THE POLICE ν. MANOLIS CONSTANTINOU (V18) 1 CLR 84

(1)Except for certain express provisions which section 165 of the Cyprus Criminal Code contains, the section is to be construed in the same way as section 57 of the Offences Against the Person Act, 1861, notwithstanding the difference in wording between the two provisions.

(2)Though the absence of the marriage permit would not have prevented the second marriage from being a bigamous marriage, the suspension of the priest did, since the ceremony was performed by an unauthorized person and, according to the personal law of the parties, was not capable of producing a valid marriage. Consequently, the accused was not guilty of bigamy. Judgment of the President, District Court, affirmed. Case stated by the President, District Court of Nicosia, on the application of the Attorney-General. P. N. Paschalis, Crown Counsel, for the appellants. F. Markides for the respondent. The facts are fully set out in the judgment of the Court which was delivered by: JACKSON, C.J. : This is a case stated by the President of the District Court of Nicosia on the application of the Attorney-General. It arises out of a charge of bigamy, under section 165 of the Criminal Code, in which the accused man was acquitted by the learned President on the 23rd October. The facts as appearing from the statement of the case are as follows. In December, 1931, the accused was legally married at Lapithos to a woman who is still living. He joined the army in 1940 and on his return in 1945 he lived with his wife for a few days and then deserted her. Later in the same year he lived with another woman named Maroulla Haralambous, of Anayia village, by whom he had a child. On the 10th January, 1946, the accused and Maroulla went through a form of marriage according to the rites of the Greek-Orthodox Church. Both the parties were members of that Church. The priest who performed the ceremony had previously been suspended by the proper authority of his Church from the exercise of his priestly functions and his suspension was still in operation when he performed the marriage ceremony. Moreover, even if he had not been suspended, he would have required a permit from his Bishop in order to enable him to celebrate a valid marriage. He had no such permit. The learned President found that, according to the Canon Law of the Greek -Orthodox Church, the marriage was invalid because of these defects and that either of them alone would have invalidated it. He also found that both the parties to the marriage knew of these defects. On those facts the learned President held that, though the absence of the marriage permit would not have prevented the second marriage from being a bigamous marriage, the suspension of the priest did, since the ceremony was performed by an unauthorized person and, according to the personal law of the parties (the Canon Law of the Greek-Orthodox Church), was not capable of producing a valid marriage. He accordingly acquitted the accused. In support of his decision the President referred to the cases of Reg. v. Brawn (English Reports, Vol. 174, p. 751) and R. v. Robinson (1 All England Reports 1938, p. 301). The relevant part of section 165 of the Criminal Code reads as follows :- "165 Any person who, having a husband or wife living, marries in the Colony in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, is guilty of felony..." It was argued for the Crown that there is no difference in construction between the part of section 165 of our Code that we have quoted and the corresponding part of section 57 of the Offences against the Person Act, 1861, which declares that "whosoever, being married, shall marry any other person, during the life of the former husband or wife...shall be guilty of felony.." Ever since the case of Reg. v. Allen (L.R. 1 C.C.R. 367) which was decided in 1872, it has been established in England beyond any doubt, that to constitute the crime of bigamy, it is not necessary that the second marriage should be one which would have been valid but for the subsistence of the first. Mr. Paschalis maintained that a similar construction must be placed on section 165 of our Code. We agree with that view but because of the actual wording of the first part of our section, namely, the part that we have quoted, it may be desirable to make some comment on it. It is interesting to note that in some reported decisions under the Act of 1861, and the earlier Act of Charles I, which was substantially in the same terms on this point, it was held that, to constitute bigamy, the second marriage must be one which would have been valid but for the subsistence of first. That was the opinion of a majority of seven out of eleven Judges in the Irish case of Reg. v. Fanning (X Cox C.C. p. 411) which was decided in 1866. Earlier decisions were reviewed in that case. The ground for the opinion mentioned was that the English Act of 1861, like the earlier Act of Charles I, uses the word "marry" in relation to both the first and second marriages and must therefore be taken to mean the same thing in regard to both. Accordingly, since, to constitute bigamy, the first marriage must have been valid, the second also must have been valid but for the subsistence of the first. That view had previously been rejected by an English Court in the case of Reg. v. Brawn (supra) decided in 1843, and since the case of Reg. v. Allen (supra), which resulted in the unanimous decision of 16 Judges in 1872, the contrary opinion has been firmly established. That being so, it seems strange that in section 165 of our Code, which dates only from 1928, words should have been used which might seem to lend support to the view so long abandoned in England. The Code refers to the second, the bigamous, marriage as one which is void by reason of the subsistence of an earlier marriage, words which might seem to admit an argument that the second marriage must be one which, but for the subsistence of the first, would be valid. Whatever the intention of those particular words in the section, we cannot think that they were meant to be construed in that way. All the reasons of public policy which in England led to the rejection of a similar construction of the English statute weigh equally against so narrow a construction of our own law. I will not repeat those reasons here. They can be read in the words of Lord Cockburn in the judgment which he delivered for the sixteen Judges in the case of Reg. v. Allen which we have already cited. We are fully satisfied that, except for certain express provisions which section 165 of our Code contains, the section is to be construed in the same way as section 57 of the Offences against the Person Act, 1861, notwithstanding the difference in wording between the two provisions. We can therefore properly look to English authorities for our guidance. Turning now to the facts of this case, it is to be observed that though the second marriage was held to be invalid for two reasons-the absence of a marriage permit from the Bishop and the suspension of the priest-it was only the second reason which, in the view of the Court, prevented the marriage from being bigamous. It is accordingly only with that reason that we are concerned. The reason why the second marriage was held not to be bigamous was not a reason arising from the condition or status of either of the parties or out of any act or omission on the part of either of them. The reason was solely the incapacity of the priest to solemnise a valid marriage, either between these two parties or between any others. The learned President regarded him as an unauthorized person. We were referred to a number of authorities but counsel for the Crown admitted that none of them was on all fours with this case and counsel for the respondent argued that to support a conviction in this case it would be necessary to go beyond any of those authorities. Those cases certainly establish the rule that a second marriage may be bigamous notwithstanding that it is void, but they were all cases in which the invalidity of the second marriage was caused either by the affinity of the parties or by differences between them in religion or by some act or omission on the part of one or both of them. They are not a precise guide in the very different circumstances of the case before us and we have not been able to find any case, in which a marriage has been held to be bigamous when it was void because of the personal incapacity of the celebrant to perform the ceremony. In Reg. v. Allen (supra) the second marriage was void by statute by reason of the affinity of the parties and the point for decision was whether or not the invalidity of the second marriage prevented it from being bigamous. It was held that the second marriage was bigamous, but Lord Cockburn, in delivering the judgment of the Court, said that they "must not be understood to mean that every fantastic form of marriage to which parties might think it proper to resort, or that a marriage ceremony performed by an unauthorized person, or in an unauthorized place, would be marrying within the statute." He added that it would be time enough to deal with a case of that description when it arose. Such a case has now arisen and we have to deal with it. No question arises as to the form of the marriage, which was in accordance with the rites of the Greek-Orthodox Church, or as to the place of celebration. The only fact that has raised a doubt in this case is the fact that the marriage was celebrated by someone whom the learned President regarded, and we think rightly, as an unauthorized person. Suppose that a layman dressed up as a priest and went through a ceremony in proper form, would that be a marriage within section 165 of our Code? We cannot think so and we cannot see how a priest who has been suspended from the exercise of all his priestly functions differs from a dressed up layman in so far as concerns the question to be decided in this case. Such a priest could not perform a valid marriage ceremony in any place or in any circumstances or between any two parties. It may well be that for those who know that he is a priest and do not know that he is suspended, the same scandal and deception may be created as though he were authorized to perform the ceremony. Scandal and deception of that kind were among the reasons for which it was said in Reg. v. Allen that bigamous marriages are made punishable, the scandal being caused by "the prostitution of a solemn ceremony." In this case neither of the parties to the marriage was deceived or scandalized but those who witnessed the ceremony may have been both. But just the same results might have been achieved by a masquerading layman, except for the peculiar scandal given by the conduct of the priest in this case. That, however, would be no reason for punishing one of the parties to the marriage if he was not otherwise punishable. It seems clear to us that if we were to hold that the learned President was wrong in his decision, we would be going far beyond any of the authorites that have been cited to us and we are unwilling to do so on the facts of this case. We must therefore affirm the President's decision. cylaw.org: Από το ΚΙΝOΠ/CyLii για τον Παγκύπριο Δικηγορικό Σύλλογο