Editorial Committee of the Cambridge Law Journal Bigamy. First Marriage Potentially Polygamous Author(s): C. C. Turpin Source: The Cambridge Law Journal, Vol. 21, No. 1 (Apr., 1963), pp. 18-20 Published by: Cambridge University Press on behalf of Editorial Committee of the Cambridge Law Journal Stable URL: http://www.jstor.org/stable/4504833 . Accessed: 12/06/2014 13:22 Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at . http://www.jstor.org/page/info/about/policies/terms.jsp . JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms of scholarship. For more information about JSTOR, please contact
[email protected]. . Cambridge University Press and Editorial Committee of the Cambridge Law Journal are collaborating with JSTOR to digitize, preserve and extend access to The Cambridge Law Journal. http://www.jstor.org This content downloaded from 62.122.72.154 on Thu, 12 Jun 2014 13:22:41 PM All use subject to JSTOR Terms and Conditions http://www.jstor.org/action/showPublisher?publisherCode=cup http://www.jstor.org/action/showPublisher?publisherCode=ecclj http://www.jstor.org/action/showPublisher?publisherCode=ecclj http://www.jstor.org/stable/4504833?origin=JSTOR-pdf http://www.jstor.org/page/info/about/policies/terms.jsp http://www.jstor.org/page/info/about/policies/terms.jsp The Cambridge Law Journal The Cambridge Law Journal grave, and the accused's actions under it. This seems to be the way the court looked at provocation after section 8 of the Homicide Act, 1957, in R. v. Porritt [1961] 1 W.L.R. 1872 C.C.A.; [1962] C.L.J. 6 with its emphasis on evidence of loss of self-control in the accused. The Judicial Committee state that they are satisfied that there was material in Porritt, on which the jury might reason- ably have acted, that showed a possible loss of self-control connecting the provocation and the retaliation. Until we have a full consideration of section 8 it is not possible to say whether the reasonable relationship of the mode of resentment to the provocation retains the importance it had before the Act. In the instant case Lord Devlin says, " Provocation in law consists mainly of three elements-the act of provocation, the loss of self-control, both actual and reasonable, and the retaliation propor- tionate to the provocation." However, the case is important in relation to the doctrine of provocation after the Homicide Act, 1957, for its emphasis on what will now be the primary question, namely, is there evidence of actual loss of self-control by the accused as an individual? It is again emphasised that where the accused has put forward accident or self-defence, and not himself raised provocation, it is the duty of the trial judge to draw the jury's attention to provocation and direct the jury on it, provided that there is evidence of actual loss of self-control by the accused. Here there was no such evidence. A. LL. ARMITAGE. BIGAMY-FIRST MARRIAGE POTENTIALLY POLYGAMOU8 SECTION 57 of the Offences against the Person Act, 1861, provides that " Whosoever, being married, shall marry any other person during the life of the former husband or wife, whether the second marriage shall have taken place in England or Ireland or elsewhere, shall be guilty of felony ..." In R. v. Sarwan Singh [1962] 8 All E.R. 612, a court of Quarter Sessions, exercising the jurisdiction in cases of bigamy conferred by the Criminal Justice Administration Act, 1962, s. 12 (1), had to determine whether the words " being married " in section 57 embrace a potentially polygamous marriage. The accused was a Sikh whose first marriage had been celebrated in India under Sikh law at a time when that law permitted a man to have as many wives as he chose. He had not married again before the marriage in England which was the subject of the charge of grave, and the accused's actions under it. This seems to be the way the court looked at provocation after section 8 of the Homicide Act, 1957, in R. v. Porritt [1961] 1 W.L.R. 1872 C.C.A.; [1962] C.L.J. 6 with its emphasis on evidence of loss of self-control in the accused. The Judicial Committee state that they are satisfied that there was material in Porritt, on which the jury might reason- ably have acted, that showed a possible loss of self-control connecting the provocation and the retaliation. Until we have a full consideration of section 8 it is not possible to say whether the reasonable relationship of the mode of resentment to the provocation retains the importance it had before the Act. In the instant case Lord Devlin says, " Provocation in law consists mainly of three elements-the act of provocation, the loss of self-control, both actual and reasonable, and the retaliation propor- tionate to the provocation." However, the case is important in relation to the doctrine of provocation after the Homicide Act, 1957, for its emphasis on what will now be the primary question, namely, is there evidence of actual loss of self-control by the accused as an individual? It is again emphasised that where the accused has put forward accident or self-defence, and not himself raised provocation, it is the duty of the trial judge to draw the jury's attention to provocation and direct the jury on it, provided that there is evidence of actual loss of self-control by the accused. Here there was no such evidence. A. LL. ARMITAGE. BIGAMY-FIRST MARRIAGE POTENTIALLY POLYGAMOU8 SECTION 57 of the Offences against the Person Act, 1861, provides that " Whosoever, being married, shall marry any other person during the life of the former husband or wife, whether the second marriage shall have taken place in England or Ireland or elsewhere, shall be guilty of felony ..." In R. v. Sarwan Singh [1962] 8 All E.R. 612, a court of Quarter Sessions, exercising the jurisdiction in cases of bigamy conferred by the Criminal Justice Administration Act, 1962, s. 12 (1), had to determine whether the words " being married " in section 57 embrace a potentially polygamous marriage. The accused was a Sikh whose first marriage had been celebrated in India under Sikh law at a time when that law permitted a man to have as many wives as he chose. He had not married again before the marriage in England which was the subject of the charge of 18 18 [1968] [1968] This content downloaded from 62.122.72.154 on Thu, 12 Jun 2014 13:22:41 PM All use subject to JSTOR Terms and Conditions http://www.jstor.org/page/info/about/policies/terms.jsp Case and Comment bigamy. The assistant recorder held that only a monogamous marriage can constitute a valid first marriage for the purpose of a prosecution for bigamy, and the jury formally returned a verdict of " not guilty." It is settled that English courts will not recognise a polygamous marriage for the purpose of granting matrimonial relief to the parties to it: Hyde v. Hyde (1866) L.R. 1 P. & D. 130; Sowa v. Sowa [1961] P. 70. Moreover, there are not wanting dicta in the reported cases which affirm that polygamous unions-whether actually or only potentially polygamous-are not recognised at all by English law as being valid marriages (e.g., Avory J. in R. v. Naguib [1917] 1 K.B. 859, 860; Lush L.J. in Harvey v. Farnie (1880) 6 P.D. 35, 53), and one decision at least may have been reached upon this ground (Re Bethell (1888) 38 Ch.D. 220- there is, however, difference of opinion about the ratio decidendi of this case: see Morris, 66 Harv.L.R. 961, 968, 969). The decision in R. v. Sarwan Singh is consistent with' this principle. In more recent cases, however, and as was conceded by the assistant recorder, English courts have recognised polygamous marriages for certain purposes. In particular, it has been held that the subsistence of a prior polygamous marriage invalidates a later monogamous marriage, and a decree of nullity will be granted in respect of the latter: Srini Vasan v. Srini Vasan [1946] P. 67; Baindail v. Baindail [1946] P. 122. The view has been advanced, and was urged by counsel for the Crown in the present case, that it is illogical to admit the validity of a polygamous marriage for the purpose of establishing the invalidity of a second monoga- mous marriage, while denying its validity as a marriage which will sustain a charge of bigamy. (Cf. Bartholomew in 17 M.L.R. 344, 846.) It is submitted that this argument is fallacious. It is quite consistent to hold both that a subsisting polygamous marriage prevents a subsequent monogamous marriage from being valid, and that the conclusion of a subsequent monogamous marriage in these circumstances does not constitute the crime of bigamy. It is not necessary, in order to justify these solutions, to admit that a man may be married for one purpose but not for another. All that is required is recognition that a polygamous marriage may be treated in some respects like a valid monogamous marriage and in others be not so treated. Public policy is likely to be better served by a flexibility of rule in this matter than by insistence upon recognition or non-recognition of validity (i.e., equivalence to monogamous marriage) for all purposes, and in fact considerations of policy rather than supposed logical necessities have prevailed in the polygamy cases. (Cf. Srini Vasan C.L.J. 19 This content downloaded from 62.122.72.154 on Thu, 12 Jun 2014 13:22:41 PM All use subject to JSTOR Terms and Conditions http://www.jstor.org/page/info/about/policies/terms.jsp The Cambridge Law Journal The Cambridge Law Journal v. Srini Vasan, at pp. 69, 70; Baindail v. Baindail, at pp. 126, 127, 129.) An argument which weighed heavily with the assistant recorder in the present case was that if a potentially polygamous marriage sufficed to constitute the first marriage in a charge of bigamy, a man might be guilty of this crime who in his own country, where polygamy was allowed, married a second wife under a polygamous ceremony. This result might follow because under section 57 both the first and the second marriage may, in the case of a citizen of the United Kingdom and Colonies, have taken place abroad. An interpretation which allowed of this result, however unlikely in fact a prosecution in these circumstances, would cer- tainly appear to be gravely suspect. (An interpretation of the word " marry" in section 57, in reference to the second marriage, which also avoids this result, is suggested by Bartholomew in 17 M.L.R. 858, 859.) The decision in R. v. Sarwan Singh is to be welcomed, and it is to be hoped that any prosecution in similar circumstances in the future will meet with a like result. It may be objected that bigamy is as much an affront to the institution of monogamous marriage whether the first marriage was polygamous or not. It is open to doubt, however, whether the sanctity or stability of marriage receives any real enhancement from the criminal law of bigamy, and there seems to be no good reason to extend the crime to those who have previously married by ceremonies which permit them the prospect of taking other wives. C. C. TURPIN. EVIDENCE-POLICE EAVESDROPPING-TAPE RECORDERS THE decision of the Court of Criminal Appeal in R. v. Mills and Rose [1962] 1 W.L.R. 1152, is a reminder that there are limitations on the " sporting theory of justice" which pervades the law of evidence. The two accused appealed unsuccessfully on the ground of misreception of evidence. After arrest they were cautioned and reserved their defence. They were then placed in separate but neighbouring cells. A police constable overheard a conversa- tion between them, carried on across an intervening corridor, and recorded it on tape. One accused objected that eavesdropping after caution was a breach of the Judges' Rules, the other that it was unfair to record the conversation on tape. The placing of prisoners in adjoining cells and then listening in to their conversation is an old Worcestershire custom, vide v. Srini Vasan, at pp. 69, 70; Baindail v. Baindail, at pp. 126, 127, 129.) An argument which weighed heavily with the assistant recorder in the present case was that if a potentially polygamous marriage sufficed to constitute the first marriage in a charge of bigamy, a man might be guilty of this crime who in his own country, where polygamy was allowed, married a second wife under a polygamous ceremony. This result might follow because under section 57 both the first and the second marriage may, in the case of a citizen of the United Kingdom and Colonies, have taken place abroad. An interpretation which allowed of this result, however unlikely in fact a prosecution in these circumstances, would cer- tainly appear to be gravely suspect. (An interpretation of the word " marry" in section 57, in reference to the second marriage, which also avoids this result, is suggested by Bartholomew in 17 M.L.R. 858, 859.) The decision in R. v. Sarwan Singh is to be welcomed, and it is to be hoped that any prosecution in similar circumstances in the future will meet with a like result. It may be objected that bigamy is as much an affront to the institution of monogamous marriage whether the first marriage was polygamous or not. It is open to doubt, however, whether the sanctity or stability of marriage receives any real enhancement from the criminal law of bigamy, and there seems to be no good reason to extend the crime to those who have previously married by ceremonies which permit them the prospect of taking other wives. C. C. TURPIN. EVIDENCE-POLICE EAVESDROPPING-TAPE RECORDERS THE decision of the Court of Criminal Appeal in R. v. Mills and Rose [1962] 1 W.L.R. 1152, is a reminder that there are limitations on the " sporting theory of justice" which pervades the law of evidence. The two accused appealed unsuccessfully on the ground of misreception of evidence. After arrest they were cautioned and reserved their defence. They were then placed in separate but neighbouring cells. A police constable overheard a conversa- tion between them, carried on across an intervening corridor, and recorded it on tape. One accused objected that eavesdropping after caution was a breach of the Judges' Rules, the other that it was unfair to record the conversation on tape. The placing of prisoners in adjoining cells and then listening in to their conversation is an old Worcestershire custom, vide 20 20 [1968] [1968] This content downloaded from 62.122.72.154 on Thu, 12 Jun 2014 13:22:41 PM All use subject to JSTOR Terms and Conditions http://www.jstor.org/page/info/about/policies/terms.jsp Article Contents p. 18 p. 19 p. 20 Issue Table of Contents The Cambridge Law Journal, Vol. 21, No. 1 (Apr., 1963), pp. i-xii+1-168 Volume Information [pp. i-xii] Case and Comment Final Report of the Committee on Consumer Protection [pp. 1-7] Caveat Venditor: The Reform of the Law Relating to Innocent Misrepresentation [pp. 7-10] Disguised Extradition: Deportation or Extradition? [pp. 10-13] Compulsory Purchase. Collateral Objects and Irrelevant Considerations [pp. 13-17] Manslaughter. Provocation [pp. 17-18] Bigamy. First Marriage Potentially Polygamous [pp. 18-20] Evidence. Police Eavesdropping. Tape Recorders [pp. 20-22] Evidence. Statement Recorded on Oral Information. Informant Not Called as Witness. Admissibility of Record under Evidence Act, 1938 [pp. 22-24] Contract. Intention. Revocation of Offer [pp. 24-28] Negligence. Real Property. Liability of Builder to Tenant's Wife. Donoghue v. Stevenson [pp. 28-32] Tort. Damages. Personal Injuries. Fatal Accidents Acts [pp. 32-37] Damages. Loss of Earnings. Deduction of Pension [pp. 37-40] Contract. Oral Agreement for Tenancy for Lives. Entry into Possession. Law of Property Act, 1925, s. 40. Walsh v. Lonsdale Pleaded as Defence. County Courts Act, 1959, s. 74 [pp. 40-41] Advancement and Perpetuity [pp. 42-45] Power to Appoint among Issue. Appointment on Protective Trusts. Delegation. Excessive Execution [pp. 46-48] Marriage. Mistake as to Resulting Status. Mistaken Belief That Marriage Polygamous [pp. 48-50] Marriage. Form. Lex loci celebrationis. Invalidity. Common Law Marriage. Sphere of Application [pp. 50-53] The Freedom of Trade and Commerce in the Indian Constitution: The Atiabari Case and after [pp. 54-84] Protected Interests in the Law of Torts [pp. 85-103] Matrimonial Cruelty and Mens Rea [pp. 104-118] Some Principles of Fiduciary Obligation [pp. 119-140] Book Reviews Review: untitled [pp. 141-143] Review: untitled [pp. 144-146] Review: untitled [pp. 146-147] Review: untitled [pp. 147-148] Review: untitled [pp. 148-150] Review: untitled [pp. 150-151] Review: untitled [pp. 151-152] Review: untitled [pp. 152-155] Review: untitled [pp. 155-157] Review: untitled [p. 157] Review: untitled [pp. 158-159] Review: untitled [pp. 159-160] Review: untitled [pp. 160-161] Review: untitled [pp. 161-162] Books Also Received [pp. 162-167] The University Law Society 1962-1963 [p. 168]