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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

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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

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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

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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

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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-

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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