Perumal Nadar Vs. Ponnuswami [1970] INSC
66 (17 March 1970)
17/03/1970 SHAH, J.C.
SHAH, J.C.
HEGDE, K.S.
GROVER, A.N.
CITATION: 1971 AIR 2352 1971 SCR (1) 49
ACT:
Hindu Law--Marriage between Hindu and former
Christian--Proof of conversion to Hinduism--No formal purification ceremony
necessary--Bona fide intention accompanied by unequivocal conduct sufficient.
Madras Hindu (Bigamy Prevention and Divorce)
Act 6 of 1949Act applicable only to those domiciled in Madras.
Indian Evidence Act 1 of 1872, s. 112--Presumption
as to legitimacy of child.
HEADNOTE:
One Perumal Nadar, a Hindu, married
Annapazham, daughter of an Indian Christian, on November 29, 1950 at Kannimadam
in the State of Travancore-Cochin according to Hindu rites. Of the two children
born of the marriage one died. The younger child, a son born in 1958, acting
through his mother, the afoResaid Annapazham, as his guardian, filed an action
in the Court of the Subordinate Judge, Tirunelveli, for separate possession of
a half share in the properties of the joint family held by his father Perumal.
The 'suit was defended by Perumal. The trial court decreed the suit and the
High Court confirmed the decree. In appeal to this Court by certificate
Perumal, the appellant, contended : (i) that Annapazham was an Indian Christian
and a marriage between a Hindu and an Indian Christian must be regarded as
void; (ii) that the marriage was invalid because the appellant was already
married .before he married Annapazham and bigamous marriages were prohibited by
Madras Act 6 of 1949; (iii) that the appellant and Annapazham were living apart
for a long time before the birth of the plaintiff and on that account the
plaintiff could not be regarded as a legitimate child of the appellant.
HELD : (i) The question whether marriage
between a Hindu male and a Christian female is valid or not did not arise for
consideration in the present case because the finding of the Courts below that
Annapazham was converted to Hinduism before her marriage with Perumal was amply
supported by evidence. [52 D-E] A person may be a Hindu by birth or conversion.
A mere theoretical allegiance to the Hindu faith by a person born in another
faith does not convert him into a Hindu, nor is a bare declaration that he is a
Hindu sufficient to convert him to Hinduism. But a bona,fide intention to be
converted to the Hindu faith, accompanied by conduct unequivocally expressing
that intention may be sufficient evidence of conversion. No formal ceremony of
purification or expiration is necessary to effectuate conversion. [52 E-F]
Muthusami Mudaliar v. Musilamani alias Subramania Mudaliar I.L.R. 33 Mad. 342
and Goona Durgaprasada Rao v. Goona Sudarasanaswami, I.L.R. (1940) Mad. 653,
referred to.
The evidence in the present case established
that the parents of Annapazham arranged the marriage. The marriage was
performed 50 according to Hindu rites and ceremonies in the presence of
relatives who were invited to attend : customary ceremonies peculiar to a
marriage between Hindus were performed : no objection was raised to the
marriage and after the marriage Annapazham was accepted by the local Hindu
Nadar community as belonging to the Hindu faith; and the plaintiff was also
treated as a Hindu. On the evidence there could be no doubt that Annapazham
bona fide intended to contract marriage with Perumal. Absence of specific
expiatory or purificatory ceremonies would not be sufficient to hold that she
was not converted to Hinduism before the marriage ceremony was performed. The
fact that the appellant chose to go through the marriage ceremony according to
Hindu rites with Annapazham in the presence of a large number of persons
clearly indicated that he accepted that Annapazham was converted to Hinduism
before the marriage ceremony was performed. [53 C-E] (ii) On the facts and
pleadings the High Court was right in holding that it was not proved that the
appellant was domiciled in the State of Madras at the date of his marriage with
Annapazham. He could not therefore rely upon the provisions of the Madras Hindu
(Bigamy Prevention and Divorce) Act 6 of 1949. [54 F] (iii) There was a
concurrent finding by the courts below that there was no evidence to establish
that the appellant living in the same village as Annapazham had no access to
her during the time when the plaintiff could have been begotten. Therefore, in
view of s. 112 of the Indian Evidence Act it could not be held that the
plaintiff was an illegitimate child. [55 A-B] Chilukuri Venkateswarlu v.
Chilukuri Venkatanarayana, [1954] S.C.R. 425, Karapaya v. Mayandi, I.L.R. 12
Rang. 243 (P.C) and Ammathayee v. Kumaresain, [1967] 1 S.C.R. 363, applied.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 354 of 1967.
Appeal from the judgment and decree dated
August 25, 1965 of the Madras High Court in Appeal No. 177 of 1961.
S. V. Gupte, R. Thiagarajan, Janendra Lal and
B. R. Agarwala, for the appellant.
N. H. Hingorani and K. Hingorani, for the
respondent.
The Judgment of the Court was delivered by
Shah, J. Perumal Nadar married Annapazham (daughter of Kailasa Nadar-an Indian
Christian) on November 29, 1950, at Kannimadam in the State of
Travancore-Cochin according to Hindu rites. Annapazham gave birth to two
children-the first on September 14, 1951 and the other on March 5, 1958.
The elder child died shortly after its birth.
The younger named Ponnuswami acting through his mother Annapazham as his
guardian filed an action in the Court of the Subordinate Judge, Tirunelveli,
for separate possession of a half share in the properties of the joint family
held by his father Perumal. The suit was defended by 51 Perumal contending that
he had not married Annapazham as claimed by her; that if it be proved that
marriage ceremony had been performed, it was invalid, and in any event
Ponnuswami was an illegitimate child and could not claim a share in his estate.
The Trial Court rejected the defence, and decreed the suit. Perumal appealed to
the High Court of Madras, but without success. With certificate under Art.
133(1)(c) of the Constitution, this appeal is
preferred.
Three contentions are urged in support of
this appeal: (1) that Annapazham was an Indian Christian and a marriage between
a Hindu and an Indian Christian is regarded by the Courts in India as void; (2)
that the marriage was invalid because it was prohibited by the Madras Act 6 of
1949; (3) that Annapazham and Perumal were living apart for a long time before
the birth of Ponnuswami and on that account Ponnuswami could not be regarded as
a legitimate child of Perumal.
Annapazham was born of Christian parents and
she followed the Christian faith. She married Perumal when she was about 19
years of age. It is not now in dispute that on November 19, 1950 she went
through the ceremony of marriage and lived with Perumal as his wife for several
years thereafter. The children born to Annapazham in September 1951 and March
1958 were entered in the Register of Births as Hindus. On the occasion of the
marriage, printed invitations were sent to the relatives of Perumal and of
Annapazham and an agreement was executed by Perumal and Annapazham reciting
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." The marriage ceremony was performed according to Hindu rites and
customs : a bridal platform was constructed and Perumal tied the sacred than
which it is customary for a Hindu husband to tie in acknowledgement of the
marriage.
The High Court on a consideration of the
evidence recorded the following finding:
"Oral evidence was adduced to prove that
the marriage was celebrated according to Hindu rites and Sams52 karas. Invitations
were issued at the time of the marriage and usual customary tying of thali was
observed. After the marriage she ceased to attend the Church, abandoned the
Christian faith and followed the Hindu customs and manner prevailing among the
Hindu Nadar community of Travancore." Perumal who had previously been
married to one Seethalakshmi agreed to and did go through the marriage
ceremony. It is in evidence that marriage between Hindu males belonging to the
Nadar community and Christian females are common and the wife after the
marriage is accepted as a member of the Hindu Nadar community.
Mr. Gupte on behalf of Perumal contends that
a valid marriage mistake place between two Hindus only and not between a Hindu
and a non-Hindu and in the absence of any evidence to show that Annapazham was
converted to Hinduism before she married Perumal, the marriage, even if
performed according to the Hindu rites and ceremonies, is not valid in law.
Counsel also contended that the evidence that
Annapazham lived after the marriage is a Hindu will not validate the marriage.
It is not necessary to decide in this case
whether marriage between a Hindu male and an Indian Christian female may be
regarded as valid for, in our judgment, the finding of the Courts below that
Annapazham was converted to Hinduism before her marriage with Perumal is amply
supported by evidence. A person may be a Hindu by birth or by conversion. A
mere theoretical allegiance to the Hindu faith by a person born in another
faith does not convert him into a Hindu, nor is a bare declaration that he is a
Hindu sufficient to convert him to Hinduism. But a bona fide intention to be
converted to the Hindu faith, accompanied by conduct unequivocally expressing
that intention may be sufficient evidence of conversion. No formal ceremony of
purification or expiation is necessary to effectuate conversion.
In Muthusami Mudaliar v. Masilamani alias
Subramania Mu liar(1) the validity of a marriage according to Hindu rites
between a Hindu and a Christian woman fell to be determined.
It was held that the marriage contracted
according to Hindu rites by a Hindu with a Christian woman, who before marriage
is converted to Hinduism, is valid, though the marriage was not in strict
accordance with the Hindu system of law. Such a marriage is still common among
and recognised as valid by the custom of the caste to which the man belongs.
In Goona Durgaprasada Rao and Another v.
Goona Sudarasanaswami and others(1), Mockett, J., observed that no gesture or
(1) I.L.R. 33 Mad. 342.
(2) I.L.R. [1940] Mad. 653.
53 declaration may change a man's religion,
but when on the facts it appears that a man did change his religion and was
accepted by his co-religionists as having changed his religion and lived and
died in that religion, absence of some formality cannot negative what is an
actual fact.
Krishnaswami Ayyangar, J., observed that a
Hindu who had converted himself to the Christian faith returned to Hinduism and
contracted a second marriage during the lifetime of his first wife and remained
and died a Hindu having been accepted as such by the community and
co-religionists without demur. Absence of evidence of rituals relating to
conversion cannot justify the Court in treating him as having remained a
Christian.
The evidence clearly establishes that the
parents of Annapazham arranged the marriage. The marriage was performed
according to Hindu rites and ceremonies in the presence of relatives who were
invited to attend : customary ceremonies peculiar to a marriage between Hindus
were performed : no objection was raised to the marriage and after the marriage
Annapazham was accepted by the local Hindu Nadar community as belonging to the
Hindu faith, and the plaintiff was also treated as a Hindu. On the evidence
there can be no doubt that Annapazham bona fide intended to contract marriage
with Perumal. Absence of specific expiatory or purificatory ceremonies will
not, in our judgment, be sufficient to hold that she was not converted to
Hinduism before the marriage ceremony was performed. The fact that Perumal
chose to go through the marriage ceremony according to Hindu rites with
Annapazham in the presence of a large number of persons clearly indicates that
be accepted that Annapazham was converted to Hinduism before the marriage
ceremony was performed.
The second contention has little substance.
The Madras Hindu (Bigamy Prevention and Divorce) Act 6 of 1949-provided by ss.
3 & 4(1) :
S. 3-"This Act applies to Hindus
domiciled in the State of Madras.
Explanation. This Act shall also apply if
either of the parties to the marriage was a Hindu domiciled in the State of
Madras." S. 4(1)-"Notwithstanding any rule of law, custom or usage to
the contrary, any marriage solemnized after the commencement of this Act
between a man and a woman either of whom has a spouse living at the time of
such solemnization shall be void, whether the marriage is solemnized within or
outside the State of Madras :
Provided................................."
54 Mr. Gupte contended that Perumal was domiciled in the village of Kannamkulam,
Taluka Nanguneri, District Tirunelveli in the State of Madras and on that
account governed by Madras Act 6 of 1949, and since Perumal had been previously
married to Seethalakshmi who was alive, his marriage with Annapazham was
invalid. The Courts below have held that Perumal had married Seethalakshmi
before he married Annapazham, and that Seethalakshmi was alive at the date of
Perumal's marriage with Annapazham. But no contention was raised in the written
statement filed by Perumal that he was domiciled in the State of Madras. The
marriage with Annapazham took place in Kannimadam which is admittedly within
the territory of the State of TravancoreCochin and after the marriage Perumal
and Annapazham lived at Kannimadam. M. Thangiah Nadar P.W. 2, and Kailasa Nadar
P.W. 4 have deposed that the families of Annapazham and Perumal were the
subjects of the Travancore Maharaja and that evidence was not challenged.
Perumal and Annapazham were married according to the ceremonies which make a
valid marriage: they had lived as husband and wife and if it was the case of
Perumal that the marriage was, by reason of the prohibition contained in Madras
Act 6 of 1949, invalid, it was for him to set up and to establish that plea by
evidence. It is true that an attempt was made after plaintiff closed her case
to suggest to witnesses examined that he Perumal was a resident of Kannamkulam
and that he occasionally visited Kannimadam where he had a house. But no
argument was raised that Perumal was domiciled in the State of Madras. In the
absence of any such contention, the Trial Court held that Perumal was not
domiciled in the State of Madras. It cannot be held in the absence of a
specific plea and issue raised to that end that Perumal was domiciled in the
State of Madras and was on that account governed by the provisions of the
Madras Hindu (Bigamy Prevention and Divorce) Act 6 of 1949. We agree with the
High Court that it is not proved that Perumal was domiciled in the State of
Madras at the date of his marriage with Annapazham.
Nor can we accept the contention that the
plaintiff Ponnuswami is an illegitimate child. If it be accepted that there was
a valid marriage between Perumal and Annapazham and during the subsistence of
the marriage the plaintiff was born, a conclusive established that at the time
when the plaintiff was conceived, Peru presumption arises that he was the son
of Perumal, unless it be mal had no access to Annapazham. There is evidence on
the record that there were in 1957 some disputes between Annapazham and Perumal.
Annapazham had lodged a complaint before the
Magistrate's court that Perumal had contracted marriage with one Bhagavathi.
That complaint was dismissed and the order was 55 confirmed by the High Court
of Madras. Because of this complaint, the relations between the parties were
strained and they were living apart. But it is still common ground that Perumal
and Annapazham were living in the-same village, and unless Perumal was able to
establish absence of access, the presumption raised by s. 112 of the Indian
Evidence Act will not be displaced.
In Chilukuri Venkateswarlu v. Chilukuri
Venkatanarayana(1) in a suit filed by a Hindu son against his father for
partition it was contended that the plaintiff was not the legitimate child of
the defendant. The defendant relied upon certain documents by which he had
agreed to pay maintenance to the plaintiffs mother, and upon a deed gifting a
house to her and assertions made in a previous suit that he had no intercourse
with her after he married a second wife. The Court in that case observed,
following the judgment of the Privy Council in Karapaya v. Mayandi(1) that
.,non-access could be established not merely by positive or direct evidence; it
can be proved undoubtedly like any other physical fact by evidence, either
direct or circumstantial, which is relevant to the issue under the provisions
of the Indian Evidence Act, though as the presumption of legitimacy is highly
favoured by law it is necessary that proof of non-access must be clear and
satisfactory", and since on the basis of that proof there was evidence on
the record that the plaintiffs mother lived in the house gifted to her by her
husband and there was no impossibility of cohabitation between the parties,
there was no acceptable evidence of non-access.
In Ammathayee v. Kumaresain (3) this Court
held that the conclusive presumption under s. 112 of the Indian Evidence Act
can. only be displaced if it is shown that the parties to the marriage had no
access at any time when the child could have been begotten, There is a
concurrent finding of the Trial Court and the High Court that there is no
evidence to establish that Perumal living in the same village as Annapazham had
no access to Annapazham during the time when the plaintiff could have been
begotten.
The appeal fails and is dismissed with costs.
G.C. Appeal dismissed.
(1) [1954] S.C.R. 425.
(2) I.L.R. 12 Rang. 243 (P.C.) (3) [1967] 1
S.C.R. 353.
Back
