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P.S. Venkataraman Vs. Srimathi A.C. Janaki - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtChennai
Decided On
Reported inAIR1939Mad595; (1939)1MLJ520
AppellantP.S. Venkataraman
RespondentSrimathi A.C. Janaki
Cases ReferredVide Abdurahim Haji Ismail Mithu v. Halimabai
Excerpt:
- - it is a well-established principle of law that no person can alter the devolution of his estate by his own will. 195 imply a multiplicity of persons as well as of acts, and though they allow a man to transfer himself from the class to which he has hitherto belonged to another class, do not in either class permit him to make a law for himself different from that which governs his fellows. the principle has been carried to such an extent that even in a case where portion of a province has been annexed to another province for administrative purposes this transfer would not affect the personal law of residents remaining in the portion transferred and it must be distinctly shown that a person had intended to change and in fact changed his personal law......learned judge explains what he means in the very next sentence thus:thus it has been held that a hindu governed by the mitakshara law may retain it or accept the dayabaga law prevalent in the locality to which he had migrated,that is, where a person migrates from one part of india to another, prima facie, he would carry his personal law, but it will also be open to him to renounce that law and be governed by the law prevailing in the locality to which he has migrated, and this must be affirmative proved. till then the personal law by which he was governed before migration will continue to have obligatory force on him. vide abdurahim haji ismail mithu v. halimabai (1915) 30 m.l.j. 227 : l.r. 43 indap 35 . sankaran nair, j., did not lay down that a person by an open declaration can.....
Judgment:

Venkataramana Rao, J.

1. This appeal raises a question of some importance regarding the validity of an alleged marriage between the plaintiff and the defendant. The plaintiff is a Brahmin by birth and follows the Hindu religion. The defendant is a Nair lady belonging to a respectable Nair tarwad of Malabar. In December, 1934, the plaintiff was the Managing Director of a film company known as the South Indian Film Corporation which has since gone into liquidation. The defendant was employed in the said corporation. It is alleged in the plaint that on the 21st December, 1934, the plaintiff and the defendant went through a form of marriage according to Hindu rites and ceremonies at a village called Tiruneermalai, a few miles distant from Madras and from that day up to 4th April, 1935, lived together as husband and wife. It is further alleged that the defendant left for her place thereafter and refused to return and live with the plaintiff. Hence the plaintiff instituted the suit, out of which this appeal arises, for restitution of conjugal rights. The defendant denies the factum of the marriage and her living with the plaintiff. According to her she went on a month's leave in April to her place and resigned the post she held in the Film Company. Even assuming the marriage to be true, she denied the validity of the marriage and questioned the jurisdiction of the Court to entertain the suit. Her pleas in regard thereto are thus outlined in paragraphs 3 and 14 of her written statement:

3. The defendant is a Hindu, permanently resident in the Kadirur Village, Kottayam Taluk, North Malabar, governed by the Marumakkathayam Law of Inheritance and states that under Section 11 of the Madras Marumakkathayam Act, the present suit is not maintainable and that it should be dismissed in limine.

14. On the 21st December, 1934, the date on which the plaintiff alleges in the plaint to have married the defendant and even long prior thereto, the plaintiff has been a married man having married in his own community and the said marriage was subsisting on the said date. The defendant states that under Section 5 of the Madras Marumakkathayam Act, the plaintiff was legally incompetent on account of the continuance of his prior marriage to marry the defendant on the said date and any such marriage is void.

2. It is admitted that the plaintiff was a married man and had a wife living on the date of the marriage. Among the issues raised were the following:

1. Was the defendant a Marumakkathayee on the date of the alleged marriage?

2. Is the suit not sustainable for the reasons set out in paragraph 3 of the written statement?

5. Is the plaintiff not legally competent to marry the defendant as stated in paragraph 14 of the written statement?

3. An application was taken by the defendant on the 30th July, 1936, for trying issues 1 and 2 as preliminary issues. The plaintiff filed a counter-affidavit opposing the application wherein he deposed as follows:

Further, as stated in the plaint, the petitioner has openly and willingly married me with all the religious ceremonies according to the Hindu Shastras. She did not want to take advantage of the protection given to her under the Act. She was fully aware before and at the time of my marriage with her that I had already a wife. She has even expressed to others that she was marrying me in spite of her rights under the above Act which she was saying she was giving up to marry me. I have got respectable witnesses to prove all these facts.

4. The plaintiff amplified this plea at the time when the application was heard thus:

'Plaintiff states that there has been a marriage, that even in spite of the Marumakkathayam Act, the marriage is valid, that the defendant is not governed by Marumakkathayam law, that at the time of marriage, relinquished that law of inheritance and succession, and that even if she has not relinquished, the marriage is valid.' Vide the order dated 4th August, 1936.

5. On the pleadings and on the oral submission of the parties the learned City Civil Judge framed the following preliminary issue:

Whether the defendant could validly give up the advantage and protection given to her under the Act and whether on that account the defendant was not a Marumakkathayee when she married the plaintiff and whether on that account the marriage is valid.

6. The learned City Civil Judge heard arguments on the said issue without taking evidence, answered it in favour of the defendant and dismissed the suit. The plaintiff has filed this appeal.

7. The question for decision is whether the defendant was a Marumakkathayee on the date of her alleged marriage with the plaintiff, that is, the 21st December, 1934, and whether the said marriage is valid. The defendant was a Nair female governed by Marumakkathayam law except in so far as it is modified by the statute. The Marumakkathayam law is the customary law followed and observed by the Nairs of Malabar. For the decision of the question in issue it is unnecessary to consider whether the Marumakkathayam law is only a school of Hindu law or a purely customary law which can in no sense be a branch or school of Hindu law. It cannot be denied that Nairs are Hindus and in the religious and social life they are governed by the same shastras that govern the rest of the Hindus, who inhabit the presidency of Madras of which Malabar is a part. The Marumakkathayam law, whether it is a school of Hindu law or a customary law, is a law which is prevailing in the Madras Presidency followed and observed by a certain section of the Hindus. As observed by Mayne in his book on Hindu Law, 10th Edition, at page 97:

In India there is no lex loci, every person being governed by the law of his personal status.

8. Again, in another portion the learned author observes thus:

Prima facie any Hindu residing in a particular province in India is held subject to the particular doctrines of Hindu Law and recognised in that province (page 95).

9. I would qualify the statement of the law thus:

The particular school of Hindu law or the customary law applicable to the class to which the said Hindu belongs and recognised in that province.

10. As the learned author again observes at page 96:

This law is not merely a local law. It becomes the personal law and a part of the status of every family law which is governed by it.

11. Therefore in every case where the question arises what is the law by which a person is governed, regard should be had to the law of the class or family to which he belonged. Of course, if he did not belong to any particular class or family it would be the general doctrines of Hindu law prevalent in that province wherein he resided. Once it is determined what the personal law of a person is, it will continue to be of obligatory force on him. Venkatasubba Rao, J., in Morarji v. Administrator-General of Madras : (1928)55MLJ478 remarks thus:

While ordinarily a British Indian subject can change his domicile and acquire a new law along with a new domicile, this right is denied to a Hindu. It must be borne in mind that I am now dealing with the law to be administered by a British Indian Court. Under that system of law, a Hindu carries f along with him his personal law wherever he goes and he cannot, however fixed his determination may be, get rid of that law. Is the person a Hindu? Then, wherever the law of British India admits the operation of a personal law, his rights and obligations are determined by the Hindu Law, that is, the law of his religion, subject to the exception that by statute any part of that law may be abrogated.

12. Thus once it is known that a person is a Nair and belongs to a Malabar tarwad, it follows that the personal law by which he is governed is the Marumakkathayam law of Malabar except in so far as that law has been modified or altered by statute. In this case the law that will be applicable to the defendant will be the Marumakkathayam law as modified by the Madras Marumakkathayam Act of 1932. Under that Act a Marumakkathayee is denned as 'a person governed by the Marumakkathayam Law of Inheritance' and Marumakkathayam is defined as 'the system of inheritance in which descent is traced in the female line but does not include the system of inheritance known as the Aliyasantana.' It is not denied that the defendant was a Marumakkathayee within the meaning of the Act before the date of the marriage. If she was a Marumakkathayee, under Section 5, Clause 2, any marriage contracted by a male with a Marumakkathayee female during the continuance of a prior marriage of such male, shall be void, notwithstanding that his personal law permits of polygamy. Thus, if on the date of the marriage the defendant was a Marumakkathayee, there can be no doubt that her marriage with the plaintiff is void and this is conceded by Mr. Rajah Aiyar on behalf of the plaintiff. But it is contended that the defendant renounced the Marumakkathayam law and ceased to be a Marumakkathayee and therefore the marriage must be deemed to be valid, there being no statutory prohibition precluding it. The question is, is this contention tenable? The contention of Mr. Rajah Aiyar is that a person by a mere declaration can renounce the personal law by which he is governed. Mr. Rajah Aiyar was not able to cite any direct authority on the point nor Mr. O.T.G. Nambiar who appeared for the defendant. It is a well-established principle of law that no person can alter the devolution of his estate by his own will. The same principle would also apply to the laws of the family or what may be called the law relating to personal status. In effect, the personal law by which a person is governed can only be renounced or changed in one of the modes recognised by law. One such is a change of religion; the other is by migration from one province to another1 so far as India is concerned or by going and settling oneself in another country. Excepting by those modes it is not open to a person to renounce by a mere declaration the personal law to which he is subject. Mayne in his book on Hindu Law observes thus:

A man cannot alter the law applicable to himself by a mere declaration that he is not a Hindu. He can only alter his existing status by becoming a member of such a religion as would destroy that status and give him a new one.

13. This principle is stated in very clear terms by West, J., in Kahandas Narrandas, In re I.L.R.(1881) 5 Bom. 154

In the introduction to his law of obligations Savigny specifies the laws of the family and of succession as those allowing the least scope to free action, and in His system he says expressly that these laws are not modifiable by the disposition of any person. This is indeed the main principle of the Tagore case. The dicta of the Judicial Committee as to the voluntary character of customs in Abraham v. Abraham (1863) 9 M.I.A. 195 imply a multiplicity of persons as well as of acts, and though they allow a man to transfer himself from the class to which he has hitherto belonged to another class, do not in either class permit him to make a law for himself different from that which governs his fellows. Such a permission would, in fact, be inconsistent with any rational notion of a law.

14. Therefore the personal law in all matters will continue to govern him. He cannot get rid of it however fixed his determination is, as observed by Venkatasubba Rao, J. It must only be done in a mode recognised by law.

15. Mr. Rajah Aiyar has placed considerable reliance on a number of cases and I propose to deal only with some of them. He relied on Nathu v. Keshawji I.L.R. (1901) 26 Bom. 174 and the decision of the Privy Council in Abraham v. Abraham (1863) 9 M.I.A. 195 for the position that it is competent for one to leave his caste and enter some other caste and be governed by the rules and regulations of the latter and therefore it would be open to the defendant to leave the Nair community to which she belonged and enter into a marriage with the plaintiff. The fallacy in this argument is that the defendant was not leaving any community to which she belonged and entering into any other community. It cannot be asserted with any degree of reason that the defendant can become a Brahmin by marrying the plaintiff and enter into the community to which the plaintiff belonged. All that is alleged in this case is that by declaration she renounced the benefit of the Act by going through the form of marriage alleged by the plaintiff. If it is not open to a Hindu who is governed by a personal law of his own to renounce it by an open declaration that he will cease to be governed by it, it is not possible to see how the principle enunciated in Nathu v. Keshawji I.L.R. (1901) 26 Bom. 174 and other cases as to the power of a caste to admit a stranger into its fold not born within it, nor the power of a person to change from one class into another, will apply to this case. As pointed out by West, J., in the passage cited by me, to invoke the principle of those decisions a person must transfer himself from the class to which he has hitherto belonged to another class vide also Abraham v. Abraham (1863) 9 M.I.A. 195 but it does not permit a man to abjure his class and make a law for himself. The decision of the Privy Council in Abraham v. Abraham (1863) 9 M.I.A. 195 on which some reliance was placed is a very distinct authority for the position that by conversion a man can renounce the law by which he is governed and continue to elect to abide by the old law or the law of the religion which he has adopted in cases where there is no statutory prohibition, but until he does so, the old law will govern. The case is also an authority for the position that if there was no change of religion, the personal law would have a continuing obligatory force upon him. Mr. Rajah Aiyar placed considerable reliance on the following passages in the judgment of Sankaran Nair, J., in Muthusami Mudaliar v. Masilamani (1909) 20 M.L.J. 49 : I.L.R. 33 Mad. 342 :

It is open to a Hindu who is governed by one Jaw of inheritance to accept another law of inheritance recognised by Hindu Law.

16. But it will be seen that the learned Judge explains what he means in the very next sentence thus:

Thus it has been held that a Hindu governed by the Mitakshara law may retain it or accept the Dayabaga law prevalent in the locality to which he had migrated,

that is, where a person migrates from one part of India to another, prima facie, he would carry his personal law, but it will also be open to him to renounce that law and be governed by the law prevailing in the locality to which he has migrated, and this must be affirmative proved. Till then the personal law by which he was governed before migration will continue to have obligatory force on him. Vide Abdurahim Haji Ismail Mithu v. Halimabai (1915) 30 M.L.J. 227 : L.R. 43 IndAp 35 . Sankaran Nair, J., did not lay down that a person by an open declaration can renounce the law without a change of religion or migration from one part of territory to another. The principle has been carried to such an extent that even in a case where portion of a province has been annexed to another province for administrative purposes this transfer would not affect the personal law of residents remaining in the portion transferred and it must be distinctly shown that a person had intended to change and in fact changed his personal law. It is not suggested that a person coming from Malabar and taking service in Madras could be said to have migrated from one part of India to another or settled himself in a foreign country; nor has it been asserted that there has been any change of religion on the part of the lady. On the pleadings the only fact that appears is an oral renunciation implied from the fact of her going through a marriage as alleged by the plaintiff. What is alleged would amount to a clear evasion of the Marumakkathayam Act and it is not open to a private individual to get rid of the statutory prohibition which is enacted nor for the benefit of a particular individual but as a rule of public policy affecting the whole community by a mere declaration that he or she did not intend to be governed by the Act. It seems to me therefore that the decision arrived at by the learned City Civil Judge that the marriage is invalid is sound. In the result the appeal fails and is dismissed with costs.


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