Muslim law applies to all Muslims, whether Muslim by birth or by conversion to Islam.” Reid .v. In the Attorney General's case decision, in the case of an ordinary marriage, it was considered valid to convert to Islam and perform another marriage according to Muslim law. This decision was made by the Royal Court in Attorney General .v. The Reid case was upheld. 

 


 

This was the situation prior to the Abeysundara case decision. Case in point A Christian, Mr Reid married Edgar Margaret in 1933 under the provisions of the Common Marriage and Divorce Act. After spending 24 years as husband and wife and having 8 children, these two separated in 1957 and Edgar Margaret filed a maintenance case against Reed. In the year 1959, Mr. Reed had an affair with a widow named Fancy, and the two of them converted to Islam on 13 June 1959 with a view to getting married and were Muslims under the provisions of the Muslim Marriage and Divorce Act No. 13 of 1951. They got married again on the 16th of the month (two days after converting to Islam).

 

 Based on this fact, a case was assigned against Mr. Reid for the criminal offense of polygamy in accordance with Section 362(b) of the Penal Code. Here, his defense was that because he married a second time as a Muslim, he could not be punished under the criminal law as polygamy is legal under Muslim law. determine At the end of the trial, the Supreme Court accepted this defense of the accused and acquitted him of the above charge. The Supreme Court has decided that the accused has had a second marriage shortly after embracing Islam, but in a situation where the prosecution has not proved that his conversion to Islam was a fake act, it must be concluded that it was a genuine conversion and therefore the second marriage is legal and the accused is not guilty of the crime of polygamy. was done Against this decision, the Attorney General appealed to the Royal Court, where the Supreme Court approved the above decision. In this case, the Royal Court upheld the above decision mainly based on the multi-religious and multi-cultural diversity in Sri Lanka. ” In a country such as Ceylon, Where there are many races and creeds and a number of Ordinances and Acts the inhabitants domiciled here have and inherent right to change their religion and personal law and so to contract valid polygamous marriage. If such inherent right is to be abrogated it must be done by statute….. “ Criticism But these two decisions were later criticized by various legal scholars. As they saw it, in a situation where it was not possible to obtain a divorce under the normal marriage law, many problems could have arisen in giving the opportunity to embrace Islam and marry another woman under the Muslim law. "Attorney General After the Reed case, it is clear that in cases where legal divorce is not obtainable under the common law, a man may convert to Islam and enter into a remarriage during the period of the first marriage. This kind of situation is not satisfactory and it can be mentioned that the middle class men get marital relief under the Muslim law which cannot be obtained under the common law by practicing the Muslim religion...

" "The entanglement arising from the Attorney General E. Reed case raises several issues that need to be resolved in the common law of marriage and Muslim law..."

 – Professor Savitri Gunasekara –

 – Personal Law – 

 

Because of this, Natalia Abeysundara is an opportunity to re-analyze this situation. Christopher Abeysundara and others were brought before the Supreme Court. However, due to the Royal Court's ruling on the above situation, the opinion was expressed that the Sri Lankan courts are bound by that decision. Because of this, it was decided to re-examine the validity of the Royal Court decision as a matter of public importance and to re-examine the validity of the Royal Court decision in accordance with Article 132(3) of the Constitution of the Democratic Socialist Republic of Sri Lanka 1978.

 

Abeysundara judgment 

 

1958.09.27 -: Christopher Abeysundara and Natalie Abeysundara married under the Ordinary Marriage Registration Act. 

1980 -: Filed a case for divorce by Mr. Abeysundara and its dismissal. March 

1985 -: Abeysundara converted to Islam and married a woman named Kanthika Edirisinghe. Abeysundara was found guilty of bigamy by the Magistrate's Court. The release of Abeysundara by the Provincial High Court. Ms. Natalia Abeysundara filed a case in the Supreme Court. Here, the Supreme Court decided that even though Christopher Abeysundara became a Muslim and became subject to Muslim law, the bonds of the first marriage under common law had not ended and accordingly ruled that the second marriage under Muslim law was invalid. .

 Attorney General and Attorney General .U. The Magistrate's Court reinstated the punishment given to Mr. Abeysundara by deciding the Reed case decisions. Here the court used the following inputs to arrive at its decision.



1. According to Articles 18, 19(1), 35(1) of the Marriage Registration Ordinance No. 17 of 1907, the law of common marriage is a law that only approves monogamy and prohibits polygamy. That has not been noticed in the judgment of the Royal Court in the case of Reid. 

 2. Attorney General. U.S. In the Reed case, the Attorney General raised the point that the binding of the contract of monogamy, which binds the parties to the marriage by the first marriage registered in the common law, does not end on the fact that one of the parties unilaterally embraces Islam, and accordingly, the second marriage performed during the period of validity of the said marriage. The fact that the Royal Court did not pay attention to the fact that no matter what law is done, it violates the legal bond that is not final in the first marriage contract.

 3. Attorney General. U.S. Although the Reid decision recognizes the right of a person to change his religion, although that person may later submit to Muslim law, the legal obligations of the original marriage under the common law are not terminated in this marriage.

 4. Applying Mudgal case decision given by Supreme Court of India. It was questioned whether a Hindu husband's marriage registered under Hindu law is valid and a second marriage performed under Muslim law after he converted to Islam and submitted to Muslim law is valid. The Supreme Court of India decided here that even if a person is capable of embracing Islam and thereby subjecting himself to Muslim law, under the legal status of the Hindu Marriage Act 1955 which allows only monogamy, as long as the original marriage contract remains valid, the second marriage performed by converting to Islam is void. And accordingly, it is considered polygamy under the provisions of Section 494 of the Indian Penal Code. Due to this, the legal status established in the Reed case decision was reversed in the Abeysundara case decision. Due to this, in the law of Sri Lanka, when there is a marriage under the common law, it was legally established that the criminal offense of bigamy is established by embracing the Muslim religion and entering into another marriage without ending it with a divorce. ” There 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 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” – G.P.S.de. Silva (C.J.) – It can be seen that the Abeysundara case decision will be subjected to various criticisms by various legal experts. According to the former chairman of the Law Commission, Professor Lakshman Marasinghe, there are many factual and legal errors in the decision of the Abeysundara case. According to Mr. Lakshman Marasinghe, A The Mudgal case decision used in the Abeysundara case decision cannot be applied to this. The reason is that in the case of Mudgal, marriage under one religious law was married under another religious law. However, in the case of Abeysundara, what happened was a marriage under a common or non-religious law and then converted to Islam and married under it. Because of this, the Supreme Court should have dismissed the case decision under distinguish. B Section 64 of the General Marriage Ordinance expressly excludes Muslim marriages and divorces through the provisions of that Ordinance. 

C Muslim marriage law does not make a man guilty of polygamy. According to section 24 of the Muslim Marriage and Divorce Ordinance, a Muslim man can marry four wives and even marry more than that. D Also in the decision of the Mudgal case, conversion to the Muslim religion was prohibited in Hindu law. But in the case of Abeysundara, there was no such prohibition in the common law discussed. In the E Abeysundara case decision, the Court radically incorporated the pre-1946 legal position. But it is not suitable for today's multi-religious and multi-ethnic society. This decision is erroneous based on the following facts. 

Thus, even today, this issue is being questioned in various ways and since the decision of the Abeysundara case has not been decided, it will continue to be valid as a legal situation in Sri Lanka. But there are two opinions about it among the legal experts. Therefore, if the judgment is decided tomorrow, then the situation will change again. Therefore, it can be finally pointed out that the need for a stable solution has emerged today.