Perumal Nadar (Dead) by L.Rs. v. Ponnuswami

Judgment

The Judgment of the Court was delivered by Shah, J. Perumal Nadar married Annapazham (daughter of 1'- ,tilasa Nadar-an Indian Christian) on November 29, 1950, at K:mnimadani in the State of Travancore-Cochin according to Hi:1du rites. Ann; 1 ·iwn 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 octing through his mother Annapazham as his guardia;i filed an .i.:•ion in the Court of the Subordinate Judge, Tirunelveli, for separate possession of a half share in the properties of the joint family lield by his father Perumal. The suit was defended by PERUMAL v. PONNUSWAMI (Shah, J.) 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 dec;reed the suit. Perumal appealed to the High Court of Madras, but without wccess. With certificate under Art. ! 33(1)(c) of the Constitution, this appeal is preferred. Three contentions are urged in support of this appeal : (I) 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 wifo 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 Peru· ma! and of Annapazham and an agreement was executed by Peru· ma! and Annapazham reciting that : "Individual No. I (Peruma\) 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, thi~ 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 m:wards, that we shall not part each other both in prosperity anr! 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 thali which it is customary for a Hindu husband to tie in acknowledgement of thi: marriage. The High Court on a consideration of the evidence recorded the following finding : "Oral evidence was adduced to prove that the marri· age was celebrated according to Hindu rites and Sams- 52 (1971] l S.C.R. 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 manuer prevailing among the Hindu Nadar community of Travancore." Perumal who had previously been married to one Seethalakshm.i agreed to and did go through the marriage ceremony.

It is in evidence that mi:rriage 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 may take place between two Hindus only and not between a Hindu and a non-Hindu and in the absence of any evidence to show that /\nnaj.lazham was converted to Hinduism before she mairied 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 ·Jived 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 lfinduism 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 cqnvert 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 Muda/iar v. Masilamanl alias Subramania Mudaliar(') 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 recol!flised as valid by the custom of the caste to which the man belongs. In Gaona Durgaprasada Rao and Another v. Goona Sudarasanoswami and others(2 ), Mockett, J., observed that no gesture or (!) !.L.R. 33 \fad. 342. (2) l.L.R. (1940] Mad. 653. 8 PERUMAL V. PONNUSWAMI (Shah, J.) 53 declaration may change a man's reugion, but wnen 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 ~d 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 demw·.

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 Ar.napazham 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 evi- . dence there ca;n 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 Peruinal chose to go through the marriage ceremony according to Hindu rites with Anilapazham in the presence of a large number of persons clearly indicates that he 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 1 !149 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 t.o the contrary, any marriage solemn~ 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 O\ltside the State of Madras :

Provide« 54 SUPRBME COURT REPORTS (1971] I S.C.R. 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 Mad:as Act 6 of 1949, and since Perumal had been previously married to Scethaiakshmi who was alive, his marriage with Annapazham was invalid. The Courts below have held that Perumal had married Scethalakshmi before. he married Annapazham, and that Se~thalakshmi was alive at the date of Perumal's marriage with Annapazh;;m. But no contention was raised in the written statement filed by Perumal that he was domiciled in the Slate of Madras. The marriage with Annapazham took place in Kannimadam which is admittedly within the territory of the State of Trnv"ncore-Cochin 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 AnnapazhJm were married according to the ceremonies which make a valid marriage : they had liwd as husband and wife and if it was the case of Perunml that the marriag~ was, by reason of the. prohibition contained in Madras Act 6 of 1949, invalid. it was fo1· him to set up and tn establish that plea by evidence. It is true thnt un attempt wus made after pluintiff closed her case to suggest to witne»cs examined thnt he Perumal was u resident of Kannumkulam und that he occnsionnlly visited Kannimadnm where he had n 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 Madrus. 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 proviiions of the Madras Hindu (Bigamy Prevention and Divorce) Act 6 of 1949.

We agree with the High Court that it is not prnv'd 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 Ponnuswi;n1i is ~n illegitimak child. If it be accepted that there was a vahd mamage 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 Perupresumption arises that he was the son of Perumal, unles~ it be ma! had no access to Annapazham. There is evidence on the record that there were in 1957 some disputes between Annapazhrun and _Perun:al. Annapazham had lodged a complaint before the Magistrates court that Perumal had contracted marriage with one Bhagavathl, That complaint was dismissed and the order was PFRUMAL V. PONNUSWAMI (Shah, J.) 55 confirmed by the High Court of Madras.

Because of this com· plaint, 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 u11:less P~rumal wus ~blc to establish absence of access, the presumpt10n raised by s. 112 oi the Indian Evidence Act will not be displaced. In Chilukuri Venkateswarlu v. Chilukuri Venkatanarayana(') 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 <l~fendanl. The defendant relied upon certain documents by wi:ich he irnd agreed to pay maintenance to the plaintiff's 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(') that "nou-access could be established not merely by p'1sitive or direct evidence; it can be proved undoubtedly like any other physical fact by evidence, either direct or circumstantial, which is relevant 10 the issue under the provisions of the Indian Evideu~e Act, though as the presumption of legitimacy is highly favoured by lnw it is ne~cs,ury that pr9.of of non-access must be clear and satisfnc· tol'y'', and since on the busis of that proof there was evidence on lhe !'ccord thut the plaintiff's mother lived in the hou~c gifted to h~r by her hu~bund und there was no impossibility of colmbitatlon between the parties, there wus no acceptable evidence of nonaccess. In Ammathayee v. Kumaresain( 8 ) 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 nccess at any time when the ch:' :I 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 apr,cal fails and is dismissed with costs. G.C. (1) [1954] s.c.R. 425. (2) l.L.R. 12 Rang. 243 (P,'C,) (3) [19671 1 S.C.R. 353. Appeal dismissed,