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S. Sethurathnam Pillai Vs. Lucy Baskara Josephine Styling Herself as Baskara Alias Dolly Sethurathnam and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Criminal
CourtChennai High Court
Decided On
Reported in(1977)2MLJ141
AppellantS. Sethurathnam Pillai
RespondentLucy Baskara Josephine Styling Herself as Baskara Alias Dolly Sethurathnam and ors.
Cases ReferredPerumal Nadar v. Ponnuswami Nadar
Excerpt:
- - as the trial court has dismissed her version as unreliable and as the appellate court has characterised her version as strange and has looked for corroboration from documents, it is clear that the evidence of d. there was a proceeding for eviction from the said premises to which both the plaintiff as well as the first defendant had been made parties. the learned subordinate judge has referred in paragraph 17 of his judgment to the failure of the first defendant to examine the persons who are said to have been present at the time of the marriage. 700, where a man and a woman were proved to have been recognized by all persons concerned as man and wife, and were so described in important documents on important occasions, and their daughters were respectably married as would be natural.....v. sethuraman, j.1. the plaintiff, the appellant, filed a suit for a declaration that the second defendant is not his legitimate or illegitimate daughter. the plaintiff is a land owner, who had about 50 or 60 acres of fertile wet lands in kulitalai. he lost his father at the age of 17 or so. he was married on 5th of may, 1935 to one ammakannu ammal, who came from the same caste, i.e., karkatha vellalas. he married again in 1958 and the second wife is one saraswati. the first defendant is the daughter of one duraisami pillai, a christian. her father was an assistant engineer in kulitalai from about 1944 till 1950. the first defendant claimed that she had married the plaintiff on 15th august, 1944 and that the second defendant is the daughter born out of their wedlock. according to her, she.....
Judgment:

V. Sethuraman, J.

1. The plaintiff, the appellant, filed a suit for a declaration that the second defendant is not his legitimate or illegitimate daughter. The plaintiff is a land owner, who had about 50 or 60 acres of fertile wet lands in Kulitalai. He lost his father at the age of 17 or so. He was married on 5th of May, 1935 to one Ammakannu Ammal, who came from the same caste, i.e., Karkatha Vellalas. He married again in 1958 and the second wife is one Saraswati. The first defendant is the daughter of one Duraisami Pillai, a Christian. Her father was an Assistant Engineer in Kulitalai from about 1944 till 1950. The first defendant claimed that she had married the plaintiff on 15th August, 1944 and that the second defendant is the daughter born out of their wedlock. According to her, she lived with the plaintiff at several places till, about 1966. Then he ceased to take interest in her. She, therefore, filed a petition under Section 488, Criminal Procedure Code, in the Court of the Additional First Class Magistrate, Tiruchy, and she claimed maintenance of Rs. 500 as maintenance for herself and for her daughter. The learned trial Magistrate rejected her application. On appeal to the High Court it was contended that the learned trial Magistrate, without deciding whether in fact a marriage had taken place, had held that since the daughter had been baptised as a Christian and had lived as a Christian, the story of the first defendant that she was convested to Hinduism before she married the plaintiff could not be accepted, that the marriage set up by her was not proved and that the second defendant was not a child of the plaintiff so as to be entitled to the maintenance. This Court set aside the order passed by the trial Magistrate and awarded the first defendant maintenance at the rate of Rs. 200 per month and rejected the application for maintenance of the second defendant. This Court accepted that the plaintiff's marriage with the first defendant had been celebrated according to the Hindu rites after her conversion into Hinduism and that even if it were to be held that the first defendant was not converted to Hinduism before marriage, her marriage with the plaintiff was valid. Against the order of the High Court, there was an appeal to the Supreme Court. Their Lordships did not think it necessary to decide the case on the merits. After referring to the filing of the present suit by the plaintiff for a declaration regarding the factum and validity of the marriage, the Supreme Court held that in the summary proceedings under Section 488, Criminal Procedure Code, it could not be denied that there was some evidence on which the conclusion of the High Court could be reached. At the end of their judgment, dated 25th March, 1970, their Lordships observed as follows:

We may make it clear that the civil Court in hearing the proceeding initiated by Sethurathnam (plaintiff) will decide it on the evidence which may be produced before the Court uninfluenced by the decision of the High Court as to the factum of the ceremony of marriage or as to the alleged conversion of Barbara (first defendant) to Hinduism before her marriage or as to the validity of a marriage between a Hindu male and a Christian female.

In the suit filed by the plaintiff during the pendency of the said proceedings, the defence of the first defendant was that there was a marriage in August, 1944, between the plaintiff and the first defendant and that they were living together till the trouble arose. The marriage was said to be, according to the Hindu customs and ceremony and a number of people it was claimed were present on the occasion, when the first defendant was given the Hindu name as Thangam after conversion into Hinduism. It was stated that the second defendant was baptised to the knowledge of the plaintiff and was educated in various institutions by the plaintiff himself.

2. The learned District Munsif of Tiruchirapalli held that the first defendant was not the wife of the plaintiff and that the second defendant was not his daughter.

3. The defendant appealed and the appeal came to be decided by the learned Subordinate Judge of Tiruchirapalli, who reversed the judgment of the trial Court and dismissed the suit with costs.

4. The plaintiff, aggrieved by the judgment of the learned Subordinate Judge, has filed this appeal. The contentions of the respective sides resolve themselves into two questions, viz., (1) whether there was a marriage between the plaintiff and the first defendant and (2) whether in the event of the factum of marriage being not taken to be proved, the presumption of marriage based on continuous cohabitation for several years could be drawn on the facts of the present case. There is also a subsidiary question as to whether the second defendant is the legitimate or illegitimate daughter of the plaintiff and the first defendant.

5. The learned Advocate-General appearing for the plaintiff-appellant did not support the stand taken in the Courts below on behalf of the plaintiff that the second defendant was neither legitimate nor illegitimate daughter. His contentions proceeded on the basis that her legitimacy would depend upon the inference drawn as to the factum or presumption of marriage.

6. The first question as to whether there was a marriage between the plaintiff and the first defendant would ordinarily be a question of fact. But the learned Advocate-General appearing for the appellant submitted that there is absolutely no evidence to support the finding of the lower appellate Court, that there was such a marriage. Therefore, this stand requires to be examined now. In support of the marriage it is admitted on behalf of the respondents that there was only the evidence of the first defendant as D. W. 4. With reference to this witness the learned trial Judge said in paragraph 19 of his judgment as follows:

It is difficult to believe her version that she was not aware of the fact that the plaintiff was already married. It is further made to appear from her evidence that knowing that there was no possibility for a marriage between them, she had yielded for a bodily contact with the plaintiff. So much reliance cannot be placed on the evidence of a woman who has no real regard for morality, restraint and decency.

Again at the end of paragraph 23 he observed as follows:

As observed earlier, the first defendant does not appear to have much regard for truth and so entire reliance cannot be placed on her evidence though normally speaking I would have been inclined to believe her version alone if I were really impressed with her as a witness of truth.

The learned trial Judge was not, therefore, prepared to place any reliance on her testimony as regards the marriage said to have taken place on 15th August, 1944 at Kulitalai in the house of the plaintiff. The learned Subordinate Judge stated in paragraph 11 as follows:

No doubt the evidence of D.W.4 that on 14th August, 1944, P.W. 2 (plaintiff) told her his intention to marry and that on the next day, on 15th August, 1944 she was converted to a Hindu and Ramachandra Iyer (priest) celebrated the marriage of P.W. 2 and D.W. 4 in the ancestral house of D.W. 2 and that P.W. 2 gave her name as Thangam and both came round the sacred fire and he tied thali and the same was celebrated by Pandamangalam Ramachandra Iyer (priest) seems strange, hut I am inclined to accept this piece of uncorroborated evidence of D.W. 4 in the light of the following clinching documents and as at times fact is stranger than fiction.

This passage from the judgment of the learned Subordinate Judge would also go to show that he found the version of the first defendant as strange. It is only because of certain 'clinching documents' that he came to the conclusion that the factum of marriage was proved. As the trial Court has dismissed her version as unreliable and as the appellate Court has characterised her version as strange and has looked for corroboration from documents, it is clear that the evidence of D.W. 4 by itself cannot be really depended upon for the purpose of supporting the version of marriage. In other words, the testimony of D.W. 4 cannot by, itself be taken as establishing the factum of marriage.

7. The corroboration is firstly sought for from Exhibit B-3 that is a letter written by the plaintiff to the first defendant, an undated letter, in which reference was made to the despatch of a rice bag by T.V.S. Lorry. This letter was addressed to the first defendant as' Dolly Thangam. Except for the mention of the word 'Thangam' and the despatch of a rice bag to her, there is nothing in this Exhibit which can even remotely be taken as bearing on the question of marriage. This letter is equally consistent with the plaintiff's present case that the plaintiff and the first defendant were living together for sometime without being married. It is true that the plaintiff has denied having ever lived with the first defendant, except having had some casual connection with her; still the learned Advocate-General did not take this extreme stand and he was prepared to proceed on the basis that the plaintiff and the first defendant had lived together for some years. Therefore, Exhibit B-3 by itself does not appear to be any 'clinching' piece of evidence to support the version of marriage. Similarly Exhibit B-10 is a telegram addressed to the first defendant as Dolly Thangam at 67, South-West Boag Road, Thiyagaraya Nagar, Madras-17, asking her not to start and informing her that he would be sending money in five days. Except the reference to her as Thangam, there is nothing on this telegram also which would support the version of marriage. Similarly the further letter and the telegram viz., Exhibit B-64 and Exhibit B-57 only show the description of the first defendant as Dolly Thangam and does not furnish any material to prove any marriage between them. The learned Subordinate Judge has referred to these Exhibits as showing her conversion into Hinduism. I am unable to agree with him even on the question of conversion. However, even assuming that the name Thangam given in the Exhibits is taken as giving her a Hindu name, it does not follow that there was a marriage between the parties on 15th August, 1944. At any rate, these Exhibits do not support the performance of a marriage on 15th August, 1944. Similarly Exhibit B-15 dated 6th March, 1964 is a notice given by the counsel for the plaintiff addressed to one R.A. Quraishi, who was the landlord of the houses in which the first defendant was staying and to which the plaintiff had sent certain letters rice bags, telegrams, etc. There was a proceeding for eviction from the said premises to which both the plaintiff as well as the first defendant had been made parties. Both of them contested the eviction proceedings. In Exhibit B-13 the plaintiff had authorised the first defendant to appear on his behalf and conduct the same. He himself had filed an appeal against the eviction proceedings. This, in my opinion, does not at all support the stand of the first defendant that there was a marriage between the parties on 15th August, 1944.

8. The learned Subordinate Judge has also referred to Exhibit B-75 which is an extract from the admission register when the second defendant was admitted in the S.I.E.T. Women's College, Madras. In that the second defendant has been referred to as Miss. Thirumagal Anna and her caste and religion are described as 'Pillai Hindu'. There is nothing 'clinching' in this piece of evidence also to support the stand that there was a marriage between the parties. Similarly Exhibits B-65 and B-68 are merely postal communications between the plaintiff and the first defendant addressing the first defendant as Dolly Thangam. They do not support the stand of marriage, as such. The learned Subordinate Judge has referred in paragraph 17 of his judgment to the failure of the first defendant to examine the persons who are said to have been present at the time of the marriage. The learned Subordinate Judge, however pointed out as follows:

But the non-examination of Tailor Krishnan and Mr. Malayaliammal to corroborate D.W. 4's evidence to prove conversion of marriage does not affect the case of D.W. 4 in the light of the clinching documentary evidence under Exhibits B-3, B-10 and B-64 where P.W. 2 described D.W. 4 as Dolly Thirumagal and also in the light of the postal covers Exhibits B-65 to B-68 where P.W. 2, driver Ponnusami and servant Chinnathambi addressed D.W. 4 as Dolly Thirumagal, which shows that the servants of P.W. 2 treated D.W. 4 as a Hindu.

The name 'Thirumagal' is given to the daughter and not to D.W. 4 and, therefore, there is nothing in these Exhibits (B-65 to B-68) also to support the stand of marriage, as such. In these circumstances, I am constrained to hold that there was no evidence of marriage and that as the finding of the learned Subordinate Judge is bereft of any materials to support it that finding cannot be accepted.

9. There is one further aspect viz. that 15th August, 1944 was a Tuesday corresponding to 31st Adi. No Hindu marriage would be celebrated in the month of Adi and at any rate on a Tuesday. The evidence of P.W. 3 brings out this aspect. It was stated that the plaintiff was in a hurry to have the marriage performed and, therefore, it was gone through on 15th August, 1944. As the marriage was said to be a ceremonial marriage not of the type of self-respecter's marriage, necessarily one would expect the marriage being performed on an auspicious day which would not be a Tuesday or which would not fall in the month of Adi as is customary in this part of the country. Nothing would have prevented the parties from waiting for; one more day and having the marriage performed in the month of Avani. The version of the marriage on such a day is so inherently improbable that it would, require to be established by some acceptable piece of evidence, of which there is none in this case. Where relations and castemen who would have been present at the marriage if it had taken place are not called as witnesses, the presumption will be that no marriage has taken place. See Chellammal and Ors. v. Ranganatham Pillai and Ors. I.L.R.(1911) Mad. 277. That applies here.

10. It is unnecessary for my present purpose to go into the question as to whether the first defendant was ever converted into Hinduism. Exhibit A-6, which is an extract from the Register of births in the Kumbakonam Municipality during the month of June, 1945, records the birth of the second defendant on 7th June, 1945. It was registered on 22nd June, 1945. In that the religion of the child is given as 'Indian Christian'. If the first defendant had already been converted into Hinduism, the child would not have been noted as being Christian in religion. In Exhibits A-12, A-13, A-14 and A-15 the first defendant has been described as Christian in her own affidavits. This is also inconsistent with the first defendant being a Hindu. It was explained that the affidavits, etc., were got drafted by the plaintiff himself. This does not appear to be correct especially because in Exhibit B-13 the plaintiff has authorised her to appear on his behalf, and conduct the proceedings. Exhibit B-13 was executed at Kulitalai on 26th November, 1963; the respective affidavits have been sworn to thereafter. Her case that, she was converted into Hinduism does not appear to be corroborated by documents to which she is herself a party. The argument was addressed on the question as to whether there could be a marriage between a Hindu and a Christian. I do not, therefore, think it necessary to proceed to discuss that aspect.

11. Having found that there was no proof of the marriage on 15th August, 1944, I have now to examine the question of the parties being in lawful wedlock as a result of the presumption to be drawn by long cohabitation and repute. Section 50 of the Indian Evidence Act provides that when the Court has to form an opinion as to the relationship of one person to another, the opinion, expressed by conduct, as to the existence of such relationship, of any person who, as a member of the family or otherwise, has special means of knowledge on the subject, is a relevant fact. In the illustration to the said provision it is stated that where the question is, whether A and B are married, the fact that they were usually received and treated by their friends as husband and wife would be relevant. Where the question is whether A is the legitimate son of B, the fact that A is always treated as such by members of the family, is relevant (see illustration (b)). There is no evidence of the second defendant being treated as the legitimate daughter by the members of the plaintiff's family. No evidence relevant to this aspect is available in this case. The only other aspect is whether the plaintiff and the first defendant were usually treated by their friends as husband and wife and whether there is any relevant evidence thereon. Before proceeding to discuss this, question, it is necessary to bear in mind the legal position brought out in several decisions of the Privy Council, Supreme, Court and this Court.

12. In Amjad Ali Khan v. Nawab Ali Khan and Ors. : (1907)9BOMLR264 the Privy Council had occasion to deal with the claim of a right of succession to a Taluka in Gudh. One Akbar Ali was a son of a Talukdar. It was claimed that he had married one Waziran and had a son through her by name Abbas Ali. This Abbas Ali had a son by name Ahmad Ali, who claimed the Taluka. The question was whether his grandfather Akbar Ali had been lawfully married to Waziran. The Privy Council pointed out that it was for the person who alleged his legitimacy to bring forward satisfactory evidence in support of the alleged marriage and that making all due allowances for the difficulties occasioned by lapse of time and the death of persons who might have thrown light upon the question, their Lordships were unable to hold that the marriage was proved. This case turns on the question of onus. I shall discuss this aspect later, if necessary. In Ma Wun Di and Anr. v. Ma Kin and Ors. (1908) 18 M.L.J. 3 : I.L.R. Cal. 232 : 35 I.A. 41 the Privy Council was concerned with the question of the marriage of a Burman, who had business in Siam where he lived for some years with a person in Siam. The presumption of marriage arising from cohabitation was relied upon in that case. The Privy Council pointed out as follows:

Before applying the presumption of marriage arising from cohabitation with habit and repute, it is necessary to make sure that the conditions necessary for its existence do exist. First of all, that must be some body of neighbours, many or few, or some sort of public, large or small, before repute can arise. Secondly, the habit and repute, which alone is effective, is habit and repute of that particular status which, in the country in question, is lawful marriage. The difference between English and Oriental customs about the relations of the sexes makes such caution especially necessary. Among most English people, open cohabitation without marriage is so uncommon that the fact of cohabitation in many classes of society of itself sets up, as a matter of fact, a repute of marriage. But in countries where customs are different it is necessary to be more discriminating, more especially owing to the laxity with-which the word 'wife' is used by witnesses in regard to connections not reprobated by opinion, but not constituting marriage.

In Mouji Lal and Ors. v. Mussammat Chaudrabati Kumari (1911) 21 M.L.J. 933 : 38 I.A. 122 : I.L.R. Cal. 700, where a man and a woman were proved to have been recognized by all persons concerned as man and wife, and were so described in important documents on important occasions, and their daughters were respectably married as would be natural in the case of legitimate children, it was held that these facts following as they did upon the ceremony of marriage which undoubtedly was found to have taken place in that case, though its validity was attacked, afforded an extremely strong presumption in favour of the validity of the marriage and the legitimacy of its offspring.

13. In Nirampatnam Nagachari v. Kondiparti Butchayya and Anr. : AIR1948Mad198 Chandrasekhara Iyer, J., as he then was, has pronounced on the question of the presumption in the case of the marriage as follows:

The presumption to be drawn in favour of marriage from cohabitation will have to vary from country to country or society to society. Where concubinage is permitted or recognized or where even if it is not expressly permitted it is winked at or condoned by the society to which the parties belong, the presumption in favour of marriage becomes weak. But where it is established by evidence that a man and woman were not merely living together but professed themselves to be husband and wife and were treated as such by the society in which they moved and this conduct and recognition extended over a sufficiently long period of time, a presumption can well be drawn in favour of marriage.

The Supreme Court pointed that the presumption based on continuous cohabitation is a rebuttable one in Gokal Chand v. Parvin Kumari : [1952]1SCR825 . In that case a person professing to be a husband of one Musammat Ram Piari, laid a claim to the properties left by her. He was a Court typist. This Musammat Ram Piari was the daughter of a servant of a rich lady by name Raj Kumari. There was evidence to show this Ram Piari had lived with the Court typist for some time. There was, however, no proof of any marriage. On the question of presumption, the Supreme Court pointed out as follows:

Continuous cohabitation of a man and woman as husband and wife and their treatment as such for a number of years may raise the presumption of marriage. But the presumption which may be drawn from long cohabitation is rebuttable, and if there are circumstances which weaken or destroy that presumption, the Court cannot ignore them.

14. It is pointed out in Rajagopal Pillai and Ors. Pakkiam Ammal and Anr. : (1968)2MLJ411 that the presumption of the marriage arising from cohabitation of spouses was a very strong presumption and is not lightly to be repelled by a mere balance of probabilities and the evidence repelling that presumption should be strong, distinct and satisfactory. That was a suit by a widow of one Arumugham and their minor daughter for partition. The parties belonged to Manapparai and the marriage, it was claimed was celebrated at Madurai. Arumugham had lived with the plaintiff for a number of years till he died. The defence was that the plaintiff had not been married to Arumugham. However, there was evidence to show that the plaintiff had lived in the family house and there was also evidence to show that the plaintiff and her child were treated like any other member of the family. It was on these facts that the Court pronounced on the strong presumption of marriage based on long cohabitation. This position again came to be considered in a case reported in Raghuvir Kumar v. Smt. Shanmughavadivu : (1970)2MLJ193 . That was a case where the first and second plaintiffs claimed to be the son and the fourth wife of one Palaniswamy, who died on 5th January, 1960. He had another wife, living who was the first defendant. The plaintiff's claim for a share was disputed on the ground that the second plaintiff had not been married to the said Palaniswamy and that she was only his concubine. The husband's family was a Nadar family; the second plaintiff who claimed to be the wife, was the daughter of one Karunaiammal belonging to Chetty community and one Damodara Iyengar. With reference to this claim of marriage this Court pointed out at page 202 as follows:

In this case it is clear from the evidence that the second plaintiff was received in the family of Palaniswamy practically as one of its members and his mother...and other relations were treating the second plaintiff as another wife of Palaniswamy in all these years upto the death of Palaniswamy.

On the question as to whether the presumption applied to a second marriage, the learned Judges pointed out at page 204 as follows:

In a society where second marriage is not prohibited under the statute or under the customary law, it is always open for any person to marry a second wife if he so desires and if he goes through a form of marriage and lives with the other party as husband and wife, we find no obstacle to the presumption being raised from the fact of long cohabitation and repute.

15. The decisions to which I have alluded earlier have also been noticed in this decision. This presumption cannot however, be drawn in some cases. For instance in P. Kaliamma v. Kumara Pillai and Ors. : AIR1972Mad200 , a Kudipravarthi woman (i.e., Devadasi attached to Suchindram temple) filed a suit for partition and separate possession of a half share in the estate of one Adhikesavaperumal Pillai on the ground that she was his legally wedded wife. Adhikesava had already a son through his first wife. On the question of presumption founded on long cohabitation this Court observed as follows:

A Kudipravarthi woman (i.e., Devadasi) can contract a legal marriage. A rebuttable presumption of marriage from long cohabitation can be drawn in her case just as in the case of any other Hindu woman. If there are circumstances which weaken or destroy... that presumption the Court cannot ignore them. One of such circumstances is the fact that the woman is a Kudipravarthi who is so low in the social scale, that a member of a respectable community would not incur the odium of contracaing a marriage with such, a person, though public opinion might tolerate illicit union with her.

In that case it was held that there were circumstances which went to completely destroy the presumption arising out of long cohabitation between the said claimant and her alleged husband.

16. The decisions referred to above she show that the presumption of marriage taking into account long cohabitation is a rebuttable one. It is necessary to show that the man and the woman should not merely be living together, but should profess themselves to be husband and wife and, should be treated, as such by the relations and friends. Such conduct and recognition must extend over a long period of time. If there are circumstances which weaken or destroy that presumption, the Court cannot ignore them. It is in the light of these principles that we have to examine the evidence in the present case. Apart from D.W. 4 the first defendant herself, three other witnesses have been examined on the side of the defendants. Out of them, D.W. 3 has been characterised as unreliable as seen in paragraph 13 of the judgment of the lower appellate Court. This is what is observed there:

The evidence of D.W. 2 is improbable and unreliable and has to be rejected as he gives false evidence to the effect that D.W. 4 and her father Duraisami Pillai attended the marriage of his son under Exhibits C-1 and C-2 in June, 1957 when as admitted by D.W. 1 her father Duraiswami Pillai died as early as 17th September, 1955.

17. Therefore, I have to examine only the evidence of D.Ws. 1 and 3. D.W. 1 is one Aruldoss, an Indian Christian and a retired I.A.S. Officer. He came to Trichy in the early part of 1966 from Salem on transfer and was putting up at Officers' Colony, Puthur where the first defendant was living 3 or 4 houses off on the opposite row. He has stated that the first defendant was residing with Sethurathnam Pillai (Plaintiff) and that the first defendant was related to him through his wife. During the period of one year only on one day, the first defendant is stated to have gone to his house though he claims to be related to her. He had seen the plaintiff and the first defendant coming out of the house. He refers to the first defendant telling him that the plaintiff had married her and that they were living as husband and wife. His evidence is inconsistent with the plaintiff and the first defendant being accepted as husband and wife. The fact that the first defendant had visited his house only once and that too, not with the plaintiff, is not consistent with even the relations of the first defendant treating them as husband and wife.

18. D.W. 3 is a landlord of the premises in which the first defendant was living in 67, South-West Boag Road, T. Nagar, Madras. The house had been taken on lease. According to D.W. 3, the plaintiff was introduced 'by the proprietor of Naidu Hall.' The witness had not seen the plaintiff in the said premises. (See the last sentence of the chief examination). So, even this evidence does not show that he had met them together and that the society had accepted them as husband and wife. It is true that he had addressed letters to them on the footing that the first defendant was the wife of the plaintiff, He had, however, no opportunity of going into the point as to whether they were actually married or only living as husband and wife or otherwise. There is thus no evidence of habit and repute. In these circumstances, the presumption stands rebutted in the present case. In fact, there is at least one piece of evidence in the shape of Baptism Register, viz., Exhibit A-18, which is inconsistent with the legitimacy of the marriage and of the issue. In the Baptism Register it is mentioned 'Illegitimate child bapitised in St. Anne's, Sethi is said to be a Zamindar of Trichy District'. The name of the first defendant was given as Barbara. The trial Court has found that the plaintiff could not have been in Kumbakonam on the day of baptism, as otherwise his address would have been better given. This entry was sought to be explained on two grounds. The first was that the Church records would show as illegitimate any child if the marriage was not celebrated in the Church. The second was that the child of the first defendant was intended to be educated in a convent and that, therefore, in spite of its being characterised as an illegitimate child baptism was undergone. If really the marriage had already taken place between the plaintiff and the first defendant, the first defendant would not have in June, 1945 allowed an entry of illegitimacy to be recorded in a public record like Baptism Register. There was no need for baptism as even without being baptised the child could be educated in the convent, as pointed out by the trial Court. The explanation given on behalf of the first defendant with reference to Exhibit. A-18 is so unreasonable that it could not have been accepted by the Courts below. At any rate, this public record supports the stand' of the plaintiff that the presumption of marriage cannot be drawn on the facts herein. There is absolutely no evidence to show that the plaintiff and his family, his relations or any person in Karakatha Vellala caste or in Kulibalai had accepted the first defendant as his-wife at any time.

19. The learned Counsel for the respondents drew by attention to a decision of the Supreme Court in Perumal Nadar v. Ponnuswami Nadar : [1971]1SCR49 , in support of the proposition that no formal' ceremony of purification is necessary to effectuate conversion. That was a case of a marriage between a Hindu male and a female, who was born to Christian parents. As already pointed out, the evidence is inconsistent with her being a Hindu. On the point of the presumption also I am constrained to hold that the presumption cannot apply on the facts herein, as there is no evidence of the parties being accepted as husband and wife by the society to which they belonged.

20. In the result, the second appeal is allowed There will be no order as to costs. No leave.


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