Citation: 1971 AIR 2352
Case Type: Civil Appeal
Case No: 354 of 1967
Appellants: Perumal Nadar (Dead) By L.R.S
Respondents: Ponnuswami
Decided On: 17-03-1970
Statues Referred:
- The Madras Hindu (Bigamy Prevention and Divorce) Act 6 of 1949
- Indian Evidence Act
Case Referred:
- Muthusami Mudaliar v. Masilamani
- Goona Durgaprasada Rao and Another v. Goona Sudarasanaswami and others
- Chilukuri Venkateswarlu v. Chilukuri Venkatanarayana
- Ammathayee v. Kumaresain
Bench: Shah, J.C. Hegde, K.S. Grover, A.N
Facts:
Perumal Nadar and Annapazham entered into a wedlock on 29th November, 1950 at Kannimadam in the state of Travancore-Cochin. The marriage took place in accordance with Hindu rites.
The wedlock gave birth to two children to two children. The elder one died shortly after its birth whereas the younger one named Ponnuswami through his mother filed an action in the Court of Subordinate Judge, Tirunelveli for separate possession up to half a share in the properties of the joint family which was held by his father Perumal.
Permual contented that the marriage was not a valid marriage performed with proper rituals and ceremony and therefore the child so begotten was an illegitimate child having no right of claim in the share of the estate. The Trail Court by rejecting the contention decreed the suit.
Aggrieved by the decision of the Trail Court, Perumal appealed to the High Court but failed and therefore after obtaining the certificate U/A 133(1) (c) of the Constitution, the appeal was made to the Supreme Court.
Issue:
Whether the marriage between a Hindu and a Christian was valid?
Whether the marriage felt within the prohibition of The Madras Hindu (Bigamy Prevention and Divorce) Act 6 of 1949
Whether the plaintiff-child could be held to be legitimate child.
Obiter Dicta:
A person can be a Hindu either by Birth or by conversion. A person born to another faith cannot be said to be converted to Hinduism by mere theoretical allegiance.
Neither a bare declaration gives validity to conversion into Hinduism. For a bona fide conversion an unequivocal expression or intention to follow Hinduism is sine quo nine. No formal ceremony of purification or expiation is necessary to effectuate conversion.
Ratio Decedendi:
Annapazham was a Christian by birth and when she married to Perumal she was 19. The children begotten from the wedlock were entered in the register of births as Hindus. Printed invitation was sent for the occasion of marriage.
An agreement that was executed between Perumal Annapazham was brought to the Court’s notice which recited that, “Individual No. 1 (Perumal) among us has married Individual No. 2 (Annapazham) as settled by our parents and also with our full consent. As our relatives are of the opinion that our marriage should be registered, this agreement has been registered in accordance therewith. We have executed this agreement by consenting that both of us shall lead a family life as husband and wife from this day onwards, that we shall not part each other both in prosperity and adversity and that we shall have mutual rights in respect of the properties belonging to us, under the Hindu Mitakshara Law.”
Several oral evidence was brought to the High Court’s observation that proved that the marriage was conducted in accordance with Hindu rites and Sanskars. The usual ceremony tying thali was observed. Annapzham ceased to attend Church thereafter and abandoned Christian faith and started following Hindu customs.
Perumal contended that the marriage fell short of validity upon the ground that there was absence of evidence to show that Annapazham had converted to Hinduism before entering into wedlock with Perumal.
And therefore even if the marriage was in consonance with Hindu rituals and ceremony, was not a valid one.
In various decision of Courts of India, a marriage between a Hindu and Christian has been recognised and upheld. Such a custom was common and validly recognised.
In the instant case the marriage was convened in accordance with Hindu rites and ceremony in the presence of relatives who were invited to the occasion. There was no objection on or before the marriage. Annapazham was accepted by the local Hindu Nadar Community as one among themselves, as a co-religionist.
Therefore it was upon the above exhibits that served in establishing the fact that Annapazham had bona fide intention to marry Perumal and observe for her rest of her life Hinduism. Hence the absence of expiatory or purification wasn’t relevant to establish that Annapazham had converted into Hinduism before marriage.
Also that Perumal went through the marriage ceremony in accordance with Hindu rites was a testimony to the fact that he accepted Annpazham as her wife who converted herself in Hinduism.
Perumal tried to take shield of Section 4 of the Madras Act 6 of 1949 by contending that since he was previously married one Seethalakshmi and that she was alive, hence Perumal’s marriage with Annapazham by the provision of Section 4 stood void.
But the High Court in consonance with Trail Court held that the marriage took place in Kannimadam which admittedly fell within the territory of Travancore, Cochin. Even after marriage the couples resided in Kannimadam only.
The PW2 M. Thangiah Nadar and PW4 Kailasa Nadar deposed that the families of Annapazham and Perumal were the subjects of Travancore and that evidence remained unchallenged.
Therefore the onus was upon Perumal to establish that the marriage felt within the prohibition of Madras Act 6 of 1949, in which he evenly failed. It was conveniently held that both the parties were not the resident of Madras territory and therefore the prohibition enumerated in the provision of Section 4 of the Act was not applicable upon the parties.
Since the marriage was valid one hence the child born to the wedlock was held as a legitimate child.
The presumption raised by Section 112 of the Indian Evidence Act could not suffice as Perumal could not establish that Annapazham had no access to him. Supreme Court in its judgment in Ammathayee v. Kumaresain held that conclusive presumption U/S 112 of Evidence Act could be displaced only if it could be proved that parties had no access of each other at the time when the child was begotten.
The above contention was affirmed both by the Trail and High Court.
Judgment
The Apex Court’s bench comprising of Shah, J.C. Hegde, K.S. Grover, A.N held the following:
The marriage between Perumal and Annapazham was held to be valid. The Court observed that for conversion to Hinduism no specific expiatory or purificatory ceremonies was required.
The prohibition laid dawn in the Madras Hindu (Bigamy Prevention and Divorce) Act 6 of 1949 was not applicable upon the parties as the parties on and after the date of marriage resided in Kannimadam which fell within the territory of Travancore, Cochin.
The plaintiff child was held to be a legitimate one as the father failed to prove or establish that there was no access with the spouse. Besides the fact that the parties lived in the same village itself reflected that there was access of each other.
The appeal was dismissed without cost.
Conclusion:
When the evil desire to quash the present wedlock for worldly crave arises in the mind of the either party then several attempts are made to negate the marriage by using legal weapons. But every weapons stands worthless in front of Court of law who is the protector of rights of last man standing.
So does in the present case, the marriage was contended by the appellant as void but regarded as valid by Highest Court of the country. One cannot do avert itself from the responsibility one undertakes after convening of the marriage. If one tries mischievously to avert itself from the duties of sacred marriage then such mischief are meet by the whip of the Court.
Kaushal Agarwal.
