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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 1949- Act applicable only to those domiciled in Madras. Indian Evidence Act 1 of 1872, s. 112–Presumption as to legitimacy of child. =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. =1971 AIR 2352, 1971( 1 )SCR 49, , ,

English: Taken during Hindu wedding ceremony

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PETITIONER:


PERUMAL NADAR (DEAD) BY L.R.S.

Vs.

RESPONDENT:
PONNUSWAMI

DATE OF JUDGMENT:
17/03/1970

BENCH:
SHAH, J.C.
BENCH:
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 1949-
Act 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.

JUDGMENT:
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. Agar-
wala, 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 Sams-
52
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 marri-
age 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 Sudarasa-
naswami 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 life-
time 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 Anna-
pazham 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 Travancore-
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 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 Ponnu-
swami 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 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
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.
56

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