The facts disclose that Chibesa and the accused entered into a customary union and thereafter lived together until they were married at the Boma in Ndola on 18th July, 1969, under the Marriage Act, Cap. 211. Proof of this marriage was given by the Registrar and District Secretary, who produced a marriage certificate in court which was signed by Mr Chibesa and the accused in the presence of three witnesses. The accused went through a ceremony of marriage on 28th December, 1973, with Dennis Siwale while her husband, Chibesa was still alive.
Whether the accused committed the offence of bigamy given the fact that she entered into a customary union and went through a ceremony of marriage?
The court held that the first marriage was a valid marriage and also made a finding of fact that the supposed ‘second marriage’ was actually a customary union. A customary union is not capable of being a valid marriage in the sense of a monogamous marriage in the Marriage Act whether the husband is alive or not. For section 166 had contemplated Marriage to be a Christian Marriage of the Western type. Whether on the ground that there is no evidence of a second ceremony of marriage, or on the ground that section 166 contemplated a second marriage in pari materia with the first, the court couldn’t see that any offence under that section had been proved with these particular set of facts. Hence the accused was acquitted.
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