Anantakrishna Aiya, J.
1. Poongavanammal applied to the Presidency Magistrate's Court, Egmore, for maintenance from Manickam under Section 488 of the Code of Criminal Procedure. She alleged that she was an Adi Dravida and that she was married to the counter-petitioner--Manickam--who is a Naidu. There was a child of the marriage, and on the allegation that she was Manickam's legally married wife, she claimed maintenance for herself and for her child on the ground that the counter-petitioner Manickam had neglected her and refused to maintain her and the child.
2. The counter-petitioner--Manickam--admitted the parentage of the child and stated that he was prepared to give maintenance to it; but he refused to give any maintenance to the complainant--Poongavanammal--on the ground that she was not his wedded wife but only his concubine. The learned Special Honorary Presidency Magistrate recorded evidence of the six witnesses examined on the side of the complainant and of the two examined on the side of the counter-petitioner. He came to the conclusion that a marriage according to Hindu observances took place between the complainant and the counter-petitioner. He also held that the marriage was valid, though the complainant was an Adi Dravida and the counter-petitioner a Naidu.
3. He therefore passed orders directing the counter-petitioner to pay Rs. 4 a month as maintenance to the complainant and Rs. 3 a month for the child.
4. The counter-petitioner--Manickam--has filed this revision petition to the High Court. He does not complain against that portion of the order which directs him to pay maintenance to the child, as he admitted that the child was born to him. His complaint in revision is limited to that portion of the order passed by the learned Magistrate which directs him to pay maintenance to the complainant Poongavanammal.
5. As the complainant Poongavanammal, though served with notice from the High Court, did not enter appearance, Mr. K. S. Jayarama Aiyar was requested to assist the Court as amicus curiae.
6. Two questions were argued by the learned Advocate on behalf of the petitioner:
(1) That the finding on the question of the marriage as a fact is erroneous; and
(2) that there was no valid marriage, and consequently the complainant was not entitled to maintenance from the counter-petitioner.
7. On the question of fact, it is to be noted that the Magistrate had relevant evidence on the question of the factum of the marriage. P.W. 1 is Poongavanammal. She spoke to the marriage ceremony, that she was given Koora Salu, Koora Pudavai, Thali, etc, A priest was present and officiated. There was music and dinner party, distribution of pan supari, etc.
8. The priest was examined as P.W. 2. He officiated as the priest at the marriage and performed all the usual ceremonies of the marriage.
9. P.W. 3 spoke to Thali being tied, (as also P.W. 4), that the parties sat side by side, Thali was tied by the counter-petitioner round the complainant's neck. P.W. 6 is a motor fitter and is the landlord of the house where the parties were living.
10. On the side of the counter-petitioner, only two witnesses were examined. D. W. 1 is the counter-petitioner himself, who, while admitting that he was keeping the complainant as his concubine and that the child was born to him, denied that there was any marriage. He is a motor-driver, earning about Rs. 25 a month.
11. The only other witness examined--D.W. 2, Kanagasabhai, a butler--stated that the accused was keeping the complainant, but he did not know if they were married. He stated that it was not customary for a caste Hindu to marry an Adi Dravida. He ended by stating that what he deposed to was mentioned to him by the complainant but that he did not know the same personally.
12. I am of opinion that the learned Magistrate had before him materials on which he could have tome to the conclusion that there was in fact a marriage performed between the complainant and the counter-petitioner. I am only exercising revisional powers. The finding on the question of the factum of marriage should be accepted for the purposes of the present case.
13. Then it was argued by the learned advocate for the petitioner before me that a valid marriage should be proved before the counter-petitioner could be ordered to pay maintenance to the complainant. .That position is not disputed. It was argued that as it is admitted by the complainant herself that she is an Adi Dravida, whereas the counter-petitioner is of the Naidu caste (Sudra), therefore a marriage between a Naidu and an Adi Dravida is not valid.
14. This raises a question of importance. Ordinarily, I should have liked to examine the question in detail; or to post the case before a bench; but Mr. K. S. Jayarama Aiyar has drawn my attention to certain cases decided by the High Courts in India which seem to be direct authority on the point. I therefore proceed to consider those cases.
15. In Muthusami Mudaliar v. Masilamani I.L.R. (1909) Mad. 342 : 20 M.L.J. 49 it was decided by Sankaran Nair and Abdur Rahim, JJ. as follows:
A marriage contracted according to Hindu rites by a Hindu with a Christian woman who, before marriage, is converted to Hinduism, is valid when such marriages are common among and recognised as valid by the custom of the caste to which the man belongs, although such marriage may not be in strict accordance with the orthodox Hindu religion. Apart from custom, such a marriage between parties who do not belong to the twice-born classes, is valid under Hindu Law. It is only persons who belong to the twice-born classes that are enjoined to marry in their own class. All other persons must be treated as Sudras and marriages between members of different classes of Sudras are valid.
16. In Pandaiya Telaver v. Puli Telaver (1863) 1 M.H.C.R. 478 Scotland, C. J. observed as follows at p. 483:
The general law applicable to all the classes or tribes does not seem opposed to marriage between individuals of different sects or divisions of the same class or tribe, and even as regards the marriage between individuals of a different class or tribe the law appears to be no more than directory. Although it recommends and inculcates a marriage with a woman of equal class as a preferable description, yet the marriage of a man with a woman of a lower class or tribe than himself, appears not to be an invalid marriage rendering the issue illegitimate.
17. In Inderun Valungypooly Taver v. Ramasawmy Pandia Talaver (1869) 13 M.I.A. 141 it is remarked by the Privy Council as follows:
Then, if there was a marriage in fact, was there a marriage in law? When once you get? to this, viz., that there was a marriage in fact, there would be a presumption in favour of there being a marriage in law.
18. See also Sir Gurudas Banerjee's Marriage and Sridhanam, 3rd Edn., Lecture II, p. 77.
19. At page 159 of 13 Moore's Indian Appeals it is further observed as follows:
On the whole, seeing that these parties are both of the Sudra caste, and that the utmost that has been alleged really is, that the Zamindar was of one part of the Sudra caste, and the lady to whom he was married was of another part, or of a sub-caste, their Lordships hold the marriage to have been valid ; to hold the contrary would in fact be introducing a new rule, and a rule which ought not to be countenanced.
20. While admitting that Adi Dravidas are Hindus [See Bhagwan Koer v. Bose , where the Chief Court of Punjab stated that Chatnars, however low in the scale, were included in the pale of Hinduism. See also Morarji v. Administrator-General, Madras I.L.R.(1928) Mad. 160 : 55 M.LJ. 478 the learned advocate for the petitioner argued that Adi Dravidas are outside the class of Sudras, and as Manickam is a Sudra of the Naidu caste, therefore the present is not a case of a marriage between different members of different sub-sections or parts or sub-castes among Sudras, and that the marriage was therefore invalid. On the other hand, Mr. K. S. Jayarama Aiyar argued that all Hindus should belong to one of the four classes, (1) Brahmin, (2) Kshattriya, (3) Vaisya, and (4) Sudra; that all those who do not come under the first three (twice-born) classes come under the fourth class--Sudras; that the sub-sections under the Sudras are unlimited; and that there was no fifth class according to Manu. My attention was drawn to Bhola Nath Mitter v. Emperor I.L.R.(1924) Cal. 488 and to Sohan Singh v. Kabla Singh I.L.R. (1928) Lah. 372 as directly relevant to the point under consideration.
21. In Bhola Nath Mitter v. Emperor I.L.R. (1924) Cal. 488 Greaves and Panton, JJ. held that
a marriage between a Kayesth and a Dom woman is valid in law if performed with due rites of the Hindu religion.
22. It was argued in that case by the learned Counsel as follows:
The woman was a Dom. She is not a Sudra. A Dom is not a subdivision of the Sudra caste but outside it and untouchable. The Kayesth is of a higher caste than Sudras.
and that the marriage was invalids
23. At page 493 Panton, J. observed as follows:
In support of the second part of his contention Mr. Mukherji urged that a Dom is not a member of a sub-division of the Sudra caste, but an out-caste, untouchable, and not a member of the Hindu community. He supports this contention by reference to the articles on the Dom caste in Risley's 'Tribes and Castes of Bengal' and Crooke's 'Tribes and Castes of the North Western Provinces and Oudh,' laying particular stress upon the opinions of the learned authors as to the aboriginal origin of the Domes. The low social status of the Dom community is a fact for which no authority is needed; but I cannot assent to the proposition that people of aboriginal origin can have no place in the Hindu system. He refers us to the text of Manu, Chapter X, verses 16, 30, 51, 56, laying particular stress on verse 53 'Let no man, who regards his duty religious and civil, hold any intercourse with them ; let their transactions be confined to themselves, and their marriages only between equals' (Manu's Institutes of Hindoo Law). The degraded condition of the community is here emphasised, and intercourse with its members is deprecated. But this carries the matter little further, and I am not prepared to say that the institution against intermarriage is such as would render such a union, otherwise regularly celebrated, invalid at the present day. On the other hand there is distinct authority of the Courts to support the view taken by the learned Magistrate, though, it is true, no decision which I can find relates directly to the Dom community. The learned Vakil has invited us to hold that the case of Muthusami Mudaliar v. Masilamani I.L.R. (1909) Mad. 342 : 20 M.L.J. 49 on which the Court below has relied, was wrongly decided inasmuch as it proceeded on two incorrect assumptions : (i) that every one not a member of the twice-born castes is a Sudra, and (it) that the validity of a marriage is for the caste to decide. As to the second point, it is only necessary to refer to the concluding portion of the judgment of Sankaran Nair, J. at page 356, where he finds the marriage in question valid not only on the ground of custom and because it was recognised by the caste, but also 'because it is in conformity with Hindu Law which does not prohibit marriages between any persons who are not dwijas or twice-born persons'. As to the first point, the opinion of the learned Judge, expressed at pages 346 and 347 of the report, is founded on ample authority, including a decision of this Court: Upoma Kuchain v. Bholaram Dhubi I.L.R. (1888) Cal. 708. The latter case is here of particular importance since it upheld the Validity of a marriage between persons one of whom was an outcaste.
24. The other learned Judge, Greaves, J. observed at page 495 as follows:
Although she was a Dom by birth, she must be taken to be a Sudra, and upon the authorities referred to by my learned brother it would appear that marriages between different sub-divisions of the Sudra caste are valid.
25. In Sohan Singh v. Kabla Singh I.L.R.(1928)Lah. 372 the learned Judges, Tek Chand and Johnstone, JJ. held
that a marriage between a Jat male and a Mazhabi female is valid, whether performed in the Anand form or according to the ordinary Hindu ceremonies; that under Hindu Law, as administered by the Courts in British India, marriages inter se between different sub-divisions of the Sudra caste are legal; and that for the purposes of the aforesaid rule, Mazhabis, Chamars and the other so-called 'untouchable' classes are treated as Sudras.
26. At page 379 the learned Judge, Tek Chand, J. observed as follows:
The learned Counsel for the appellants, while conceding that the statement of the law enunciated above could not be challenged, contended as a last resort that the rule could not be extended to inter-marriages of males of the ' 'pure' Sudra caste like the Jat with women of the 'unclean' classes, 'touch with whom was pollution. He was, however, unable to cite any authority in support of this contention. In Gout's Hindu Code at page 199, Section 294 (4) the so-called 'untouchable' classes including Chamars, Pariahs and Mehtras are described as Sudras and in the leading case of Muthusami Mudaliar v. Masilamani I.L.R.(1909)Mad. 342 : 20 M.L.J. 49 it was held by Sankaran Nair, J. (Abdur Rahim, J. concurring) that for the purposes of the rule aforesaid, all Hindus other than those belonging to the three regenerate classes were to be treated as Sudras, marriages between different sub-sections of whom were valid.
27. I need not now go into the question, which has been raised in some of the cases, whether Kayasthas of Bengal are Sudras or Kshattriyas. See Tulshi Ram v. Behari Lal I.L.R.(1889) All. 328 , Ishwari Prasad v. Rai Hari Prashad Lal I.L.R. (1926)Pat. 506, Subrao Hambirrao v. Radha Hambirrao I.L.R. (1928) Bom. 497 and Biswanath Das Ghose v. Shorashibala Dasi I.L.R.(1921)Cal. 926. The principle of the decision of the cases is that marriage between members belonging to different parts or sub-divisions of the Sudra caste would be valid unless there be a custom to the contrary. The decision in Muthusami Mudaliar v. Masilatnani I.L.R.(1909)Mad. 342 : 20 M.L.J. 49 by a bench of this Court is based, not only upon the usage or custom of the caste to which the parties belonged but upon the general principles of the Hindu Law; for, the learned Judges specifically say that apart from custom, such a marriage between parties who do not belong to the twice-born classes is valid under Hindu Law. I could not accede to the contention that the decision was based only on custom or usage of the caste and that the other observations were obiter. It was argued that under Hindu Law such marriages as the present have been prohibited to preserve purity of blood and race, and for other similar considerations; but sitting here as a Court, my duty is that I should be guided more by what has been laid down by High Courts which had to consider the question judicially rather than by considerations such as those put forward by the learned advocate for the petitioner.
28. On behalf of the complainant, it was argued that according to Manu 'there is no fifth caste'--Brahma, Kshattriya and Vysia are the 'twice-born' castes, and that the remaining Hindus come under the fourth (Sudra) caste,--'there being no fifth caste'. Manu, X. 4, Sacred Books of the East, Vol. 25, p. 402. The question is considered at pp. 498 and 630 of Mulla's Hindu Law, Seventh Edition, paragraphs 435 and 639. There is a correct summary of the present position at p. 812 of Ghose's Hindu Law, Vol. I, where it is stated as follows:
The late Justice Dwarkanath Mitter, as well as the late Sir Romesh Chandra Mitra, was of opinion that marriages between sub-castes of Sudra were invalid (see Melaram v. Thanooram (1868) 9 W.R. 552 and Narain Dhara v. Rakhal Gain I.L.R.(1875)Cal. 1 but in more recent cases it has been held in Calcutta, Madras and Bombay that such marriages are not invalid. (See Upoma Kuchain v. Bholaram Dhubi I.L.R.(1888)Cal. 708, Inderun v. Ramasawmy Talaver (1869) 13 M.I.A. 141, Ramamani Animal v. Kulanthai Natchear (1871) 14 M.I.A. 346 and Pandaiya Telaver v. Puli Telaver (1863) 1 M.H.C.R. 478). The Bombay High Court has recently held that such marriages are good. See Mahantawa Irappa v. Gangawa Malappa I.L.R. (1909) Bom. 693.
29. If Adi Dravidas are Hindus (and it was admitted before me that they were), and if there are only four castes among Hindus, it is argued that it follows inasmuch as it is admitted that the parties to the present marriage do not belong to the first three (twice-born castes), then they must come under the fourth or the Sudra caste. That is what has been held in Muthusami Mudaliar v. Masilamani I.L.R. (1909)Mad. 342 : 20 M.L.J. 49. See the arguments reported in 20 M.L.J. 49. Even if the directions laid down in the Hindu Law texts that a male could not validly marry a female of a higher caste (which are admitted to be applicable to the three twice-born castes) should be assumed to apply also to marriage between members of different parts or sub-divisions of the Sudra caste, even then here it is admitted that the counter-petitioner's caste status is higher than that of the complainant's. It is not necessary to examine whether such directions would apply to a marriage between different parts or sub-divisions of Sudras.
30. Thus, according to the decisions binding on me, or which must be treated with respect, I think that the view taken by the learned Presidency Magistrate is supported by judicial authority; and as no custom to the contrary has been proved, the marriage in question must be held to be valid.
31. Having regard to these judicial pronouncements it seems to me that my duty on the present occasion is to uphold the finding of the learned Presidency Magistrate and hold that the marriage in question is valid. My decision should not be cause for creating confusion, when judicial decisions have helped in bringing about certainty, in such important question as that of marriage and legal status of children. I am not impressed with the force of the argument that the result would be most probably a further addition to the numerous sub-divisions or parts of the Sudra caste. Assuming it is so, would it make any material difference in the argument and reasoning?
32. Of course it is open to Manickam, if so advised, to agitate the matter in the Civil Courts.
33. For the above reasons, I dismiss the Criminal Revision Petition.
34. I must express my obligations to the learned Advocate Mr. K. S. Jayarama Aiyar, who, as amicus curiae, argued the case on behalf of complainant Poongavanammal (who did not enter appearance in the High Court) and who helped the Court by drawing attention to the main decisions relevant to the case.