In Revision jurisdiction “exceptional circumstances” required even if no appeal lies
Marriage Not Void Without Court Order: SC Affirms Maintenance Rights of Hudson Samarasinghe’s Second Wife
The Supreme Court has held that it is imperative to obtain a suitable order from a competent court to nullify a marriage. In maintenance applications before a Magistrate’s Court, producing the marriage certificate is sufficient to establish spousal status at the outset; if the respondent says the applicant is not a spouse, the burden shifts to the respondent to rebut it with a decree from a competent court.
A tangled story:
Hudson Samarasinghe first married Padmini (Meemanage Pathmini) Perera. Later, on 17 June 1985, he contracted a second marriage to Thilaka Wadasinghe Liyanarathnage, registered under the Marriage Registration Ordinance (MRO). The certified extract recorded Hudson as “unmarried” and described as the husband of Padmini whose whereabouts had been unknown for seven years. That detail mattered.
Under the Evidence Ordinance, Section 107 creates a presumption of life, but Section 108 (as amended in 1988) recognizes that prolonged unheard-of absence can rebut that presumption—historically at seven years (the Registrar appears to have acted on that period in practice), thereby explaining why the Registrar proceeded to solemnize Hudson’s second marriage despite the earlier union.
Years later, Hudson was charged with bigamy under Section 362B of the Penal Code. He was convicted by the Magistrate’s Court in 1997, but on appeal in 1998 the Provincial High Court set aside the conviction, noting his belief—grounded in the “seven-year absence” exception—that he lacked the requisite mens rea and, tellingly, observing that it saw “nothing wrong in the eyes of the law in contracting the second marriage”.
The maintenance action by the second wife
In 2004, Thilaka (the second wife) filed a maintenance application in the Colombo Magistrate’s Court for herself (and initially also for her son). Hudson raised a preliminary objection, arguing Thilaka was not his “spouse” because the second marriage was a nullity while the first wife lived. The Magistrate overruled the objection on 12 February 2007 and granted interim maintenance under the proviso to Section 11 of the Maintenance Act, No. 37 of 1999.
What Hudson argued in the Magistrate’s Court—and then up the appellate chain—was essentially this: the bigamy chargesheet and the fact of the subsisting first marriage meant the second marriage was void ab initio, so no maintenance could lie. He contended that no further decree was necessary: the law itself made the later marriage void.
“…This very proposition was considered by this Court in the judgment of Seneviratne v Premalatha (2016) 1 Sri L.R. 82. In that instance, one of the questions of law on which the said appeal was argued was, “In terms of the provisions of Section 18 of the Marriages (General) Ordinance No. 19 of 1907 as amended, read together with the provisions of Section 607 of the Civil Procedure Code, is it imperative for any husband or wife to present a Plaint praying that his/her marriage may be declared null and void on any of the grounds recognized by the law applicable to Sri Lanka?”
Gooneratne J, after taking into consideration of the deceitful conduct of the respondent that he contracted the marriage in question by supressing the fact that he was already married twice, answered the said question of law in the affirmative. The line of reasoning adopted by his Lordship in arriving at the said conclusion was influenced by the following quotation, reproduced in that judgment (at p. 90) taken from the Text Book on Family Law by Jonathan Herring (6th Ed, at p.59):
“If at the time of the ceremony either party is already married to someone else the ‘marriage’ will be void. The marriage will remain void even if the first spouse dies during the second ‘marriage’. So, if a person is married and wishes to marry someone else, he or she must obtain a decree of divorce or wait until the death of his or her spouse. If the first marriage is void, it is technically not necessary to obtain a Court order to that effect before marrying again, but that is normally sought to avoid any uncertainty. In cases of bigamy, as well as the purported marriage being void, the parties may have committed the crime of bigamy”
Thus, the most prudent action that should be taken by a party, if it were to have its marriage nullified, rather than merely pointing out to a provision of law by which such marriages are said to be null and void, is to must obtain a declaration to that effect by a competent Court. – Justice Achala Wengappuli
Was a chargesheet enough, or did he need a nullity order?
The courts consistently rejected that position. The High Court (on revision) and later the Court of Appeal held that a marriage subsists in law until dissolved or declared null by a competent court. A chargesheet (or even a prior criminal prosecution) does not nullify a civil status by itself. The Family Court has sole original jurisdiction over divorce, nullity, and separation (Judicature Act, s.24; CPC, Ch. XLII incl. s.607).
The Supreme Court agreed. It emphasized that for Maintenance Act s.2(1) purposes, a certified marriage extract is prima facie proof of spousal status in the Magistrate’s Court. If the respondent says “this marriage is void,” he must produce a decree—the Magistrate cannot adjudicate nullity in limine. In this case no civil court had declared the Hudson–Thilaka marriage void, so Thilaka remained “the spouse” for maintenance.
The Court also explained the Evidence Ordinance dimensions: while s.107 presumes life, the long-absence framework of s.108 (and related seven-year practice reflected in other laws) explained the Registrar’s decision to solemnize the second marriage at the time. Having relied on that presumption to defeat bigamy, Hudson could not then avoid maintenance by simply asserting—without a civil decree—that the second marriage never existed in law.
The Supreme Court dismissed Hudson Samarasinghe’s appeal, affirmed the Magistrate’s, High Court’s and Court of Appeal’s orders overruling his preliminary objection, and awarded costs to Thilaka Wadasinghe Liyanarathnage.
“…Hence, the entitlement to a monthly allowance of maintenance is essentially dependent on the status of the applicant, for he or she must qualify to be considered as “spouse” of the person against whom the application is made. In this regard the Certificate of Marriage indeed provides sufficient undisputed proof of that fact. Since it is the exclusive domain of the Family Court to make declarations in relation to all actions “… for divorce, nullity and separation” and in the absence of such a decree made to that effect by a competent Court, it must be concluded that the Magistrate’s Court, in order to determine the entitlement of the Respondent to her claim of maintenance against the Appellant, cannot determine the validity or otherwise of a marriage referred to in the Marriage Certificate “fm2”, in the guise of determining whether she is the “spouse” of the Appellant, in terms of Section 2 of the Maintenance Act…” – Justice Achala Wengappuli
In Revision jurisdiction “exceptional circumstances” required even if no appeal lies
In a companion holding of procedural importance, the Supreme Court reiterated that revision is an extraordinary remedy. Whether or not an appeal is available, a party invoking revisionary jurisdiction must demonstrate exceptional circumstances warranting intervention. Revision is not a substitute for appeal. Applying that principle, the Court upheld the Court of Appeal’s approach in insisting on exceptional grounds before exercising revision against interlocutory orders made in the maintenance proceedings.
“…It is important to note the expression “whether an appeal lies or not” in the context of the question of law that must be decided by this Court. This pronouncement was cited with approval by this Court in Union Culling Knit Garments (Pvt) Ltd., and Others v Habib Bank (2004) 3 Sri L.R 128, at p. 133……………….Thus, irrespective of the fact “whether an appeal lies or not” the judicial precedents referred to above indicate that an applicant must establish exceptional circumstances, when he moves an appellate Court to act in revision….” – Justice Achala Wengappuli
Case No: S.C. Appeal No.22/2020 [Decided on 28.05.2025]
Before: E.A.G.R. AMARASEKARA, J. ACHALA WENGAPPULI, J. MAHINDA SAMAYAWARDHENA, J
