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In Re: Saride Narayana and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtChennai High Court
Decided On
Case NumberCriminal Revn. No. 147 and Cri. Revn. Petn. No. 142 of 1949
Judge
Reported inAIR1950Mad615
ActsMadras Devadasis (Prevention of Dedication) Act, 1947 - Sections 3(2) and 4(1)
AppellantIn Re: Saride Narayana and ors.
Appellant AdvocateK. Kameswara Rao, Adv.
Respondent AdvocateGovernment Prosecutor for ;Public Prosecutor
DispositionPetition allowed
Excerpt:
.....4 (1) of madras devadasis (prevention of dedication) act, 1947 - accused convicted for offence of dedicating themselves as 'devdasis' which is barred by act of 1947 - legislative intention that it bars dedication as either by actual dedication to idols or by performing acts which substitutes actual dedication - dancing in procession cannot be treated as act of dedication - held, accused not committed dedication as 'devadasis' and liable to be acquitted. - - but the taking part in a dance or a nautch is a necessary pre-requisite for being considered as a member of a profession dedicated to prostitution and thereby having become incapable of getting herself married validly and it is only such a case that is prohibited by section 3 (2). useful guidance cm be got from the preamble as..........and any woman so dedicated shall not thereby be deemed to have become incapable of entering into a valid marriage. nothing contained in this sub-section shall be deemed to affect the operation of section 44a., madras hindu religious endowments act, 1926, or the rights to which a devadasi is entitled under that section. (2) any custom or usage prevailing in any hindu community such as the begum kalavanthula, sani, nagavasulu, devadasi and kurumapulu, that a woman of that community who gives or takes part in any melam (nautch), dancing or music performance in the course of any procession or otherwise is thereby regarded as having adopted a life of prostitution, and becomes incapable of entering into a valid marriage, and performance of any ceremony or act in accordance with any such custom.....
Judgment:

Govinda Menon, J.

1. The point involved in this case relates to the construction of Sections 3 and 4 of Madras Act XXXI [31] of 1947 (an Act to prevent the dedication of women as devadasis in the Province of Madras) and therefore raises a question of some importance to the Devadasi community. Accused 2 to 9 and 12 to 17 in C. C. No. 198 of 1948 on the file of the Court of the Additional First Glass Magistrate of Tanuku seek to revise the order of that Court by which each one of them has been sentenced to pay a fins of Rs. 25 or, in default, to suffer one month's simple imprisonment for having committed an offence in violation of Section 3 (2) of the said Act which is punishable under section 4 (1) of the same Act.

2. A complaint was filed against seventeen parsons before the lower Court for having committed the offence mentioned above, but the learned Magistrate found that the first accused was not guilty, and that accused 10 and 11, being below 16 years of age even if they had violated the provisions of Section 3 (2), cannot be held to be guilty of the offence and acquitted them also. The rest of them were convicted and sentenced as stated above.

3. The prosecution ease is that accused 2 to 9, who are dancing women, took part in a melam or nautch at the procession, in celebration of the marriage of the first accused, along the streets of Mukkamala, and accused 12 to 17 played on musical instruments and thereby abetted the offence committed by accused 2 to 9. The procession and the nautch party were said to have taken place throughout the night from 8 P. M. on 17th June 1948 till day break the next day. There is now no dispute as regards the facts because though it was denied that accused 2 to 9 danced along the street with the procession, the finding of the lower Court that they have so taken part is not now disputed by the learned counsel for the petitioners. Accused 2 to 9 are members of the Kalavanthula community who are all above 16 years of age and are unmarried. It is stated by the learned Magistrate that according to the prosecution they have undergone ceremonies and acts of initiation in accordance with the custom and usage prevailing in the said community for adopting a life of prostitution. This fact also is not disputed now. The fact that accused 12 to 17 played on musical instruments to the tune of which accused 2 to 9 danced is also conceded. But the argument of the learned counsel is that petitioners (accused 2 to 9), members of the Kalavanthula community, a community the women of which from time immemorial adopted a profession of dancing, cannot be held guilty of an offence under Act XXXI [31] of 1947 simply because they took part in the dance during the progress of the procession. It is contended that the preamble to the Act clarifies the object and intention of the enactment. The preamble is in the following terms:

'Whereas the practice still prevails in certain parts of the Province of Madras of dedicating women as 'devadasis' to Hindu deities, idols, objects of worship, temples and other religious institutions ; And whereas such practice, however ancient and pure in its origin, leads many of the women so dedicated to a life of prostitution ;

And whereas it is necessary to put an end to the practice :

It is hereby enacted as follows :'

It shows that the practice of dedicating women as 'devadasis' to Hindu deities, idols etc., has to be stopped and made penal subsequent to the enactment of this statute. The preamble does not say that any female member of the Kalavanthula community who had, prior to the coming into operation of Act XXXI [31] of 1947, been dedicated as a devadasi and who practices that profession thereafter, will be held guilty if she takes part in a nautch or a melam. Section 3 (1) and (2) are to the following effect:

'3. (1) The dedication of a woman as devadasi whether before or after the commencement of this Act and whether she has consented to such dedication or not, is hereby declared unlawful and void; and any woman so dedicated shall not thereby be deemed to have become incapable of entering into a valid marriage. Nothing contained in this sub-section shall be deemed to affect the operation of Section 44A., Madras Hindu Religious Endowments Act, 1926, or the rights to which a devadasi is entitled under that section.

(2) Any custom or usage prevailing in any Hindu community such as the Begum Kalavanthula, Sani, Nagavasulu, Devadasi and Kurumapulu, that a woman of that community who gives or takes part in any Melam (Nautch), dancing or music performance in the course of any procession or otherwise is thereby regarded as having adopted a life of prostitution, and becomes incapable of entering into a valid marriage, and performance of any ceremony or act in accordance with any such custom or usage, whether before or after the commencement of this Act and whether the woman concerned has consented to such performance or not, are hereby declared unlawful and void.'

4. It is stated that accused 2 to 9 have contravened the provisions of Section 3 (2) and thereby made themselves liable for punishment under Section 4 (1). Sub-section (1) of Section 3 declares unlawful and void the dedication of a woman as devadasi whether before or after the commencement of this Act and because of declaring such dedication null and void, the custom by which she is deemed to have become incapable of entering into a valid marriage is also thereby declared unlawful and void. The result is that prior to the coming into force of this enactment a woman who was dedicated as a devadasi which act by custom prevented her from entering into a valid marriage, can ignore that custom and lawfully get married. 'Dedication' is defined in Section 2 (a) and 'devadasi' is defined in Section 2 (b), as follows :

' 'Dedication' means the performance of any ceremony, by whatever name called, by which a woman is dedicated to the service of a Hindu deity, idol, object of worship, temple or other religious institution, and includes 'pottukattu,' 'gajjepuja', 'mudri' and dancing by 'Kumbhaharathy';'devadasi' means any woman so dedicated;'

Since the petitioners are said to have contravened Section 3 (2), we have to find out the import of this Sub-section. In our opinion, this sub-section declares as unlawful and void any custom or usage prevailing in the Kalavanthula community (we are discarding the other communities as not relevant to the present case) that a woman of that community who takes part in a melam or nautch in the course of any procession and by doing so is regarded as having adopted a life of prostitution and becomes incapable of entering into a valid marriage and also the performance of any ceremony or act in accordance with such custom or usage. Reading Sub-section (1) and sub-section (2) together it seems to us that the Legislature intended to provide for two sets of circumstances: (1) Sub-section (1) lays down that the custom by which a woman dedicated as devadasi is deemed to be incapable of entering into a valid marriage is declared unlawful and void. That is, it is a declaratory provision. It does not say that merely by such initiation and dedication, there is any offence committed. (2) Sub-section (2) contemplates cases where there has been no initial dedication. It relates to the cases of female members of the particular communities mentioned therein, who, by taking part in the melam, dancing, music, etc., are considered as adopting a life of prostitution which makes it impossible for them to enter into a valid marriage. It also provides that by taking part in such dancing, music, etc., and making: themselves unable to enter into a valid marriage, if there are any further ceremonies or acts according to custom which are necessary to make themselves unable to marry such custom will be declared invalid. Section 4 (1) penalises the taking part in a ceremony or act of the nature referred to in section 3, Sub-section (2). It is conceded that the petitioners herein have not taken part or abetted the performance of any ceremony or act for dedicating a woman as a devadasi in which case they would have violated Section 3 (1). But what accused 2 to 9 are said to have done is that they took part in an act of the nature referred to in Section 3, Sub-section (2). The act referred to in Section 3, Sub-section (2) cannot have any relation to the mere dancing in a procession; but what is necessary is an act as a result of which the woman is deemed to adopt a life of prostitution and thereby renders herself incapable of a valid marriage. There is no such thing here. It has to be mentioned that Section 3 (2) is very inartistically worded and hence very difficult to construe. Even if this section is strictly construed, one cannot find any justification for holding that it prohibits the mere taking part in a dance or a nautch. But the taking part in a dance or a nautch is a necessary pre-requisite for being considered as a member of a profession dedicated to prostitution and thereby having become incapable of getting herself married validly and it is only such a case that is prohibited by Section 3 (2). Useful guidance cm be got from the preamble as well as the title of the Act which clearly states that it is intended to prevent the dedication of women as devadasis. As we have already stated, Section 3 (1) refers to actual dedication to a temple, etc., and Section 3 (2) relates to acts and performances from which dedication can be inferred even though there has been no actual dedication to a temple or to an idol, etc. Therefore both the Sub-sections of Section 3 can relate to a case of ultimate dedication either by actual dedication' to a temple or by doing and performing acts; which would be in substitution of dedication to; a temple. It seems to us therefore that accused 2 to 9 cannot be held guilty of having committed an offence under Section 4 (1) in merely taking part in a dance in celebration of the marriage of accused 1. Accused 12 to 17 are not guilty if accused 2 to 9 cannot be held to be guilty at all.

5. The revision petition is therefore allowed and the convictions and sentences are set aside. The fines if paid will be refunded.


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