Perumal Nadar (Dead) By L.R.S vs Ponnuswami 1971 AIR 2352, 1971 SCR (1) 49.
DATE OF JUDGMENT – 17/03/1970.
Bench – Shah,J.C. , Hegde K.S., Grover, A.N.
Judgement delivered by- Shah, J.C.
Facts of the Case-
1. Perumal Nadar, a Hindu married Annapazham, daughter of a Indian Christian on November 29, 1950 at Kannimadam in the state of Travancore-Cochin as per the Hindu rites.
2. Annapazham gave birth to two children-the first on September 14, 1951 and the other on March 5,1958. Of the two children born, the younger one died shortly after his birth.
3. 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.
4. The suit was defended by Perumal.
Brief Statement about the proceedings and appeals Preferred-
This case was initially brought in the Court of the Subordinate Judge, Tirunelveli, Madras where it was decreed in favour of the plaintiff. The appeal was taken to the High Court of Madras but High Court also upheld the judgement given by the sub-ordinate court. Thereafter, the appeal was taken to the Hon’ble Supreme Court of India by the certificate under Art. 133(1)(c) of the Constitution where it was dismissed.
The Apex court had few points or issues to be decided for the disposal of the appeal. In appeal to this court by certificate Perumal, the appellant contended – (i) that Annaphazham was an Indian Christian and the marriage between a Hindu and an Indian Christian must be declared void. (ii) that the appellant was already married before he married Annaphazam and bigamous marriage are prohibited under Madras Act 6 of 1949. (iii) that the appellant and Annaphazam were living apart from a long time even before the birth of the plaintiff and on that account the plaintiff could not be considered as the legitimate son of the appellant.
So, the issues which were in question before the Supreme Court were –
(i) Whether the marriage between Appellant and Annaphazham is void as Annaphazam was an Indian Christian before marriage?
(ii) Whether the marriage is void as per the Madras Hindu (Bigamy Prevention and Divorce) Act 6 of 1949 on the ground of Bigamy?
(iii) Whether the plaintiff is the legitimate son of appellant?
Disposing the first issue, the Supreme Court was of the view that the question whether the marriage between Hindu male and Christian female is valid, does not arise in the present case because as per the findings of the lower courts Annapazham was converted to Hinduism before her marriage with Perumal and it was aptly supported by evidence. A person may be Hindu by birth or by conversion.
If a person expresses bona fide intention to become Hindu accompanied by a conduct unequivocally expressing that intention coupled with the acceptance of his as its member by the community or caste into the fold of which he has entered. No formal; ceremony of purification is needed to effectuate conversion. The evidences clearly state that the marriage was arranged by the parents of Annapazham and performed in accordance with the Hindu rites and sanskaras in presence of the relatives which were invited to attend the marriage and customary ceremonies as per the Hindu religion were followed; no objection were raised to the marriage at that point of time and after the marriage Annapazham was accepted by local Hindu Nadar community as belonging to Hindu faith; and the plaintiff was also treated as Hindu. On the evidence, there was no doubt that Annapazham bona fide intended to contract marriage with Perumal. The fact that the appellant chose to go through the marriage ceremony as per the Hindu rites in presence of a large number of people clearly indicated that he accepted that Anapazhamw as converted to Hinduism before the marriage ceremony was performed. The children born to Annapazham in September 1951 and March 1958 were engaged in the Register of Birth a Hindus. On the occasion of marriage, printed invitations were send to the relatives of Annapazham and Perumal and an agreement was also executed by Perumal and Annapazham. Also, 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. Hence, the marriage of Perumal and Annapazham was valid.
Taking into consideration the second issue, which was regarding the question on validity of Marriage as bigamy is prohibited under The Madras Hindu (Bigamy Prevention and Divorce)Act 6 of 1949 and the appellant contended that he was already married before Annapazham married him in 1950. The two provisions namely section 3 & 4(1) were to be looked into.
S.3 says– “This Act applies to Hindus domiciled in Madras.” And the explanation provides that it shall also apply if either of the parties to the marriage was a Hindu domiciled in the state of Madras.
S.4(1) says “Notwithstanding any rule of law, custom or usage to the contrary, any marriage solemnized after the commencement of this Act between a man and woman either of who 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: The appellant contended that he had been previously married to Seethalakshmi who was alive, his marriage with Annapazham was invalid. The courts below held that Perumal had married Seethalakshmi before he married Annapazham, and Seethalaksmi was alive at the date of Perumal’s marriage with Annapazham. But, no contention was raised by Perumal in his Written Statement that he was domiciled in Madras. The marriage with Annapazham took place in Kannimadam which is admittedly within the territory of Travacore-Cochin and after marriage Perumal and Annapazham lived there only. P.W.2 and P.W.4 have deposed that the families of Annapazham and Perumal were the subjects of Travancore Maharaja and the evidence was not challenged. In absence of any such contention, the Trial court held that Perumal was not domiciled in the state of Madras. The Supreme court agrees with the High Court that it is not proved that the Perumal is domiciled in the state of Madras and therefore was not governed by Act 6 of 1949, Madras State.
Considering the third issue, The Supreme court clearly held that the contention of appellant that Plaintiff Ponnuswami is the illegitimate child of Appellant can not be accepted. There is a evidence on record that in 1957 there were some disputes between Annapazham and Perumal. Annapazham had lodged a complaint before the Magistrate’s Court that Perumal had contracted marriage with one Bhgawathi. The complaint was dismissed and the order was confirmed by the High Court of Madras. Because of the complaint, the relations between the parties were strained and they were living apart. But it is still the common ground that they were living in the same village and unless Perumal was able to establish absent of access, the presumption raised by S.112 of the Indian Evidence Act will not be displaced.
Section 112 in The Indian Evidence Act, 1872
112. Birth during marriage, conclusive proof of legitimacy.- The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within two hundred and eighty days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the begotten.
Since the appellant is unable to establish the absence of access, the plaintiff cannot be considered as the illegitimate child of the appellant. Plaintiff is thereby considered the legitimate child of the appellant.
Therefore, the appeal fails and is dismissed with costs.