has assigns) has been in reasonable to extend this (CRIMINAL CONFIRMATION, Before HamTon, C.J. and Piokerina, Ag. J. Rex v. Auwevo Cr.C. 2 March, 1947. Indian Evidence Act Section 122—Application to wome (0 her during the ion of a hide, being stolen rock and Produce Theft Annative was convicted mainly by reason of the evide to whom he ied by natice custom, He did witness and objected to her evidence. Barth, Attorney Genes for the Crown, ted, In this case a point is mised of very considerable importance which does not appear to have been hitherto decided in the Courts ofthis country. inst him was a woman, to native custom. This witness was case there would be practically could be convi Section 122 of that Act provides as follows:— “No person who is or has been married, shall be compelled to disclose any communication made to him duriag marriage by any person to whom he is or has b to disclose any such comm ‘The evidence given by the woman in this case as recorded by the Magistrate is— “Lam the accused's wife back to the accused. I then saw the hide, produced, on my bed Thad not sen the beast alive, Accused ssid to me“you mus hide this hide every day."I used to hide it every day in a foodbut”” chat the woman disclosed a communicationmade ins therefore to be considered whether the accused and this ‘in fact“ married” withia the meaning of Section 122 ofthe Indian Evidence Act, ‘Nov the Indian Evidence Act was drafted by English lawyers and is roots go back to the Englisl ‘communications made during mat .on for the protection, agiven being that “such testimony would have a powerful tendency to dlsturb the peace of families and to weaken, if confidence upon which the happiness of theLaw Roports 714 {tsthus clear that“the state of marriage” hat vas inthe mind ofthe ture was such a8 is contemplated in the Gs instance by English that is to say the outcome of a contract mutually entered into by 2 rman and a woman forming the basis ofthe family. Added to this, mariage a monogamous union for lif ‘The Act however, applies the protection ofthe rule generally to any person “who is or has been married,” and it would seem consequently that it would be no less applicable in the case of a polygamous or polyandrous marriage, han in that ofa monogamous marriage if sch -words where-ever a marriage i recognived by law the benefit ofthe rule, a marriage by native custom is a marriage Protectorate within the meaning of Section 122 of the Indian Evidence Act? In my opinion the use of the word “marriage” to describe the relationship entered into by an African native with 2 woman of his tribe to tribal custom is a mismomer which hat scof"'marriage” as generally among civilized peoples, ‘The elements of a 50 called marriage by native custom differ so materially fom the ordinarily accepted idea of what constitutes a civilised form of marriage that itis difficult to compare the two. In the first place the woman is not a free contracting agent regarded rather in the nature of a chattel, for the purchase of wl bargain s entered into between the intending husband and the ther or nearest male relatives of the womaa. In the second place there no limit to the number of women that may be so purchased by one man, and finally the man retsint a disposing power over the women he has purchased. ‘Women so obtained by a native man are commonly spoken of, for ‘want of a more, precise term, 2s “wives” and as “married women,” having regard to the vital difference inthe relationship ofthe pa tunion by native custom, ftom chat of the parties to «legal marriage, do nnot think that it can be sad thatthe mative custom approximates in any ‘way to the legal idea of marriage. es fax v. Amkoyo 2 [As Ihave indicated above the protection afforded by Section 122 of the Actcan in my opinion only be extended to persons legally married, and we have therefore to see ifthe native custom of wife-porchase i recognised 28a legal mucriage by the law of the Protectorate. “The Marriage Law ofthe Protectorate is contained inthe Bast Africa Marriage Ordinance, 1902, which provides that any perion desiring to ‘marry shall do so according to the procedure therein lid down, Article 35, however, ofthe Ordinance contains a proviso “native marriages" viz— “Any person who is martied under this Ordinance, or whose in any manner apply to marriages so contracted” At fist sight this article might union by native custom isa legal depend solely onthe use of the by mative custom and marrige under the Ordinance. When the rea beating ofthe article is considered it will be seen thatthe Ordinance in ‘no way affects “native marriages” and leaves them in the position they ‘were previously with all such ights and incidents as may attach to them. ‘ay the marriage law of the Protectorate to countenance che idea that a contemplates a party to a “mative martiage” disposing of all his women but one and marrying that one under the Ordinance. Having regard therefore to the essential differences in the nature of and to the mannerin which the former is regarded by the marriage law Of che Protectorate, I am of opinion that a so called marriage by the native custom of wife-purchase is not a marriage within the meaning of 122 ofthe Indian Bvidence Act, and that a patty to such a union cannot claim the protection granted by the section. T consequently hold in this case that the evidence of the witnes [Nyandobi was admissible and that the accused was rightly convicted, 45) | 8 Law Reon | ee | AA farther point arises in connection with the {0 pay afine of Rs, 800/- th the heifer to which the hide be k ner agricultural produce and therefore does and thera ate Provisions ofthe Stock nd Produce Thef Ondine sn ttherefore educe the fine Rs.80/- and conten ‘the imprisonment nntage of reading the judgment this case with which Tam in a to add a few remacks upon a ‘mater which has not yet been referred to inthis ese, ‘The Evidence Act was applied wholy a partof the procedure of the Council oon this Protectonte.By Section 20 ofthe Onlin Council 1902, however nich Counts ae cliected te eee all criminal designed to protect, the reasonably be termed, ance cir Mahomed Aden Deceased ard 2 Reference to High Count, ORIGINAL CIVIL Before Hauitron, C.J. In Fe Has Matioueo Aoen DEceaseo P.& A. 2. N.R.B, ao Inren Rerenence To Hion Court, O.C. 22 N.R.B, (March, 1917) Native Estates Administration Rules and Orders, 1899-—Roule regulating, Court Fecs dated tst April, 1899 —Bast Afica Court Fees Rule, Hlld—Fees and penatie prescbed by the Native Estates Administra Orders 1899 ie" the powers conferred by 7, but the procedure therein pretribed oF os Ens Attica Court Feet he Administrator ofthe Es Barth,Atiomey General (atthe mou ruling © the fees payable in respect of the 4 deceased Sorali, Somalis being for Puposes of jurisdiction regacedas natives, ‘The points reecred for decision are— (1) Ate the Native Estates Administration Rules, 1899, sil in force? and ifs have the sid rules the force of law or noe? (2) Are the fees leviable in cases of administration of the estate ‘ofa deceased native governed by the sid rules? G) Is the general procedure aid dovin in the said rules to be followed in the cae of an administration ofthe esate of a deceased native? (9 Does the schedule of es appended to the Rules of Cou, 1902, apply to the estate of a deceased native?