Case Number

CrimA 112/50

Date Decided

3-29-1951

Decision Type

Appellate

Document Type

Full Opinion

Abstract

The appellant, an Israel Jew belonging to the Caucasian community, married in the year 1936. He married a second time in the year 1950 while the first marriage still subsisted. He was convicted of bigamy under s. 181 of the Criminal Code Ordinance, 1936 1) and sentenced to imprisonment for one year. On appeal it was argued that s. 181 was ultra vires the powers of the High Commissioner by reason of Article 17(1)(a) 2)2) of the Palestine Order in Council 1922 (as amended) in that the section introduced discrimination between the inhabitants of Palestine, namely, between Moslems and Jews, and in that it restricted freedom of conscience and worship.

Held (Landau, J.): Dismissing the appeal,

(1) that as the section did not discriminate against men and women of the same community regarded as one unit there was no discrimination within the meaning of Article 17(1)(a) of the Order in Council.

(2) The question of freedom of worship did not arise in this case.

(3) As regards freedom of conscience, religious compulsion can only exist where religion either imposes or forbids the doing of a particular act, and the secular legislature compels a breach of the imposition or prohibition. The Jewish religion does not compel polygamy, and accordingly no ground exists for the suggestion that there was any infringement of the right to freedom of conscience.

Per Silberg J. Bigamy was never an institution rooted or permanent or favoured in the life of the Jewish people.

Keywords

Constitutional Law -- Basic Law: Human Dignity and Liberty, Constitutional Law -- Equality Before the Law, Constitutional Law -- Freedom of Religion, Criminal Law, Family Law -- Marriage, Jewish Law -- Criminal Law

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