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PETITIONER: V.R. SADIE NAIDU

       Vs.

RESPONDENT: BAKTHAVATSALAM & ANR.

DATE OF JUDGMENT: 11/12/1963

BENCH: GUPTA, K.C. DAS BENCH: GUPTA, K.C. DAS GAJENDRAGADKAR, P.B.

CITATION:  1964 AIR 1126            1964 SCR  (5) 911

ACT: Hindu Law-Intercaste marriage-Marriage before the Act-If the Act  has retrospective effect-The Hindu  Marriages  Validity Act, 1949 (Act 21 of 1949), s. 3.

HEADNOTE: The minor respondent no.  I brought a suit for partition  on a  claim that on his birth he became a member of  the  joint Hindu  family  which his father Sadagopa  Naidu,  the  first defendant,  in the suit, formed with the other nine  persons impleaded  as  defendants  2  to  10.   His  case  was  that Padmavathi  and Sada Gopa were validly married on  June  24, 1948  and  of that marriage he was born.  The  case  of  the defendant  was  that the impugned marriage was not  a  valid marriage  as Padmavathi was a Brahmin girl and Sada  Gopa  a Shudra.  On these facts the Trial Court passed a preliminary decree for partition in favour of the respondent no. 1.  The Trial  Court  was  of opinion that  the  marriage  would  be invalid  according to the Hindu Law as it stood  before  the Hindu  Marriages Validity Act, 1949.  It held  however  that the position had been entirely changed by s. 3 of the  Hindu Marriages  Validity  Act,  1949 and that  the  marriage  was validated by the Act of 1949.  On appeal by the  defendants, the  High Court affirmed the judgment and decree  passed  by the trial court. Hence this appeal. Held: (i) The Hindu Marriages Validity Act, 1949 was however in  terms  retrospective and validated  marriages  that  had taken  place  before the Act between  parties  belonging  to different 912 castes,  sub-castes and sects.  It is idle to say  that  the object of the legislature was only to regularise the  status of the Husband and the Wife.  That certainly was part of the object.   But equally important, or perhaps  more  important object  was that the children of the marriages would  become legitimate. On  the  facts of this case it was held  that  the  impugned marriage  was a valid Hindu marriage and the respondent  no. 1  a  legitimate son of Sadagopa with all the  rights  of  a coparcener  in  regard to the joint  family  properties  and other matters.

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JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 316 of 1959. Appeal  by special leave from the judgment and decree  dated August  22, 1959 of the Madras High Court in Appeal No.  282 of 1952. G.S.  Pathak,  B. Dutta, T.R. Ramchandra,  J.B.  Dadachanji, O.C. Mathur and Ravinder Narain, for the appellants. H.N.  Sanyal, Solicitor General of India, K. Jayaram and  R. Ganapathy Iyer, for respondent no. 1 N.   Panchapagesa  Iyer, M.P. Swami and R. Thiagarajan,  for respondent no. 2. December 11, 1963.  The Judgment of the Court was  delivered by DAS  GUPTA  J.-Thirteen-month old  Bhakthavathsalam  brought this  suit  for partition on a claim that on  his  birth  he became  a member of the joint Hindu family which his  father V.R.  Sadagopa  Naidu,  the first defendant,  in  the  suit, formed with the other nine persons impleaded as defendents 2 to  10.   His  case is that  Padmavathi  and  Sadagopa  were validly married on June 24, 1948 and of that marriage he was born.   The main contention of the contesting defendants  is that there was never any marriage of Padmavathi and Sadagopa and that Bhakthavathsalam is not Sadagopa’s son. On  both these points the Trial Court found the  plaintiffs’ case proved and rejected the defence pleas.  At the trial  a further  point was raised that even if any marriage  between Padmavathi and Sadagopa 913 did  take place that was not a valid marriage as  Padmavathi was  a Brahmin girl and Sadagopa a Shudra.  The Trial  Court was  of  opinion  that  Padmavathi was  a  Brahmin,  and  as admittedly  Sadagopa  was a Shudra, the  marriage  would  be invalid  according to the Hindu Law as it stood  before  the Hindu  Marriages Validity Act, 1949.  It held  however  that the position had been entirely changed by section 3 of  this Act  and  that even if Padmavathi belonged  to  the  Brahmin caste  and not to the caste to which Sadagopa  belonged  the marriage  is valid under the existing law.  The validity  of the  Act itself appears to have been challenged  before  the Trial  Court,  but, this was rejected.  In the  result,  the Trial  Court  passed  a  preliminary  decree  for  partition providing  for allotment to the plaintiff of 1/8th share  of the  property set out in the plaint.  Some other  directions were also given in the decree, with which however we are not concerned. On appeal by the defendants, the High Court of Judicature at Madras  agreed  with  the Trial Court  that  Padmavathi  and Sadagopa  had  been  duly married  and  that  the  plaintiff Bhakthavathasalam was the issue of that marriage, being born of  Padmavathi to Sadagopa.  The High Court was  however  of opinion that Padmavathi was a Shudra, the same as  Sadagopa. Assuming  however for argument’s sake that Padmavathi was  a Brahmin the High Court agreed with the Trial Court that  the marriage was validated by the Hindu Marriages Validity  Act, 1949,  and  so, the plaintiff would have all the  rights  of legitimate son vis-a-vis the coparcenary to which his father belonged.   The  validity  of  the  Act  was  unsuccessfully challenged.   Accordingly,  the  High  Court  affirmed   the judgment and decree passed by the Trial Court and  dismissed the  appeal.   Against this decision of the High  Court  the present appeal has been filed by the defendants with special leave. In  support of the appeal, Mr. Pathak tried first to  attack

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the  concurrent  findings of facts of the  courts  below  as regards the marriage between Sadagopa 914 and  Padmavathi and the fact of the plaintiff being born  of Padmavathi  to Sadagopa in that marriage.   Learned  counsel wanted to. say that the findings of the High Court on  these points  were  vitiated by misreading of important  items  of evidence.    He  could  not  however  point  out  any   such misreading nor any other error to justify our  re-assessment of the evidence Having failed in this attempt Mr.. Pathak contended that  as a  matter of law the plaintiff did not become  a  legitimate son  of  Sadagopa  inspite of the provisions  of  the  Hindu Marriages  Validity  Act, 1949.  According  to  the  learned counsel  the  only effect of this Act is that  the  marriage becomes valid and it has no effect as regards the legitimacy of the child born before the date of the Act. The  relevant  provisions of the Act is in s. 3  and  is  in these words:-               "Notwithstanding  anything  contained  in  any               other  law for the time being in force  or  in               any  text, or interpretation of Hindu law,  or               in  any custom or usage, no  marriage  between               Hindus  shall be deemed to be invalid or  ever               to  have  been invalid by reason only  of  the               fact  that  the parties  thereto  belonged  to               different  religions,  castes,  sub-castes  or               sects." For  his proposition the learned counsel could not cite  any authority; and that is natural because the contention raised is  entirely  misconceived  and  can  be  characterised   as extravagant.  He tried to persuade us however that a  proper construction of the words used in the section,justifies  the conclusion  that  it was the status of the  parties  to  the marriage  that was only sought to be affected.  He  conceded that in the case of every marriage celebrated after the date of the Act, the result of the marriage being valid would be, that the children born of the marriage would be  legitimate, ’but  argued  that the same result would not follow  in  the case  of a marriage which having been celebrated before  the date  of  the Act was invalid at the time and  the  children were illegiti- 915 mate then.  The illegitimate children , he argues, were  not made  legitimate by this Act.  For that purpose  an  express provision  was necessary, according to the learned  counsel. In  support of his arguments he has drawn our  attention  to the  wordings of s. 1 of the Hindu Widows’ Re-Marriage  Act, 1856, which is in these words:-               "No  marriage contracted between Hindus  shall               be invalid, and the issue of no such  marriage               shall be illegitimate, by reason of the  women               having been previously married or betrothed to               another  person  who was dead at the  time  of               such  marriage,  any  custom  and  any  inter-               pretation   of  Hindu  law  to  the   contrary               notwithstanding." The  absence of any phrase similar to "the issue of no  such marriage  shall  be  illegitimate" in  the  Hindu  Marriages Validity  Act,  1949, is claimed by the learned  counsel  to support his contention. We cannot agree.  In our opinion, the use of the words  "the issue  of  no such marriage shall be illegitimate"  was  not really  necessary in s. 1 of the Hindu  Widows’  Re-Marriage Act,  and even without these words the effect of a  marriage

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being  valid would necessarily have been that the, issue  of the  marriage was legitimate.  These words were put  in  the section.,  by  the  legislature  in  1856  as  a  matter  of abundant,  caution.  The absence of such words in the  Hindu Marriages  Validity Act, 1949 is of no consequence.  If  the Act  had not retrospectively validated marriages  celebrated before the date of the Act, the children of those  marriages could  not  have  claimed to be  legitimate.   The  Act  was however in terms retrospective and validated marriages  that had taken place before the Act between parties belonging  to different,,  castes,  sub-castes and sects.  It is  idle  to contend that the object of the legislature was only to regu- larise  the  status  of the husband  and  the  wife.   That’ certainly was part of the object.  But equally important, or perhaps  more important object was that the children of  the marriages would become legitimate. 916 We  have therefore come to the conclusion that even  if  the Trial  Court  was right in thinking that  Padmavathi  was  a Brahmin  girl and not a Shudra, the position in law was,  as found  by  the  courts below, viz., it  was  a  valid  Hindu marriage and Bhakthavathasalam a legitimate son of  Sadagopa with  all the rights of a coparcener in regard to the  joint family properties and other matters. No  other  point  was  urged  in  appeal.   The  appeal   is accordingly dismissed with costs. Appeal dismissed.