A. L. V. R. S. T. Veerappa Chettiar Vs.
S. Michael  INSC 323 (19 November 1962)
IMAM, SYED JAFFER AYYANGAR, N. RAJAGOPALA
CITATION: 1963 AIR 933 1963 SCR Supl. (2) 244
Hindu Law-Asura marriage-Test of-Difference
between Asura and Brahma marriage-Presumption that every Hindu marriage is in
Brahma form-Objector must prove the contrary--Effect of bridegroom bearing
expenses of marriage-Kanyadan.
The main question involved in both the
appeals was whether the marriage of Bangaru Ammal was in Asura form or in
Brahma form. The contention of the appellant was that it was not in Asura form.
Except a bare allegation in the plaint that the said marriage was held in Asura
form, the plaintiffs did not give any particulars or set up any custom in the
community to which the parties to the marriage belonged.
They had given evidence that 'a sum of Rs.
1000 was paid as 'Parisam' to the father of bride but that evidence had been
rejected by both the courts. Respondents pointed out to the giving of Kambu by
bridegroom's party to the bride's party at the time of betrothal and
expenditure of Rs. 300/- by bridegroom's party in connection with the marriage
of Bangaru Ammal and maintained that it was Asura marriage.
Held, that the marriage of Bangaru Ammal was
not in Asura form but in Brahma form. There was nothing to show that there was
a practice in the family to give Kambu as 'Parisam for the bride or Kambu was
paid as 'parisam' at the time of the betrothal ceremony in connection with the
marriage of Bangaru Ammal. The father of the bride had spent large amounts and
the bridegroom's party had spent only about Rs. 300/- in connection with the
said marriage. The expenditure incurred by the bridegroom's party was not and
could not have been the consideration for the father giving his daughter in
marriage. There is a presumption in Hindu Law that every Hindu marriage is in
Brahma form and that pre- sumption has not been rebutted in this case. The
court was entitled to presume that the necessary ceremony of Kanyadan must have
been performed. As no consideration passed from the bridegroom to the father of
the bride, the father must be held to have made a gift of the girl to the
245 The essence of the Asura marriage is the
sale of a bride for a price and it is one of the unapproved forms of marriage
prohibited by Manu for all the four castes of Hindu society.
The vice of the said marriage lies in the
receipt of the price by the bride's father or other persons entitled to give
away the bride as a consideration for the bride. If the amount paid or the
ornament given is not the consideration for taking the bride but only given to
the bride or even to the bride's father out of affection or in token of respect
to them or to comply with a traditional or ritualistic form, such payment does
not make the marriage an Asura marriage. There is also nothing in the texts to
indicate that the bearing of the expenditure wholly or in part by the
bridegroom or his parents is a condition or a criterion of such a marriage, for
in such a case the bride's father or others entitled to give her in marriage do
not take any consideration for the marriage, or in any way benefit there under.
The fact that the bridge room's party bears the expenditure may be due to
Prestige, vanity, social custom, the poverty
or the disinclination of the bride's father or some of them may be the reasons
for the incurring of expenditure by bridegroom's father on the marriage but the
money so spent is not the price or consideration for the bride. Even in a case
where the bride's father, though rich, is disinclined to spend a large amount
on the marriage functions and allows the bridegroom to incur the whole or part
of it, it cannot be said that he has received any consideration or price for
the bride. Though in such a case if the bridegroom's father had not incurred
the said expenditure in whole or in part, the bride's father might have to
spend some money on that account, such an indirect result could not be
described as price or consideration for giving the bride.
Asura marriage is a marriage where the
bride's father or any other person entitled to give away the bride takes Sulka
or price for giving the bride in marriage. The test is two- fold. There shall
not only be a benefit to the father, but that benefit shall form a
consideration for the sale of the bride. When this element of consideration is
absent, such a marriage cannot be described as Asura marriage.
Jaikisondas Gopaldas v. Harikisandas
Hulleshandas (1876) I. L. R. 2 Born. 9, Vijarangam v. Lakshman, (1871) 8 Born.
H. C. Report. 244, Muthu Aiyar v. Chidambara Aiyar, (1893) 3 M. L.,J. 261,
Chunilal v. Surajram, (1909) I. L.R. 33 Born. 433, S. Authikesayulu Chetty v.
S. Ramanvjan Chetty" (1909) 1. L. R. 32 Mad. 512, Gabrielnathaswami v. Valliammai
Ammal, A. 1. R. 1920 Mad. 884, Ratnathanni v. Somasundara 246 Mudaliar, (1921)
41 M. L. J. 76, Samu Asari v. Anachi Ammal, (1925) 49 M. L. J. 554; Kailasanath
Mudaliar v. Parasakthti Vadivanni, (1934) I. L. R. 58 Mad. 488, Sivangalingam
Pillai v. K. V. Ambalayana Pillai, A. 1. R. 1938 Mad. 479; V. S. Velavutha
Pandaram v. S. Suryamurthi Pillai (1941) 2 M. L. J. 770 and Vedakummapprath
Pillai v. Kulathinkai Kuppan, (1949) 2 M. L. J. 804, referred to.
CIVIL, APPELLATE JURISDICTION: Civil Appeals
Nos. 131 and 132 of 1960.
Appeals from the judgment and decree dated
April 4, 1952, of the Madras High Court in Appeal No. 816 of 1947 and No. 83 of
A. V. Yiswanatha Sastri, R. Ganapathy Iyer,
K. Parasaran and G. Gopalakrishnan, for the appellants.
K. Bhimassankaran, Durgabai Deshmukh, A.
Narayana Swami and R. Thiagarajan, for the respondents 2 to 4.
R. Gopalakrishnan, for respondent No. 2 (In
C. A. No. 132 of 1960).
1962. November 19. The judgment of the court
was delivered by SUBBA RAO, J.-These appeals filed by a certificate issued by
the High Court of judicature at Madras raise a question of Hindu Law pertaining
to marriage in 'Asura form'. The material facts may be briefly stated : To appreciate
the, facts and the contentions of the parties the 247 following genealogy may
be usefully extracted Muthusami Naicker |
------------------------------------------------ | | Senior wife Junior wife |
| Konda Bommu Naicker Kamayasami Naicker (died 23.10.1873) (died 31. 7. 1901) |
| | | Kandaswami Naicker Ponnuthayee Naicker --------------- (died 31. 7. 1881)
(died 13.3 1938) | Banmuga Valla | Konda Bommu Naicker |
--------------------------- (died 21.1 1901) | | | | | | | Dorairaja Muthusami
Kama- Parama- | alias (2nd Plff) yasami sivam Married | Thanipuli (3rd
Plff)(4th Plff) Errammal | chami (died 2.2.1933) | (1st Plff) | | Bangru Ammual
| (died 14.12.1930) | | | married also 8 other wise of whom the last to die
(a) Meenakshi Ammual (died 5.6. 1938) (b)
Krishna Ammual (died 10.11.1938) (c) Vellayammal alias Chinathayammal (died
248 Thevaram is an ancient impartible
zamindari in Madurai District. Shanumugavalla Konda Bommu Naicker was zamindar
from 23.8.1876 to 20.1.1901. On his death on January 21, 1901 Bangaru Ammal,
his daughter, got his entire estate under the will executed by him. To
discharge the debts incurred by her father Bangaru Ammal executed on March 13,
1913 a mortgage of her properties for a sum of Rs.
2,15,000/- in favour of one Chidambram
Chettiar. On his death his son Veerappa Chettiar filed on April 16, 1921, C.S.
31 of 1925 against Bangaru Ammal in the Subordinate judge's Court, Dindigul for
the recovery of a sum of Rs.
5,49,6338-7 being the balance of the amount
due under the said mortgage. The suit was compromised and on July 28, 1928, a
compromise decree was passed therein. Under the compromise decree the mortgaged
properties were divided into three Schedules A, B & C and it was provided
that if a sum of Rs. 3,75,000/-was paid by July 31, 1931, the mortgage must be
deemed to have been fully discharged but in default the properties in Schedule
A of the decree were to become the absolute properties of the plaintiff. B
Schedule properties i.e., some of the pannai lands and the C Schedule
properties, i.e., those already alienated by Bangaru Ammal were released from
the mortgage. One K. V. Ramasami Iyer, the Manager of the estate was appointed
Receiver of the A Schedule properties and he was directed to deposit the surplus
income into court towards the payment of the amount due under the compromise
decree. Before the expiry of the period prescribed under the said decree
Bangaru Ammal died on December 14, 1930, and her mother Errammal claiming to be
her heir on the ground that Bangaru Ammal's marriage was held in 'Asura form'
filed I.A. No. 190 of 1931 in the court of the Subordinate judge, Dindigul, for
directing the Receiver to hand over the estate to her. Veerappa Chettiar in his
turn filed I.A.No.170 of 1932 for 249 directing the Receiver to deliver
possession of A Schedule properties on the ground that the term prescribed
under the compromise decree had expired and the balance of the amount due under
the decree was not paid to him. In the petition filed by Errammal she raised
the question of the validity and the binding nature of the compromise decree on
After elaborate inquiry on February 1, 1933,
the learned Subordinate judge, though he held that the marriage of Bangaru
Ammal was in 'Asura form', dismissed her petition for the reason that the
mortgage was valid and binding on her and allowed the petition filed by
Veerappa Chettiar directing the delivery of the possession of A Schedule
properties to him. On February 2, 1933, Veerappa Chettiar had taken delivery of
A Schedule properties and on July 19, 1933 he was registered as proprietor of
Thevaram estate by the Collector of Madura.
On February 2, 1933, Errammal died executing
a will dated January 30, 1933, in favour of her nephew Thangachami Naicker. It
may also be mentioned that three of the co- widows of Shanmugavalla survived
Errammal. They died one after another and the last of them Vellayammal passed
away on May 2, 1940. Thangachami Naicker along with one of the widows filed
appeals to the High Court against the said judgments but those appeals were
dismissed by the High Court on the ground that they were not maintainable. As
Thangachami Naicker interfered with the right of Veerappa Chettiar with regard
to certain tanks and water courses in Zamindari he filed 0. S. 2 of 1934 in the
Subordinate judge's court of Dindigul against Thanchami Naicker and obtained a
decree declaring his right to the said tanks.
The appeal filed by Thanchami Naicker against
that decree was also dismissed with costs on April 10, 1940. In execu- tion of
the decree for costs Veerappa Chettiar got the property alleged to be in
possession of Thanchami 250 Naicker attached. One S. Michael (son of Thanchami
Naicker) objected to the attachment of the said property on the basis of a sale
in his favour by the alleged reversioners to the estate of Bangaru Ammal. That
petition was dismissed on August 23, 1944. The said claimant S. Michael filed
0. S. No. 52 of 1944 in the court of the Subordinate judge, Dindigul for
setting aside the said claim order. To that suit Veerappa Chettiar and
Thangachami Naicker were made party defendants. On January 31, 1945 the alleged
reversioners to the estate of Bangaru Ammal filed 0. S. 14 of 1,945 in the
Court of the Subordinate judge, Dindigul against Veerappa Chettiar, his younger
brother and defendants 3 & 9 who were alleged to be the tenants in
possession of some of the items of the plaint Schedule properties. The
plaintiffs in that suit are the grandsons of one Kandaswamy Naicker shown in
the genealogy a paternal uncle of Shanmugavalla Konda Bommu Naicker. They
claimed that they are the reversioners to the estate of Bangaru Ammal on the
ground that Bangaru Ammal was married in 'Asura form'. It is alleged in the
plaint that succession opened in their favour when Vellayammal died on May 2,
1940 and that the compromise decree passed against Bangaru Ammal was not
binding on them and that in any view the property set out in Schedule C and C-1
attached to the plaint did not pass to Veerappa Chettiar under the said decree.
The contesting defendants in both the suits
pleaded that the marriage of Bangaru Ammal was not in 'Asura form', and
therefore the plaintiffs in 0. S. 52 of 1944 were not the reversioners to the
estate of Bangaru Ammal, that the compromise decree was binding on the estate
and that C and C-1 Schedule properties also passed to the decree holder
thereunder and that in any view the suit was barred by time.
251 It is seen from the foregoing narration
of facts that the same questions of fact and law arise in both the suits for
the title of the plaintiffs in 0. S. No. 52 of 1944 was derived under a sale
deed from the plaintiffs' in 0. S. No. 14 of 1945. Therefore the plaintiffs'
claim in the former suit will stand or fall on the plaintiffs' title in the latter
suit. For that reason both the suits were heard together by the Subordinate
judge and appeals arising from his common judgment by the High Court.
The learned Subordinate judge held on the
evidence that the marriage of Bangaru Ammal with the Mannarkottai zamindar was
in Asura form as Mannarkottai zamindar had spent Rs. 300/- to Rs. 575 for
Bangaru Ammal's marriage and that circumstance was in view of certain decisions
of the High Court would make it an Asura marriage. He further held that the
aforesaid compromise decree was binding on the plaintiffs.
As regards C and C. 1 Schedule properties lie
held that they had passed to Veerappa Chettiar under the compromise decree as
part of the Thevaram Zamindari and that the plaintiffs were not in possession
within 12 years of the suit in regard to item 70 of the C Schedule. On those
findings he dismissed O.S. No. 14 of 1945 with costs. In O.S. 52 of 1944 he
held that the plaintiff therein acquired a valid title as he purchased the land
in dispute therein from the plaintiffs in the other suit who are the
reversioners to the estate of Bangaru Ammal and that the decree in execution of
which the said property was attached was not binding on the estate of said
Bangaru Ammal. In that view he decreed the said suit.
As against the decree passed in O.S. 52 of
1944, Veerappa Chettiar filed an appeal in the High Court of Madras being A.S.
No. 816 of 1947. As against decree in O.S. 14 of 1945 dismissing the 252
plaintiffs' suit they filed an appeal to the High Court being A.S. 83 of 1948.
Veerappa Chettiar filed cross- objections therein. Both the appeals were heard
together by the High Court. The High Court held that in Bangaru Ammal's
marriage the practice of giving Kambu or flour or what is called the taking of
Mappetti (millet flour box) before the betrothal was followed and that the
marriage expenses were entirely borne by the Mannarcottai Zamindar presumably
in pursuance of the practice existing in the community or in pursuance of an
arrangement between the parties and therefore the marriage was Asura. The High
Court further held that under the compromise decree only Melwaram right in C
and C. 1 Schedule properties passed to Veerappa Chettiar but as there was no
clear evidence as to who was in actual possession of the said lands and as the
persons in actual occupation of the land were not impleaded in the suit, it was
necessary in the interest of the parties to reserve the right of the plaintiffs
to recover possession of C and C. I Schedule lands in an appropriate proceedings
instituted for the purpose. In regard to item No. 70 of C. Schedule land the
High Court agreed with the finding of the Subordinate judge. The High Court
also negatived the plea of limitation, with the result A.S. No. 816 of 1947 was
dismissed with costs and A.S. No. 83 of 1948 subject to the said modification
was dismissed with costs. Hence the appeals.
Both the appeals were heard together as they
raised common points. The arguments of Mr. A.V. Viswanatha Sastri, the counsel
for the appellant, may be summarised thus : The marriage of Bangaru Ammal with
a Mannarcottai Zamindar was not held in Asura form and therefore the plaintiffs
in O.S. 52 of 1944 being her father's uncle's grand-children were not
reversioners to her estate. According to Hindu Dharamshastras the main
distinction between Brahma, and Asura form of marriages is that while in the
253 former there is a gift of the bride, in the latter there is a sale of the
bride. Except a bare allegation in the plaints that the said marriage was held
in Asura form the plaintiffs did not give any particulars or set tip any custom
in the community to which the parties to the marriage belonged. They have
adduced evidence to the effect that a sum of Rs. 1,000/- was paid as parisam by
the Mannarcottai Zamindar to the bride's father for taking the bride but both
the courts having rightly held that the said payment was not established by the
evidence erred in making out a case of a different consideration for the
marriage. The first court held wrongly that the fact that Mannarcottai Zamindar
spent Rs. 300/- to Rs. 575/for the marriage expenses would make it an asura
marriage while the High Court went further and erroneously held that there was
a general custom in the community to pay the bride's price by way of giving
Kambu grain and Kambu flour at the time of the settlement of marriage and that
for the bridegroom's party to bear the expenditure for celebrating the marriage
and that in the case of Bangaru Ammal's marriage they said Kambu was given and
that the expenditure for the marriage was incurred by the Mannarcottai Zamindar
presumably in pursuance of the practice existing in the community or in
pursuance of an arrangement between the parties. Apart from the fact that no
such custom was pleaded, there was no evidence to sustain the said custom. That
apart the mere giving of Kambu as a ceremonial relic of the past or the bearing
of the expenditure on the marriage wholly or partly by the bridegroom's party
could not be a bride's price as contemplated by the Sastras, for the bride's
father in those events could not be said to have received any price for the
bride. In short the learned counsel attacks both the legal and the factual
findings arrived at by the High Court.
The gist of the learned counsel for the Mr.
Bheemasankaran's contention may 254 be briefly stated thus: According to Dharam
Shastras there were eight forms of marriage in Hindu Law, four approved and
four unapproved. But as centuries rolled by most of them became obsolete and at
present there are only two forms of marriage, Brahmu and Asura. Whatever may
have been their comparative merits in the bygone days, they have now come to be
recognized as two valid 1, forms of marriage that can be followed without any
sense of inferiority by all the castes.
Though in remote antiquity the Asura form of
marriage night have involved a real sale transaction, at present it would be
enough to constitute such a marriage if a ritual form was observed indicating
the consciousness of the community or the parties contracting the marriage that
it was an Asura marriage. This consciousness may be indicated by the ceremonial
giving of Kambu at the time of betrothal or by the bridegroom's party meeting
the expenses wholly-or substantially of the marriage. Thai apart in the present
case there is clear evidence that the practice in the community to which
Bangaru Ammal and her husband belonged that Kambu is given by the bridegroom's
party to the bride's party at the time of betrothal and the bridegroom's party
bears the expenditure of the marriage which clearly indicate that the bride's
father or in his absence by the bride's relatives entitled to give her away in
marriage get a clear benefit for giving the bride, and further there is
evidence that the said practice was followed in the case of Bangaru Ammal's
marriage. What is more to constitute a Brahmu marriage there should be a
'Kanyadhan' but in this case it has been found that there was no 'Kanyadhan'
and therefore if the marriage of Bangaru Ammal could not have been in 'Brahma form'
it could have been only in the alternative form, namely Asura form.
Before we advert to the arguments advanced we
would like to make some general observations.
255 We are not concerned here with the
relatives importance of the said two forms of marriages at the present day but
only with the conditions laid down by Shastras for the said two forms of
marriage and with a question as to which form was adopted in Bangaru Ammal's
marriage. Nor are we concerned with a question whether the institution of marriage
in Brahmu form is now maintained in its original purity. We are also in these
appeals not concerned with any customary form of marriage but only with a
marriage sanctioned by Hindu Law, for no custom was pleaded in derogation of
Hindu Law. But there may be a custom in a community not in derogation of the
Hindu Law but in regard to the manner of complying with a condition laid down
by Hindu Law. that is to say if the criterion for an Asura marriage was that
there should be a sale of the bride, there may be a custom in a community in
regard to the manner of paying the consideration' for the sale. It may be
mentioned that in this case the learned counsel for the respondents does not
rely upon any custom even in the later sense but only on the practice obtaining
in the community in support of the evidence that the said practice was followed
in Bangaru Ammal's marriage.
The main question therefore is what are the
ingredients of an Asura form of marriage. As the Manu Samhita has always been
treated by sages and commentators from the earliest time as being of a
paramount authority, let us look to it for guidance. The following verses from
Manu Samhita as translated by Manmatha Nath Dutt Shastri read as follows:--
CHAPTER III, Verse 21:
They (different types of marriages) are known
as the Brahma, Daiva A'raha, Prajapatya, A'sura, Gandharva, Rakshasa and
Paisacha, which forms the eighth.
256 Verse 24:
The four forms of marriage the seers have
ordained as proper for Brahmanas : only the Rakshasa form as proper for
Kshatriyas, and the A'sura form as proper for Vais'yas and S'udras.
Thus out of these five forms of marriage,
three are lawful, and two are sinful (unlawful). Let a man never marry a wife
either in the Pisacha or in the A'sura form since these two forms are
The form (of marriage) in which well-attired
bride, decorated with ornaments, is given in marriage to an erudite,
good-charactered bridegroom especially invited by the bride's father himself to
receive her, is called Brahma.
The form, in which the bridegroom, on paying
money to her father and to herself, out of the promptings, of his own desire,
receives the bride in marriage, is called A'sura.
Verse 51 :
An erudite father of a girl shall not take
anything by way of Sulka from her bridegroom. By taking a dowry out of greed,
he becomes the seller of his off-spring.
Even the acceptance of abovine pair (by the
father of the bride from the bridegroom) is designated as a dowry by certain
authorities, (the acceptance of) 257 a dowry be it costly, or be it of
insignificant value, constitutes the sale of the girl.
Verse 54 :
A marriage in which the bride's relations do
accept the dowry (voluntarily presented by the bridegroom's father, etc.) is no
sale (of the bride), since such a present is but an adoration of the bride done
out of love or affection.
Verse 98 (of Chapter IX) Even a S'udra must
not take any price it. duty or pecuniary consideration) for the hands of his
daughter when giving her away in marriage. Such acceptance of money constitutes
a sale of the girl in disguise.
The gist of the verses is that before Manu
Smriti came into existence the A'sura form was considered to be proper for
Vaishs and Sudras but it was prohibited for the Brahmins and Kashatriyas. But
Manu was emphatic that the said form of marriage was sinful for all castes
including the Shudras.
There is no ambiguity in the verses in regard
to the general prohibition to all castes' for Verse No. 98 emphasizes that even
a S'udra must not take any price for the hand of his daughter when giving away
The next question is what is the criterion of
an A'sura marriage according to Manu. A contrast between the terminology in the
definition of Brahma marriage and that of A'sura marriage brings out clearly
his intention. The following words stand out in the definitions. They are
'dana' (giving) 'Kanyapradanam' (the taking of the bride), "Dravina'
(wealth), 'dattava' (after having given), 'Saktitah' (as much as he can),
'Svacchandya' (as according to his will). The word 'Apradana' is used in the
258 definition of A'sura marriage in contradistinction to the word 'dana' in
Brahmu form of marriage, while a, in the Brahmu form of marriage the father
makes a gift of the bride, in the A'sura form the bridegroom takes the bride
otherwise than by a gift. In the former the father gives the bride decorated
with ornaments, while in the latter the bridegroom takes the bride after giving
wealth to the father of the bride and the bride. While in the former the father
voluntarily gives the bride in the latter the bridegroom out of his own will
pays as much money as he can to the father and takes his bride. The words
Saktitah' and 'Svacchandya' imply that the payment is made because the bridegroom
can and the girl is taken because he wills that is to say a bridegroom who
seeks the hand of a bride takes her as he can afford to buy her from her
father. The transaction is equated to that of a sale, for all the ingredients
of sale were present. If there is any ambiguity that is dispelled by Verse 51
and Verse 54. In Verse 51 Manu makes it clear that by taking a dowry out of
greed the father becomes the seller of his off-spring. 'Sulka' means the taking
of a gratuity or price. The expression 'dravina' in Verse 31 is clarified by
the use of the word 'Sulka' in Verse 51. What is prohibited is Sulka or the
price for the bride. Verse 54 brings out the distinction between 'Sulka' or
'dravina' paid by the bridegroom as a price for the bride and the dowry given
for the bride as a present out of love or affection or in adoration of the
bride. Verse 98 further empbasizes that what Manu prohibits is the sale of a
bride for price.
A'sura marriage, according to Manu, is a
transaction of sale in which the girl is sold for a price.
Practically the same meaning though expressed
in different phraseology is given by other Hindu Law-givers. The following
translations given by Max Muller in the "Sacred Books of the East', of 259
the various sages may now be extracted Baudhayana text 1, II, 20 (7) '(If the
bridegroom receives a maiden) after gladdening (the parents) by money (that is)
the rite of the Asuras (asura).' Verse 2 :
'Now they quote also (the following verses)
It is declared that a female who has been purchased for money is not a wife.
She cannot (assist) as sacrifices offered to the Gods or the manes. Kasyapa has
stated that she is a slave.' Baudhayana Prasad Adhyaya 11, Kandika 21-Verse 3 :
'Those wicked men who, seduced by agreed,
give away a daughter for a fee, who (thus) fall (after death) into a dreadful
place of punishment and destroy their family down to the seventh (generation).
Moreover they will repeatedly die and be born again. All (this) is declared (to
happen), if a fee (is taken-)., Vasishtha-Chapter I-Verse 35.
'If, after making a bargain (with the father,
a suitor) marries (a damsel) purchased for money, that (is called) the
Manusha-rite.' Narada-Chapter XII-Ver8e 42.
When a price is (asked for the bride by the
father and) taken (by him), it is the form termed Asura.
'Gautama, 'Chapter IV-Verse 11.
The form of marriage in which a bride is
purchased for money, is called the A'suram.' 260 Vishnu-Chapter XXIV-Verse 24.
If the damsel is sold (to the bridegroom), it
is called an Asura marriage.
'Yagngavalkya' : 'The asura by largely giving
of money ; the Gandharva by mutual consent; the Rakshasa by forcible taking by
waging war and Paisacha by deceiving the girl'- Translation of Srisachandra
Vidyaamava : 1918 Edition page 126 :
In the Mitakshara the said text is commented
upon thus :- .lm15 " The Asura marriage is that in which money is largely
given (to the father and others in exchange for the girl).
'Apastamba':"If the suitor pays money
(for his bride) and marries her (afterwards) that (marriage is called) the
Asura-rite.' 'Kautilya': Arthasastra:
Sulkadanat Asura'-the word used is
"Sulka" Medhatithi, in his commentary on Verse 54 of Manu Samhita
points out that the receipt of money or money's worth for the benefit of the
girl (Kanyarthe) does not amount to her sale, and is desirable as it tends to
enhance her self- esteem and also raises her in the estimation of others, and
concludes with the observation that receipt of a dowry for the girl (kanyartham
danagrahanam) is prescribed by thus stating the good arising from it
(arthavadena) : Vide (1941) 2 M.L.J. 770 at 772.
Apte's Dictionary : page 239 : Col.- III.
Asura is explained thus : 'One of the eight
forms of marriage in which the bridegroom purchase-; the bride from her father
or other paternal kinsmen' Manu 331 and Yagnayavalkya 1.61 are cited 261 The
said sages and commentators accepted the view expressed by Manu and in effect
described A'sura marriage as the transaction where a bridegroom purchases a
girl for a price paid to the father of the girl or to kinsmen who are en-
titled to give her in marriage. The distinction between the bride's price and
the presents to the bride is also recognized.
The learned judges of the High Court relying
upon the text of Apasthamba observed that 'the payment to the bride's father is
for the purpose of complying with Dharma and not as a consideration for an
commercial transaction. The interpretation may explain away on Dharmic
principles the sordid nature of the transaction, but does not detract from its essential
incidents. We, therefore, hold that A'sura marriage is nothing more than a
transaction of marriage whereunder a bridegroom takes a bride for the price
paid by him to the bride's father or others entitled to give her and therefore
in substance it is a sale of the bride.
It is said that the incurring of the
expenditure of the marriage by the bridegroom is also a consideration for
giving the bride. In this context reliance is placed on the Law and Custom of
Hindu Castes by Arthur Steel. This book was written in 1868. The author appears
to have collected the laws and customs obtaining in the Presidency of Bombay,
and had compiled them for the purpose of convenience of reference. At page 24
the author says: 'There are eight kinds of marriages recognized in the Sastras
:-1, Brahm, where the charges are incurred solely by the girl's father;
x x x x x 5, Usoor, where she is taken in
exchange for wealth, and married; this species is peculiar in the Wys and
Soodra castes, B.S.(Mit), See Munoo, 3.20,34. It is considered as Uscorwiwuha,
and stree-soolk, and the money, if unpaid, is an unlawful debt, B-2, 199.
The definition of Asura by the author does
not carry the matter further, for it is consistent with that 262 given in the
Hindu law Texts but what is relied upon is his definition of Brahmu marriage as
one where charges are incurred solely by the girl's father. From the said
definition a converse proposition is sought to be drawn viz : that marriage
would be Asura marriage if the charges were incurred mainly by the bridegroom's
father. Firstly the definition of Brahmu marriage by the learned Author does
not conform with the definition of the said marriage by the lawgivers. Secondly
it does not follow from the passage that if the bridegroom's father incurs the
expenditure the marriage is an Asura marriage. If that be so, the author would
have stated in his definition of Asura marriage that such incurring of the
expenditure would make a marriage an Asura marriage. This valuable compilation
of the laws and customs of the day does not throw any light on the question now
raised before us.
Let us now see whether there is any merit in
the contention that the concept of sale for a price has by progress of time
lost its content and that at the present time a mere form of sale irrespective
of a real benefit to the bride's father would meet the requirements of an Asura
, marriage. No text or commentary taking that view has been cited to us. Indeed
the case law on the subject does not countenance any such subsequent development.
The earliest decision on the subject cited to
us is that ofthe Divisional Bench of the Bombay High Court "Jaikisondas
Gopaldas v. Harkisondas Hulleshandas'.Green j, defines the Asura marriage at
page 13 'The essential characteristic of the Asura form ofmarriage appears to
be the giving of money or presents by the bridegroom or his family to the
father or parental kinsmen of the bride,, or, in tact, a sale of the girl by
her father or other relation having the disposal of her in marriage in (1) (1876)
I. L. R. 2 Bom. 9.
263 consideration of money or money's worth
paid to them by the intended husband or his family.' In 'Vijarangam and
Damodhar v. Lakshuman and Lakshmi' (1) West j . gives in interesting background
to the origin of the institution of the Asura marriage and observes: "Of
the several Shastras called by the plaintiffs and the defendants in this case,
all agree that the giving and receiving of money for the bride is the
distinctive mark of the Asura form of marriage." In 'Muthu Aiyar v. Chidambara
Aiyar, the money was paid by the bridegroom's people to the bride's father to
meet expenses of marriage. The Subordinate judge found on the evidence that the
bride's father received the money for his own purposes and not for bride's
benefit and therefore the marriage was an Asura one. The High Court in a short
judgment accepted the finding and said. "it being found that a money
payment was made to Thailu's father we are not prepared to differ from the
courts below in their opinion as to the nature of the marriage." This
decision is relied upon in support of the contention that where the bridegroom
incurs the expenditure of the marriage such a marriage is Asura marriage. But
this decision is not a considered one.
The appeal being a second appeal, the learned
judges accepted the finding of fact given by the Subordinate Judge, namely that
the money payment was made to the bride's father and were not prepared to
differ from it. The disinclination of the learned judges to interfere in the
second appeal on a question of fact cannot throw any light on the point that
has directly arisen before us.
Chandavarkar J. in 'Chunilal v. Surajram'(3)
accepted the aforesaid definition when he said: 'Where the person who gives a
girl in marriage received (1) (1871) 8 Born. F..C. Reports 244. (2) (1893)
(3) (1909) I.L.R. 33 Bom. 433.
264 money consideration for it, the substance
of the transaction makes it, according to Hindu Law, not a gift but a sale of
the girl. The money received is what is called bride-price;
and that is the essential element of the
Asura form. The fact that the rites prescribed for the Brahmu form are gone
through cannot take it out of that category, if there was pecuniary benefit to
the giver of the girl. The Hindu law- givers one and all condemn such benefit
and the Shastras, regarding it as an ineradicable sin, prescribe no penance for
the sale of a bride." The learned judge also accepted the presumption that
every marriage under the Hindu Law is according to the Brahma form but it can
be rebutted by evidence.
In 'S. Authikesavulu Chetty v. S. Ramanujan
Chetty' (1) at the betrothal ceremony a married woman of the caste to which the
parties belonged proceeded from the bridegroom's house to the house of the
bride carrying certain presents consisting of cocoanuts, betel and nut,
garlands, black- beads, saffron red powder, etc. in a tray. There was also a
pagoda and a fanam in it. There was also an arrangement at that time that the
bridegroom's father had to pay certain amount to the bride and the bride's
father had also to give some jewels to the bridegroom. It was contended that
the marriage was an Asura marriage. The learned judges said that the
distinctive mark of the Asura marriage was the payment of money for the bride,
and that the payment of a pagoda and 2-1/2 annas could not have been intended
to be the consideration for the bride where the bride's father spent thousands
of rupees himself and gave presents of considerable value to the bride and the
bridegroom. This decision, therefore, emphasises that mere payment of small
amounts as a compliment to one of the parents cannot be treated as a
consideration for the sale of the bride. It also lays down that all the
circumstances of the case will have to be looked into to ascertain whether any
amount was paid as price for the bride.
(1) (1909) I.L.R. 32 Mad. 512.
265 A Divisional Bench of the Madras High
Court in 'Gabrielnathaswmi v. Valliammai Ammal' (1) negatived the contention
that the mere fact that a bride's parents received what is known as 'parisam'
it would lead to the conclusion that the marriage of the girl took place in
Asura form and not in Brahma form. The learned judges observed:
"It may be that parisum is a relic of
what in old days was regarded as the price for the bride. x x x x The real test
is whether in the community or among the parties the payment of 'parisam' was
tacitly understood as being substantially a payment for taking the girl in
marriage. That will depend generally upon the evidence in the case." They
also reaffirmed the presumption under Hindu Law in; the following words
:-'Ordinarily the presumption is that whatever may be the caste to which the
parties belong, a marriage should be regarded as being in the Brahma form
unless it can be shown that it was in the Asura form'. This decision deals with
'parisam' with which we are also concerned in these appeals.
This is an authority for the proposition that
the use of the word 'parisam' is not decisive of the question that it is a
bride's price, but that it must be established in each case whether the payment
small or large, in cash or kind, is made as a bride's price i. c. as
consideration for the bride.
In "Ratnathanni v. Somasundara
Mudaliar" (2) a sum of Rs. 200/- was paid to the bride's mother for the
expenses of the marriage as a term of the contract of the marriage. On that
finding Ramesam.' J. concluded that the payment was made for the benefit of the
bride's mother as in the absence of the payment, she would have had to find the
amount in some other way, by borrowing or pledging her jewels or other
properties and therefore the marriage was in Asura form. The learned judge
relied upon Steel's observation that the parents should incur the expenditure
of the marriage in the Brahma form and presumably (1) A.I.R. 1920 Mad. 884.
(2) (1921) 41 M.L.J. 76.
266 drew a contrary inference that if the
bridegroom's party met the expenditure it would be an Asura marriage. The
learned judge also relied upon that decision in 'Muthu Aiyar v. Chidambara
Aiyar'(1). Spencer, J. in a separate judgement agreed with him. As we have
pointed out we do not see any justification in the Hindu Law texts in support
of the view that the bearing of the expenditure of the marriage by the
bridegroom is a test of an Asura marriage. The fact that the expenditure of the
marriage is borne by bridegroom's party cannot in any sense of the term be a
consideration given to the father for taking the bride.
Ramesam J. sitting singly in 'Samu Asari v.
Anachi Ammal' (2) restated his view in a more emphatic form. He observed:
'It seems to me immaterial whether it is the
whole of the expenses of the marriage or a substantial portion of it. To the
extent the bride's father gets contribution of that kind from the bridegroom's
father, he benefits by it; though he does not pocket it, but he spends for the
marriage....... At the same time the learned judge observed that under certain
circumstances payments made to the bride's parents which are either small or
relatively small having regard to the scale in which the expenses of the
marriage are incurred do not make a marriage an Asura marriage. This decision
therefore makes a distinction between courtesy presents given to the bride's
parents and whole or substantial portion of the expenditure incurred by the bridegroom's
father. While we agree that courtesy presents to the bride's parents cannot by
themselves conceivably make a marriage an Asura one, we find it difficult to
hold that the incurring of expenditure by a bridegroom satisfies the test of
consideration for the bride.
In 'Kailasanatha Mudaliar v. Parasakthi
Vadivanni', (3) Varadachar J., speaking for the (1) (1893) 3 M.L..J. 261.
(2) (1925) 49 M.L.J. 554.
(3) (1934) I.L.R. 58 Mad. 488.
267 Court lays down the test of the Asura
marriage in the following manner : "The distinctive feature of the Asura
form of marriage is the giving of money or money's worth to the bride's father
for his benefit or as consideration for his giving the girl in marriage."
The learned judge distinguishes the case of "Samu Asari v. Anachi Ammal'
(1) on the ground that there money was held to have been paid for the father's
benefit though utilized by him to meet the expense of the marriage which he
must have defrayed out of his own fund and points out also the distinction between
payment to the father for his own benefit and payments to the bride received by
kinsmen not for their own use. In that case a jewel was presented by the
bride's father and placed on the bride's neck at the time of the betrothal
ceremony as ' parisam' and the value of the jewel was not even the subject of a
bargain but merely left to the pleasure of the bridegroom's father. The learned
judge observed that such a gift could in no sense be called bride's price.
In 'Sivangalingam Pillai v. K. V. Ambalavana
Pillai, (2) the bride's father gave a large amount and also jewels to the bride
and plaintiff's brother-in-law on behalf of the bridegroom gave the bride's
father a present of Rs. 1,000/- and a cloth worth Rs. 65/-. It was also agreed
that all the expenses of the marriage should be borne by the bridegroom.
It was contended that the said presents and
the incurring of expenditure on the marriage was a consideration for the bride
and therefore the marriage was in an Asura form. The Divisional Bench rejected
the contention. Pandrang Row J.- observed at page 481: "It is a well-known
fact that, whatever the custom is, the bridegroom and his people also spend a
considerable sum of money in respect of the marriage whenever they can afford
it. Such expenditure obviously does not convert the marriage which is otherwise
in the Brahma form into one which is in (1) (1925) 49 M.L.J. 554.
(2) A.I.R. 1938. Mad. 479.
268 the Asura form." The learned judge
proceeded to state at page 480 thus : "So far as our Presidency is
concerned, all marriages among Hindus are presumed to be in the Brahma form
unless it is proved that they were in the Asura form; in other words, it is
incumbent on the party who alleges that a particular marriage was in the Asura
form to prove that bride price was paid in respect of the marriage by the
bridegroom or his people to the bride's father" and the present given to
the bride's father the learned judge remarked that this customary present would
not necessarily amount to payment of bride's price.
Abdur Rahman J., added that 'if a party
wishes to assert that the marriage was Asuric in form, he must establish that
some price was paid for the bride in pursuance of either of an express or
implied contract to the bride's father or on his account." This judgment
we may say so with respect puts the principle on a correct legal basis and
brings out in bold relief the distinction between bird's price on the one hand
and the presents and the expenditure incurred in respect of the marriage by one
or the other of the parties on the other hand Patanjali Sastri J., in 'V.S.
Velavutha Pandaram v. S. Suryamurthi Pillai' (1) approached the case if we may
say so from a correct perspective. There a sum of Rs.500/-was paid by the
bridegroom to the bride's father for the specific purpose of making jewels for
the bride in pursuance of a stipulation for such gift as a condition of giving
the girl in marriage. The learned, judge held that the said payment was not
bride's price and did not make the marriage an Asura marriage. The learned
judge in passing referred to the case of 'Samu Asari v. Anachi Ammal' (2), and
observed as follows :-"'As the father was benefitted by such contribution
in that he was relieved to that extent from defraying such expenses (1) (1941)
2 M.L.J. 770.
(2) (1925) 49 M.L.J. 554.
269 himself, the marriage was one in the
Asura form. This view has been criticised in the latest edition of Mayne's
Hindu Law as not really warranted by the Hindu Law texts, and the point may
have to be reconsidered when it arises." Patanjali Sastri, J., again
considered this point in Second Appeal No.
2272 of 1945. There on the occasion of the
marriage one sovereign was given along with the other presents to the bride's
father as Memmekkanoni. The question was whether the mere adoption of this
customary form per se brought the marriage within the category of an Asura or
unapproved marriage. The learned judge expressed the view that the payment of
memekanom no longer signifies in substance and in truth consideration for the transfer
of the girl but has survived as a token ceremonial payment forming part of the
marriage ritual. The said judgment was confirmed by a Divisional Bench of the
said High Court in 'Vedakummpprath Pillai Muthu appellant v. Kulathinkai
Kuppan'. (1) Balakrishna Ayyar, J., speaking for the Bench neatly summarised
the law on the subject at page 804 thus : "One essential feature of an
Asura marriage, the feature which makes the form objectionable, is that the
father of the bride receives a gratuity or fee for giving the girl in marriage.
Ordinarily, it would be expected of every decent and respectable father when he
selects a husband for his daughter to make his selection uninfluenced by any
considerations other than the welfare of the girl. But when he receives a
payment for his personal benefit, a very objectionable factor would influence
his selection and it is clearly this which the ancient lawgivers took objection
to and therefore relegated the form to the category we call 'disapproved'. When
the father accepts money and allows his greed or avarice to sway his judgment,
he thereby converts what is intended to be a sacrament into a commercial
transaction." With respect we are in full agreement with the observations
of the learned judge. Commenting upon the (1) (1949) 2 M.L.J. 804.
270 argument built upon the payment of one
sovereign to the bride's father the learned judge observed : "In most,
though not necessarily in all cases, the payment has lost all its original
significance and survives only as a ritualistic form'; it has become a
ceremonial symbol devoid of any content or meaning or purpose. x x x x Now when
a father gives such a large amount as stridhanam and receives one sovereign in
compliance with traditional form it would be very wrong to say that he had been
selling or mortgaging the girl and that he received the sovereign from greed or
love of gain." The foregoing discussion leads to the following results .--
Under Hindu Law marriage is a sacrament and it is the religious duty of the
father to give his daughter in marriage to a suitable person but if he receives
a payment in cash or in kind as a consideration for giving his daughter in
marriage he would be converting a sacrament into a commercial transaction.
Brahma marriage satisfies the said test laid down by Hindu Law. But from Vedic
times seven other forms of marriage were recognized based on custom and
convenience. Asura form is one of the eight forms of marriage. The essence of
the said marriage is the sale of a bride for a price and it is one of the
unapproved forms of marriage prohibited by Manu for all the four castes of
Hindu society. The vice of the said marriage lies in the receipt of the price
by the bride's father or other persons entitled to give away the bride as a
consideration for the bride. If the amount paid or the ornaments given is not
the consideration for taking the bride but only given to the bride or even to
the bride's father out of affection or in token of respect to them or to comply
with a traditional or ritualistic form, such payment does not make the marriage
an A'sura marriage. There is also nothing in the texts to indicate that the
bearing 271 of the expenditure wholly or in part by the, bridegroom or his
parents is a condition or a criterion of such a marriage, for in such a case
the bride's father or others entitled to give her in marriage do not take any
consideration for the marriage, or any way benefit there under. The fact that
the 'bridegroom's party bears the expenditure may be due to varied
circumstances. Prestige, vanity, social custom, the poverty or the
disinclination of the bride's father or some of them may be the reasons for the
incurring of expenditure by bridegroom's father on the marriage but the money
so spent is not the price or consideration for the bride. Even in a case where
the bride's father though rich is disinclined to spend a large amount on the
marriage functions and allows the bridegroom to incur the whole or part of it,
it cannot be said that he has received any consideration or price for the
Though in such a case if the bridegroom's
father had not incurred the said expenditure in whole or in part, the bride's
father might have to spend some money, on that account such as indirect result
could not be described as price or consideration for giving the bride. Shortly
stated Asura marriage is a marriage where the bride's father or any other
person entitled to give away the bride takes Sulka or price for giving the
bride in marriage. The test is two- fold: There shall not only be a benefit to
the father, but that benefit shall form a consideration for the sale of the
bride. When this element of consideration is absent, such a marriage cannot be
described as Asura marriage.
As the Asura marriage does not comply with
the strict standards of Hindu Law it is not only termed as an unapproved
marriage, but it has been consistently held that whenever a question arises
whether a marriage is a Brahmu or Asura, the presumption is that the marriage
is in Brahma form and the burden is upon the person who asserts the con- trary
to prove that the marriage was either an Asura or any other form.
272 With this background let us look at the
facts of the case.
Though in both the plaints it is stated that
Bangaru Ammal had been married in Asura form, no particulars are given but in
the evidence the plaintiff's witnesses in one voice depose that the custom in
the Rakambala caste to which Bangaru Ammal and her husband belonged, is to give
money in the shape of 'parisam' to the bride's father at the time of the betrothal.
The witnesses who depose to Bangaru Ammal's marrage say that at the time of her
betrothal a sum of 1,000/- was paid as ' parisam'. Both the Courts did not
accept this evidence and they held that it had not been established that a sum
of Rs. 1,000/- was paid as 'parisam' at the time of the betrothal of Bangaru
Ammal. This finding is not attacked before us.
It is argued that the evidence discloses that
there is a practice in the said caste to give Kambu as IT parisam' to the
bride's father as a bride's price and the said practice supports the evidence
that in the case of the marriage of Bangaru Ammal also such a 'parisam' was
paid as consideration for the marriage. On the question of the said alleged
practice the evidence does not support it. P. W. I to P. W. 10 depose. that
"parisam' is paid in cash for marriages in their community varying from
Rs. 150/- to Rs. 1,000/-. This evidence has been rightly' disbelieved by both
the courts. The evidence does not bear out the case of giving of 'parisam' in Kambu.
Some of the witnesses also depose to the payment of Rs. 1000/- as 'parisam' at
Bangaru Ammal's marriage but that was not accepted by the courts.
The evidence destroys the case that 'parisam'
was paid at her marriage in Kambu. No witness examined in the two cases says
that Kambu is paid at the marriages of the members of the community or was paid
at the time of Bangaru Ammal's marriage as a consideration for the marriage but
it is said that the witnesses who had been 273 examined in the earlier suit whose
evidence has been marked by consent in the present case deposes to that fact.
Errammal, the mother of Bangaru Ammal, whose
evidence is marked as P. 11 (R) deposes that when Thevaram Zamindar married her
the 'parisam' was only Rs. 1,000/- and that when her daughter was married, the
'parisam' was also Rs. 1000/-.
In cross-examination she says that according
to the custom of the community, it is the practice to bring a mapelli for the
nischithartham (betrothal function) and it is customary also to bring cumbu and
flour at the time of the marriage and sprinkle it in the marriage hall. This
evidence indicates that the 'parisam' is only given in cash but Kambu is
brought at the time of the marriage and sprinkled in the marriage hall
presumably for the purpose of purification.
This evidence does not show that Kambu is
given as "parisam' for taking the bride.
Sermalai Naicker who gave evidence in an
earlier suit which is marked as P. 11 (a) belongs to Rajakambala caste. In his
chief-examination he says that he paid Rs. 200/- as 'parisam' at the time of
the marriage and paid Rs. 300/- as "parisam' for the marriage of his son
and received Rs. 200/- as 'parisam' for the marriage of his daughter. In cross-
examination he says that on the betrothal day only one kalam of cumbu and cash
are given to the bride's party and that the Kambu is used by the bride's people
and that at the time of the marriage 3 or 4 marakkals of cumbu are again
brought which is thrown over the bride and the bridegroom byway of blessing. He
adds that throwing of the kambu is a ritual in marriage ceremonies and that
Kambu and cash are called "Parisam'. This evidence brings out the
distinction between cash paid as the 'Parisam' and Kambu brought to conform
with the traditional ritual.
274 R.W. 3 in the earlier suit whose evidence
is marked as D. 317 says that he was a guru of the Rajakambala caste and that
he performed the marriage of Moolipatti zamindar. He further says that Kambu is
taken by the bridegroom's party to the bride's house when the betrothal takes
place and that seven pieces of jaggery, a cloth etc. are also taken and that no
money is given in the caste. We do not see how this evidence supports the
practice of paying kambu as 'parisam'.
indeed his evidence shows that Kambu is taken
only as a part of the ritual and he is definite that no 'parisam' is paid in
Ramasami Naicker Zamindar of Ammaianaickoor.
was examined in the previous suit and his evidence is marked as D-416. He is
definite in the chief examination that no 'parisam' is paid in his community.
He says that it is rather undignified to receive 'Parisam' and that he has not
seen any parisam paid in his caste. Whether this witness is speaking truth or
not, his evidence does not support the plaintiff.
From the aforesaid evidence it is not
possible to hold that either there is a practice in the Rajakambala family to
give Kambu as 'parisam' for the bride or kambu was paid as 'parisam' at the
time of the betrothal ceremony in connection with Bangaru Ammal's marriage.
Reliance is placed upon Nelson's Manual of
the Madhura Country published in 1.865. At page 82 of Part II in that /Manual
the following passage appears :-- "After this, the price of the bride,
which consists usually of 7 kalams of kambu grain, is solemnly carried under a
canopy of white cloth towards the house of the bride's father 275 its approach
being heralded by music and dancing. The procession is met by the friends of
the bride who receive the price, and allege together to the bride's
house." Similarly, in Thurston's Castes and Tribes of Southern India
published in 1902 in Volume VII under the heading 'Thotti Naickers' at page
192, the following passage is given "The bride price is 7 kalams of Kambu
and the couple may cat only this grain and horsegram until the wedding is
over." The evidence adduced in this case does not support the said
statement. Even if those formalities are observed, they are only the relics of
the past. That practice represents only a symbolic ritual which. has no bearing
upon the reality of the situation. Indeed the witnesses in the present case
realizing the ritualistic character of the said observances seek to base the
case of the Plaintiffs on a more solid foundation but have miserably failed in
their attempt. These passage s therefore do not help the plaintiffs.
The next question is whether the expenditure
for the marriage was incurred by the bridegroom's party i. e. by the
Mannarcottai Zamindar. The learned Subordinate judge held on the evidence that
Thevaram Zamindar spent a large amount of money for the marriage but the
Mannarcottai Zamindar also spent a sum of Rs. 300/- or Rs. 575/- for the
marriage expenses. He expressed the view that if the matter was res- integra,
he would have held that the incurring of such an expenditure by the
bridegroom's party would not have made the marriage. an Asura marriage but felt
bound by some of the decisions 276 of the Madras High Court to come to the
The learned judges of the High Court came to
the conclusion that the marriage expenses in their entirety were borne by the
Mannarcottai Zamindar and it must have been either in pursuance of the custom
or arrangement among the community.
The evidence as regards the custom of the
bride-groom's party incurring the expenses of the marriage is unconvinc- ing.
Indeed the learned counsel for the respondent does not rely upon custom but he
prefers to base his case on the finding of the High Court that the entire
marriage expenditure was incurred by the Mannarcottai zamindar. Let us now
consider the evidence in this regard in some detail.
P.W. 1 says in his evidence that Bangaru
Ammal was the only child of the Thevaram Zamindar, that he was very
affectionate to her and that he spent heavily for the marriage though he was
not able to say how much he spent.
P. W. 4 also says that Thevaram Zamindar gave
her lot of jewels and finally gave her his entire estate. The evidence that
Thevaram Zamindar spent large amounts on the marriage and gave lot of jewels to
Bangaru Ammal must be true, for even in 1895 when the marriage of Bangaru Ammal
took place it is inconceivable that the marriage would have been celebrated
with a few hundred rupees that was given by the Mannarcottai zamindar. He must
have spent much larger amount than that consistent with his status and position
in life and particularly when he was celebrating the marriage of his only
Now coming to the documentary evidence in
support of the contention that Mannarcottai Zamindar met the entire
expenditure, the respondents relied upon P. 22, P. 23, P. 25, P. 26 and P. 28.
P. 22 is a letter dated August 8, 1885, written by persons representing the
Mannarcottai zamindar to the 277 Thevaram Zamindar office. Therein he stated
:"You should soon get ready there all the materials and samans for the
shed and 'Panthal' in connection with muhurtham. We will start and come without
fail". This letter does not show that Mannarcottai Zamindar gave the money
for the materials and samans for the said 'Panthal'. It was only an intima- tion
that everything should be made ready for the marriage as Mannarcottai people
would be coming there without fail.
Exhibit P. 23 is the account of expenditure
incurred on Bangammal's marriage from 1.9.1895 to 5.9.1895. It is said that it
represents the amount spent on behalf of Mannarcottai zamindar and the amount
recouped from him. The document is not very clear. The account does not appear
to represent the entire expenditure incurred at the time of marriage because
the entry about charges for pounding 50 kalams of paddy shows that 50 kalams of
paddy must have been supplied from Thevaram stores and there is nothing on the
account to show that 50 kalams were purchased on Mannarcottai account. Be that
as it may this account only shows that Mannarcottai zamindar paid about Rs.
300/- but the learned counsel for the respondents argued relying upon Ex. P. 27
that even the balance of Rs. 295/14/in Ex. P. 23 shown as the excess amount
spent by Thevaram Estate was paid off by the Mannarcottai zamindar to the
Exhibit P. 27 is an entry dated September 30,
1885 in the account book of Thevaram Zamindar. It show that the Maha- raja
meaning Thevaram Zamindar gave to Thevaram office Rs. 290. It does not
establish the respondent's version. The only merit of the contention is that
the two figures approximate each other. If that figure represents the amount
paid by Mannarcottai Zamindar to Thevaram in full discharge of the amount due
from the former to the latter, the entry would have run to the effect that the balance
of the amount due from Mannarcottai under Ex.p.23 was paid and it would have
been credited in Mannarcottai 278 account. It may have been that the sum of Rs.
290/was the balance out of the amount that Thevaram Zamindar took with him when
he went to Mannarcottai for meeting his expenditure. The other accounts P. 25
and P. 26 filed in the case are neither full nor clear and no definite
conclusion could be arrived at on the basis of the said account. We therefore
hold on the evidence and probabilities that Thevaram Zamindar had spent large
amounts in connection with the- marriage and Mannarcottai zamindar spent only
about Rs. 300/- in connection with the said marriage.
Such a finding does not bring the marriage
within the definition of Asura marriage as explained by us. earlier.
The expenditure incurred by the bridgegroom's
party was not and could not have been the consideration for the Thevaram
Zamindar giving his daughter in marriage.
It is contended that the High Court found
that there was no 'Kanyadhan' at the time of the Bangaru Ammal's marriage and
as 'Kanyadhan' was necessary ingredient of Brahmu marriage, Bangaru Ammal could
not have been married in that form. The High Court relying upon the evidence of
Veluchami Naicker who is stated to be the Guru of the caste held that
'Kanyadhan' had not been observed in Bangaru Ammal's marriage. The learned
counsel for the appellant contests the correctness of the finding and he relies
upon some invitations in support of his contention that 'Kanyadhan' was observed
in Bangaru Ammal's marriage but the documents are not clear on the, point. The
Guru only narrates some of the ceremonies held in marriages in the community
but he does not expressly state that the ceremony of 'Kanyadhan' was not
observed at Bangaru Ammal's marriage. In this state of evidence the presumption
in. Hindu Law that the marriage was performed in Brahmu form must be invoked.
As we have pointed out under the Hindu Law whether a marriage was in Brahmu
form or Asura form the Court will presume 279 even where the parties are
Shudras that it was in the Brahmu form. Further where it is proved that the
marriage was performed in fact the Court will also presume that the necessary
ceremonies have been performed. See 'Mauji Lal v. Chandrabati Kumari'(1). This
presumption has not been rebutted in this case. That apart the argument of the
learned counsel for the respondents mixes up an essential ingredient of the
Brahmu marriage, namely the gift of the girl to the bridegroom with a
particular form of ritual adopted for making such a gift. In both forms of
marriages a girl is given by father or in his absence by any other person
entitled to give away the girl to the bridegroom. In the case of Brahmu
marriage it takes the form of a gift while in the case of Asura marriage as
price is paid by the bridegroom, ,it takes the form of a sale. As we have held
that in Bangaru Ammal's marriage no consideration passed from the bridegroom to
the bride's father, the father must be held to have made a gift of the girl to
To put in other words there was 'Kanyadhan'
in Bangaru Ammal's marriage. We therefore reject this contention.
Lastly reliance is placed on the conduct of
the appellant in not questioning the correctness of the finding given by the
learned Subordinate judge in his application for delivery that the marriage was
in Asura form. The learned counsel for the appellant sought to explain his
conduct but in our opinion nothing turns upon it. If the marriage was not in
Asura form as we held it was not, the conduct of the appellant could not
possibly make it an Asura marriage. In this view it is not necessary to give
opinion on the other questions raised in the appeals.
In the result the decrees of the High Court
are set aside and both the suits are dismissed with costs throughout. One
Appeals allowed (1) (1911) L.R. 38 I.A.122.