1. Appellant Ponnamma filed the suit O. S. No. 41 of 1962, on the file of the Subordinate Judge's Court, Nagarcoil, for partition and separate possession of a half share in the estate of Adhikesavaperumal Pillai on the ground that she is his legally wedded wife. She impleaded Kumara Pillai, the legitimate son of Adhikesavaperumal Pillai, through his first wife, as the first defendant in the suit, and he was represented by his guardian Kamalamma, as he was found to be a lunatic. The second defendant Kesava Pillai is the son of Kumara Pillai. The third defendant is the Advocate-receiver appointed to manage the properties of Kumara Pillai. The defendants contested the claim of the appellant that she was the legally wedded wife of the deceased Adhikesavaperumal Pillai. On a consideration of the oral and documentary evidence in this case, the learned Subordinate Judge, Nagarcoil, has found that the appellant has not proved that she is the legally wedded wife of Adhikesavaperumal Pillai and in the result, dismissed the suit with costs. Hence she has come forward with the present appeal.
2. Adhikesavaperumal Pillai belonged to Nanjanad Vellala community and he owned extensive properties. He married one Bagavathi, who died only a few months prior to his death. Kumara Pillai, the only son of Adhikesavaperumal Pillai, was 48 years old at the time when the suit was filed. The appellant-plaintiff claims to have married Adhikesavaperumal Pillai, 45 years prior to suit, in 1092 M. E. that is in 1918, when she was 24 years old and Adhikesavaperumal Pillai was 28 years old.
3. Appellant Ponnamma is a member of the eighth gudi entitled to do service in kudipravarthi in the Suchindram temple. There were 32 families doing Kudiparavarthi in Suchindram temple. Admittedly, appellant Ponnamma was employed in Suchindram temple after she was initiated by the usual formal ceremony in her seventh year. She stated that tali was tied round her neck by the brahmin in Vattapalli Madam before Suchindram Thanumoorthy when she was seven years old.
4. The learned Subordinate Judge of Nagarcoil has referred to the passages in the Travancore State Manual by Nagam Iyer, 1906 Vol. II at page 383, the Travancore State Manual by T. K. Velu Pillai, 1940 Vol. II at pages 723 and 724 and Dr. K. K. Pillai's thesis on Suchindram temple and found that the kudipravarthi system of Suchindram temple can be equated to Devadasi system in Tamilnadu; the kudipravarthi was abolished in the Travancore State in 1105 M. E. The learned advocate for the appellant did not dispute the finding of the trial Court about the status of the appellant Ponnamma as a kudipravarthi woman. But he argued that it is open to even such a woman to take to a respectable married life and that when it is shown that she lived with Adhikesavaperumal Pillai and cohabited with him continuously for over four decades, it should be presumed that there was a valid marriage between them.
5. In Balasundaram v. Kamakshi Ammal, ILR (1937) Mad 257 = (AIR 1936 Mad 958). Wadsworth J. has held that, if a dancing girl eschews the calling of her community and adopts the ordinary life of a respectable married woman and acquires property, that property would devolve in accordance with the ordinary rule of Hindu law, in spite of the fact that she belongs to the dancing girl caste, and such property is impressed with a character which it cannot lose by passing on her death into the hands of a dancing girl practising the calling of her caste and the devolution of property acquired during her widowhood by such a dancing girl after she reverts to what may be described as an immoral life, would not be different, since any subsequent lapse from conjugal virtue would not give her any character other that of an unchaste married woman. In Saraswathi Ammal v. Jagadambal , the Supreme Court has held that in the absence of proof of existence of a custom governing succession to the estate of dancing girl by which a dasi daughter excluded a married daughter the case has to rest on rules of justice, equity and good conscience as no clear text of Hindu law applied to such a case and that just rule to apply in such a case is one of propinquity according to which the married and dasi daughters would take the mother's property in equal shares. It is true that in spite of appellant Ponnamma being a kudipravarthi woman, it is open to her to contract a legal marriage with Adhikesavaperumal Pillai and that a presumption of marriage from long cohabitation could be invoked in her case just as in the case of any other Hindu woman. But as pointed out by the Supreme Court in Gokalchand v. Parvin Kumari, AIR 1952 SC 231 at p. 233, 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. One of such circumstances is the fact that Ponnamma is a kudipravarthi who is so low in the social scale, that a member of a respectable community would not incur the odium of contracting a marriage with such a person, though public opinion might tolerate illicit union with such persons.
6. Appellant Ponnamma was born to Veeramoni Iyer, who kept the appellant's mother belonging to eighth gudi as his concubine. The evidence of P. W. 2, Sivathanoo Pillai is that hundred years back Iyers used to have kudipravarthis as concubines. He denied the suggestion that after the tying of the pottu, kudipravarthis lead a loose life. But he admitted that Kudipravarthi women were permanently kept concubines of persons who maintained them. The evidence of P. W. 3, Padmanabha Pillai, a classmate of Adhikesavaperumal Pillai, is that Adhikesavaperumal Pillai asked him about Ponnamma, that he told him that he (She?) would be dutiful, that he questioned why he wanted to have her and that Adhikesavaperumal Pillai told him that he wanted to lead a happy and jolly life. Adhikesavaperumal had married in his own community and had a son by her. P. W. 1 Subramania Pillai could not give any reason why Adhikesavaperumal Pillai married Ponnamma when he had his wife Baghavathi Ammal and had a son Kumara Pillai through her. The evidence of the appellant-plaintiff is that simply because Kudipravarthi girls like herself got talies tied in the temple, people say all sorts of things. It is clear from her evidence that she kept one Parameswaram Pillai and had a son through him, that she subsequently married one Sundaram Pillai and had a son through him and that after the death of Sundaram Pillai, she claims to have married Adhikesavaperumal Pillai. According to her, she cursed her fate for two years after the death of Sundaram Pillai and later Adhikesavaperumal Pillai came to her and wanted her to be his concubine and offered to pay money. But she claimed to have told him that he should marry her to the knowledge of the villagers. According to her, Adhikesavaperumal Pillai came to her with two others and remained in her house for an hour, but she did not know him before and she did not even enquire who he was. She could not say who accompanied him at that time. She and her younger sister alone were in the house at that time. According to her, Adhikesavaperumal Pillai came to her five or six days later and entered into a sambandam form of marriage by giving her a saree in the presence of witnesses. But even then she did not know about Adhikesavaperumal Pillai. It was only later when he went to his village Eranipudur, she learnt from him that he had a wife and a son, but she did not know if he and his caste wife were on friendly terms or otherwise.
7. It is in the light of these facts we have to assess the evidence in this case to find out whether it is likely that Adhikesavaperumal Pillai would make the appellant belonging to Kudipravarthi caste his wife by marrying even in the sambandam form of marriage. .. .. .. .. .. .. .. .. .. .. ..
(After discussion the evidence his Lordship proceeded):
8. Thus, on a consideration of the entire evidence in this case, we see no reason to differ from the finding of the learned Subordinate Judge that the appellant has not proved that she married Adhikesavaperumal Pillai in 1092 M. E.
9. Sri R. Gopalaswami Aiyangar relied on several decisions in support of his contention that though the evidence about the actual marriage may not be satisfactory, there is a strong legal presumption not only with regard to the factum of marriage, but also about the performance of the requisite ceremonies, to constitute a valid marriage, arising out of the long continued cohabitation between the appellant Ponnammal and Adhikesavaperumal Pillai. The learned Subordinate Judge has dealt with this aspect of the case in paragraphs 20 and 21 of his judgment. He has posed the question, whether the plaintiff's living with Adhikesavaperumal Pillai as husband and wife in the plaintiff's house for over 34 or even 45 years is sufficient to draw the presumption that they were legally wedded husband and wife. We have already pointed out that such a long cohabitation can be of no avail if it was only subsequent to 1100 M. E. If the evidence of P. Ws. 1 to 3 about the marriage is not accepted, it is not possible to rely on that evidence to prove that Adhikesavaperumal Pillai lived with the appeallant from 1093 M. E. We have already referred to the evidence of P. W. 5 and pointed out how the evidence of 11 or 12 years boy could not be relied on as proving the fact that Adhikesavaperumal Pillai and the appellant lived together as husband and wife in 1920-21. The appellant stated in her evidence that ever since her marriage in 1093 M. E. Adhikesavaperumal Pillai came to live with her and that from that time onwards, he used to receive letters addressed to her house address. She stated that even in the year of marriage, Adhikesavaperumal Pillai received letters. But she has not produced the letters addressed to Adhikesavaperumal Pillai prior to 1100 M. E.
10. In Rajagopal Pillai v. Pakiam Ammal, (1968) 81 Mad LW 200 it has been held that where a man and woman had lived together as man and wife, the law will presume, until the contrary is proved, that they were living together by virtue of a legal marriage and not in concubinage and that this presumption of law is the strongest of legal presumptions and is not lightly to be repelled by mere balance of probabilities and that the evidence repelling that presumption must be strong, distinct and satisfactory. It is clear from the decision that the presumption exists even when there is no positive evidence of any marriage having taken place. It is pointed out in the decision that the marriage state being the chief foundation on which the superstructure of society rests, presumption of the marriage arising from cohabitation of spouses is very strong presumption. The entire case law has been reviewed in this decision. It is clear from the finding of the trial Court in that case that there was a marriage between the first plaintiff Pakkiam Ammal in that case and Arumugham. This court pointed out how the strong presumption arising out of long cohabitation strengthened the other circumstances of the case. It is pointed out in the decision that all that the defendants in that case attempted to do is merely to create some doubts about the way of marriage between Pakkiam and Arumugham at Madurai and nothing more. It has been rightly pointed out that it is futile to argue on such material that it is sufficient to repel the marriage.
11. In A. Dinohamy v. W. L. Balahamy, AIR 1927 PC 185, the Privy Council has held in a case arising from Ceylon that where a man and woman are proved to have lived together as man and wife, the law will presume, unless the contrary be clearly proved, that they were living together in consequence of a valid marriage, and not in a state of concubinage. The following passage has been extracted in the judgment from the judgment of Lord Cranworth in the Scotch leading case known as the Breadalbane case, H. L. Sc 269:--
"Marriage can only exist as the result of mutual agreement. The conduct of the parties, and of their friends and neighbours, in other words, habite and repute, may afford strong and, in Scotland, attending to the laws of marriage there existing, an unanswerable evidence, that at some unascertained time a mutual agreement to marry was entered into by the parties passing as man and wife. I cannot, however, think it correct to say that habite and repute in any case make the marriage. Repute can obviously have no such effect. It is, perhaps, less inaccurate to speak of habite creating marriage if by the word 'habite' we are to understand the daily acts of persons living together, which imply that they consider each other as husband and wife, and it may to taken as implying an agreement to be what they represent themselves as being. It seems tome, however, even here to be an improper use of the word to say that it makes marriage. The distinction is, perhaps, one rather of words than of substance; but I prefer to say that habite and repute afford by the law of Scotland, as, indeed, of all countries, evidence of marriage, always strong, and in Scotland, unless met by counter evidence, generally conclusive."
The respondent Balhamy in that case applied for letters of administration of the estate of Don Andris on the ground that he married her as his second wife after the death of his first wife. She had lived with Don Andris for twenty years in the same house and eight children were born to them and they were recognised as husband and wife for a long course of years in the family and public functions.
12. In Mohabbat Ali v. Md. Ibrahim Khan, AIR 1929 PC 135, it has been held that the law presumes in favour of marriage and against concubinage when a man and a woman have cohabited continuously for a number of years. The appellant in that case claimed the estate of one Khushdil Khan on the ground that he was his legitimate son. There was an acknowledgment by the father Khushdil Khan which involved the assertion that he was married to the mother of the appellant, and such acknowledgment undoubtedly raised a presumption in favour of marriage between the appellant's mother and Khushdil Khan. It appears from the evidence in that case that difficulty arose on account of the fact that the mother of the appellant was not a purdhanashin lady unlike the other wives of Khushdil Khan and she had been in fact a maidservant and house-keeper in the household of Khushdil Khan and that when the marriage took place she continued her duties in the household. It was observed in the decision that even if that had involved or recognised a lack of disregard of social status, these things were essentially matters for herself and her husband to consider. It is pointed out that it is no part of the law of India that to have lived and to remain behind the pardah is a necessary part of a lady's legal marriage or a conclusive evidential fact, and that it is a circumstance to be considered when the fact of the marriage is in issue, but that issue is to be determined on a broad conspectus of the whole situation, including of course the purdah item.
13. We have already referred to the decision of the Supreme Court in AIR 1952 SC 231, where it is pointed out that 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. It was held on a consideration of the evidence in that case that such circumstances were not wanting and that their cumulative effect warranted the conclusion that the plaintiff in that case had failed to prove the factum of his marriage. The appellant in that case claimed the estate of one Ram Piari as her legally wedded husband. Among the several circumstances mentioned in paragraphs 10 and 11 of the judgment as negativing the presumption of marriage from long cohabitation, it is relevant to refer to only one circumstance, namely, that it appeared to the learned Judges as rather unusual that the plaintiff claiming to be a Rajput of high caste should not marry in his own tribe, but should take in marriage a Gurkha girl who was born of very poor parents and belonged to a place far away from where he himself lived.
14. In D. Nagarajamma v. State Bank of India Cuttapah, , it was pointed out that the presumption of marriage could be rebutted by the facts and circumstances of the case. The appellant Nagarajamma in that case claimed a fixed deposit made by one Dalavayi Ramaswamy as his second wife and heir, Dalavayi Ramaswami who was the Deputy Superintendent of Police had a legally married wife, who was also a party to the suit, and she attacked the status of the appellant Nagarajamma who belonged to "Kalvanthula" or dancing girl community. The evidence of the defendant's witnesses that Ramaswami came into contact with the appellant belonging to the dancing girl community while he was away in Marakapur in 1937 and that when she was later on brought to the house, his legally wedded wife protested against it as a result of which she was sent away by Ramaswami was accepted by the Court. Having regard to these facts, it was held that the presumption of marriage arising out of the continued cohabitation for a number of years was rebutted.
15. We have already referred to the passage of Lord Granworth in Breadalbane case stating that the presumption of marriage arising out of a long cohabitation is only a mode proving the marriage. Thus if the association of a male and a female did not arise out of marriage, there could be no scope for any such presumption. In Mst. Jariut-ool Butool v. Mst. Hoseinee Begum, (1866-67) 11 Moo Ind App 194 at p. 209, the plaintiff sought to recover the property specified in her plaint by right of inheritance to her uncle Mirza Addoola Begg and her husband Abdoos Sumud Begg. The defendant in that case who claimed the status as wife admitted that she was once a prostitute. But she alleged penitence and a change of life. She declared the deceased to have been a man entertaining one mistress whilst his wife was living. It was observed by the Privy Council that the Court had to determine amidst conflicting evidence, whether it was more likely that he should make a woman of that class his wife, and settle on her a very large dower, or that he should induce her to live with him as his mistress. It was held that if the Courts below were justified in finding that the original connection was illicit, there could be no legal presumption of marriage. It is pointed out in the decision that the defendant-appellant is not content to rely on any presumption from length of time; she alleges and calls witnesses to prove an actual marriage ceremony, accompanied with some degree of publicity, the presence of witnesses and the oral assignment of a large sum by way of dower.
16. The several circumstances adverted to by us in the course of the judgment clearly preclude the possibility of invoking the presumption of a legal marriage between the appellant Ponnammal and Adhikesava perumal Pillai on the basis of a long and continued cohabitation between them. It is really unnecessary to recapitulate the several circumstances. It is clear from what we have stated that the appellant is a kudipravarthi woman whose status corresponds to that of Dasis (Devdasis?) in Tamilnadu. After being dedicated to the temple and coming of age, appellant Ponnammal had sexual life with Parameswaram Pillai and got a son through him. After Parameswaram Pillai discarded her, she kept one Sundaram Pillai and had a son through him. It was thereafter she came into contact with Adhikesava perumal Pillai belonging to Nanjinad Vellala community owning extensive properties. The said Adhikesava perumal Pillai had his legally wedded wife and a legitimate son at the time when he contacted intimacy with the appellant. The appellant has examined herself and P. Ws. 1 to 3 to prove that she married Adhikesava perumal Pillai in 1093 M. E. and she has failed in that attempt. The evidence of P. W. 5 Natarajan even taken along with the evidence of the other witnesses is hardly satisfactory to prove that by repute, the appellant was known and treated as the legally wedded wife of Adhikesava perumal Pillai. Adhikesava perumal Pillai never took the appellant to his family house in his village Eranipudur. Having regard to the status of the appellant as a kudipravarthi woman and her prior sexual life with Parameswaram Pillai and Sundaram Pillai, it is unlikely that Adhikesava perumal Pillai belonging to a respectable Nanjinad Vellala community owning extensive properties would have entered into a marital alliance even by way of sambandam. It is difficult on this state of evidence to presume that such cohabitation commenced prior to 1100 M. E. After 1100 M. E. Adhikesava perumal Pillai would be committing bigamy by entering into any marriage with the appellant and there is therefore no scope for invoking any presumption of marriage from long cohabitation subsequent to 1100 M. E. Even if it is assumed that such cohabitation was prior to 1100 M. E., the presumption could be invoked only if the alleged marriage of the appellant with Parameswaram Pillai is held to be not proved or invalid. Thus it is not possible to ignore the several circumstances which go to completely destroy the presumption, if any, arising out of long cohabitation between the appellant and Adhikesava perumal Pillai.
17. For the foregoing reasons, we concur with the finding of the learned Subordinate Judge that the appellant-plaintiff is not the legally wedded wife of the deceased Adhikesava perumal Pillai. The decree and judgment of the learned. Subordinate Judge are confirmed and the appeal is dismissed with costs.
18. Appeal dismissed.