Madras High Court
Rajam vs Chidambaravadivu on 25 June, 2002
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 25/06/2002
CORAM
THE HONOURABLE MR.JUSTICE P.SHANMUGAM
AND
THE HONOURABLE MR.JUSTICE K.SAMPATH
A.S.No.553 of 1991
01. Rajam
02. Murugabai
03. Ramasubramanian
04. Gomathinayagam
05. Muniaswami
06. Vijayalakshmi .. Appellants
-Vs-
01. Chidambaravadivu
02. Pachammal
03. Ramasubramanian
04. Muruganandam
05. Vinayakamurthi
06. Muni Venkatakrishnan
07. Vinivirundal
08. Selvaraj Nadar
09. Narayana Pilla
10. Rasilda
11. Chidambaram
12. Guruswami Devar
13. Natarajan
14. Isakki Achari
15. Shanmugasundara Achari
16. Subbaiachari
17. Isakki Ammal
18. Krishna Pillai
19. Pushpakani Ammal
20. Thangathayammal
21. Kumaraswami
22. Vasantha
23. Musthaparanam
24. Ramalakshmi Ammal
25. Ramalakshmi Ammal
26. Rathinasabapathy
27. Thangamariammal
28. Thilakavathi
29. Meenakshisundaram
30. Ramalakshmi Ammal
31. Guruvammal
32. Indumathi
33. Kasiammal
34. Samiapillai
35. Arumugam Pillai
36. Shanmugavelayudham
37. Sundaram
38. Velaiah
39. Subramanian
40. Chidambarammal
41. Nallaperumal
42. Victor
43. Shankara Rajapandian
44. Vadivel
45. Senthivel
46. Murugesan
47. Rupakumar
48. Kasthuri Ammal
49. Jayalakshmi
50. Ramachandran
51. Sakthidevi
52. Anthony
53. Balu Pillai
54. Innasanth Fernand
55. Poisollan Pillai
56. Muthupandi Nadar
57. Mayan
58. Balan
59. Adinarayanan
60. Viswanathan
61. Sivasubramanian
62. Sivasailam .. Respondents
Appeal against the judgment and decree dated 4.3.91 made in O.S.No.1
37 of 1987 on the file of the learned Subordinate Judge, Tuticorin.
!For Appellants :: Mr.Mateen Ghatala
^For Respondents :: Mr.P.Rathinadurai for
RR 1,3, 4 and 5
(Caveators)
:JUDGMENT
(Judgment of the Court was made by P.SHANMUGAM, J.) The unsuccessful plaintiffs before the Sub Court, Tuticorin are the appellants herein. The plaintiffs filed the suit for partition of 4 2/96 share and mesne profits. The brief facts which are necessary for the disposal of this appeal are as follows.
2. The first plaintiff claims to be the wife of late Muthukrishna Pillai. According to her, he died on 12.11.86 leaving behind him, the plaintiffs 2 to 6 and the children of the first respondent as his heirs to succeed to the properties mentioned in the schedule. The case of the respondents before the Sub Court was that the first plaintiff was not the wife of late Muthukrishna Pillai and the plaintiffs 2 to 6 were not born out of lawful wedlock; that the late Muthukrishna Pillai was not living with her as husband and wife and that the late Muthukrishna Pillai had already partitioned the entire suit properties among himself and his sons by partition deed dated 29.1.81 and therefore, the suit was not maintainable. The other written statements of the respondents are not relevant for the disposal of this appeal and hence, they are not referred to. On the above pleadings, the learned Subordinate Judge, Tuticorin framed nine issues, marked Exhibits A-1 to A-24, B-1 to B-5 and after considering the oral evidence of P.W.1 and D.W.1, held that the first plaintiff was not the legally wedded wife of Muthukrishna Pillai and the children born to them are not legitimate and consequently, dismissed the suit.
3. In this appeal, the main submission of the learned counsel for appellants is that the Court below failed to see that the marriage was proved not only by long cohabitation but also by documentary evidence on record and that the parties have acknowledged the fact that the first appellant was living with the late Muthukrishna Pillai as husband and wife and the children were born to them and which fact was admitted by late Muthukrishna Pillai. The learned counsel also referred to the legal presumption that would arise on the long cohabitation between them as husband and wife and therefore, the Court below ought to have decreed the suit.
4. Mr.P.Rathinadurai, learned counsel appearing on behalf of the respondents referring to all the exhibits submitted that the learned Subordinate Judge by cogent and convincing reasons had held that there is no factum of marriage and consequently, all the arguments and contentions of the learned counsel for appellants fall to the ground. He also referred to the oral and documentary evidence in his support and pleaded that the judgment does not call for any interference by this Court.
5. We have heard the respective learned counsel elaborately and considered the materials available before us carefully. The main question that arises for our consideration in this appeal is, whether, there was a marriage between the first appellant and the late Muthukrishna Pillai. The fact that the first appellant belonged to "Devadasi" community and that there were no witnesses alive to speak about the alleged marriage between them is admitted. Even in her evidence as P.W.1, she says that she does not remember the date of her marriage and that the marriage took place in front of the "Kuthuvilakku"-lamp and that there is no documentary or oral evidence to prove the factum of marriage. In this context, it is relevant to refer to the status of a "devadasi" woman. The Tamil Nadu Devadasis (Prevention of Dedication) Act, 1947 (Act XXXI of 1947) has put an end to the practice of Devadasis and dedication of women as Devadasis to a life of prostitution. Section 3 of the said Act says that the dedication of a woman as a Devadasi, whether before or after the commencement of the said Act is hereby declared unlawful and void and any woman so dedicated shall not be deemed to have become incapable of entering into a valid marriage. From this, it is clear that prior to 17.1.48, the Devadasi women were incapable of entering into a valid marriage. Section 34(8) of the Madras Hindu Religious and Charitable Endowments Act, 1951 defines "Devadasi" as follows:-
"For the purpose of this section, "devadasi" shall mean any Hindu unmarried female, who is dedicated to a temple."
6. From the above, it is clear that there was a practice prevalent in this part of the country prior to 1948 dedicating women as "
Devadasis" to Hindu deities, idols and temples and they were incapable of entering into a valid marriage. The said practice is declared void and if there was a marriage between a devadasi and a man, it shall have to be declared invalid. The alleged marriage, according to the first appellant, took place sometime in the year 1938, during which period it was accepted in practice that they were incapable of entering into a valid marriage. In this context, even P.W.1 admits that she does not remember the date of the marriage and that except this oral evidence, there are no other witnesses or documentary evidence to prove the factum of marriage. The learned Judge was right in pointing out that it is very difficult to countenance the evidence of P.W.1, working as teacher, that she does not remember the date of her marriage. It follows that there was no factum of marriage even though it is accepted that late Muthukrishna Pillai had relationship with P.W.1 and begotten appellants 2 to 6 through this relationship. But, however, since the whole question revolves around the factum of marriage and when once the first appellant fails to establish this fact, the consequential rights for her children under Section 16(1) of the Hindu Marriage Act are not available to them. In "MOHAN AND ANOTHER v. SANTHA BAI AMMAL AND OTHERS (1989 (2) L.W.
197)" a Division Bench of this Court held that in the absence of any proof about the alleged marriage, the very description that the husband was living with her only as "Abimana Manaivi", the presumption of marriage arising out of long cohabitation as husband and wife does not arise in that case.
Considering Section 16 of the Hindu Marriage Act, the Division Bench further held that the said provision was of no help since in order to get the benefit of that Section, the plaintiffs therein will have to show that actually there was a marriage between their mother and that marriage was null and void under Section 11 of the Act.
7. In "K.MUNUSWAMI GOUNDER AND ANOTHER v. M.GOVINDARAJU AND 4 OTHERS (1995 (1) L.W. 487)", another Division Bench of this Court, following the decision in "Chellammal v. Ranganatham Pillai (1911 (I) ILR 34 Madras 277" which was to the effect that the fact that a woman was living under the control and protection of a man who generally lived with her and acknowledged her children as his, will raise a strong presumption that she is the wife of that man, held that however, this presumption was rebuttable by proof of facts which show that no marriage could have taken place. The Division Bench further held that when once the factum of marriage is not proved, it has to be treated as a case of no marriage and therefore, Section 16(1) of the Hindu Marriage Act is not attracted and the children born out of such marriage cannot get the benefit of Section 16(1) of the Hindu Marriage Act. Another Division Bench of this Court in "PONNAMMA v. KUMARA PILLAI AND TWO OTHERS (1972 (I) MLJ 364)" held that circumstances will preclude the possibility of invoking presumption of a legal marriage between the parties and in that case, the appellant was a kudipravarthi woman whose status corresponds to that of Dasis in Tamil Nadu. The facts in this case are somewhat similar to that case which preclude us from invoking the presumption of a legal marriage considering the fact in which the first appellant was born and in the absence of any acceptable oral and documentary evidence. On the other hand, there is one clinching and crucial evidence let in by the respondents in the form of Ex.B-1, lawyers notice issued on behalf of the first appellant as against her own mother. In that notice, the counsel for first appellant states on her behalf that she is not the wife of late Muthukrishna Pillai and that the counsel categorically asserts on her behalf that no marriage in any of the accepted forms known to Hindu Law or Sastras was gone through by his client and that she belonged to Devadasi community and succession of property is determined by law and custom applicable to that community. On this assertion, the first appellant went for a trial in the suit in O.S.No.67 of 1963 on the file of the District Munsif Court, Tuticorin wherein her mother filed a suit for declaration of title to the suit property and for recovery of possession thereof with future profits. The first appellant contested the suit contending that she was entitled to the possession of the suit property as a owner. The suit was decreed and the first appellant filed an appeal before the Sub Court, Tuticorin in A.S.No.103 of 1964, a copy of which was marked as Ex.B-4. In that judgment, it is observed that the evidence of D.W.3 cannot be discredited merely on the ground that it was suggested to him that he was related to Muthukrishna Pillai who is alleged to be the husband of the defendant. The learned Judge observed in paragraph 15 that it is unthinkable that Vellammal (plaintiff/mother) could have lived with the defendant (first appellant herein) when the defendant was living with Muthukrishna Pillai, much to the dislike of Vellammal. The learned Judge also observed that Ex.A-1 dated 25.4.47 which is an application made by the defendant for admission to the training school where the name and address of the guardian is shown as "Velammal, 75-G East Car Street" cannot by itself be sufficient to discredit the case that the defendant was living in the suit house and not with Velammal, if the same is found to be true on other evidence on record. From Ex.B-5, ration card, the first appellant was shown as the head of the family. The fact which is not disputed is that the first appellant was living separately whereas, Muthukrishna Pillai was living with his wife and children independently in the same town. Therefore, in the light of the first appellant's own assertion that there was no factum of marriage between Muthukrishna Pillai and the first appellant and that she belonged to "
Devadasi" community coupled with separate living of Muthukrishna Pillai with his wife and children goes to show that even assuming, for the sake of arguments, the children were born to Muthukrishna Pillai, they were not living as husband and wife. Hence, we fully concur with the view of the Court below that there was no marriage at all and that they were not living as husband and wife and that too in the absence of proof of long cohabitation.
8. The learned counsel for appellants, apart from the judgments of our Court, referred to the judgment of the Supreme Court in "BADRI PRASAD v. DEPUTY DIRECTOR OF CONSOLIDATION AND OTHERS (AIR 1978 SC 1557 )" in support of the claim of strong presumption in favour of wedlock. But that was a case where they were living as husband and wife and the Supreme Court held that if a man and woman were living as husband and wife in a society, there will be strong presumption in favour of the wedlock. On the facts and circumstances that we find in this case, they were not living as husband and wife and as a matter of fact, there was no possibility for them to live in that manner in the same village. To the same effect, the learned counsel for appellants referred to the judgment of a Division Bench of this Court in " RAGHUVIR KUMAR v. SHANMUGHAVADIVU AND OTHERS (AIR 1971 MADRAS
330)" to raise a presumption of marriage on the basis of long cohabitation.
In that case also, it was held that there must be recognition of husband and wife by family members and other relatives and society and they were living in that manner as husband and wife for long number of years and that there will be a strong presumption in favour of valid marriage. But, on the facts of this case, we find that there was no recognition as husband and wife by any of the members and there is no evidence for such recognition and besides, there was no evidence of long cohabitation, to raise a presumption of marriage. The learned counsel for appellants also relied on certain entries made in the school records where the late Muthukrishna Pillai was shown as the father who has given an undertaking, and in certain family pension records Muthukrishna Pillai was shown as the beneficiary. Though the learned counsel for respondents disputed the validity of Ex.A-5 on the ground of tampering and the signature in Ex.A-5 was not attested by the officer concerned and the photograph also appears to be tampered with, we are of the view that this is not going to be a valid material since this document by itself will not prove that the first appellant and Muthukrishna Pillai were living as husband and wife. Further, a learned Judge of this Court in "TMT.GIRIJA @ SHANMUGA EASWARI v. TMT. SARASWATHI AMMAL (1999 (I) L.W. 261)" has taken the view that the recitals in Birth extract and School Certificate would not be sufficient to establish marriage when it is disputed, and the marriage has to be proved between two persons as per the provisions of the Act. The unilateral statement made by the first appellant for her retirement benefits or the statement of the late Muthukrishna Pillai as to the paternity of his children will not prove that there was a marriage and that there was long cohabitation between them as husband and wife so as to raise the presumption of marriage to claim the benefits under Section 16(3) of the Hindu Marriage Act.
9. For the above reasons, we do not find any material to differ from the view taken by the learned Subordinate Judge, Tuticorin. Accordingly, the appeal fails and the same is dismissed. No costs.
Index: Yes (P.S.M.J.) (K.S.J.)
Internet: Yes 25.06.2002
ss
To
1. The Subordinate Judge, Tuticorin (with records)
2. The Record Keeper, V.R.Section, High Court, Madras
P.SHANMUGAM, J.
AND
K.SAMPATH, J.
A.S.No.553 of 1991