. By following the judicial
precedent, the flexibility of law can be expected. The learned judges have the authority to create
laws, maintain laws also for overruling decisions.

we believe by following the judicial precedent, the integrity of the law will be established within
a country. But in some circumstances it is possible to affect the precedent negatively too.
Sometimes the rigidity of the law also will emerge under the concept of judicial precedent.
However it is considered as an important source of law in Sri Lanka. With relevant to these facts
we can assume that under the components of judicial precedent the judgment of the Abeysundara
v Abeysundara will be a binding precedent for a future cases and also in some circumstances the
decision of this case will be affects whether in good or bad for the later cases. Also there is a
chance to overrule the judgment of the Abeysunara v Abeysundara due to the development of the
law which happens with the time or as a result of changing the situation of the country than the
period which the judgment of Abeysundara v Abeysundara was delivered.

81
N7
82
N80
 Group Members Tasks Perfomed

1. 2021/L/084 Katchi mohamed v. Benadict Case ,

2. 2021/L/079 Comparison and Conclution
3. 2021/L/092
4. 2021/L/022 Reid v. Attorney – General case and Comparison
5. 2021/L/095
6. 2021/L/074 Attorney General v. Reid,
7. 2021/L/086 Comparison and Introduction

8. 2021/L/024 Natalie Abeysundere v Abeysundere case and Comparison

9. 2021/L/067