Judgement Appeal from a decree of the Chief Court of Lower Burma (March 19, 1906), affirming a decree of the District Court of Amherst (June 27, 1905). The appellants sued as widow and son of Maung Gale, deceased, to recover a half-share of his estate, alleging a lawful marriage in 1887 between Ma Wun Di and Maung Gale at Chiengmai, followed by cohabitation and the legitimate birth of the second appellant. The respondent Ma Kin, who was admittedly widow of Maung Gale, denied the alleged marriage, and stated that Ma Wun Di was merely one of the numerous concubines taken by Maung Gale during his stay in Siamese territory according to the practice of Maulmein foresters when visiting and residing in Siamese territory. The issues included one which was as follows " Whether either or both of the plaintiffs are entitled to a share in the estate left by Maung Gale? And, if so, to what share ? " The District Judge found " I am not satisfied that any wedding ceremony, as alleged, took place." " Holding that there was no wedding ceremony, the next point to consider is the conduct and relationship of Maung Gale and Ma Wun Di. On this point it is admitted that Maung Gale kept three other Shan girls in the same house with Ma Wun Di. That each occupied a separate room, and that Maung Gale divided his attention amongst them, sometimes eating and sleeping with one of them and sometimes with the others. The witnesses, one and all, say that Maung Gale acknowledged Ma Wun Di as his wife, and that she was regarded as such by the public." He concluded "I am satisfied that Maung Wun Di was merely a monkey wife/ or temporary mistress of Maung Gale, and not his legal wife." With regard to the status of monkey wife, the District Courts judgment refers to s. 14 of the notes on Buddhist Law, as translated by S. Minus, p. 3 of Jardines notes. The passage cited says " Most Europeans and even some of the younger Burman magistrates are ignorant of the meaning of the terms monkey wife and monkey husband (myaukma and myaukhti). The passage cited says " Most Europeans and even some of the younger Burman magistrates are ignorant of the meaning of the terms monkey wife and monkey husband (myaukma and myaukhti). They relate to the habits of monkeys, who usually live in distinct groups, in which a male is of ten united to one or more particular females, but if gone abroad or strayed away to another group, finds there sufficient consideration for his wants to have a female allotted to him, especially if he is a powerful monkey ; or he will appropriate a temporary partner and take the consequences of being compelled to remain in the new tribe or of recognizing his newly acquired partner as consort or of being driven out of the community. The lower and formerly oppressed races of Burma sometimes allowed their guests to cohabit with unmarried females of the household ; such females became the myaukma’s during the guests stay; and what was originally an act of hospitality was afterwards claimed as a privilege by Burman lords when absent from their families and residing temporarily in other places. In the same way a married merchant coming from a distant place for trade may keep a woman as if she were his wife, she attending to his business and cohabiting with him only; their temporary relation is that of myaukma and myaukhti the woman may thus support herself as the temporary wife of several men in succession without sinking to the level of a courtesan. A married woman if she cohabits in this way with a guest or visitor, also becomes a myaukma and he a myaukhti, his status being similar to that of len-ngay or lesser husband. It is by inquiry into the customs of the Karens and Chins that fuller acquaintance will be made with these subjects." The Chief Court affirmed the finding of the District Judge, the Chief Judge saying " For the reasons stated above, I agree with the Lower Court that Ma Wun Di was not the legally married wife of the deceased Maung Gale." Those reasons were that he considered the evidence quite as consistent, and in fact more consistent, with concubinage than with marriage. " It is quite clear," from the evidence of Maung Nyein, " that there was no marriage ceremony." He added that "•the conduct of Ma Wun Di subsequent to the death of Maung Gale raised the strongest inference that she did not regard herself as having the status of wife. She allowed the whole of Maung Gales property to be taken possession of, first by the British consul and then by Maung Gales relations from Maulmein, without raising a protest. Though Maung Gale died in 1894, and though a law suit was going on about his estate for many years, she never intervened, and it was not till 1902, eight years after Maung Gales death, and after she had herself married again, that she took any steps to assert her rights as a married woman or to obtain a share of his estate." He further found that Maung Gale did not regard Ma Wun Di as having the status of a wife ; that it was customary for Burmese foresters from Maulmein who have to spend long periods in Siam on business to take concubines in that country; that Maung Gale had several living in the same house with Ma Wun Di and that the evidence did not shew that she differed in any way from them, except that she may have been the head of the harem. Roskill, K.C., McCarthy, and T. E. Forster, for the appellants, contended that these findings should be reversed. The Courts below threw the onus probandi on the appellants, and required them to prove a marriage. But cohabitation was proved, with habit and repute, and therefore marriage should have been presumed, and the onus was on the respondents to disprove the same, and no evidence was given with that view. The Chief Court held that the presumption did not arise. It was contended that this was erroneous even in a district where concubinage was not considered immoral. The cohabitation with Ma Wun Di was continuous, and continued until Maung Gales death, which was not the case with the other women kept by him. Reference was made to Sastry Velaider Aronegary v. Sembecutty Vaigalie. (( 1881) 6 App. Cas. 364, 371.) The presumption was not weakened by the admitted fact of a previous marriage with the respondent. The cohabitation with Ma Wun Di was continuous, and continued until Maung Gales death, which was not the case with the other women kept by him. Reference was made to Sastry Velaider Aronegary v. Sembecutty Vaigalie. (( 1881) 6 App. Cas. 364, 371.) The presumption was not weakened by the admitted fact of a previous marriage with the respondent. Polygamy was allowed by the Burmese Buddhist law, which was similar to that of the Siamese Shan States, where polygamy was frequent among the richer classes. Reference was made to " The Kingdom of the Yellow Robe," 3rd ed., by Ernest Young, late of the Education Department of Siam, pp. 98 and 99, and " Siam in the Twentieth Century," by J. G. D. Campbell ( 1904), pp. 113, 131. They also contended that the evidence was sufficient to establish the fact of marriage ; otherwise, even if there were no valid marriage, the second appellant, as the illegitimate son of Maung Gale, was entitled under Buddhist law to a share in the inheritance, inasmuch as his mother lived with and ate out of the same dish as the deceased Maung Gale. Neither Court had dealt with this contention, nor had it been raised during the progress of the case, but the issue raised as to the second appellants title was wide enough to include it, and it was not too late to establish the claim. Cowell, for the respondents, was not heard. The judgment of their Lordships was delivered by LORD ROBERTSON. The question in this appeal is one of fact; and it has been decided against the appellants by two Courts. The case, however, deserves attention, for there has been a strong appeal made to the general presumption of marriage arising from cohabitation with habit and repute. It is necessary, before applying this presumption, to make sure that we have got the conditions necessary for its existence. It is not superfluous to suggest that, first of all, there must be some body of neighbours, many or few, or some sort of public, large or small, before repute can arise. Again, the habit and repute, which alone is effective, is habit and repute of that particular status which, in the country in question, is lawful marriage. The differences between English and Oriental customs about the relations of the sexes make such caution especially necessary. Again, the habit and repute, which alone is effective, is habit and repute of that particular status which, in the country in question, is lawful marriage. The differences between English and Oriental customs about the relations of the sexes make such caution especially necessary. Among most English people, open cohabitation without marriage is so uncommon that the fact of cohabitation in many classes of society of itself sets up, as matter of fact, a repute of marriage. But, in countries where customs are different, it is necessary to be more discriminating, more especially owing to the laxity with which the word " wife " is used by witnesses in regard to connections not reprobated by opinion, but not constituting marriage. In the present case the broad facts are these a domiciled Burman, Maung Gale, has his house and wife at Maulmein, in Burma; his business took him to Siam, and there he lived for years with various other women, and with the principal appellant, Ma Wun Di, who, for shortness, will be called the appellant. The appellant has maintained that, while the other women were concubines, she was a wife, taken as a second wife, the first wife being all the time in Burma. The opposite contention is that, while the appellant was older than the other women (who all lived in the same house) and had, for that reason and also for reasons of choice, a stronger hold on the man. yet she has not made out the status of a wife. It is a noticeable feature of the case that the appellant, in her own evidence and in the evidence of other witnesses examined for her, endeavoured to set up a marriage ceremony as having inaugurated the connection; but her counsel in the appeal declined to maintain this part of her case, which was represented as resting on habit and repute. Now the first difficulty is that apparently this is a part of the world where there are not many people at all to act the part of neighbours or the public; and at all events there is no tangible evidence of recognition of this woman, in her quality of wife, by people external to the house and independent of it. Now the first difficulty is that apparently this is a part of the world where there are not many people at all to act the part of neighbours or the public; and at all events there is no tangible evidence of recognition of this woman, in her quality of wife, by people external to the house and independent of it. What evidence she has is that of the people who either speak to the abandoned marriage ceremony or distinguish her position in the house as one of more consequence, and her stay in it as of longer duration, than those of the other women. In truth, when all is said, there is little more pointing to marriage than the use of the word " wife " by some of the witnesses; and the most cursory, as well as the most careful, examination of the evidence shews that it is applied to persons whose status is not matrimonial. Nor has the appellant, in evidence or in argument, faced the grave difficulty which arises from the existence of the lawful wife in Burma. The following observations of the Chief Judge are apposite and weighty " It is not forbidden to a Barman Buddhist to have two wives at the same time; but it is universally conceded that the leading principle of Buddhism is rather monogamy than polygamy, that polygamy is rare and that it is considered disrespectable. On the contrary, I should be inclined to say that if a woman cohabits with a Burman, whom she knows to be the lawful husband of another woman, the presumption is that she is a mistress and not a wife ; and I would add that the presumption is strengthened if, as in the present case, the cohabitation is behind the back and without the knowledge of the first wife." There remains to be noticed one point which the appellants counsel treated as part of his case of habit and repute, and which seemed to be regarded as the most substantial item of it. Maung Gale in 1887 obtained a certificate of nationality as "a British subject, proposing to travel in Siam." In 1891 he renewed it; and as part of the docket of renewal, which is signed by the acting vice-consul, are the words " Names of female relations living with Maung Gale (1.) Ma Wun Di, wife; (2.) I Mun, sister-in-law." The argument upon this document is that the appellant could only be entitled to be named in this certificate of nationality if, by marriage, she had acquired her husbands certified nationality. On this, however, it is to be observed, first, that this is not evidence of repute at all; the vice-consul is not proved to have had any person-al knowledge of these people at all, and the most it comes to is that, on this occasion, Maung Gale said that Ma Wun Di was his wife. But, further, any value or relevance which this writing has in the present case is entirely taken away by the addition of the sister-in-law, who on no theory was a naturalized British subject. The truth probably is that the entry is put in merely as an item of information identifying Maung Gale, in addition to those given in the body of the certificate. The appellants counsel endeavoured to raise the question whether the second appellant, who is the son of the first appellant by Maung Gale, was not entitled to a share of Maung Gales estate, even assuming no marriage to be proved. Whether the third issue in the suit was, in its terms, susceptible of the wider construction thus suggested for it or not, the parties, by their conduct of the case, have construed it in the narrower sense of assuming the existence of a marriage; and, the point urged by Mr. Roskill having been submitted in the conduct of the case to neither Court, their Lordships are unable to entertain this question. Their Lordships will humbly advise His Majesty that the appeal ought to be dismissed. The appellants will pay the costs of the appeal.