T. Perumal Vs R. Nesammal

Citation: T. Perumal Vs R.Nesammal, Second Appeal No. 1834 of 1991

Date of Judgement: 20/06/2003

Equivalent citation: N/A

Case No.: Second Appeal No.1834 OF 1991.

Case type: Civil Appeal

Petitioner: T.Perumal

Respondent: R.Nesammal

Bench: Hon’ble Justice V. Kanagaraj

Court: Madras High Court

Statute Referred:

• The Hindu Marriage Act, 1955; Section 7A, 11, 12, 16, 16(3)
• The Special Marriage Act, 1954
• The Indian Christian Marriage Act, 1872
• Indian Divorce Act, 1869
• Code of Civil Procedure, 1908; Section 100
• Code of Criminal Procedure, 1973; Section 125
• Indian Evidence Act, 1872; Section 35, 61, 62, 63, 74, 114
• Indian Penal Code, 1860; Section 494

Cases Referred:

• Smt.Yamunabai Anantrao Adhav Vs Anantrao Shivram Adhav And Another AIR 1988 SC 644
• Sm.Swapna Mukherjee Vs Basanta Ranjan Mukherjee And Others AIR 1955 Calcutta 533,
• Vilayat Raj Vs Smt. Sunila AIR 1983 Delhi 351
• G.Packia Raj Vs P. Subbammal Alias Susila Bai AIR 1991 Madras 319.,
• Anandji Haridas & Co. Pvt.Ltd. Vs Engineering Mazdoor Sangh And Another AIR 1975 SC 946
• Vishnu Maheswaran Nampoothiri Vs Kuruvilla Kochitty Kurivila And Others AIR 1957 Kerala 103
• S.P.Sakthi Devi Vs The Collector Of Salem And Others 1984 Writ. L.R. 535
• N.S. Ziaudeen Vs S.Ashok Kumar, Principal Sessions Judge, Chennai And Others (2002) 2 M.L.J.74
• Vilayat Raj Vs Smt. Sunila AIR 1983 Delhi 351

Facts:

• The second appeal is directed against the judgement and decree dated 27.6.1991 by the Court of District Judge, Nagercoil in A.S.No.57 of 1990, which confirmed the judgement and decree dated 29.10.1986 by the Court of Principal District Munsif, Padmanabhapuram in O.S.No.256 of 1985.
• The appellant filed the suit in O.S.No.256 of 1985 before the trial Court against his wife (Respondent).
• The suit was brought seeking a declaration that the plaintiff and defendant are not husband and wife, as well as an injunction prohibiting the defendant from claiming any right against the plaintiff as his wife based on allegations such as that he was born a Hindu and has always professed Hinduism.
• It was also stated that the defendant is a Christian who attends the C.S.I. Church; that the defendant was misrepresented to him as a Hindu, as a result of which his marriage to the defendant was solemnized on 29.10.1982 at the defendant’s residence in Kamplar, Manakarai in accordance with Hindu ceremonies.

Issues involved:

• Whether the Respondent is a Hindu?
• Whether the marriage solemnized in between the parties is not valid under law since the same was not conducted properly but on misrepresentation?
• Whether the plaintiff is entitled to get reliefs?
• What relief, if the plaintiff is entitled to?

Contention of Petitioner:

The counsel for the Petitioner contended that:

• According to the plaintiff, a marriage between a Christian and a Hindu under Hindu Law with Hindu rites and rituals is not lawful; a marriage between a Hindu and a Christian is only possible under the Christian Marriage Act or the Special Marriage Act.
• It was urged that there is no such marriage took place between the plaintiff and the defendant under the above-Mentioned Acts.
• He argued that because the defendant is not a Hindu and the marriage ceremony was conducted in accordance with Hindu Law, the plaintiff-defendant marriage is illegal and void, and thus there is no valid marriage between the plaintiff and the defendant; and that a Hindu-Christian marriage cannot be celebrated under the Hindu Marriage Act.
• Hence the plaintiff submitted that the marriage Herein creates no obligation between the parties and there cannot be a relationship of husband and wife in law between the plaintiff and the defendant.
• The learned counsel cited a judgment of the Honourable Apex Court rendered in Smt.Yamunabai Anantrao Adhav Vs Anantrao Shivram Adhav And Another AIR 1988 SC 644, as herein the court observed and held,
  • “Weddings covered by the S.11 are void , that is void of the same situation and must be ignored as not existing in the law at all, and when this question arises. Although the section allows a formal declaration to be carried out on the presentation of a petition, it is not essential to obtain a formal declaration as a court of a proceeding initiated specifically for the purpose. The provisions of the S.16 also show light on this aspect. S.16 (3) Verify the fundamental difference in the character of empty and annual weddings as it was respectively covered by SS.11 and 12. It should also be noted that, although the legislator considered appropriate to defend the legitimacy of the paternity of a child born from An empty marriage has not extended similar protection regarding the mother of the mother. “
• The applicant’s lawyer also urged that the appellant was not informed of the marriage of the defendant with Lilabai when he married the defendant who treated her as his wife and, consequently, his prayer must be allowed for the maintenance. 
• The learned counsel for the applicant is one represented by a Division Bank of the Calcutta to Smt. Swapna Mukherjee Vs Basanta Ranjan Mukherjee and Ors. AIR 1955 Calcutta 533 in which he was held:
  • ” for a person to condemn himself from a Bigamy crime, under S.494, the second marriage must be a form of marriage recognized by the law otherwise, it would simply be an adulterous union and will not be influenced by the provisions of S.494. 
• When, a Christian born and who lives a Christian wife, once again sees an Hindu woman, marriage is celebrated according to the Hindu ritual, the next marriage between one and the Hindu woman is an empty marriage, not for the existence of the Christian.
• The following next case cited by the lawyer learned for the applicant is issued by a unique judge of Delhi High Court in Vilayat Raj Vs Smt. Sunila reported in 1983 Arradio Delhi 351 in which the point is considered: “If an apostate of Hinduism can present a petition under the marriage of Hindu law, in 1955, in search of dissolution of a marriage celebrated in this act , before its change in faith”, and discuss sections from 3 to 5 of the Hindu law of union, the judge learned supported: “Because, there is no doubt, that an Hindu can marry a person who was previously A Christian, until the person became the Hindu religion before marriage, for the date of marriage both marriage. The parties are Hindu. An Hindu includes one who becomes or reconounced to the Hindu religion. Then, if the others are met Conditions, such as marriage would be a valid marriage Hindu.”
• The Last case mentioned by the lawyer learned for the applicant is a delivery from the division bank of this court in NS Ziaudleen Vs S. Shok Kumar, main sessions judge, chennai and Ors (2002) 2 MLJ74, in which when a petition was presented for the release of a guarantee against a judicial officer in the rank of a district judge that falsely affirmed the status of A Scheduled Caste is following the Christian faith and the judicial worker stated that Hinduism was converted to Hinduism, the Bank of the Division had: “while the social status of the first defendant, as indicated in the caste certificate issued by the authorities , Aspects, there is a legal presumption pursuant to Section 114 of the Indian evidence law that the first interviewee is a programmed caste and a usurper office cannot be defined.:
• In addition to previous judgments, the lawyer learned yes it would also based on sections 35, 61, 62, 63 and 74 of the law on the tests in which the relevance of the voice carried out in the public register has made in the performance of an official duty, The proof of the contents of the documents was narrated, both from primary or secondary tests that the nature of the public document was narrated.

Contention of Respondent/ Defendant:

The counsel for the Respondent contended that:

• The Respondent denied all the accusations of the plaintiff and presenting even more than his wife in the written submissions. 
• She studied in the C.S.I.School, Mangarai and so the school authorities had mistakenly entered her religion in the school records as C.S.I. Christian; that no fraudulent representation was made to the plaintiff as alleged in the plaint; that as both the parties are Hindus, the Hindu Marriage Act will apply to their marriage and not either the Special Marriage Act or the Christian Marriage Act; that the plaintiff and defendant lived as husband and wife and a male child by name Arun was born to them on 28.8.1983 and the plaintiff is bound to maintain the defendant and the child.
• The learned counsel for the Respondent would solicit that to adapt to the applicant’s convenience, he changed his color after having experienced a long-married life with the interviewee, without an adequate reason, but clinging to the technical point of a religion to leave the interviewee in Lurcthe.
• The respondent in reply to case cites by the appellant of Smt.Yamunabai Anantrao Adhav Vs Anantrao Shivram Adhav And Another AIR 1988 SC 644, this is an admitted case of the wife who was the second wife when her husband had married another woman when her first wife was life And of the first marriage was of subsistence and, consequently, in a case of maintenance launched by the second wife, since marriage with the second wife was not valid, the honor of Apex’s honor refused to grant relief Maintenance searched by the second wife. But, in the case in hand, his wife does not admit the affirmation of her husband who was a Christian or who had been delivered in marriage with the applicant about the false declaration that he was Hindu and, therefore, in fact, a decision had it He had come into the dress presented by her husband looking for the statement that the marriage was empty. Weigh the tests placed in the register, the Court of First Instance came to the conclusion that neither of them was Christian nor had it had a fragmentation from the part of his wife. Therefore, the principles maintained by the honorable Supreme Court in the previous case mentioned by the applicant cannot be applied to the case in question.
• The subsequent Case Cited by the applicant Smt. Swapna Mukherjee Vs Basanta Ranjan Mukherjee and Ors. AIR 1955 Calcutta 533 is a case decided almost 50 years from Bigamia pursuant to Section 494 of the Code of Criminal Procedure, which is a criminal crime in which it is also an admitted fact that a Christian born that has A Christian wife who lives, married another Hindu woman according to the Hindu ritual and the high court of Calcutta claimed that the marriage was undecided to the extent that he had been held between an Indian Christian and an Hindu woman. The results on the facts of this case, moreover, cannot be applied to the case in question, as it is not the fact that his wife is a Christian and a decision should be taken on the facts if he was a Christian, so, in fact, in fact, treating with the case of an in-depth process, the courts have reached the conclusion that his wife was not Christian and, consequently, the principles established in this case, moreover, cannot be applied to the case in question.
• The other case cited by the applicant of Vilayat Raj Vs Smt. Sunila AIR 1983 Delhi 351 in reply the respondent stated that it is also in a completely different series of the facts based on the conversion that is not the case in hand and, consequently, the principles established in this case, as they become inapplicable for the case herein.

Ratio decidendi:

The essential and primary obligation of the Court in such a scenario of such nature is to discover whether or not truly the allegation of the appellant that the respondent is a Christian is accurate or not. primarily based totally at the information and instances pleaded and proved in proof and withinside the stated exercise, the plaintiff has trusted Exs.A.four to A.6 which can be respectively the software for job, the primary web page of the SSLC and the caste certificates issued, as towards which Exs.B.2 to B.

Five were projected through the respondent/ spouse which can be the certificate issued through the South Indian Diocess, the Certificate issued through the Viswa Hindu Parishad and the Hindu temple competition birthday party word and additionally the caste certificates dated 28/10/1985.  

Tracing the information and instances of the case as projected through the appellant and the respondent, the trial Court, having framed the issues, primarily based totally at the information and instances placed forth, has approved the events to document their proof carrying out a radical trial into the pleadings and appreciating the proof located on document withinside the way required through regulation, has in the end arrived on the legitimate end to preserve on information and instances and according with regulation to push aside the in shape filed through the appellant.

Judgement:

The court held that there is no merit in the above second appeal so the appeal was dismissed and the judgment and decree dated 27.6.1991 rendered in A.S.No.57 of s1990 by the Court of District Judge, Nagercoil thereby confirming the judgment and decree dated 29.10.1986 rendered in O.S.No.256 of 1985 by the Court of Principal District Munsif, Padmanabhapuram is hereby confirmed.

The Appeal was Dismissed.

Conclusion:

In the present case herein, the court did not find any merit in the case, and so accordingly the second appeal was dismissed. And therefore, the only conclusion that could be arrived at on a overall consideration of the case, particularly falling in line with the substantial questions of law framed is to decide the same against the appellant and in favour of the respondent and hence the judgment.

Drafted by: Bharti Verma, Chanderprabhu Jain College of Higher Studies and School of Law.

Edited by: Aashima Kakkar, Associate Editor, Law Insider

Published On: November 17, 2021 at 19:35 IST