Principles

· CUSTOM — “Justice, morality and order” — Bari customary crime of pre-manital Intercourse with a virgin whom defendant Is unwilling to marry.

The Bari custom whereby a man is punished for pre-marital intercourse with a virgin he is not willing to marry is in accord with “justice morality and order” with in the meaning of Chiefs’ Courts Ordinance 1931, s. 7(1) (a)

Judgment

M. N. O. Tambal, Resident Magistrate, Rural area, Juba District, February 15, 1962:— This is an application made on behalf of prisoner Rainando Legge, who had been convicted and sentenced to imprisonment for one year by the Central Bari Regional Court. In essence the petition is one for mercy.

The prisoner had sexual intercourse with the daughter of the complain ant Ibrahim Sahayer, who conceived thereby. When he was approached to marry the victim he refused to do so.

Now although the offence is described in the court record as being adultery, there is nothing to indicate, let alone to prove, that either of the parties is a married person.

Nor could the prisoner be convicted for rape since it is not clear what the victim’s age is and she appears to have consented to the act on the strength of an alleged promise by the prisoner to marry her.

This being the situation, it is clear that no offence against the Penal Code had been made out. Consequently, the conviction can only stand if the act of the prisoner can be satisfactorily proved to amount to a violation of a valid tribal custom.

I summoned and closely examined Chief Andrea Fargalla, the President of the Court, with a view to ascertaining what the Bari custom is on this particular point.

According to Bari custom, pre-nuptial intercourse is allowed, provided the man is prepared to marry the girl afterwards.

A pure girl, i.e., a virgin, is regarded so absolutely her father’s property that no man should copulate -with her unless he is prepared to marry her, thereby compensating her father by payment of dowry. Age in this respect is immaterial.

This rule however does not apply to girls who have already lost their virginity or who are divorced.

Now to return to the facts of the case.

The prisoner admitted in so many words that he is the man who actually impregnated the complainant’s daughter. -He did not deny that the girl was a virgin.

In such circumstances the act of the accused is clearly a violation of the Bari custom. The only question is: Is the Bari custom, in this respect a valid one?

By a valid custom is meant one which is not contrary to morality or order.

One need not read too much into the import of the term “morality”. Otherwise the whole object of the Chiefs’ Courts Ordinance will be defeated. Many are the customs which go deep down to the root of village life here in the South, with which not many of us, if indeed any at all, would agree For this reason I am of opinion that this Bari custom is a valid one.

Consequently, I approve of the Conviction of the prisoner for this customary offence.

The application made on behalf of the prisoner requesting that a sentence of fine be substituted for that of imprisonment is a strange one in point of law and has nothing to commend it anyway.

This court is not prepared to substitute its own discretion for that of the courts below in this respect and would not disturb a sentence passed by any court except where on the face of it such sentence is too heavy or ultra vines.

The sentence passed in this particular case does not strike me as being excessive and I therefore affirm both Conviction and sentence.