Polygamous Marriages and the Principle of Mutation
in the Conflict of Laws
M. L. Marasinghe*
I. Introduction
Polygamy is considered primarily a legal concept, giving rise to
a particular legal status, but in fact polygamy symbolises a parti-
cular cultural and religious heritage.1 Religious creeds traceable to
Islam2 limit the plurality of wives to four. Orthodox Hinduism has
no such limitation3 and Buddhism, both of the Mahayana and the
Theravada schools, sets out no rules at all to govern the institution
of marriage; the Mahayanists practice polygamy mainly as a cultural
tradition which is not prohibited by religion. African native law and
custom espouse polygamy, both as a religious fact and as a cultural
facet of African tribal life.4 It must therefore be emphasized that
when immigrants from the Third World arrive in Canada, they
bring with them the belief that polygamy is not only defensible, but
also approved by their culture and religion.
Equally well rooted in Western culture and religion is the institu-
tion of monogamy represented by common law tradition. The
accommodation of polygamy and its manifold consequences present
a fundamental difficulty for the common law system. It is therefore
proposed to examine the present position of polygamy in the com-
mon law world in order to determine what changes were necessary
to accommodate this institution. An enquiry of this nature is partic-
ularly relevant in Canada for at least two reasons: first, immigra-
tion from the Third World in recent years has produced a large
number of new immigrants whose cultural and religious heritage
* Professor of Law, University of Windsor, Barrister and Solicitor (Osgoode
Hall) and Barrister-at-Law of the Inner Temple, London, England. Work on
tis was commenced during my tenureship of a Max-Planck-Institut Senior
Research Fellowship at Hamburg, West Germany.
‘Mayne, Treatise on Hindu Law and Usages, l1th ed. (1953), 172-73.
2 Viz, Khojas, Bohoras, Memons, Ismailis, Ithna-Asharis, Shias. Of these
principal creeds traceable to Islam, Ismailis alone have discarded the insti-
tution of polygamy. They are the followers of the Aga Khan.
3 Supra, note 1.
4 Farran, Matrimonial Laws of the Sudan (1963); chs.1 and 3.
5 Warrender v. Warrender (1835) 2 Cl & Fin. 532, 6 E.R. 1239 (H.L.) per
Lord Brougham; but see Stone, Sowa v. Sowa: Maintenance of Family De-
pendants (1961) 24 Mod.L.Rev. 500, 501, for a contrary view.
McGILL LAW JOURNAL
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recognizes the institution of polygamy; and second, the rarity of
Canadian judicial pronouncements leaves this area of the law some-
what lacking.
More than a decade ago, Professor Mendes da Costa prefaced his
article on polygamous marriages and the conflict of laws with a
quote from Sara v. Sara:”
Our country welcomes immigrants, they become naturalized and take an
oath to observe the laws of Canada yet they cannot have the benefit of
those laws because of the polygamous or potentially polygamous nature
of a marriage ceremony which our Courts recognize as valid for purposes
of succession and legitimacy but not for any remedy, adjudication or
relief of the matrimonial law.8
Since this passage was written and Professor da Costa’s article
was published, Australia,9 New Zealand 10 and the United Kingdom”
have by legislation extended matrimonial relief to parties of a poly-
gamous marriage. Canada, however, appears
to have remained
faithful” a to Lord Penzance’s dictum -in Hyde v. Hyde;12 all parties to
a polygamous or to a potentially polygamous marriage are precluded
from seeking matrimonial relief from common law courts. 3 At least
until 1962,14 the Canadian judges had considered themselves bound
to follow the rule in Hyde v. Hyde. In Lim v. Lim,”, despite the
regret expressed by Coady J., the British Columbia Supreme Court
held:
It does not seem to me consistent with common sense that this plaintiff
who was admitted into this country under our immigration laws as the
wife of the defendant and who, in China prior to her coming to this
0 (1966) 44 Can.Bar Rev. 293.
7 (1962) 31 D.L.R. (2d) 566 (B.C.S.C.); aff’d on different grounds
(1962)
36 D.L.R. (2d) 499 (B.C.C.A.).
8 Ibid., 573 per Lord J.
9 See Matrimonial Causes Act 1965, No. 99, s.3, now Matrimonial Causes
Act 1959-1973, s.6A. (Austl.). See also Jackson, Monogamous Polygamy (1966)
40 A.L.J. 148.
‘0 See Domestic Proceedings Act 1968, No. 62, s.3 (N.Z.).
“1 See the Matrimonial Proceedings (Polygamous Marriages) Act 1972, 1972,
c.38, s.1(1) (U.K.), as am. by the Matrimonial Causes Act 1973, 1973, c.18, s.47
(U.K.).
1a See Bartholomew, Recognition of Polygamous Marriages in Canada
(1961) 10 Int.& Comp.L.Q. 305.
12 (1866) L.R. 1 P.& D. 130.
13 Ibid., 135-36.
14 That is, until Sara v. Sara, supra, note 7. At p. 572 of that judgment,
Lord J. while recognising the rule in Hyde v. Hyde, proceeded to depart from
that view by adopting the view expressed in Dicey’s Conflicts of Laws 7th
ed. (1958), 271-72.
‘5 [1948] 2 D.L.R. 353 (B.C.S.C.).
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POLYGAMOUS MARRIAGES
country, enjoyed the full civil status of wife, should be denied that status
under our law, when, after a residence here of almost 30 years with the
defendant as her husband, and after acquiring domicile in this country
she seeks against her husband the remedy which our law provides to a
wife to claim alimony.
It is understandable only on one basis set out in the Hyde v. Hyde case.
However, it seems to me that there is no decided case in Canada which
justifies me in taking the view that she has that status recognized by
our law which will entitle her to maintain this action, and I do not
think that I can in face of the decisions venture to blaze a new trail….
The implications arising from refusal to recognize the plaintiff’s status
for the purpose in question are so many and so repellent to one’s sense
of justice that it is with regret that I come to the conclusion which I
am on the authorities as I read them forced to arrive at.16
However, in 1962 the same Supreme Court in Sara v. Sara felt com-
pelled to depart from such reasoning because “there [were] signs
of a more modem and enlightened view being accepted such as is
contained in Dicey”.17
II. The recognition of polygamous marriages for the purpose of
matrimonial relief
Courts have consistently held that parties to a polygamous or
a potentially polygamous union cannot seek matrimonial relief from
the common law. Lord Penzance wrote in Hyde v. Hyde:
I conceive that marriage as understood in Christendom, may for this
purpose be defined as the voluntary union for life of one man and one
woman, to the exclusion of all others.18
Now it is obvious that the matrimonial law of this country is adapted
to the Christian marriage, and it is wholly inapplicable to polygamy… .19
We have in England no law framed on the scale of polygamy, or adjusted
to its requirements…
This court does not profess to decide upon the rights of succession or
legitimacy which it might be proper to accord to the issue of the poly-
gamous unions, nor upon the rights or obligations in relation to third
persons which people living under the sanction of such unions may have
created for themselves. All that is intended to be here decided is that as
between each other they are not entitled to the remedies, the adjudication,
or the relief of the matrimonial law of England.2 ‘
so
16 Ibid., 357-58.
17 Supra, note 7, 572. Lord I. quotes extensively from Dicey, supra, note 14,
272, the passage which lays down the germ of the doctrine of conversion.
Sara v. Sara is perhaps one of the earliest decisions to grasp that principle.
Is Supra, note 12, 133.
19 Ibid., 135.
20 Ibid., 136.
21 Ibid., 138.
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In succession and legitimacy, “marriage” has been defined so as
to include polygamy, while matrimonial matters, including matri-
monial relief, have traditionally followed the Hyde v. Hyde rule. As
recently as 1961, the English Court of Appeal in Sowa v. Sowa22
observed that “if the ceremony is polygamous then it does not come
within the word ‘marriage’ for the purposes of the Acts relating to
matrimonial matters, nor do the parties to it come within the words
‘wife’, ‘married woman’ or ‘husband’.23 In many decisions follow-
ing Hyde v. Hyde,24 the courts have often expressed regret that an
innocent but victimized party had to be denied relief only because
the character of the marriage in question was polygamous.
However, commencing with an opinion tendered by Lord Maug-
ham to the Committee of Privileges in the Sinha Peerage case,
decisions developed around the principle that notwithstanding the
fact that a marriage may be potentially polygamous at its inception,
it could subsequently become converted or mutated into a mono-
gamous marriage for the purpose of attracting the matrimonial relief
available under the English common law. The facts of the Sinha
Peerage case are as follows. On May 15, 1880, Baron Sinha of Raipur
married Gobinda Mohini in India, under Hindu law. The marriage
was potentially polygamous since the Baron could lawfully marry
additional wives 26 during the subsistence of his marriage to Gobinda
Mohini. However, it was established as a fact that this did not take
place. In 1886 the Baron and his wife embraced a particular sect of
the Hindu faith called Brahmo Samaj. Devotees of the sect had
taken a religious vow to follow monogamy. The petitioner, Aroon
Kumar Sinha, was born in 1887 to Gobinda Mohini and the Baron.
By 1919 the Baron had received his knighthood and was then the
Under-Secretary of State for India at Whitehall. Baron Sinha died
on March 5th, 1928. Aroon Kumar Sinha thereafter petitioned the
Committee for Privileges of the Privy Council that a writ of summons
to Parliament be issued to him as the second Baron Sinha of
Raipur. The Committee was called upon to determine whether Aroon
Kumar Sinha was the lawfully begotten heir of the first Baron
22 [1961] P. 70 (C.A.).
23 Ibid., 85.
24 See PearceLJ. and HarmanLJ. in Soaa v. Sowa, supra, note 22; in
25 Reported as an appendix to Baindail v. Baindail [1946] 1 All E.R. 342,
348. The Official Law Reports of this case in the Queen’s Bench series do not
carry a report of the Sinha Peerage decision.
Lim v. Lim, supra, note 15.
26 Hindu Law, unlike the Muhammadan Law, does not limit the number of
wives one may marry. See Mayne, supra, note 1.
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POLYGAMOUS MARRIAGES
Sinha. Lord Maugham L.C. ruled that Aroon Kumar Sinha was such
an heir, relying on the 1886 conversion of his parents’ marriage into
monogamy. However, Lord Maugham did place two substantial
limitations on the application of the rule. First, the rule had
nothing to do … with the jurisdiction of the Divorce Court, which for
reasons not difficult to understand has adopted the view that in that
court the term marriage means the voluntary union for life of one man
and one woman to the exclusion of all others. We are not, therefore,
concerned with such cases as Hyde v. Hyde?7
This in effect excluded the application of the wider definition of
“marriage” when questions of matrimonial relief were in issue.
Second, Lord Maugham restricted the “conversion marriages” to
those which did not involve an actual plurality of wives:
[lit is apparent that great difficulties may arise in questions relating to
the descent of a dignity where the marriage from which heirship is
alleged to result is one of a polygamous character, using the word poly-
gamous as meaning a marriage which did not forbid a plurality of wives,
and where there has been a plurality of wives…. Our law as to heirship
has provided no means for settling such questions as these. These difficul-
ties, however, do not arise in the present case, since the late Lord Sinha
not Only never purports to marry any woman except Gobinda Mohini,
but, after joining the Sadhasan Brahmo Samaj long before the date
of the Patent, put it out of his power so to do provided that he adhered
to that religions
Notwithstanding these two limitations the power to convert had
been freed from its first limitation by the nineteen sixties. In Sara
v. Sara,29 the Court decided that a potentially polygamous marriage
contracted in India had been converted into a monogamous union
because the parties had acquired a new domicile of choice in British
Columbia. Such conversion was considered sufficient to attract the
matrimonial relief available under the common law. Relying on
Lord Maugham in the Sinha Peerage case, the Court concluded
that the marriage in question was no longer polygamous and there-
fore was outside the prohibition established in Hyde v. Hyde.30
The trend to disregard the first limitation on the power of con-
version appears to have continued through the sixties on both sides
of the AtlanticP1 The reasoning was based more upon an explanation
27 Supra, note 25.
2 8 Ibid.
29 Supra, note 7.
30 Ibid., 575.
3 l Notably the argument in Sara V. Sara that a change .of domicile could
effect a conversion from a potentially polygamous marriage to a valid mono-
gamous one has been followed in Re Hassan and Hassan (1976) 12 O.R. (2d)
432 (H.C.). In England a number of decisions have applied this .doctrine of
McGILL LAW JOURNAL
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of the decision in Hyde v. Hyde than upon a justification for disre-
garding the first limitation. In this way, the courts began to re-
cognize jurisdiction for matrimonial reliefa: in cases where there
were sufficient grounds for converting a potentially polygamous
marriage into a monogamous one. Dicey and Morris succinctly
summarize the present law:
The proposition laid down in Ali v. Ali that a potentially polygamous
marriage may become monogamous if the parties acquire an English
domicile is a far-reaching one. It means that all those Commonwealth
immigrants living in England who are parties to a potentially poly-
gamous marriage become entitled to English matrimonial relief as soon
as they formed the intention to remain here permanently or indefinitely.
The proposition may not be very logical and is difficult to reconcile
with prior authority, notably with Hyde v. Hyde itself. But it is to be
welcomed on practical grounds because it narrowed the scope of that
decision.
In all these cases of conversion, the marriage was only potentially poly-
gamous; but there seems no reason why their principle should not be
equally effective to convert an actually polygamous marriage
into a
monogamous one, after the number of wives has been reduced to one
by death or otherwise.
There is no English authority on the converse problem, namely, can a
monogamous marriage be converted into a polygamous one…
. The
answer may be that the marriage has, so to speak, the benefit of the
doubt: if it is monogamous at its inception, it remains monogamous
although a change of religion or of domicile may entitle the husband to
take another wife; if it is polygamous at its inception, it may become
monogamous by reason of a change of religion, of domicile, or of law
before the happening of the events which give rise to the proceed-
ings… 3
The cases have explained that there has not been a whittling
away of the rule in Hyde v. Hyde; once a marriage has been con-
verted into a monogamous one, “the barrier raised by Hyde v. Hyde
… no longer exists … and the court has jurisdiction”‘ 3 to decree
the matrimonial relief sought. Be that as it may, the legislatures in
England,3 Australia 0 and New Zealand 37 have recently enacted
conversion: Parkasho v. Singh [1968] P. 233; Regina v. Sagoo [1975] Q.B. 885
(CA.). For a critical discussion of other English cases, among them Baindail
v. Baindail, supra, note 25, see Ali v. Ali [1968] P. 564, Ohochuku v. Ohochuku
[1960] 1 W.L.R. 183, and Tolstoy, The Conversion of a Polygamous Union into
a Monogamous Marriage [1968] 17 Int.& Comp.L.Q. 721.
S2 Radwan v. Radwan [1972] 3 All E.R. 967 (Fam.Div.).
33 Conflict of Laws 9th ed. (1973), 283.
4 Sara v. Sara, supra, note 7, 575 per Lord J.
35 The Matrimonial Causes Act 1973, 1973, c.18, s.47 (U.K.) [amending the
Matrimonial Proceedings (Polygamous Marriages) Act 1972, 1972, c.38, s.1(1)
(U.K.)] states:
“A court in England and Wales shall not be precluded from granting
19781
POLYGAMOUS MARRIAGES
provisions to give their respective courts, under certain conditions,
jurisdiction to grant matrimonial relief, notwithstanding that a
marriage might be potentially polygamous. In these three countries,
courts now have jurisdiction to grant matrimonial relief without
having to rely on the nebulous rule of conversion.3 8 In the absence
of such legislation in Canada, the courts continue to depend on
evidence of conversion ‘before granting matrimonial relief.
There is judicial authority to support the view that the acquisi-
tion of a new domicile and thereby a new personal law which ex-
clusively recognizes monogamy, is one of the means available for
conversion; a change of one’s personal law changes the character of
one’s matrimonial status from polygamous to monogamous 9 In
Qureshi v. Qureshi,” while Sir Jocelyn Simon admitted that juris-
diction could be established on the ground that “… both parties
matrimonial relief or making a declaration concerning the validity of a
marriage by reason only that the marriage in question was entered into
under a law which permits polygamy.”
S.47(2)(a) to (e) lays down the types of matrimonial relief the courts are
permitted to grant under the Act. See Chaudry v. Chaudry [1975) 3 All E.R.
687 (Fam.Div.).
3 Matrimonial Causes Act 1959-1973, s.6A, grants jurisdiction to Australian
courts to render matrimonial relief to parties to a polygamous marriage,
provided that heither of the parties were domiciled in Australia at the time
of entering into such a marriage. This limitation has caused some problems.
See Crowe v, Kader (1967) 12 F.L.R. 357 (W.A.) and Jackson, supra, note 9.
31The New Zealand statute closely follows its counterpart in Australia.
The Domestic Proceedings Act 1968, No. 62, s.3(1) and (2) reads:
“3(1) For the purpose of this Act, the term ‘marriage’ includes a poten-
tially polygampus union in the nature of marriage entered into outside
New Zealand, if
(a) The law of the country in which each of the parties was domiciled at
the time of the union then permitted polygamy; and
(b) Neither party was at the time of the union a party to a subsisting
polygamous or potentially polygamous union;
and the terms ‘husband’, ‘wife’, and ‘married’ have corresponding mean-
ings.
3(2) This section shall apply to a union in the nature of marriage,
notwithstanding that either party has, during the subsistence of the
union, entered into a further union in the nature of marriage, whether
or not the further union still subsists.”
38 Even Cumming-Bruce J. who formulated the rule in All v. Ali, supra,
note 31, expressed some doubts regarding the strength of that rule in the
subsequent decision of Radwan v. Radwan, supra, note 32.
n Supra, note 31.
40 [19723 Farn. 173.
McGILL LAW JOURNAL
[Vol. 24
were domiciled in England at the time of the petition”,41 he pre-
ferred to base his decision on other reasoning. The mere fact that
the potentially polygamous marriage was celebrated in an exclusive-
ly monogamous jurisdiction could have been considered sufficient
grounds to make the necessary conversion.
Cheni v. Cheni,4 however, presents a novel problem. There the
parties had entered into a marriage contract in which the husband
was permitted to marry a second time during the subsistence of
the first marriage if there were no offspring born within a specified
period of time. Two children were born and subsequent to their
births the wife sought matrimonial relief from an English court.
Allowing her petition for relief, Sir Jocelyn Simon wrote:
If parties marry monogamously
the law will readily and reasonably
presume that they will not relapse into polygamy. After all, there are no
marriages which are not potentially polygamous, in the sense that they
may be rendered so by a change of domicile and religion on the part
of the spouses. But, particularly in these days of widespread inter-
penetration of societies in different stages of development, it is not a
reasonable presumption that spouses who marry polygamously will not
by personal volition or act of State convert their marriages or have them
converted into monogamous unions….43
Therefore, on weight of authority, on principle and on ground of con-
venience I am of the opinion that if the marriage is monogamous at the
time of the proceedings, albeit potentially polygamous on its inception,
the court has jurisdiction to adjudicate upon i. 44
The birth of offspring-was sufficient to make the marriage mono-
gamous. As Dicey has said,45 matrimonial relief in these cases of
conversion is restricted to instances where the marriage has re-
mained merely potentially polygamous and has not actually become
polygamous. In the latter instance, Dicey believed that the parties
might be required to delay their petitions to court until the number
of polygamous wives was reduced to one, by death or extra-judicial
divorce of the others. In that sense there is a practical limitation
placed upon the application of this principle. In any event, this
appears to be the only effective inroad which the common law
courts have made on the rigorous rule in Hyde v. Hyde. Canadian
courts would therefore be well advised to follow the decision in
Sara v. Sara whenever possible.’
41 Ibid., 194.
42 [1965] P. 85 (H.C.).
43 Ibid., 90.
44 Ibid., 92.
45 Supra, note 33.
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POLYGAMOUS MARRIAGES
III. The recognition of polygamous marriages for the purpose of
succession
In a previous article46 tracing the development of common law
successions from Canon Law -through the ecclesiastical courts it was
shown how the ideas of morality which lay at the base of succession
law were derived principally from ChristianityY7 These principles
have long guided the probate courts of England as well as those of
Australia, New Zealand and Canada.4s Charles II attempted a codi-
fication by passing the Statute of Distributions in 16709 From the
beginning of the eighteenth century, a patter 5 0′ emerged defining
the terms “wife”, “widow” and “child” with exclusive reference to
“monogamous” marriage. The belief among the judges was that
consonant with Christian endorsement of monogamy and the 1670
Statute of Distributions, the courts should limit the devolution of
property to those heirs who were related to the propositus by a
monogamous marriage. As late as 1888, Sterling J. stated:
I conceive that, having regard to these authorities, I am bound to hold
that a union formed betwepen a man and a woman in a foreign country,
although it may there bear the name of a marriage, and the parties to
it may there be designated husband and wife, is not a valid marriage
according to the law of England unless it be formed on the same basis as
marriages throughout Christendom, and be in its essence “the voluntary
union for life of one man and one woman to the exclusion of all others”.61
In that case, Christopher Bethell died leaving behind a wife and a
posthumously born daughter. He had married Teepoo of the Bara-
long tribe according to native law and custom. It was held as a
question of fact that such a marriage was potentially polygamous.
Although there was sufficient prima facie evidence to raise the
question of an acquisition of a domicile of choice in Bechuanaland,2
the Court appears to have avoided that issue and proceeded to rest
4 6 Marasinghe, Retrospect on O’Hearn v. Yorkshire -Insurance Company
(1976) 22 McGillL.J. 630.
47 Ibid., 633-36.
48 Lundy v. Lundy (1895) 24 S.C.R. 650; Nordstrom v. Bauman [1962] S.C.R.
147; Deckert v. The Prudential Ins. Co. of America [1943] O.R. 448 (CA.) and
Re Gore (1972) 1 O.R. 550 (H.C.).
49 22 & 23 Car. II, c.10. This statute was explained by another in 1677 (29
& 30 Car. II, c.6) and was perpetuated by a third -in 1685 (1 Jam. II, c.17).
Thus the rules of distribution as laid down by the principal 1670 statute
were preserved for posterity and the introduction of the common law
to the British colonies and the Dominions included the rules of succession
laid down in that legislation.
5o E.g., Hyde v. Hyde, supra, note 12; Warrander v. Warrander, supra, note 5.
51 Bethell v. Hildyard (1888) 38 Ch.D. 220, 234.
5 Ibid., 234-36.
McGILL LAW JOURNAL
[Vol. 24
their judgment upon the grounds that Teepoo was not “a wife”
and her daughter was not “a child” for the purposes of succession
under the Statute of Distributions. In the course of his reasoning,
Sterling J. wrote:
The evidence clearly proves that Christopher Bethell intended that the
relationship between himself and Teepoo should at least be that of
husband and wife in the sense in which those terms are used among the
Baralongs. That relationship, however, is essentially different from that
which bears the same name in Christendom, for the Baralong husband
is at liberty to take more than one wife; and it must therefore be de-
termined whether the union between Christopher Bethell and Teepoo
was a marriage in the Christian or merely in the Baralong sense.p3
Declaring himself to be bound by Lord Penzance’s words in Hyde
v. Hyde, 4 Sterling 3. concluded that neither Teepoo nor her daughter
fell within the definition of “a wife” and “a child” (of the Pro-
positus) in the English Statute of Distributions. It must be said at
once that Lord Penzance’s definition of “marriage” was limited to
questions of matrimonial relief and expressly excluded issues con-
cerning successions. 5 The failure to grasp this limitation of the Hyde
v. Hyde rule weakens Sterling J.’s judgment considerably.
Another difficulty with the judgment is Sterling J.’s failure to
take notice of the previous Court of Appeal decision of In
re
Goodman’s Trusts.56 In that case, the claimants’ parents were married
subsequent to the claimants’ birth and at the time of the birth and
the marriage, the parents were domiciled in Holland. Under Dutch
law the claimants were legitimated per subsequens matrimonium.
However, this was not the case under the law of England. The
central issue in this litigation was whether the claimants were
legitimate children and therefore entitled as heirs under the Sta-
tute of Distributions. The Court correctly referred the question of
their status to the law of Holland. If the lex domicilii found them
legitimated per subsequens matrimonium, they were legitimate for
the Statute of Distributions. In concluding that the Statute of Dis-
tributions applied, James L.J. stated:
It must be borne in mind that the Statute of Distributions is not a
statute for Englishmen only, but for all persons, whether English or
not, dying intestate and domiciled in England, and not for any Eng-
lishman dying domioiled abroad. And it was to provide for what was
thought an equitable distribution of the assets, as to which a man had,
53 Ibid., 235.
54 Ibid., 237.
55 Supra, note 12, 138.
56 (1881) 17 Ch.D. 266 (C.A.).
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POLYGAMOUS MARRIAGES
through inadvertence, not expressed his testamentary intentions. And,
as the law applies universally to persons of all countries, races, and
religions whatsoever, the proper law to be applied in determining kindred
is the universal law, the international law, adopted by the comity of
States.5
It was a firmr principle, even in 1888, that questions of status were
governed by the lex domicilii. The facts relevant to the question of
Christopher Bethell’s domicile were therefore crucial to the decision
in Re Bethell. There was evidence that Bethell had joined the
Baralong tribe by the time he married Teepoo. Besides rejecting a
Christian marriage in favour of a Baralong ceremony, Bethell ex-
plained that he was no longer a European but a Baralong, and that
he therefore found the Christian ceremony meaningless. These were
valuable indicia in favour of acquiring a domicile of choice in
Bechuanaland at the time of his marriage. If he had acquired this
domicile, his marriage would have been valid; the lex loci celebra-
tionis and the lex loci domicilii would both have been Bechuana-
land, and both Teepoo and her daugher should have succeeded under
the’Statute of Distributions.
There is, of course, another fundamental issue raised by the
foregoing case. Recognizing the fact that In re Goodman’s Trusts
concerned a dispute surrounding a monogamous marriage, one may
question whether a submission to the lex domicilii under the rules of
law could be justified where the
English private international
marriage was in effect potentially polygamous or actually poly-
gamous. This issue was not finally settled until the 1954 Privy Council
decision of Bamgbose v. Daniel5 8 There, the plaintiff’s father was
married monogamously under the Lagos Marriage Ordinance of
1884 .Ps The plaintiff’s deceased uncle had contracted nine poly-
gamous marriages under native law and custom. The defendants
were his children, born of these polygamous marriages. At his death
in 1948, the deceased left in Nigeria personal property valued at
100,000. Under the Lagos Marriage Ordinance, questions of suc-
cession were to be settled “in accordance with the provisions of the
law of England relating to the distribution of the personal estates
of intestates, any native law or custom to the contrary notwith-
standing.”60 By virtue of this ordinance, Nigeria received inter alia
the Statute of Distributions of 1670. The relevant issue in these
57 Ibid., 300.
58 [1955] A.C. 107 (P.C.).
59 Lagos Marriage Ordinance, (1884), no. 14, in Laws of the Colony of Lagos,
1901, vol.1.
0 Ibid., s.41.
McGILL LAW JOURNAL
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proceedings was the legitimacy of the children of the deceased. If
they were not legitimate, then they could not succeed to their
father’s personal estate and in default such estate would go to the
plaintiff nephew who was unquestionably legitimate, born in wed-
lock of a monogamous marriage.
The West African Court of Appeal in Bamgbose v. Daniel1
followed the landmark decision of In re Adadevoh, 2 in which the
principle of In re Goodman’s Trusts was first applied to a poly-
gamous marriage. The Privy Council in Bamgbose v. Daniel rejected
the argument that different considerations should govern the rights
of succession of children from polygamous as opposed to mono-
gamous marriages. Provided that a child was legitimate by the
law of the country where at the time of its birth its parents were
domiciled, the English courts would recognize such status for suc-
cession purposes. The principle of In re Goodman’s Trusts was
thus extended to include the childreii of polygamous unions. If the
marriage was validly celebrated according to the native law and
custom of the parties, it was a valid marriage -and the issue of
such a union were legitimate for the purposes of succession, not-
withstanding the polygamous nature of the marriage.
The Privy Council in Coleman v. Shang reaffirmed the correct-
ness of this rule. At issue in this case was whether the wife in a
potentially polygamous marriage could succeed to a part of the
intestate succession of her husband, the appellant son’s claim being
that his mot-her could not be treated as a valid wife. It was argued
that In re Goodman’s Trusts which had decided that the child
of a polygamous marriage is legitimate, should be extended to
legitimate the wife of a polygamous marriage or, as it was put in
argument, “what is sauce for the gosling must be sauce for the
goose”.64
The Privy Council acceded to this argument, though their ap-
proval was qualified; Lord Tucker distinguished those cases where
“special circumstances exist which necessitate a distinction between
the position of children of a potentially polygamous marriage and
the wives or widows of such marriage…”.6
Although Bamgbose v. Daniel marks the beginning of the ap-
tule that matrimonial
plication to West African disputes of the
61 (1952) 14 W.A.CA. 111.
62 (1951) 13 WA.CA. 304.
63 [1959] Ghana L.Rep. 390, aff’d [1961] A.C. 481 (P.C.).
64 Ibid., 488.
G Ibid., 495 [Emphasis added].
1978]
POLYGAMOUS MARRIAGES
status for succession purposes is governed by the lex domicilii, the
Privy Council had applied that rule to Chinese t’sips marriages. Un-
der such marriages a person has one “principal wife” and a number
of “secondary wives”. In a series of decisions commencing with
The Six Widow’s Case68 the English courts have regarded t’sips
“wives” as wives for the purposes of succession under the Statute
of Distributions.6″ In nojie of those cases did the courts rely on
In re Goodman’s Trusts. Rather, as in Khoo Hooi Leong, they re-
ferred back to the “canon law which governed western continental
Europe till about a century ago…. 8
It is now possible to examine the leading Canadian decisions.
In Yew v. Attorney-General for British Columbia,69 Lee Cheong, a
Chinese national, died on a brief visit to British Columbia, leaving
property in that province. At the time of his death he was domiciled
in China and survived by two widows. It was accepted as a fact
that the law of China recognized polygamy and Lee Cheong’s mar-
riages were valid by that law. By a will,, valid under Chinese law,
Lee Cheong left his estate to his widows. Under the Succession Duty
Act”0 of British Columbia, the Minister of Revenue claimed suc-
cession duties for the property situated in the province. The Minister
argued that neither of the two claimants, the wives of the poly-
gamous marriage, should be recognized as “a wife” under the
Succession Duty Act. He further submitted that the Act spoke of
“a wife” and not of “wives”, which was cogent evidence to support
his contention that the Act was meant to exclude persons married
in polygamy. At first instance, McDonald I. of the British Columbia
Suprefne” Court accepted the Minister’s argument 7′ based on Hyde
v. Hyde. The claimants appealed successfully to the Court of Appeal.
After a careful scrutiny of the relevant case law, the Court decided
that wives and legitimate children recognized by the lex domicilii
66 In the matter of the Estate of Choo Eng Choon (1908) 12 Straits Settle-
ments L.R. 120; Cheang Thye Phin v. Tan Ah Loy [1920] A.C. 369 (P.C.) and
Khoo Hooi Leong v. Khoo Hean Kwee [1926] A.C. 529 (P.C.).
67 In Cheang Thye Phin v. Tan Ah Loy, ibid., 372f., Viscount Finley said:
“With regard to Chinese settled in Penang, the Supreme Court recognizes
and applies the Chinese law of marriage. It is not disputed that this
law admits of polygamy. By a local ordinance the Statute of Distribu-
tions has been applied to Chinese successions, and the Courts have
treated all the widows of the deceased as entitled among them to the
widows’ share under the statute.”
88 Supra, note 66, 543 per Lord Phillimore.
89 [1924] 1 D.L.R. 1166 (B.C.C.A.).
70oR.S.B.C. 1911, c217.
71 Supra, note 69, 1167.
McGILL LAW JOURNAL
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could succeed to property situated in British Columbia, notwith-
standing the ‘polygamous nature of the relevant marriages. The fact
that the Succession Duty Act spoke of “a wife” did not preclude the
Court from construing the singular to include the plural.72
Thus far, Yew stands as the only Canadian decision recognizing
succession rights of polygamous wives. But even this decision must
be viewed in the context of the traditional “wide” interpretation
given to taxation statutes, a fact Martin J.A. took care to mention in
his judgmentY3 As the foregoing indicates, the submission of ques-
tions of status to the lex domicilii is an established rule in English
private international law. The fact that it has been applied to poly-
gamous marriages both in Asia and Africa is evidence of its extended
use to meet new social developments. Furthermore, although the
dispute in Yew did arise under a fiscal statute the essential issue
was whether the two widows of Lee Cheong could succeed to pro-
perty situated in British Columbia. The decision may thus be
treated as having strong persuasive value for future succession
cases.
IV. The recognition of polygamous marriages for the purpose of
bigamy
Under the Canadian Criminal Code74 and English law, 5 bigamy is
conceived of in terms of one valid marriage being followed by
another marriage which was contracted during the subsistance of
the first marriage. The critical question here is whether there can
be a conviction for bigamy where one or both of the marriages are
polygamous. It is intended to examine this area of the law under
the following sub-headings.
A. Where the first marriage was potentially (or in fact) poly-
gamous, would a subsequent marriage contracted monogamously
with a different woman constitute the crime of bigamy?
The earliest case concerning this issue was R. v. Naguib .7 The
accused had come to England from Egypt in 1901. In 1903 he mar-
72 Ibid., 1170.
“3Ibid., 1171f.
74 R.S.C. 1970, c.C-34, s254.
75 Offences Against the Person Act, 1861 24 & 25 Vict. c.100, s.57; Webb, …
I’ll Marry Yez Both… [1964] Crim.L.R. 793; Andrews, The Prosecution of
Bigamy (1965) 4 Sol.Q. 141.
76 [1917] 1 K.B. 359 (CA.).
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POLYGAMOUS MARRIAGES
tied A., a woman domiciled in England. During the subsistence of
that marriage, the accused married T., domiciled in England. Both
marriages were celebrated -in England. The accused was charged
with bigamy. The principal defence raised by the accused was that
he was married polygamously in Egypt before he reached England
and therefore his marriage to A. was void. If that marriage was void,
he argued, then the marriage to T. was not contracted at a time
when he was “a married person”, and the charge of bigamy pertain-
ing to his marriage to T. could not be sustained. This defence raised
two separate issues; the first of which was the status of the poly-
gamous marriage in Egypt under English law. Unless the Court
recognized that marriage as conferring upon him the status of “a
married person”, his defence could not be upheld. Second, if the
Court were to consider his status to be that of “a married person”
as a result of the polygamous marriage, then his marriage to A.
would clearly be bigamous. A decision on the status of the accused
could therefore have provided a valuable clue to answering the
foregoing question. Unfortunately, the Court of Criminal Appeal,
affirming his conviction, chose to avoid that issue altogether. Avory
J. stated:
He insists that this marriage was void because he had in 1898 married
an Egyptian woman who was still his wife in 1903. The learned judge at
the trial disposed of this defence on two grounds –
first, that the
Egyptian marriage was according to the Muhammedan religious law
which permits polygamy and could not be regarded in England as a
marriage. That raises an interesting question, but we need not deal
with it, because we are satisfied that this appeal fails on the second
ground, namely, that there was no sufficient evidence of the marriage
in Egyptj7
8Snippets of information may be gleaned from two other English
decisions. Both Sirinivasan v. Sirinivasan78 and Baindail v. Bain-
dail,”1 raised similar facts. The defendants were Hindus who, while
domiciled in British India, had entered into their first marriages
under Hindu law. Both marriages were potentially polygamous.
The defendants came to England as students and thereafter were
married a second time to persons who were domiciled in England.
The marriages were celebrated in England. Subsequently, the Eng-
lish wives sought a declaration of nullity based upon the validity
of their husbands’ first Hindu marriages. In each case, Barnard J.
at first instance gave recognition to the first Hindu marriage, more
77 Ibid., 361.
78 [1946] P. 67 (H.C.).
79 [1946] P. 122 (CA.).
McGILL LAW JOURNAL
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on grounds of policyso than of law. In doing so, he declared the
marriages celebrated in England to be a nullity. However, he did
not consider the possibility of this deoision leading to a conviction
for bigamy. Of the two defendants, Baindail alone appealed to the
Court of Appeal.81 While dismissing the appeal, the Court did affirm
the decision in the Sirinivasan case but avoided the issue of bigamy,
a logical consequence of recognizing the first Hindu marriage. Lord
Green M.R. wrote:
The opinion which I have formed relates and relates solely to the facts
of the present case which are connected with the validity of the English
marriage in the circumstances of this case. I must not be taken as
suggesting that for every purpose and in every context an Indian
marriage such as this would be regarded as a valid marriage in this
country. Mr. Pritt in his reply drew an alarniing picture of the effect
of our decision on the law of bigamy if we were to decide against him.
I think it right therefore to say that so far as I am concerned nothing
that I have said must be taken as having the slightest bearing on the law
of bigamy. On the question of whether a person is “married” within the
meaning of the statute (which is a criminal statute) when he has entered
into a Hindu marriage in India I am not going to express any opinion
8oThe following passage illustrates the basis for the decision:
“I have come to the conclusion that the text book view is wrong and,
relying as I do on the above passages from Lord Maugham’s speech, I
ought to recognize this Hindu marriage as a valid marriage. To refuse
recognition would mean that the respondent would be lawfully married
to his Hindu wife in India, and to his English wife in England, but if he
brought his Hindu wife to this country and lived with her here, he
would be living in adultery with her. It would mean that if the respondent
were to live with his Hindu wife in India for a part of the year and for
the remainder of the year live with his English wife in England, he
would be living with his lawful wife in each country. It would therefore
mean that English law would be encouraging polygamy and not frowning
on it. Again, a Hindu marriage is indissoluble; but, according to Mulla
on Hindu Law, 9th ed., p.513, a Hindu wife, deserted by her husband,
can sue him for restitution of conjugal rights in the civil courts of
British India. If, therefore, the respondent deserted both his Hindu wife
and his English wife, he could be sued for restitution of conjugal rights
by both wives, in the courts of their respective countries, and he might
be ordered by those courts to return to two different wives in two
different parts of the world. To deny recognition of a Hindu marriage for
the purpose in hand would, in my opinion, be to fly in the face of com-
mon sense, good manners and the ordered system of tolerance on which
the Empire is based; and, as I decide, to deny such recognition would be
bad law. I, therefore, recognize as a fact the respondent’s Hindu mar-
riage, which was subsisting at the time he went through the ceremony
of marriage with the petitioner, and I hold that this ceremony is a
nullity and the petitioner is entitled to a decree nisi, with costs.” (Supra,
note 78, 69-70).
81 Supra, note 79.
19781
POLYGAMOUS MARRIAGES
whatever. It seems to me a different question in which other con-
siderations may well come into play. I hope sincerely that nobody will
endeavour to spell out of what I have said anything to cover such a
question. In the result the appeal must be dismissed.82
Thus a second opportunity to express an opinion.on this important
question was lost.
Two further decisions require attention before leaving this area.
In R. v. Sarwan Singh,8 3 the accused was charged with bigamy. He
had first contracted a potentially polygamous marriage in India
under Sikh law while he was domiciled there. Several years later
the accused emigrated to England, where he married a second time
during the subsistence of the first marriage. Commissioner Fitz-
walter-Butler, acquitting Sarwan Singh of the charge, observed:
Having given my careful consideration to this matter, and recognizing
as I do that there is no express authority which directs me to any con-
clusion, I have formed the clear view that the marriage which is to be
the foundation for a prosecution for bigamy must be a monogamous
marriage, and that any polygamous marriage cannot afford a foundation
for the prosecution.8 4
Since 1939,85 the English courts have adopted the principal of
“mutation” as a general rule. Under that rule, the courts have
begun to recognize the possibility that under certain conditions, a
marriage which is potentially polygamous at its inception could be
converted or mutated into one which is monogamous.’* Using the
principle of mutation as their pivotal point, the Criminal Division
of the English Court of Appeal in 1975 overruled Sarwan Singh in
R. v. Sagoo.87 In that case, the appellant while domiciled in Kenya
married under Sikh religious law in 1959. The potentially poly-
gamous marriage was celebrated in Kenya where his Sikh personal
law was in fact recognized. Subsequently in 1960 the Hindu Mar-
riage and Divorce Ordinance of Kenya was passed, prohibiting
prospective polygamous marriages, but leaving the validity of mar-
riages contracted up to 1960 intact.8 In 1966, the appellant and his
wife emigrated to England. In 1973, the appellant went*through a
form of marriage with a woman in England. It was held as a
question of fact that the appellant had by then acquired a domicile
82 Ibid., 1,30.
83 [1962] 3 All E.R. 612. See comment by Polonsky, [1971] Crim.L.R. 401.
84 Supra, note 83, 615.
8 The Sinha Peerage decision, supra, note 25.
8OSee supra, p.399.
87 [1975] 2 All E.R. 926 (C.A.).
88 Ibid., 928.
McGILL LAW JOURNAL
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of choice in England. He was accordingly oharged with bigamy and
convicted of that offence. Dismissing the appeal, James L.J. rested
his decision squarely on the principle of mutation:
For the purposes of the present appeal it is unnecessary to consider other
circumstances which may imprint a change of character from poly-
gamous to monogamous or vice versa. In the two cases cited of Ali v.
Ali and Parkasho v. Singh, there is strong persuasive authority for the
view that such a change can be brought about by a change in the
husband’s domicile and by legislation changing the law of the country
where the marriage was celebrated. Both reasons for the change are
applicable to the present appeal. It is highly desirable that the criminal
law and the family law should be the same in the recognition of the
status created by a marriage. For the purposes of the criminal law,
the relevant time for determining the question was the defendant party
to a valid marriage within the meaning of the words ‘being married’
in s.57 of the 1861 Act, is the time of the alleged bigamous ceremony of
marriage –
in the present case 9th March 1973. By that date the
appellant’s potentially polygamous marriage still subsisted, but it had
become monogamous in character by operation of the 1960 Ordinance and
by his acquisition of an English domicile which has monogamy as part
of the personal law.
The trial judge was in our judgment correct in his ruling on the question
of law put to him. R. v. Sarwan Singh was wrongly decided. The appeal
is dismissed.89
Whatever the merits of the view that it is necessary to harmonize
the status created by a marriage for the purposes of family and
criminal law, it must be observed that a principle which has resulted
from the ingenuity of the courts to provide matrimonial relief, has
now inveigled itself into the administration of the criminal law in
England. Such borrowing from the non-criminal areas of English
jurisprudence may be justified in other areas such as criminal
negligence or manslaughter.0 However, it is best to avoid encroach-
ing upon areas of personal morality and various forms of matrimo-
nial relief.
The Law Reform Commission of Canada has recommended that,
“in the light of present social attitudes, inquiry should be made
whether [bigamy] should be abolished or redefined or whether
included “polygamy”
the
in the list of “offences whose wrongfulness and seriousness today
is controversial [and requires careful reconsideration] “Y2 It is thus
strongly urged that it is against both principle and policy to in-
law needs strengthening”.”
It has
89 Ibid., 930. See comment by Morse (1976) 25 Int.& Comp.L.Q. 229.
90Cross & Jones, An Introduction to Criminal Law 7th ed. (1972), 133-36
& 158-60.
91The E. Patrick Hartt Commission (report dated March 1976), 35.
92 Ibid.
19781
POLYGAMOUS MARRIAGES
troduce the notion of -mutation into the area of criminal law. As
shown earlier,93 mutation was no more than a stratagem worked
out by the courts to render matrimonial relief and was necessitated
by the strict attitude of Lord Penzance in Hyde v. Hyde towards non-
Christian marriages. Its use in R. v. Sagoo is to be regretted9 and
the view taken in Sarwan Singh 5 is preferable.
B. Where the first marriage was monogamous, would a sub-
sequent marriage contracted polygamously with a different woman
constitute bigamy?
The answer to this question is a complex one. It raises an in-
cidental question, particularly in light of the absence of any
cogent authorities in Canada, England, Australia or New Zealand.
What was the prohibition of bigamy designed to protect? Blackstone,
lecturing at Oxford in 1758, attempted to explain the offence of
bigamy in terms of protecting the fabric of a monogamous society.
He equated polygamy to bigamy and proceeded to show that in
certain parts of Europe, particularly in Sweden, the offence was
punishable by death:
Another felonious offence, with regard to this holy estate of matrimony,
is what some have corruptly called bigamy, which properly signifies
being twice married; but is more justly denominated polygamy, or having
a plurality of wives at once. Such second marriage, living the former
husband or wife, is simply void, and a mere nullity, by the ecclesiastical
law of England: and yet the legislature has thought it just to make
it felony, by reason of its being so great a violation of the public economy
and decency of a well-ordere4 state. For polygamy can never be endured
under any rational civil establishment, whatever specious reasons may be
urged for it by the eastern nations, the fallaciousness of which has been
fully proved by many sensible writers: but in northern countries the very
nature of the climate seems to reclaim against it; it never having obtain-
ed in this part of the world, even from the time of our German ancestors,
who, as Tacitus informs us, “prope soli barbarorum singulis uxoribus
contend sunt.” It is therefore punished by the laws both of ancient and
modem Sweden with death.
Subsequent decisions have suggested that the rules against
bigamy were designed to protect the monogamous marriage.97 This
93 See supra, p.402.
94Supra, note 87.
95 Supra, note 83.
” The lectures were printed in 1765 under the title of Commentaries on
the laws of England. See Chitty (ed.), Blackstone’s Commentaries (1826) vol.IV,
ch.XIII, 163-64 [author’s emphasis].
97 See the exposition and the cases cited and discussed in Bartholomew,
Polygamous Marriages and English Criminal Law (1954) 17 Mod.L.Rev. 344.
McGILL LAW JOURNAL
[Vol. 24
may lead to a situation in which clergymen who solemnize a poly-
gamous or potentially polygamous marriage would not be liable
for an offence such as the one expressed in section 258 of the
Criminal Code,98 while the parties to such a ceremony might be
considered guilty of bigamy. In R. v. Bham,99 the accused was ac-
quitted of celebrating a marriage contrary to the provisions of the
Marriage Act, 1949100 since the Mohammedan ceremony he per-
formed did not prima facie confer on the parties the status of man
and wife under English law. However, as Professor Bartholomew
wrote, “any ceremony, whether defective as a ceremony to 6reate
a status of marriage or not, is a sufficient second marriage for the
purposes of the law of bigamy.”‘1 1 The same rule would apply in
Canada under the Criminal Code.10 2 This conclusion can be sustain-
edupon the grounds usually cited in the English common law,
namely that bigamy constitutes an act which is tantamount to a
threat to the stability of a monogamous union. A second marriage
ceremony is no more than a threat, for it is in fact void –
even
though it may have been the kind of ceremony which could have
generated a valid status, had there been no subsisting marriage.
This means that the second polygamous marriage cannot be a
“threat” to monogamy in jurisdictions recognizing the existence of
both institutions of monogamy and polygamy. At present, the com-,
mon law jurisdictions in Africa and Asia recognize what is known
as a “dual matrimonial regime”. Bigamy is committed when a
person, married monogamously, undergoes a second ceremony which
could have produced a valid monogamous marriage had there been
no valid first marriage. However, if a person married monogamously
contracts a valid polygamous marriage, having become qualified to
do so, Commonwealth decisions indicate that he is neither guilty
of bigamy nor is his second marriage a nullity; his first marriage
has mutated into a potentially polygamous one. This is the reverse
of the mutation process described in Ali v. Ali,103 Radwan v. Radwan
No (2),1′ and Sara v. Sara.105
98Criminal Code, R.S.C. 1970, c.C-34, s.258 reads:
“Every one who
a) solemnizes or pretends
to solemnize a marriage without lawful
authority, the proof of which lies upon him, … is guilty of an indict-
able offence…”.
99 [1965] 3 All E.R. 124 (CA.).
100 1949, 12-13-14 Geo.VI, c.76, s.75(2) (a) (U.K.).
1o1 Supra, note 97, 357.
102 R.S.C. 1970, c.C-34, s,257(1)(a).
1o3 Supra, note 31.
104 [1972] 3 W.L.R. 939 (Fam.Div.).
1o5 Supra, note 7.
19781
POLYGAMOUS MARRIAGES
All these aspects were considered by the Privy Council in Attor-
ney General for Ceylon v. Reid.106 There, the respondent married
Edna according to Christian rites. Both parties were domiciled in
the Colony of Ceylon at the time of their marriage. As the first
Christian marriage was under the Marriage Registration Ordinance
of Ceylon, the Privy Council had to consider two relevant sections.’11
Under section 18, “[n]o 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”’08 Under
Section 19(1), “[n]o marriage shall be dissolved during the lifetime
of the parties except by judgment of a divorce a viniculo matrimo-
nii pronounced in some competent court . . .”.'” By 1957, the res-
pondent and his wife developed marital difficulties and in May of
that year Edna left the respondent and obtained a maintenance
order against him. In 1959 the respondent found a substitute for
Edna in Fatima Pansy, and together they were -duly converted to
the Muslim faith. It must be emphasized that conversion into Islam
involves no difficult procedures.” 0 In Abdool Razack v. Aga Maho-
med, 1 Lord MacNaghten said:
No Court can test or gauge the sincerity of religious belief. In all cases
where, according to Mohammedan Law, unbelief or difference of creed
is a bar to marriage with a true believer, it is enough if the alien in
religion embraces the Mohammedan Faith. Profession with or without
conversion is necessary and sufficient to remove the disability.”2
The respondent and Fatima Pansy embraced Islam in June 1959
and were married under the Muslim Marriage and Divorce Act.0
3
As this second marriage was celebrated while his first marriage
under the Marriage Registration Ordinance subsisted, the Attorney
General charged Reid with the crime of bigamy under section 362B
of the Ceylon Penal Code.” 4 At first instance, Reid was convicted. In
the trial judge’s view:
10 [1965] A.C. 720 (P.C.).
1o Ibid., 728.
108 Marriage Registration Ordinance, Ceylon, 1907, no. 9, ch.95.
109 Ibid.
110 Fyzee?, Outlines of Muhammadan Law (1964), 61-62.
Ml1 (1893) 21 L.R.IndAp. 56 (P.C.).
1121 Ibid., 64.
13 Supra, note 106, 721.
“14The Penal Code of Ceylon, Legislative Enactments of Ceylon
(1956
Rev.), c.19, s.362B reads: “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 of such husband or wife shall be punished with imprisonment
of either description for a term which may extend to seven years and shall
also be liable to a fine.”
McGILL LAW JOURNAL
[Vol. 24
Monogamy is an unalterable part of the status of every person who
marries under the Marriage (General) Registration Ordinance and a
change of religion cannot affect that status. Conversion to the Muslim
Faith, even if genuine, cannot enable one who has married under the
General Marriage Ordinance to contract a polygamous marriage. Such
a marriage is void in the lifetime of a former wife. 116
A full bench of the Ceylon Supreme Court allowed Reid’s appeal.
Basnayake C.J. noted that:
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. But that circumstance does not affect the validity
of the second marriage. The evidence of the Quazi and the priest who
registered the marriage indicates that the requirements of the Act as
to registration of the marriage have been observed and that they were
satisfied that the parties were persons professing Islam.110
While it would appear that the fact of conversion into Islam alone
contituted the condition precedent for the adoption of Muham-
madan law as Reid’s personal law, the overriding requirement was
clearly that his lex domicilii must permit such a conversion. Dis-
missing the Crown’s appeal to the Privy Council,117 Lord Upjohn
explained the rational behind the lower Court’s refusal to convict
for bigamy:
Whatever may be the situation in a purely Christian country (as to which
their Lordships express no opinion) they cannot agree that in a country
such as Ceylon a Christian monogamous marriage prohibits for all time
during the subsistence of that marriage a change of faith and of personal
law on the part of a husband resident and domiciled there… . 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 recognized 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.”18
The Reid case raises large questions of policy and law. A person
domiciled in jurisdictions which have “a dual matrimonial regime”
can marry both monogamously and polygamously without actually
violating the prohibition of bigamy. Professor Bartholomew pre-
dicted “that a British subject whose personal law sanctions poly-
gamy, and who celebrates his second marriage in a country whose
matrimonial law also sanctions polygamy, cannot be indicted for
bigamy in [England]”.” 9
15 Judgment of Bultjens A.DJ. quoted by Lord Upjohn, supra, note 106,
730.
116 (1964) 65 New L.Rep. 97, 99-100.
117 Supra, note 106. See comment by Weston, (1965) 28 Mod.L.Rev. 484.
118 Supra, note 106, 734.
119 Supra, note 97, 359.
1978]
POLYGAMOUS MARRIAGES
It is submitted that this succinct statement of law applies equally
to Canada. A landed immigrant may either retain his domicile of
origin or may reacquire it upon returning to his country of origin.
His domicile of origin may give him the power to marry poly-
gamously. Provided the original lex domicilii permits such a mar-
riage it should be recognized as valid by all jurisdictions. Clearly,
some immigrants will not be entitled to, such power, which raises
the question of whether such differential treatment is conducive
to maintaining a cohesive social fabric. It also presupposes that the
individuals involved retain or reacquire their domicile of origin.
As long as the capacity to marry is governed by the lex domicilii,
the legal system to which a person’s nationality alone is linked may
have no authority over the offence of bigamy. As a matter of policy,
this conclusion is not altogether satisfactory. Moreover, there are a
number of issues of law that require attention.
First, upon conversion, does the initial marriage automatically
convert itself from a monogamous union to one of polygamy? Does
the principle of mutation operate now so as to reverse the change
from polygamy to monogamy? Dicey has submitted that a marriage
has the benefit of any doubt as to monogamy,’O but other authors
appear to accept that a monogamous union can in fact mutate into
a polygamous union, and the Reid case has been cited in support of
this proposition. 2 ‘ If such is the case, it must lead to the conclusion
that a marriage contracted in Canada could, under certain cir-
cumstances, be mutated into a potentially polygamous one.
On a subsequent occasion the Privy Council in Drammeh v.
Drammeh’- appeared to lean in favour of such a proposition. Spe-
cifically relying on the Reid case, Lord Morris distinguished the case
at bar.
She [the petitioner in the instant case] never accepted him on the basis
that she would be one of two or more wives. She went to the Gambia with
the rights which her marriage gave to her. Unless there is some compelling
authority re4uiring a different view, it would seem most unjust and
unreasonable if the wife could be compelled to accept a relationship
wholly different from that which both she and her husband assumed.123
It is therefore submitted that unless both parties to the mono-
gamous union accept the religious conversion, the basic mono-
gamous nature of the marriage will not change into one of polygamy.
120 Dicey, supra, note 14, 283.
121 North (ed.), Cheshire’s Private International Law 9th ed. (1974) 310-11;
see also Webb, Undissolved Christian Monogamous Marriage Followed by
Mohammedan Marriage – Bigamy? (1965) 14 Int’l & Comp.L.Q. 992, 996-97.
122 (1970) 78 Ceylon L. Weekly 55.
123 Ibid., 59.
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The above proposition appears to be supported by the answer
to our next question. Namely, could the monogamous wife sue her
husband for a divorce, charging adultery and basing her allegation
upon the consummation of the second polygamous marriage. The
Privy Council, having raised this very question in Reid,124 appears to
have ignored the need to answer it. In citing a number of decisions,
Lord Upjohn was content to find that the second marriage was
valid. However, in Drammeh v. Drammeh the issues centred around
the question of adultery and therefore the ratio provides valuable
assistance in reaching an answer to this important question. The
wife, domiciled in Jamaica, came to England as an immigrant in
1955. The husband was born in Gambia, and went to England in
1946 to pursue his studies in law. In 1956, the parties entered into
a monogamous marriage. Six children were born of that marriage.
The husband returned to Gambia in 1963 with the six children and
his wife joined him a short while later. Sometime after the family
was reunited, the husband married the present correspondent poly-
gamously, under the Muhammaden law of Gambia. The petitioner
protested and commenced these proceedings for a dissolution of
the monogamous marriage. Citing the second “wife” as a corres-
pondent and alleging adultery as the basis for her petition, she was
successful in the Gambian courts. The husband then appealed to the
Privy Council. Lord Morris distinguished’5 the present proceedings
from the Reid case and dismissed the husband’s appeal, holding
that the Reid case was concerned with the criminal offence of
bigamy while here the issue was the matrimonial wrong of adultery.
Insofar as the wife had not participated in the religious conversion,
the Board thought that her relationship with the husband remain-
ed within the monogamous matrimonial regime. Therefore, she was
entitled to seek a dissolution of her marriage upon adultery.
The exclusion of the doctrine of mutation in a case like Dram-
meh v. Drammeh is welcomed. Otherwise, the non-assenting first
wife would be deprived of an “escape route” from polygamy. Indeed
it seems unfair that a previous monogamous marriage in accordance
with the parties’ personal law should be capable of being mutated
into a polygamous union by the mere unilateral adoption of another
faith by one of the spouses. However, regarding succession, legi-
timation and bigamy, the Reid rule appears to be both just and
correct. As long as English private international law continues to
tie capacity and status to the lex domicilii, the lex patriae cannot
124 Supra, note 106, 731.
25 Supra, note 122, 59.
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POLYGAMOUS MARRIAGES
complain. Civil law jurisdictions such as France and Germany
would have no such difficulty.12 In such jurisdictions, matters of
capacity and status are governed by the national law. Therefore,
any second marriage would be bigamous. This rule would bring
the criminal law, the law of succession and the law relating to legi-
timacy and matrimonial offences into line with a person’s lex
patriae. Perhaps that is the solution for Canada in the light of her
cultural mosaic attributable largely to varying immigration patterns.
V. The recognition of polygamous marriages for causes other
than matrimonal relief, succession or bigamy
English courts have shown a remarkable degree of flexibility
concerning issues collateral to a polygamous marriage.12 In Shahnaz
v. Rizwan,128 the husband, domiciled in Pakistan, divorced his wife
by “talaq” at the Pakistan High Commission in London. The wife
by this action claimed her “Mehar”, or dower, on the basis that the
marriage contract evidenced an agreement to pay a deferred dower
at her husband’s death or at their divorce. The husband resisted
the claim on the grounds that the consideration for the agreement
was immoral. Mr Justice Winn held that the claim was in personam,
arising out of a contract of marriage which was valid by the per-
sonal law of the parties. Moreover, -the Court ruled that polygamous
marriages are not immoral under English public policy.’ 2
The question reappeared recently in Re Hassan and Hassan’
where the husband and wife were parties to a ,potentially poly-
gamous marriage in Egypt. There were three children from that
marriage and in 1971 the Hassans immigrated to Canada with the
intention of taking up a permanent residence. In 1974 the husband
obtained a divorce from the Egyptian Consul in Montreal. The wife
then claimed maintenance under the Deserted Wives’ and Children’s
Maintenance Act’ 31 of Ontario. The husband opposed her application
on the ground that the marriage was potentially polygamous and
therefore, under the Hyde rule, the Court had no jurisdiction.
Mr Justice Cory allowed the wife’s petition, resting his decision on
126 In Quebec, status and capacity are governed by the lex domicilii, art.6
C.C.
12 7 See Blaikie, Polygamy, A New Approach (1970) 15 Sur.Rev.n.s.135.
128 [1965] 1 Q.B. 390; see comment by Webb (1965) 14 Int’l & Comp.L.Q.,
273-76.
12 9 Supra, note 128, 399.
130 (1976) 12 O.R. (2d) 432 (H.C.).
la3 R.S.O. 1970, c.128.
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the principle of mutation. Relying on Sara v. Sara,132 R. v. Sagoo133
and Ali v. Ali,14 the Court held that the acquisition of the new do-
micile in Ontario had changed the potentially polygamous marriage
and that such new domicile gave the Court the jurisdiction’35 to
hear the wife’s petition.
VI. Conclusion
The foregoing is intended merely to introduce the complexity
of the cultural problem one encounters while attempting to ac-
commodate the institution of polygamy within the framework of
a common law system. The trend would thus appear to favour the
reconciliation of the sharp distinctions between polygamy and
monogamy. The common law acceptance of the principle of muta-
tion is one major step towards reconciling foreign law and culture
with the established traditions of English private international law
and the Western Judaic-Christian institution of monogamous mar-
riage.
While the principle of mutation cannot assist the parties to an
actually polygamous marriage, the United Kingdom legislature has
released the courts from the narrow and rigid rule in Hyde v.
Hyde 36 by enacting the Matrimonial Proceedings (Polygamous Mar-
riages) Act 1972.137 Thus English courts have been empowered to
provide relief to a petitioner in a polygamous marriage, in spite of the
faot that there may be more than one wife living at the time of the
hearing. Presently, Canada has no corresponding statutes.
Although there is little’3 8 reform in contemplation in Canada
currently, it must be said that the cultural conflicts which tn-
132 Supra, note 7.
13 3 Supra, note 87.
134 Supra, note 31.
135 Supra, note 130, 438-39.
136 Supra, note 12.
’37 1972, c.38 s.1(1), as am. by the Matrimonial Causes Act 1973, 1973, c.18, s.47
(U.K.).
138 The Family Law Reform Act, 1978, S.O. 1978, c.2.
“This Act applies to persons whose marriage was actually or potentially
polygamous
if the marriage was celebrated in a jurisdiction whose
system of law recognizes the marriage as valid.”
By subjecting the validity of the polygamous marriage
to the lex loci
celebrationis, a number of problems could arise. Firstly, although such a wife
may be able to invoke the benefits under the Act, she could not claim to be
validly married, unless the lex loci celebrationis is also the lex domicilii
of the husband, at the time of their marriage. Secondly, the wives of a poly-
gamous marriage in fact could claim under the Act, but will not be able
19781
POLYGAMOUS MARRIAGES
derlie the institutional conflicts of monogamy versus polygamy
cannot be easily Teconciled. The institutions and the concepts of
the common law cannot easily -absorb a notion of marriage defined
in terms of a plurality of wives. It is this fact which persuaded the
British government, in its dealings with the Indian sub-continent,
to abandon tie hope of finding a place within the framework of the
common law .for ;an institution espousing a plurality of wives. It
was instead persuaded to recognize the fact of a plural society’ 39
in British India and- the consequent need to have three separate and
distinct legal systems functioning within a single framework.’ 40
While such an approach was truly justifiable from the standpoint of
Indian society as the British found it at the end of the eighteenth
century, this would be totally unworkable considering the structure
of British or Canadian society as presently constituted. It is there-
fore necessary to conclude with the caveat that any attempt to find
a place for the concept of polygamy and its legal consequences
within the common law will not be complete. The success of this
type of conceptual assimilation depends largely on the ingenuity of
the judge and the flexibility of the common law.
to seek matrimonial relief (assuming the marriage was valid) under the
principle of mutation. Thirdly, a landed immigrant, for example, from the
sub-continent of India could marry several wives there while domiciled in
Canada. In such an event, quite clearly, he would be guilty of bigamy under
the Canadian Criminal Code, (R.S.C. 1970, c.C-34) which presupposes that
his marriages subsequent to the first one are invalid. Notwithstanding this
fact, the wives may claim property rights under s.72 of the Act. The con-
fusion that will result from s.72 boggles the mind. It is hoped that the legis-
lature would alter the contents of the section in such a way that the
validity of the polygamous marriage would be made subject to the lex
loci domicilii, rather than to the lex loci celebrationis. Such a change in the
wording would avoid the foregoing problems.
139 Commenting on the British attitude to the multitude of Hindus and
Muslims in India, Sir William Jones, a judge of the Calcutta High Court, in
1788 wrote:
(‘Nothing. could be more obviously just than
to determine private
contests according to those laws which the parties themselves had ever
considered as the rules of their conduct and engagements in civil life;
nor could anything be wiser than, by a legislative act, to assure the
Hindus and Muselman subjects of Great Britain that the private laws
which they severally hold sacred, and a violation of which they would
have thought the most grievous oppression, should not be superseded by
a new system, of which they could have no knowledge, and which they
must have considered as imposed on them by a spirit of rigour and
intolerance.”
See Fyzee, supra, note 110, 53f.
140 Namely, the Hindu and the Muhammaden laws, functioning within a
common law framework in India.
