The Abeysundere DecisionLegislative Intervention Imperative

By
Justice Saleem Marsoof, P.C
Judge of the Supreme Court of Sri Lanka
[This article has been based on a lecture delivered by the author to the Law
Students Muslim Majlis at the Sri Lanka Law College on Tuesday, March 29th
2005.]

Introduction
The recent decision of the Supreme Court of Sri Lanka in Abeysundere v
Abeysundere1 dealt with the question whether a man who had entered into a
monogamous marriage prior to embracing Islam would be guilty of bigamy if he
thereafter contracts a marriage under Muslim law with a person professing Islam,
during the subsistence of the first marriage. The issue was not a new one and had been
previously considered by the Privy Council in Attorney General v. Reid,2 but the
Supreme Court took many by surprise when it purported to overrule the latter decision
and held that the man was guilty of bigamy. The decision of the Supreme Court has
provoked a great deal of discussion in Sri Lanka and abroad, and much has been
already written about the case.3 The objective of this article is to analyse the decision
in its historical and social context, expose its inherent deficiencies and maladies, and
recommend legislative measures for remedying such maladies.
Islam and Polygamy
It is necessary to explain at the outset the Islamic attitude towards sex and marriage.
Islam does not consider sexual desire per se as evil. It provides for the satisfaction of
this natural instinct by ensuring healthy and desirable sex relations. According to the
Islamic approach, marriage is an institution set-up for the wellbeing of the individual
and society.
Polygamy has its advantages in any society. Nature does not permit a woman to have
sexual relations with her husband throughout the year. The institution of polygamy
provides the husband with the means of satisfying his sexual desires with greater
regularity than a man married to a single wife. The institution of polygamy may also
provide a solution where a man wishes to have legal issues but his wife is incapable of
bearing children. In a society where there is unequal distribution of the sexes and
women outnumber men, polygamy may be a blessing to women who could otherwise
1

(1998) 1 Sri LR 185

67 NLR 25

See, Dr. Lakshman Marasinghe Monogamy,Polygamy and Bigamy; Abeysundere v Abeysundere A

Conundrum (1998) Bar Association Law Journal Vol. VII Part II page 44; Saleem Marsoof The
Abeysundere Decision: An Islamic Perspective (1998-1999) Meezan page 59; K.M.M.B Kulatunga,
Natalie Abeysundere v Christopher Abeysundere & Another (1999) Bar Association Law Journal
Vol. VIII Part 1 page 109; Cyrene Siriwardhana, Bigamy Revamped Abeysundere v. Abeysundere
Moot Point, Vol 2, Issue 1 page 12 and Dr. Jayantha Perera, A Sociological Note on the Bigamy
Case Abeysundere v Abeysundere (2004) Law College Law Review, page 14.

never hope to marry. Polygamy also helps in a society in which there is need to
increase the population.
It must not be forgotten that polygamy has many disadvantages. The physical and
mental strain of having to live with, and satisfy, many wives will no doubt affect the
health of the husband, and the jealous nature of women can lead to serious
matrimonial strife. Another disadvantage of polygamy is over-population, which is a
contemporary social problem in Sri Lanka. Even more serious is the problem of
destitute married women and children who are deserted by their husbands and fathers
who continue to marry and be merry.
The permission to marry four wives is contained in the Holy Quran. In the verse
entitled Sura Nisaa, which was revealed immediately after the disastrous Battle of
Uhad which left many widows and orphans, it is stated
If ye fear that ye shall not
Be able to deal justly
With the orphans,
Marry women of your choice,
Two, or three, or four;
But if ye fear that ye shall not
Be able to deal justly (with them)
Then only one.
That will be more suitable,
To prevent you
From doing injustice.4
It must be remembered that prior to the revelation of this verse there was no limitation
on the number of wives a man could have, and some men had a large number of wives
- sometimes exceeding one hundred. The above quoted verse had the effect of
restricting the number of wives a man could have at any point of time to four. Islam
stands for moderation, and excess even in regard to the number of wives was
considered at all times to be bad and sometimes even dangerous. It is also significant
to note that the above verse emphasises that polygamy is permitted in exceptional
circumstances only to those men who have the confidence that they are able to deal
justly with the several wives. The onerous nature of the condition of being fair and
just is emphasised by Allah elsewhere in the same verse
Ye are never able
To be fair and just
As between women
Even if it is
Your ardent desire..5
It is clear from the above quoted passages and the commandment in Sura Nur to marry
those among you who are single6 that the Quranic prescription was monogamy and

The Holy Quran (Edited by Abdullah Yusuf Ali) Sura Nissa IV::3.
The Holy Quran (Edited by Abdullah Yusuf Ali) Sura Nissa, IV:129
6
The Holy Quran (Edited by Abdullah Yusuf Ali) Sura Nur XXIV:32
5

not polygamy. The Muslim Marriage and Divorce Act7 accommodates within its
framework polygamous marriages, but imposes the additional requirement of giving
notice of the intended marriage to the existing wife or wives.8 However, it is necessary
to note that this procedure is generally observed in the breach. Furthermore, there does
not appear to be any mechanism to bring to book the errant men who do not even
observe the very minimal safeguards built into the law with a view of putting moral
pressure on persons seeking to exercise the privilege of polygamy. The Act does not
incorporate the conditions insisted upon by the shariat for the exercise of polygamy.
In Sri Lanka there is the further problem of men of other faiths embracing Islam
purely for the purpose of evading the stringent marriage and divorce laws applicable
to them. While the many advantages of polygamy mentioned above clearly justify the
recognition given by the Muslim law of Sri Lanka to the institution of polygamy, the
disadvantages noted above make judicial control of the exercise of polygamy most
desirable. The law has recently undergone change in several jurisdictions including
India and Pakistan, where the prior approval of the Quazi or the Arbitration Council is
required for entering into a second or subsequent marriage.9 It is submitted that the
imposition of such a requirement by legislation will mitigate hardships caused to
Muslim women as a result of irresponsible plural marriages and also discourage
colourable conversions to Islam.
It may be concluded that while monogamy is preferred to polygamy, polygamy is
certainly better than the separation of the spouses and even the children
consequent upon divorce arising from the desire of a married man who wishes to
marry again. Strict monogamy as practised in western societies and reflected in the
general matrimonial law of Sri Lanka, leads to adultery, fornication and irresponsible
sexual behaviour to the detriment of the children and the society at large.
The Legal position prior to the Abeysundere decision
Pursuant to the pledge that the administration of justice shall be continued in Sri
Lanka (then Ceylon) in conformity to the laws and institutions that subsisted under
the ancient government of the United Provinces,10 the British rulers of this country
recognised that A man is according to the law of Mahamed permitted to marry four
wives11 Although the Mahamedan Code has since been replaced by other
legislation, even today a Muslim male is entitled to exercise polygamy subject to the
statutory duty of giving notice of the intention to contract a second or subsequent
marriage.12 It is also well established in Sri Lanka that a Muslim male who contracts
a second or subsequent marriage during the subsistence of an existing marriage or
marriages does not commit the offence of bigamy under Section 362B of the Penal
Code.13
7

8
9

The Muslim Marriage and Divorce Act No. 13 of 1951, as subsequently amended, Cap 134,
Legislative Enactments of the Democratic Socialist Republic of Sri Lanka, Vol VI (1980:Revised
Unofficial Edition).
ibid., Section 24.
For a survey of the law in other jurisdictions, see Saleem Marsoof, Polygamy : Is Judicial Control
Desirable ? (1983) Meezan.

10

Sections 1 and 2 of the Proclamation of 23 rd September, 1799.

Section 100 of the Mahomedan Code, Minutes of Council, 5 th August, 1806, Legislative Enactments of Ceylon,
Volume I (1707-1879) page 34.
12
See, Section 24 of the Muslim Marriage and Divorce Act No. 13 of 1951, supra note 7.
13
Section 362B of the Penal Code No.2 of 1883 as subsequently amended, Cap 25 of the Legislative Enactments of
the Democratic Socialist Republic of Sri Lanka, Vol. VI (1980: Revised Edition). See also, Reid v Attorney
11

The Constitution of the Republic of Sri Lanka recognises that every person is entitled
to freedom of thought, conscience and religion, including the freedom to have or to
adopt a religion or belief of his choice, and follow its precepts.14 The Constitution also
upholds the freedom of every person to manifest his religion for belief in worship,
observance, practice and teaching.15
Even prior to the incorporation of these fundamental rights into the Constitution, it
was acknowledged by the Privy Council in Attorney General v. Reid16 that a man who
first marries under the Marriage Registration Ordinance according to Christian rites,
and thereafter embraces Islam and enters into another contract of marriage with a
person professing Islam during the subsistence of such first marriage, will not be
guilty of bigamy. The matter was argued in the Privy Council upon the express
admission of Counsel for the State that the conversion of the accused to Islam was
sincere and genuine notwithstanding doubts expressed in the Courts below on this
point17 mainly by reason of the fact that the second marriage was contracted just
three days after the man embraced Islam.18 In the course of his judgement, Lord
Upjohn emphasised that Ceylon was a country that was home to more than one religion,
and went on to observe that
In their Lordships view in such countries there must be an inherent right in the
inhabitants domiciled there to change their religion and personal law and so to
contract a valid polygamous marriage if recognised by the laws of the country
notwithstanding an earlier marriage. If such inherent right is to be abrogated it
must be done by statute. Admittedly there is none.19
The right afforded by the law to a Muslim male to contract plural marriages came to
be used by non-Muslim males to avoid the rigours of their own personal laws, which
did not permit divorce even where the marriage has irretrievably broken down. The
open abuse of polygamy by non-Muslims has in recent times engaged the attention of
our courts and jurists. As the Muslim Law Research Committee chaired by Professor
H.M.Z.Farouque observedThe increase in this type of marriage has caused considerable concern among
Muslims who fear that their personal laws will be brought into disrepute by
persons who profess to be Muslims not from conviction but out of the
unscrupulous desire to utilise to their advantage certain provisions of the Muslim
Law of Marriage which are in practice used by the Muslims in exceptional
circumstances.20

General 65 NLR 97 (SC); Attorney General v Reid 67 NLR 25 (PC). It is relevant to note that Kandyan
Sinhalese practised polygamy and polyandry from time immemorial, but the practice was prohibited by
Ordinance No. 13 of 1859. See also, Hetuwa v Gotia 4 NLR 93.
14
Article 10 of the Constitution of the Democratic Socialist Republic of Sri Lanka
15
Article 14(1)(e) of the Constitution of the Democratic Socialist Republic of Sri Lanka.
16

67 NLR 25
ibid., at page 27.
18
Attorney General v Reid 65 NLR 97 at page 99.
19
Attorney General v Reid 67 NLR 25 at page 32.
17

20

Report: Proposals for the Amendment of the Muslim Marriage and Divorce Act, reproduced in (1978) 4
Colombo Law Review 47 at page 64.

The Abeysundere Decision

The judgement of the Supreme Court of Sri Lanka in Abeysundere v Abeysundere21
appears to be a reaction to the phenomenon of married men governed by the general
law embracing Islam with a view of entering into another marriage without first
having the first monogamous marriage terminated. The accused, Neville Mark
Christopher Abeysundere married Natalie Manel Antoinette Caldera on 27th
September 1958 at All Saints Church, Borella under Section 35 of the Marriage
Registration Ordinance. The marriage ran into troubled waters, and the accused
instituted divorce proceedings against his wife alleging constructive malicious
desertion. The divorce action was dismissed on 4th September, 1985. According to the
dock statement of the accused, he and one Kanthika Edirisinghe embraced Islam
sometime in March 1985. The accused married Kanthika according to Muslim law on
6th October, 1985 just one month and two days after the dismissal of the divorce
action. This circumstance by itself put in doubt the genuineness of the alleged
conversion of the accused to Islam, but the Court did not consider it necessary to
determine this issue in view of its finding that even if the conversion is genuine, a
convert to Islam cannot cast off the statutory obligations that directly arose from
previous marriage in terms of the Marriage Registration Ordinance. The conviction of
the accused for bigamy by the lower court was upheld by the Supreme Court in 1997.
The facts of the Abeysundere case were very similar to those of the Reid case, except
that there were no admissions either way regarding the genuineness of the conversion
of the accused. However, the Supreme Court in the Abeysundere case, did not attempt
to question the genuineness of the conversion, but emphasised the monogamous
nature of the first marriage and the status acquired by the parties by reason of entering
into such a marriage, particularly in the light of Section 35(2) of the Marriage
Registration Ordinance. After considering the Reid case, His Lordship G.P.S de Silva
C.J., made the following observationThere is no question that Reid was free to change his faith, but the true question
which arose for decision was whether Reid could cast off the statutory
obligations which directly arose from his previous marriage in terms of the
Marriage Registration Ordinance by the simple expedient of a unilateral
conversion to Islam. Could he by his own act overcome the incidents of the
marriage he chose to contract in terms of the Marriage Registration Ordinance?
In my view, the answer is emphatically in the negative. The statute expressly
provides for the mode of dissolution of the marriage, and that is the only mode
provided for by law.
The Privy Council in Reids case did not focus on the crucial question whether
by a unilateral conversion to Islam subsequent to a lawful marriage in terms of
the Marriage Registration Ordinance, Reid could absolve himself of the statutory
liabilities incurred and the statutory obligations undertaken by him. The Privy
Council overlooked the fact that the rights of Reid were qualified and restricted
by the legal rights of his wife whom he married in terms of the Marriage
Registration Ordinance. 22

21

22

(1998) 1 Sri LR 185.

ibid., page 194.

It is apparent from this passage that the Supreme Court did not consider that there was
any significant difference between the cases of Reid and Abeysundere. The basis of the
decision in the latter case is that even a person genuinely professing Islam, cannot
exercise the privilege of polygamy in violation of the status and obligations arising from
a previous monogamous marriage. The judgement of the Supreme Court in the
Abeysundere case not only assumes that the pre-existing marriage valid and subsisting
despite the change of religion and personal law, but also declares the subsequent Muslim
marriage void and upholds the conviction of the male party to the said marriage for
bigamy.

Criticisms of the Abeysundere Decision

As already noted, the judgement of the Supreme Court of Sri Lanka in Abeysundere v.
Abeysundere has given rise to a great deal of academic discussion and analysis.23 In
general the following comments may be made regarding the judgement.
(a)

Failure to consider applicable statutory provisions

It is submitted with respect that the judgement of the Supreme Court in Abeysundere v
Abeysundere did not give due regard to the relevant statutory provisions, namely Section
362B of the Penal Code, Section 18 read with Section 64 of the Marriage Registration
Ordinance and Sections 16 and 98(2) of the Muslim Marriage and Divorce Act, which
clearly exempt a Muslim male contracting a second or subsequent marriage with a
person professing Islam, from criminal liability for bigamy. It is possible to argue that
insofar as Sections 16 and 98(2) were not considered at all in the judgement despite their
relevance, the decision has been arrived at per incuriam.24
The offence of bigamy has been defined as the subsequent marriage of a person
having a husband or wife living, which is rendered void by reason of its taking place
during the life of such husband or wife.25 Section 18 of the Marriage Registration
Ordinance26 enacts that no marriage shall be valid where either of the parties shall
have contracted a prior marriage which shall not have been legally dissolved or
declared void, but the word marriage has been defined in the Ordinance so as to
exclude marriages contracted between persons professing Islam.27 It is noteworthy
that the Muslim Marriage and Divorce Act expressly provides that the validity or
otherwise of any Muslim marriage shall be determined according to the law
governing the sect to which the parties to such marriage..belong,28 and it is
expressly declared in the Act that in all matters relating to any Muslim marriage,
the status and the mutual rights and obligations of the parties shall be determined

23

See supra note 3.

The phrase has been defined by Lord Chief Justice Goddard in Huddersfiled Poke Authority v.
Watson, [1947] 2 ALL ER 193, as giving a decision when a case or statute has not been brought to
the attention of the court but in Gunasena v Bandaratilleke [2000] 1 Sri LR 292 at pages 302 -3,
Wijetunga J regarded the definition as too restrictive and extended its utility to all cases of manifest
error.

24

25

Section 362B of the Penal Code, as subsequently amended, Cap 25, Legislative Enactments of the Democratic
Socialist Republic of Sri Lanka, Vol. VI (1980: Revised Edition).
26
Marriage Registration Ordinance, No. 19 of 1907, Cap 131, Legislative Enactments of the Democratic Socialist
Republic of Sri Lanka, Vol. VI (1980: Revised Edition).
27
ibid Section 64. See also, Reid v. Attorney General, 65 NLR 97.
28

Section 16 of the Muslim Marriage and Divorce Act, supra note 7.

according to the Muslim law governing the sect to which the parties belong.29 It is
submitted with very great respect that the Abeysundere decision cannot be reconciled
with any of the aforesaid statutory provisions. Furthermore, as noted earlier, the
shariat permits a Muslim male to have up to four wives at the same time, and the rule
would apply to the accused in the Abeysundere case as the Supreme Court did not
hold that his conversion to Islam was not genuine and valid, or that his subsequent
marriage was not a marriage between persons professing Islam. It is therefore
submitted with respect that the subsequent Muslim marriage, though contracted
without first terminating the monogamous marriage entered into by the man prior to
his conversion to Islam, is nevertheless not void by reason of its taking place during
the life of the first wife, and that this circumstance altogether negatives criminal
liability.
(b) Retrospective imputation of criminal liability
It has to be stressed that the Abeysundere decision also seeks to make a sweeping change
in the law relating to bigamy with retrospective effect as it purports to affect even the
validity of polygamous marriages entered into prior to the date of the said judgement. It
is relevant to note that under the Constitution of Sri Lanka even the Parliament of Sri
Lanka does not have the power to impose criminal liability with retrospective effect
except by the special procedure prescribed by the Constitution. In fact Article 13(6) of
the Constitution provides that No person shall be held guilty of an offence on account
of any act or omission which did not, at the time of such act or omission, constitute such
an offence. As the primary objective of criminal law is deterrence, and the law
applicable to criminal liability arising from a subsequent polygamous marriage
contracted by a person who was party to a prior monogamous marriage was
authoritatively laid down by the Privy Council in Attorney General v Reid, it is
submitted that no deviation or departure from the law as laid down in the said landmark
judgement could be permitted to be made so as to nullify or penalise prior conduct of
individuals who are presumed to know the law as enunciated by the courts.
The Reid case was decided by the Privy Council which at that time constituted the apex
of the judicial hierarchy of this country. In this case the Privy Council has authoritatively
interpreted the relevant statutory provisions. As Kerr L.J has observed
The interpretation of the intention of Parliament as expressed in our statutes is a
matter for the courts. Once the meaning of an Act of Parliament has been
authoritatively interpreted, at any rate by the House of Lords at a judicial sitting
as our highest tribunal, that interpretation is the law, unless and until it is
thereafter changed by Parliament.. This does not involve any substitution of
the views of the judges on questions of policy or discretion for those of the
authority concerned, but merely the interpretation of the will of Parliament as
expressed in its enactments.Therefore any change in the law from its definition
by the courts again devolves to Parliament alone.30
In applying the above dictum in the Sri Lankan context, it is noteworthy that the Reid
case was decided by the Privy Council as the highest court of the land, and its
interpretation of the relevant statutory provisions is binding on future courts in

29
30

ibid., Section 98(2).

R v London Transport Executive, ex p Greater London Council (1983) QB 484 at 490.

accordance with the doctrine of stare decisis. It must be remembered that without the
force of precedent justice would be at the caprice of the individual mind.31
(c) Freedom of Religion
It is submitted with great respect that the judgement of the Supreme Court in
Abeysundere v Abeysundere renders nugatory the constitutionally recognised right of a
person living in a country which is home to more than one religion, to adopt any
religion of his choice32 and manifest his religion or belief in worship, observance,
practice and teaching.33 In Islam, marriage is regarded as shield against evil, and the
Prophet is reported to have stated that whoever is able to marry should marry, for
that will help him lower his gaze and guard his modesty.34 In Attorney General v
Reid the Privy Council recognised the right of a convert to Islam to contract a valid
polygamous marriage even though he had been party to an earlier monogamous
marriage which has not been terminated in accordance with the law applicable to such
marriage. As Lord Upjohn observed in the course of his judgement in Attorney
General v Reid if such inherent right is to be abrogated it must be done by statute.35
In Sri Lanka there are no statutory provisions seeking to deprive a convert to Islam
any of the rights enjoyed by a person who has been a Muslim at birth.
It is interesting to note that in some foreign jurisdictions statutory provisions have been
enacted with a view of restricting the exercise of polygamy by a convert to Islam who
has been a party to a subsisting monogamous marriage at the time of his conversion. For
instance, in Nigeria the relevant statute provides that any person who is married under
this Ordinance shall be incapable during the continuance of such marriage, of
contracting a valid marriage under Native Law or custom.36 It is submitted that in the
absence of such statutory provision, a person cannot in these circumstances be held
liable under the criminal law of Sri Lanka, whether for bigamy or any other statutory
offence.
(d) Colourable conversions to Islam
In the Abeysundere case the Supreme Court did not hold, as it could have on the basis of
the evidence in the case, that the purported conversion to Islam was colourable and
therefore invalid. The court also refrained from expressing any opinion in regard to the
important question whether in an appropriate case it would be willing to pronounce a
colourable conversion to Islam invalid.
It is generally conceded that the thought of a man is not triable, and since the
profession of Islam as the profession of any other religion depends on belief, a formal
profession prima facie is sufficient and a court would not require a person to prove
affirmatively that his belief is genuine, unless there is evidence to the contrary.37
31

G.Lewis, Lord Atkin (1983) page 171.

32

. Article 10 of the Constitution of the Democratic Socialist Republic of Sri Lanka

33
Article 14(1)(e) of the Constitution of the Democratic Socialist Republic of Sri Lanka.
34
35

Sahih Al-Bukhari, Vol VII : Book LXII : Chap 2

67 NLR 25 at page 32

36

See, Section 35 of the Marriage Ordinance of Nigeria. See also, The Queen v Princewell Bartolomew, in
which the accused was convicted for violating Section 48 of the Act which enacted that Whoever
having contracted a marriage under this Ordinance, or any other modification or re-enactment
thereof during the continuance of such marriage contracts a marriage in accordance with the
native law or custom, shall be liable for imprisonment for five years,

37

L.J.M.Cooray, An Introduction to the Legal System of Sri Lanka, (1991 edition), page 137.

There was some evidence in the case tending to suggest that the conversion of the
accused to Islam was not genuine. In particular, the fact that the accused contracted his
second marriage just one month and two days after the dismissal of the divorce action
filed by him against his first wife, raised serious doubts about the genuiness of his
conversion to Islam. In this context it is relevant to note that the question whether an
individuals pronouncement regarding his faith is conclusive as to its genuineness has
arisen fairly early in the history of Islam. Meccan women who had embraced Islam
while their husbands remained as non-Muslims were oppressed for their faith, and
some of them fled to Medina as refugees. Addressing the issues that arose in this
connection, Allah says in Sura Mumtahania38O ye who believe!
When there come to you
Believing women refugees,
Examine (and test) them:
God knows best as to
Their Faith: if ye ascertain
That they are Believers
Then send them not back
To the Unbelievers.
It appears from this Quranic passage that although God knows best whether a
declaration of faith is genuine or not, it is desirable to ascertain, through the judicial
process or otherwise, whether such a declaration ought to be accepted as genuine.
The question as to whether the genuineness of a conversion can be challenged in legal
proceedings has arisen in Sri Lanka prior to the Abeysundere case, in two other
decisions in the context of criminal prosecutions for bigamy. In the Obeysekera case,39
the court convicted the man on the basis that he failed to discharge the onus placed on
him by the law to prove that he professes the Islamic faith, there being no evidence of
he having pronounced himself as professing Islam. This decision is not directly
relevant to the issue of the ability to challenge a colourable conversion in judicial
proceedings as there was no evidence in that case of a conversion in the first place.
In the Reid case,40 the Supreme Court noted that the man in question contracted the
second marriage within three days of allegedly embracing Islam, but went on to hold
that the second marriage was valid according to Muslim law, even though the
proximity of the date of the second marriage to the date of conversion 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 Ordinance.41 The case went to the Privy
Council on appeal, but was argued on the express admission of Counsel that the
conversion of the man to the Muslim faith was sincere and genuine notwithstanding
doubts expressed in the Courts below on this point.42 The Privy Council affirmed the
decision of the Supreme Court and set aside the conviction. Both courts were
influenced by the exclusion of marriages contracted between persons professing
Islam from the ambit of the term marriage as used in Sections 18 and 35 of the

38

The Holy Quran (Edited by Abdullah Yusuf Ali) Sura Mumtahania LX:10
Queen v Obeysekere (1889) 9 SCC 11.
40
Reid v Attorney General 65 NLR 97 (SC); Attorney General v Reid 67 NLR 25 (PC).
41
Reid v Attorney General, 65 NLR 97 at page 99 per Basnayake CJ.
42
Attorney General v Reid, 67 NLR 25 at page 28 per Lord Upjohn.
39

Marriage Registration Ordinance,43 and appeared to be reluctant to make any

pronouncement about the genuineness of the conversion to Islam.
A similar aversion is also noticeable in the judgement of the Supreme Court in the
Abeysundere case. The reluctance of the courts in these cases to go into the question of
the genuiness of the conversion may have stemmed from the undesirability of a secular
court sitting in judgement on an ecclesiastical issue. It is submitted that it is necessary to
carefully consider the desirability of creating a mechanism, acceptable to the
Government as well as the Muslim community, for the purpose of investigating and
making binding determinations regarding the genuineness of conversions to Islam.
(e) Failure to consider applicable principles of shariat law
The decision of the Supreme Court in the Abeysundere case may be criticised on the
basis that the Court failed to consider the applicable principles of the shariat law in the
context of the dual matrimonial regime that operates in Sri Lanka.44 As noted earlier,
when a Muslim (by conversion) marries another person professing Islam, the validity of
the marriage is determined by the Muslim law and not by the law that may have applied
to the convert prior to his conversion to Islam. The decision of the Supreme Court
assumes that the conversion of a married man to Islam (where his first wife does not
chose to embrace Islam) does not ipso jure terminate his first marriage. The legal
position under shariat law is not all that simple.
The Holy Quran in Sura Baqara,45 absolutely prohibits a Muslim male from marrying
Unbelieving women idolaters (mushrikathi) until they believe. This bar will clearly
apply to a marriage between a Muslim male and an idolatress (e.g. a Hindu) or a fireworshiper. Furthermore, according to Minhaj where an infidel of whatever religion is
converted to Islam while married to a woman whose religion is not founded upon some
Holy scripture or is an idolatress or a fire worshipperseparation takes place immediately ipso facto, where the marriage has not yet
been followed by cohabitation. Otherwise, the continuation of the marriage
depends upon whether the woman embraces the faith before the end of the
period of her legal retirement.46
There is a paucity of judicial decisions on this question. In the Indian case of Official
Assignee v Ma Hta Htwe47 the marriage of a Muslim man to a Buddhist woman was
held to be void until she is converted to Islam.
Similarly, a marriage between a Muslim woman and a non-Muslim man is also void ab
initio irrespective of what religion or faith he belongs to. Referring to such women in
Sura Mumtahana Allah says-

43

Marriage Registration Ordinance No. 19 of 1907 as subsequently amended. See, in particular Section 64 for the
definition of marriage.

44

See, Saleem Marsoof The Abeysundere Decision: An Islamic Perspective (1998- 1999) Meezan
page 59

45

The Holy Quran (Edited by Abdullah Yusuf Ali) Sura Baqara II:221.
Mahiudin Abu Zakaria Yahya Ibn Sharif en Nawawi, Minhaj-et-Talibin, Book. 33 Chapter III Section 1 page
295.
47
1929 AIR (Rangoon) 35.
46

10

They are not lawful (wives)

For the Unbelievers, nor are
The (Unbelievers) lawful (husbands)
For them. 48
However, the Holy Quran upholds the validity of a marriage between a Muslim man and
a non-Muslim woman belonging to a revealed religion such as Christianity (Ahl alKitab). In Sura Maida49 Allah saysLawful unto you in marriage
Are not only chaste women
Who are believers, but
Chaste women among
The People of the Book..
Hence, where both parties to a marriage are followers of a revealed religion other than
Islam, such marriage will continue to be valid in the eyes of the shariat even after the
unilateral conversion of one of the spouses to Islam. One consequence of the first
marriage being treated as valid by the shariat is that the terms of such marriage,
including its condition of monogamy, will be recognised and enforced by shariat law. It
has to be remembered that although Islam permits the exercise of polygamy subject to
certain conditions, the Holy Quran encourages monogamy. The shariat will readily
recognise the status of monogamy arising from a previous marriage contracted under the
general law by a person belonging to the category of Ahl al-Kitab.
Indeed, even where the original spouses are Muslims, the shariat has no inhibitions
about enforcing contractual stipulations prohibiting the husband from having a second
wife during the subsistence of the first marriage. Courts administering shariat law have
gone to the extent of enforcing stipulations empowering the wife to pronounce what is
known as talaq-i-tafwid where the husband violates a prohibition or restriction placed by
the marriage contract on the exercise of polygamy.50 Dr. Lucy Carroll, who has done
extensive research on the subject, nevertheless points out that a subsequent marriage
contracted in violation of a mere contractual stipulation of monogamy would still be
valid. Dr. Carroll observes:
Although stipulations in a marriage contract may be perfectly valid and legal
under the Anglo-Muhammadan legal traditions of the subcontinent,
enforcement may, in many situations, pose a problem if the contract does not
itself provide for sanctions in the event of a breach of the agreed terms. If the
marriage contract contained simply a stipulation, for instance, that the husband
should not marry a second wife during the subsistence of the first union, the
stipulation would be valid but practically unenforceable. The husband could
not be prevented from marrying a second wife if the fancy took him and his
second marriage would be valid. The relief available to the first wife would be
extremely limited. The fact of breach of stipulation in a marriage contract may,
in appropriate cases, enable the wife to defeat her husbands suit for restitution
of conjugal rights, and it may, in appropriate cases, enable her to claim
48

The Holy Quran (Edited by Abdullah Yusuf Ali) Sura Mumtahana LX:10
The Holy Quran (Edited by Abdullah Yusuf Ali) Sura Maida V:6.
50
See, Sainuddin v Latifannessa Bibi 1919 I.L.R. 46 Calcutta 141. See also, Dr. Lucy Carroll, Talaq-I-Tafwid:
The Muslim Womans Contractual Access to Divorce (1996 edition) 53.
49

11

maintenance from her husband while refusing to live with himA stipulation
in a Muslim marriage contract may, however, be enforced by further
provisions in the same contract delegating to the wife the right to dissolve the
marriage by talaq-i-tafwid should the husband contravene the stipulation.51
It is therefore, submitted with respect, that the subsistence of a previous marriage
contracted between persons belonging to the category of Ahl al-Kitab will not
necessarily render void in the eyes of the shariat a subsequent marriage entered into by
the male party, even if such marriage was contracted in violation of a stipulation
contained in the first contract of marriage. The position will be different where the
parties to the first marriage were Hindus, Buddhists or persons indulging in idol worship
(mushrikath), and in such as case the first marriage will automatically terminate when
the male spouse embraces Islam unless the female also accepts the Islam faith. There is
some doubt as to which side of the line a case will fall where the parties to the first
marriage were Christians indulging in idol worship. Will in that situation the conversion
of the husband to Islam render the first marriage void as the wife continues her idolatery,
or will the shariat treat the woman as a Kitabiyya as she belongs to the Christan faith
and allow the first marriage to continue in force? This question is of great importance as
the parties to the first marriage in both the Abeysundere case and the Reid case were
Roman Catholics, but no evidence was available in both cases as to whether they
indulged in idolatery. In Katchi Mohamed v Benedict52, the Supreme Court was invited
by the Attorney General to consider whether under Muslim law a marriage was
automatically dissolved by apostasy in the converse situation where a man who was a
Muslim at birth and was married to a Muslim woman under Muslim law was charged
for bigamy upon his marrying a Roman Catholic lady after himself going through a
ceremony of conversion to Catholicism at St. Johns Church at Mutwal. The Supreme
Court declined the invitation to go into the issue of apostasy as the accused had taken
up the position at the trial and the appellate proceedings that he had never abandoned
the Islamic faith although he had gone through the conversion ceremony with a view
of changing his name and marrying the Roman Catholic lady.
It is submitted in respect that the distinction between a kitabia and a woman who did
not fall within the category of People of the Book (Ahl-al-Kitab), as well as the
question of idolatry, would have been of crucial importance in cases such as Attorney
General v Reid53 and Abeysundere v Abeysundere54. Where the parties to the first
marriage are persons not belonging to the category of Ahlal-Kitab, for instance
Hindus, and the male party embraces Islam and thereafter marries a person professing
Islam, according to shariat law the first marriage would be automatically terminated
upon the man embracing Islam, and the second marriage would be valid though
contracted during the life time of the first spouse. Even when the parties to the first
marriage belonged to the category of Ahlal-Kitab, for instance Jehovahs Witnesses
(who do not practice idol worship) a second polygamous marriage would not
necessarily be void. In such instances, since the validity of the second marriage, being
a marriage between persons professing Islam, has to be determined according to the
Muslim law governing the sect to which the parties to such marriage.. belong55 the
second marriage would not be rendered void by reason of its taking place during the
life of the first wife, and there is no question of the man being convicted on a charge
51

ibid., pages 55 to 56.

52

63 NLR 505.

53

(1964) 65 NLR 97 (SC): (1966) 67 NLR 25 (PC).

(1998) 1 Sri LR 185.

54

55

See, Section 16 of the Muslim Marriage and Divorce Act, supra note 3.

12

of bigamy. The judgement of the Supreme Court in the Abeysundere case has
altogether ignored the dual matrimonial regime existing in Sri Lanka. As Prof.
Lakshman Marasinghe observes :
In the dual matrimonial regimes there are two regimes of marriage. One of
monogamy and two of polygamy. Both regimes produce valid marriages side
by side. A person, therefore, could move from one regime to another. One of
the methods by which such a movement may take place is by conversion..
The point that needs emphasis is that in a dual matrimonial regime the second
polygamous marriage does materialise into a valid marriage, valid according to
the polygamous law and therefore by definition, there cannot be conviction for
bigamy.56
(f) Certain pragmatic considerations
The most unsatisfactory feature of the decision of the Supreme Court of Sri Lanka in
Abesundere v Abeysundere is that it attempted to resurrect a marriage which was
irretrievably broken down and which probably stood terminated by reason of the
conversion to Islam of the man in question. The man had instituted divorce
proceedings against his first wife prior to his conversion to Islam, and in fact
embraced Islam no sooner his divorce petition was rejected by the court, no doubt due
to the stringency of the general law applicable to divorce. The decision of the Supreme
Court also went on to render invalid a marriage which was not only valid according to
the personal law of the parties thereto, but also according to the evidence, vibrant with
life and the promise of happiness to the parties. It is fortunate that the second marriage
of Abeysundere had not produced any issues. Indeed, had there been any children born
to the marriage, the judgement of the Supreme Court would have had the effect of
rendering them illegitimate. In fact, if the decision is applicable to the innumerable
other subsequent marriages contracted in similar circumstances, all issues of such
marriages would in law be illegitimate. The question would arise in this context as to
whether the man in question could put the clock back, bring the first monogamous
marriage to an end and thereafter go through the Muslim marriage once again with a
view of rendering the issues of the marriage legitimate. Unfortunately, although the
Legitimacy Act57 provides for the legitimisation of illegitimate children by the
subsequent marriage of the parents, Section 2 (1) (a) of the Act expressly excludes the
beneficial provisions of the Act being applied to a marriage between persons
professing Islam.
Conclusions
The judgement of the Supreme Court in the Abeysundere case has the effect of
discouraging colourable conversions to Islam, and will no doubt at least to some
extent redress the problem of the abuse of Muslim law by non-Muslims. The
phenomenon of colourable conversions to Islam is a serious problem that deserves to
be looked into by the Government and the Parliament of Sri Lanka, but any proposals
for reform should be carefully considered and implemented only with the consensus of
the Muslim community. The attempt to remedy the situation by judicial intervention,
has however, created more problems than it solved.
56

Prof. Lakshman Marasinghe, Abeysundere vs. Abeysundere : Monogamy, Polygamy and Bigamy A
Conundrum, The Island, 8th April 1998, 9th April 1998 and 11th April 1998.
57
No. 3 of 1970

13

The Abeysundere decision is a decision of a divisional bench of the Supreme Court,

which at present the highest court in Sri Lanka. Although in the course of its judgement
in the Abeysundere case the Supreme Court purported to overrule the decision of the
Privy Council in the Reid case, there is considerable doubt as to whether a Divisional
Bench of the Supreme Court, which is not a collective or full court is competent to
overrule a decision of the Privy Council made while it was the apex court of the
country.58 In Perera v Amarasooriya59 it has been held that where there is a conflict
between the decisions of two courts which are equal in authority, a future court has the
discretion to follow either of the two conflicting decisions. The question that arose in the
Reid and Abeysundere cases is one of great importance to Muslims and non-Muslims
alike. It is therefore most desirable to clarify the law by legislation, as courts and other
institutions administering justice will be in a dilemma in regard to the law that ought to
be applied in view of the conflict of authority arising from the decisions of the apex
court in Sri Lanka in the above mentioned cases.
It is submitted that legislation would be the most appropriate method for the
correction of the errors contained in the judgement and for remedying the anomalies
and hardships flowing from it. It is desirable to consider the enactment of a
declaratory statute in the following lines:For the avoidance of doubt it is hereby declared that notwithstanding the
judgement of the Supreme Court in the case of Abeysundere v. Abeysundere,
marriages contracted in accordance with Muslim law between persons
professing Islam where the male spouse had been a party to a marriage under
any law, shall be deemed to be valid and effectual at all times and for all
purposes.
In the past, the legislature has stepped in on innumerable occasions to remedy
anomalies and hardships caused by judicial decisions, and it would be relevant to
mention here that Section 25 (1) of the Muslim Marriage and Divorce Act of 1951
was itself enacted to correct the erroneous impression of the applicable principle of
Shafie law created by the decision of the Board of Quazis in Rhoda Ryde v Ibrahim.60
It is submitted that any attempt to correct or clarify the law brought into disarray by
the judgement in the Abeysundere case without addressing the problem of colourable
conversions would tantamount to treating the symptoms without treating the decease.
In the event of it being decided to nullify the effect of Abeysundere v Abeysundere by
legislation, it would necessary to deal effectively with the phenomenon of colourable
conversions to Islam, which probably motivated the said judgement. This
phenomenon itself a reflection of the state of imbalance in the general law relating to
divorce existing in Sri Lanka. Under the Marriage Registration Ordinance,61 divorce is
available only on the ground of adultery, malicious desertion or incurable impotency
existing at the time of marriage. Conversions to Islam has become the most popular
means of escaping from the stringency of the law. It is worthwhile noting that the
Commission on Marriage and Divorce appointed in 1956 considered the question as to
58

See, Kanagaratna v Banda 25 NLR 129, at page 136 and Bandahamy v Senanayake 62 NLR 313 at
page 369.
59
12 NLR 87 at page 88
60
.3 MMDR 131.
61

See, Section 19(2) of the Ordinance, supra note 20.

14

whether the breakdown of the marriage should be regarded as a basis for the grant of
divorce. The majority of the Commissioners62 recommended that the principle of
recognising the breakdown of marriage as a basis on which relief by way of divorce
should be provided should be accepted. However, it is unfortunate that the said
recommendation has not been implemented by legislation.
Mention should be made of the legislative developments that have taken place in this
regard in the United Kingdom. In that country, the law and procedure has been
considerably liberalised in recent times, and provision has been made for the grant of
divorce where the marriage has broken down irretrievably63. The Act expressly
provides that a marriage is deemed to have broken down irretrievably if one or both of
the parties make a statement that he or they believe that the marriage has broken
down. The Court has merely to ensure that the parties have made arrangements for the
future before the divorce is granted. It is no doubt prudent in Sri Lanka too, to
consider liberalising divorce laws applicable to persons other than those governed by
Muslim law in accordance with the requirements of modern society giving effect to
the majority recommendations of the Commission on Marriage and Divorce referred
to above. It would be necessary to consider amending the applicable legislation by
adding the breakdown of the marriage as a ground for the grant of divorce. It is
submitted that it is necessary to remedy the disease while giving some relief against
the symptoms. It is further submitted that the Government should also carefully
consider the desirability of creating a mechanism, acceptable to the Government as
well as the Muslim community, for the purpose of investigating and making binding
determinations regarding the genuineness of conversions to Islam as suggested in this
article.

62

Venerable Mottunne Sri Indasara Nayake Thero, Messrs. Manameldhura Munidasa Piason de Zoysa,
Dhanusekera Bandara Ellepola, Punchi Banda Ranaraja, Murugesu Vairamuttu, Al-Haj Mohamed
Ismail Mohamed Haniffa, Dr. Joseph Hubert Fernando Jayasuriya and Dr. (Mrs.) Mary Helen
Rutnam, vide Report of the Commission on Marriage and Divorce, Sessional Paper XVI-1959,
Chapter XIII paragraph 25 page 156.
63
The Family Law Act 1996.

15