Deivanai Achi and Anr. Vs R.M. Al.Ct. Chidambara Chettiar

 

Court: Madras High Court.

Citation: AIR 1954 MAD 657

Date of Judgement: 26/08/1953.

Appellant: Deivanai Achi and Anr.

Respondent: R.M. Al.Ct. Chidambara Chettiar.

Bench:

• Justice S. Rao.
• Justice Rajagopalan.

Statutes Referred:

• Hindu Law.

Cases Referred:

• ‘Lindo v. Ballisario’, (1795) 1 Hag Con 216.
• ‘Venkatacharyulu v. Rangacharyulu’, 14 Mad 316.
• ‘Kameswara Sastri v. Veeracharlu’, 34 Mad 422.
• ‘Brindavana v. Radhamani’, 12 Mad 72.
• Kamani Devi v. Kameshwar Singh’, AIR 1946 Pat 316.

Facts:

The appeal, in this case, was based on a partition suit filed in front of a Subordinate Judge. The facts of that suit were as follows.:

• The partition suit was filed by Chidambara Chettiar, Plaintiff no.1 and his two minor sons (Plaintiff nos. 2&3).
• Plaintiff no.1 was married to Nachiammal. Alagu Chetti was their son.
• Defendant No.1 was the wife of Alagu Chetti, and Defendant no.2 was the minor son of Alagu Chetti and the 1st Defendant. Alagu Chetti had passed away on 15/04/1942.
• Following the death of Nachiammal, the 1st Plaintiff married Valliammai. She, however, passed away in 1934 without leaving any issue.
• Plaintiff no.1 then married Defendant no.3 on 14/07/1934. Their marriage ceremony was according to the ‘Suyamariyathai cult’ or the self-respecter’s cult under the auspices of Purohit Maruppu Bugham or Anti Purohit Association. At the time of the marriage, Defendant no.3 was the widow of the Reddi caste, while Plaintiff no.1 belonged to the Nattukottai Chettiar caste. Plaintiff no.2 and Plaintiff no.3 were their minor sons.
• After the marriage, the 1st Plaintiff and the 3rd Defendant moved to Malacca as the 1st Plaintiff had a business in Malacca. The 2nd Plaintiff was born in Malacca on 7/02/1936. They returned to India after some time, and a female child was born to them on 15/04/1940. They again went back to Malacca in 1941 and could only come back to India in 1946 because of the Japanese War. While in Malacca, the 3rd Plaintiff was born on 15/02/1942 and another female child was born on 1/11/1945.
• Before leaving for Malacca, the 1st Plaintiff, in the presence of the 1st Defendant and her husband, had placed certain things (items 13to22 of D Schedule and all the jewels of the C schedule) in a safety box which was sealed using an Aligarh lock. The 1st Plaintiff kept one key while the other keys were with the 1st Defendant and her husband.
• When 1st Plaintiff, 3rd Defendant and their children returned from Malacca, and the safe was opened, it was empty.
• Thus, a suit for partition was filed. In the plaint by metes and bounds, the Plaintiffs specified properties in Schedules A to D and D1 and claimed a 3/4th allotment. Plaintiff also contended that Rs.10,000 must be set aside from the joint family property as marriage fund for the two daughters of the 1st Plaintiff and the 3rd Defendant. A Commissioner must be appointed for the division of immovable properties.
• Schedule A of the plaint contained two items of immovable property, Schedule B contained silver vessels, Schedule C contained a list of jewels that had fallen in the 1st Plaintiff’s share when a partition was executed between him and his brother, Schedule D contains particulars of jewels that he 1st Plaintiff made in the family after the said partition and Schedule D1 had sovereigns 25 and Rs.1000 cash.
• The suit was contested by Defendant nos.1&2. The Defendants claimed that The marriage between the 1st Plaintiff and the 3rd Defendant was not valid, and the children of that union were illegitimate. The Plaintiffs were only entitled to half the share in the family properties. There was no need to make provisions for the marriage of the 1st Plaintiff’s illegitimate daughters. Jewels in the Schedules C and D belonged to the 2nd Defendants grandmother Nachimmal. They also claimed that the 1st Plaintiff and the 3rd Defendant fraudulently removed many jewels and silver vessels of the family.
• When Defendant no.1 was asked to produce the jewels, she produced two boxes before the mediators, which contained some of the jewels mentioned in Schedules C and D. As for the remaining jewels, she contended that she never came into possession of them.
• A Commissioner was appointed to take inventory of jewels in possession of the 1st Defendant. There were 44 items- 27 items as per list 1 and 17 items as per list 2.
• The Defendants also claimed that some more family properties, which the Plaintiffs left out, must be attached to the plaint. The Defendants also contended that the Malacca business carried out by the 1st Plaintiff under the Vilasam of R.M. AL. ST., in partnership with his brother, also belonged to the joint family. Nachiammal’s ‘stridhanam’ and ‘seer murai’, which amounted to Rs 50,000, came under the control of the 1st Plaintiff, and the Plaintiff must account for that amount. Plaintiff did not give any ‘varusha bogam’ to the family of Defendants 1 and 2 as they were entitled to. He must therefore be directed to pay that amount.
• Schedule 1 appended to the written statement specifies the immovable properties, Schedule 2 silver vessels, Schedule 3 jewels, schedule 4 moveable properties belonging to the joint family, and Schedule 5 contains Jewels exclusively belonging to late Alagu Chettiar’s mother Nachiammal, which should not be included in the partition as they belong solely to the second defendant. Schedule 6 contains a list of the Jewels of Alagu Chetti, which belong exclusively to defendants 1 and 2 and Schedule 7 relates to the jewels belonging solely to the second defendant.
• The Subordinate Judge held that there was no valid marriage between the 1st Plaintiff and the 3rd Defendant. However, the Judge held that the Plaintiffs were still entitled to 3/4th share as the illegitimate sons of a permanent union. He found that the Malacca business was a joint family business, and the two immovable properties acquired out of the shares of that business belonged to the joint family. Thus the Defendants were entitled to a share in them. Alaggu Chetti settled the account of the stridhana amount of Nachiammal, and a balance of Rs.13189-11-9 was due with interest. This amount was payable by the family to the 2nd Defendant.
• The amount claimed under ‘varusha bogam was refused as there was no demand for it previously, and there was no legal basis for the direct payment of such amount. It was also proved that the 1st Defendant had been getting some money from the family properties. Regarding the 1st Defendant’s ‘stridhanam’ amount, the Judge found that except for the amount covered by the hundials-which was proved to have been received by Plaintiff, there was no basis for directing an account against Plaintiff in respect of it. Defendant’s claim in respect of the hundials was rejected.
• The 1st Defendant was directed to account for all items of Schedule D which were not included in the Commissioner’s inventory. Plaintiff was asked to account for all items in plaint C and D1 which were not found in the inventory.

The appeal, in this case, was filed by Defendants 1 and 2 in respect of the matters found against them. The Plaintiffs and the 3rd Defendant filed a memorandum of cross objection with respect to the findings against them.

Issue:

• Was the marriage between the 1st Plaintiff and the 3rd Defendant valid?
• Was the Subordinate Judge justified in granting a decree of 3/4th share to the illegitimate sons of the 1st Plaintiff?

The contention by the Appellant:

• The marriage between the 1st Plaintiff and the 3rd Defendant was not valid.
• Plaintiff Nos.2&3 must have a share in Plaintiff 1’s self-acquired property and not in the joint family’s property.

The contention by the Respondent:

• In the case of a non-regenerate class (Sudras), only the proof of an agreement or ‘consensus ad idem’ between the spouses to enter into a matrimonial agreement and the expression of such an intention in an unequivocal and definite form is necessary to constitute a valid marriage.
• In the case of Sudras, if a marriage conforms with any one of the eight forms recognised under Hindu law, then no religious ceremony is required
• The Gandharva form of marriage, a form of marriage recognised under Hindu law, was performed between the 1st Plaintiff and the 3rd Defendant.
• The strict observance of religious rites was merely for evidentiary value and was not an essential part of samskara.
• The Hindu texts related to marriage were only applicable to virgins and not to people who wanted to remarry.
• As the remarriage of Hindu widows falls within the Hindu Widow Remarriage Act, it was not necessary to conform with any Hindu law or texts.

Obiter Dicta:

• In the case of Sudras, the ‘samskaras’ must be performed without uttering the mantras or sacred texts.
• ‘Saptapadi’ (bride and groom taking seven steps together) and ‘Panigrahan’ (catching hold of the girl’s hands) are essential for all marriages. A man and woman can be called Husband and Wife only after the completion of ‘Saptapadi’.
• Gandharva form of marriage is one in which the bride and the groom marry each other based on mutual consent and mutual attraction. This choosing of partners is the secular aspect of the Gandharva form of marriage.
• A valid Hindu marriage has both Secular and Religious elements.
• If the community to which the parties belong has modified by long-established usage of the ceremonies prescribed by the ‘Shastras’ and has adopted new forms and new conventions, they must be recognised by the courts. 
• The Nattukottai Chettiar Community (1st Plaintiff’s community) and the Reddi Community (3rd Defendant’s community) recognise their own customs as essential requisites for a valid marriage.
• Section 6 of the Hindu Widows Remarriage Act lays down that: “Whatever words spoken, ceremonies performed or engagements made on the marriage of ft Hindu female who has not been previously married, are sufficient to constitute a valid marriage, shall have the same effect if spoken, performed or made on the marriage of a Hindu widow; and no marriage shall be declared invalid on the ground that such words, ceremonies or engagements are Inapplicable to the case of a widow.”
• Plaintiff nos.2&3 were entitled to 3/4th share of the properties.
• Defendant no.1 must be liable only for the 27 items as per list 1 of the inventory.

Judgement:

• The marriage between the 1st Plaintiff and the 3rd Defendant was not valid.
• The Subordinate Judge was justified in granting a decree of 3/4th share to Plaintiff nos. 2&3.
• The decree of the Subordinate Judge was slightly modified.
• The Appeal was allowed in part.

Rationale:

• Religious rites are necessary for all marriages and apply to all castes.
• ‘Saptapadi’ is necessary for bringing about the status of husband and wife.
• The Secular aspect- the bride and the groom choosing their partners and the religious aspect- the performing ceremonies are both necessary for a Hindu marriage to be valid.
• The essential requisite for recognising such a custom is that it must be sufficiently ancient and definite, and the caste or sub-caste or family members must recognise it as obligatory.
• The rule that religious ceremonies are essential for all eight forms of Hindu rituals applies to even Sudras.
• The rule that the nuptial texts should apply to virgin women was not an imperative rule of law but only a moral perception.
• The remarriage of widows or those who were non-virgins was permitted though it was disapproved.
• No other form of marriage was prescribed for non-virgins.
• Under Mitakshara Law, the right by birth is recognised in both father’s self-acquired property and family property. The father has a right to divide his property as he wishes.
• The 27 items belonging to the Commissioner’s inventory were treated as joint family items.

Conclusion:

• All civilised nations recognise marriage as an institution. Its ability and utility to bring about a settled life in an organised society cannot be overstated. The Hindu Law specifies a number of ceremonies and religious rites that are required for a valid marriage. All these rites and rituals apply to people from all castes. No caste is exempt from their bond.