SEXUAL HEALTH AND HUMAN RIGHTS A legal and ... - The ICHRP

to consider the case of a woman seeking maintenance for herself and her child from a man
who she claimed was her husband due to the fact that they had undergone a customary Kalam
marriage ceremony in the presence of friends and relatives after which they had lived
together and were accepted by members of the community in which they lived as wife and
husband. The man denied the marriage and paternity. In upholding the right of the woman to
maintenance, the court held that where a man and woman are proved to have lived together as
man and wife the law will presume, unless the contrary be clearly proved, that they were
living together in consequence of a valid marriage and not in a state of concubinage.
Additionally, as to what constitutes a valid customary marriage the court held that it must
necessarily vary from region to region, community to community and race to race and
depending on the affluence of the parties even within the same group there could be varying
degrees of elaboration and embellishments in the ceremonies constituting marriage. But some
minimum ritual would be necessary by way of constituting the bare essentials of a valid
customary marriage. In the present case it was the ceremonial partaking of a common meal of
rice and seven vegetables before the relations. It follows that this ceremony of thus bringing
together the parties was a ceremony of valid marriage; no ceremony is prescribed for
embarking on concubinage.
In Jonathan Joseph v. June de Silva 221 the Court of Appeal examined a case related to a claim
of damages made by a woman that the appellant man ‘deflowered’ her on the promise of
marriage but failed to marry her. Her case was that she was a virgin at the time. The man
failed to give evidence in the District Court countering the woman’s case. The court held that
a seduction case must be decided on the preponderance of evidence. The failure of the man to
refute on oath the testimony of the woman given on oath can be treated as corroboration
depending on the circumstance of the particular case, for instance where there is no evidence
of sexual promiscuity on the part of the woman.
In Wijesundera v Wijekoon 222 the Court of Appeal considered the issue of the presumption of
legitimacy of a child born during the continuance of a valid marriage. Here the wife claimed
maintenance for herself and her child whereas the husband admitted marriage but denied
paternity. The woman’s case was that she resided with the husband from the date of their
marriage for 14 months after which she returned to her parents’ home to deliver her child.
She gave birth to the child 2 months later. The husband claimed that on the night of the day
of their marriage he discovered that she was not a virgin and made a complaint thereafter to
the village board. The woman explained how she lost her virginity and soon afterwards was
taken back to her village and returned to her parents. The court stated that in such a case,
where marriage was admitted and the birth of the child during the continuance of the
marriage was proved, the question that arose was whether the man had shown that he had no
access to the mother at any time when the said child could have been conceived. Section 112
of the Evidence Ordinance would be applicable in such a situation, which provided that it is
conclusive proof that the husband is the father of the child because the child was born during
the continuance of a valid marriage, unless he shows that he had no access to the wife at the
time the child could have been begotten or that he was impotent: The court held that in view
of the said presumption created by the section the wife is entitled to rely on it to prove the
paternity of the child. The burden would be on the husband to disprove the said presumption.
The court went on to state that the presumption of legitimacy was rebuttable only by
adducing cogent, clear and convincing evidence. This would in effect mean that the man must
221 1990. Citation not available, however, authors have access to full text of judgment.
222 1990. Citation not available, however, authors have access to full text of judgment.
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