Skip to content


Barbara and anr. Vs. Sethurathinam Pillai - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtChennai High Court
Decided On
Judge
Reported in1970CriLJ1721
AppellantBarbara and anr.
RespondentSethurathinam Pillai
Cases Referred and Mrs. Ailean Anandrao Chitnavis v. A.S. Chitnavis
Excerpt:
- - these authorities clearly establish the proposition that there is no rule of hindu law which forbids the subsistence of a marriage, one of the parties to which is a non-hindu, that is to say, that the hindu law does not refuse to recognise a conjugal union merely by reason of a difference of religion. in the absence of any such rule, therefore, the marriage of a hindu and a non-hindu contracted in england may well be valid in india on principles of justice, equity and good conscience. 7. i find that the marriage of the first petitioner with the respondent contracted in india is valid on principles of justice, equity and good conscience. d1 a letter written by the wife to her husband, as unreliable......in an earlier part of this judgment to numerous authorities and to enactments according to which a hindu marriage is not dissolved by reason of the fact that one of the parties has become a christian. in gladya sainapatti v. sainappatti air 1933 lah 116 138, ind cas 262 and mrs. ailean anandrao chitnavis v. a.s. chitnavis marriages between a hindu and a christian woman celebrated in england was recognised as valid in india and a divorce was granted on the ground of the husband's remarriage in india according to hindu rites. these authorities clearly establish the proposition that there is no rule of hindu law which forbids the subsistence of a marriage, one of the parties to which is a non-hindu, that is to say, that the hindu law does not refuse to recognise a conjugal union merely by.....
Judgment:
ORDER

K.N. Mudaliar, J.

1. The two petitioners seek to revise the order of the learned Additional First Class Magistrate, Tiruchirapalli holding that the petitioners are not entitled to any maintenance from the respondent.

2. Before the trial Magistrate Barbara Dolly the petitioner examined herself as P. W. 1. She deposes that the respondent is her husband, In August 1944 she and the respondent were married. The second petitioner was born to her. She is now 20 years and is living with her. After marriage, she and her husband stayed at Kulithalai as husband and wife. They lived for three years and then went to Madras and stayed at Moosa Sait Street, Mambalam. They moved from Mambalam to Bagirathiammal street and then to Boag Road to the house of Mr. N. S. Quaraishi on a rental of Rs. 120 Exhibit P. 4 is the notice from Mr. N. S. Quaraishi dated 23-11-1961. Exhibits P. 5 and P. 6 are two notices sent to her husband. Mr. Qaaraishi filed a petition (marked Exhibit P. 7) for eviction against thorn on 14.6-1963. Eviction was ordered. She farther narrates about her residence at Tillainagar.

Later on, the respondent fixed up a house at No. 43, Third Cross Street and she moved into that house on 28.8.1966. Since then the respondent has been neglecting her. She claims maintenance befiting her status at Rs. 400 per mensem for both. Although she claimed in her petition Rs. 600 as maintenance for both the petitioners, in her evidence she limited the maintenance amount to Rs. 400 per month for both the petitioner and her daughter. Neither in her petition nor in her evidence she does separately claim the maintenance amount for her daughter, nor does she indicate how the sum of Rs. 400 has got to be worked out between the mother and the daughter.

Mr. Chellaswami, Counsel for the petitioners argued that the petitioner, Barbara Dolly, was a convert and her marriage with the respondent is valid. P. W. 1 states in her evidence that her father was a Christian, Doraiswami Pillai. Her father was an Executive Engineer. She further says that her marriage was done at Kulitalai in the house of the respondent. She did not know if at that time the respondent was already married. She claims now that she knows that he was already married. When she married the respondent she sweats that the marriage was done in the Hindu form. This evidence of P. W. 1 has not been shaken. She further says that she converted herself to Hinduism. She further deposes that she was converted to Hinduism at the time marriage. On this evidence, I have no hesitation in holding that her marriage as a convert to the Hindu religion with the respondent is valid.

I am now concerned mainly with giving effect to the section of the Code which gives proper and speedy relief in the circumstances and that this Court of Criminal Revision ought not to be burdened with the decision of a point of personal civil liability which could not possibly concern it. Vide Edward Saiiendra v. Snehalata (1937) 41 CWN 898. The ruling in Guruswami Nadai v. Irulappa Konar : AIR1934Mad630 may, not be strictly relevant in view of the peculiar facts of this case. In Bamayya v. Mrs. J. Elisabeth : AIR1937Mad172 although that was a case of reconversion to the Hinduism one principle of law is very useful. As Mr. Varadaohariar J. points out in : AIR1934Mad630 this passage does not lay down that everyone of the tests should be fulfilled where conversion to Hinduism is alleged. Mr. Chellaswami strongly relies on the Bench decision of this Court in Appeal No. 177 of 1961 (Mad) in Perumal Nadar v. Ponnuswami Nadar, In the light of the reasoning found in this decision of this Court, I find that the petitioner became a Hindu at the time of her marriage with the respondent and her marriage with the respondent is valid.

3. Mr, Venkatanarasimhan appearing for the respondent was not in a position to submit any valid argument to repel the contention of Mr. Chellaswami. Mr, Ohellaswami argued that even assuming that the first petitioner was a Christian at the time of her marriage, even then her marriage would be valid.

4. Mr. Venkatanaraaimhan argued that a marriage between a Hindu and a Christian is totally invalid. Mr. Chellaswami relies on the ruling in Mrs, Dubey v. Mr. Dubey : AIR1951All529 .

Coming now to a consideration of the last contention in respect of this point, it appears that there is no rule forbidding the marriage of a Hindu with a non-Hindu. A marriage between a Hindu and a non-Hindu does not seem to have been contemplated by the Hindu Law Givers. No doubt this was so, because at the time when Manu and his successors expounded the law there was no such distinction as Hindu and non-Hindu. The utmost that was possible was to class the sudras as a category by themselves and. as distinct from the class of the twice-born, who were, to use modern phraseology, Hindus proper, and marriages between the twice-born and sudra woman were not forbidden in the earlier days. Even subsequent writers do not give expression to any absolute prohibition against the marriage of a Hindu with a non-Hindu, The only text book writer who mentions this subject is Ganapati Iyer who says at p. 404 (S. 565) : -Again the Hindu law of marriage contemplates that the parties to a marriage should be Hindus. The restrictions imposed by the Hindu texts to be referred to later on will indeed show that even when the parties are Hindus they should be of the same caste in order that the marriage may be valid. That being so, a marriage between a Hindu and a non-Hindu such as Christian, Mohammadan etc., cannot possibly be recognised by the Hindu law. But in such cases where only one of the parties to a marriage or other transaction is a Hindu, the Hindu law can obviously have no application. There is a conflict of laws and different considerations should guide Courts in such cases, One party is no doubt governed by the Hindu law, but the other party is not governed by such law but by bis own law. If according to the personal laws of both parties, such a marriage is prohibited or permitted, no difficulty can arise. If, however, the personal law of one prohibits the marriage but there is no such prohibition according to the personal law of the other there is real conflict of laws and we have to see whether there is any governing principle applicable to such cases.

5. The learned author then discusses the case Venugopala Chetti v. Venugopala Chetti 1909 Probate 67 and says about it;

Now although the respondent was a caste Hindu, i.e., a Vysia by Caate, according to the custom of usage, apart from the law laid down in the Smritis, he would be regarded as an outcaste by reason of his going to England and it is very doubtful whether the prohibition in the Smritis as regards marrying out of caste would apply to him at all.

Further reference has already been made in an earlier part of this Judgment to numerous authorities and to enactments according to which a Hindu marriage is not dissolved by reason of the fact that one of the parties has become a Christian. In Gladya Sainapatti v. Sainappatti AIR 1933 Lah 116 138, Ind Cas 262 and Mrs. Ailean Anandrao Chitnavis v. A.S. Chitnavis marriages between a Hindu and a Christian woman celebrated in England was recognised as valid in India and a divorce was granted on the ground of the husband's remarriage in India according to Hindu rites. These authorities clearly establish the proposition that there is no rule of Hindu law which forbids the subsistence of a marriage, one of the parties to which is a non-Hindu, that is to say, that the Hindu law does not refuse to recognise a conjugal union merely by reason of a difference of religion.' I find the authority overwhelming enough to find that the marriage between a Hindu and a non Hindu is recognised as valid.

In Mayne's Hindu Law, 11th : Edition, it is said at page 93 ;While Hindu Law and usage prohibit marriages between the principal castes amongst Hindus there is no express rule prohibiting the marriage of a Hindu with a non-Hindu. In the absence of any such rule, therefore, the marriage of a Hindu and a non-Hindu contracted in England may well be valid in India on Principles of Justice, equity and good conscience.

If the marriage of a Hindu and a non-Hindu contracted in England is valid, I do not see how the same typo of marriage would be invalid on the soil of India.

6. Mr. Venkatanarasimham quoted Section 436 at page 459 of Mulla'a Hindu Law, 1966, 13th Edition. But this passage is not really supporting his argument. Although ho argues that the Dubey case : AIR1951All529 does not apply to the facts of this case, I find the reasoning in : AIR1951All529 is wholly and totally applicable to the facts of this case.

7. I find that the marriage of the first petitioner with the respondent contracted in India is valid on principles of justice, equity and good conscience.

8. (In Paragraph 8, the Court accepts the evidence that for several years from 1944, the 1st petitioner and the respondent were living as wife and man, The order continues : )

9. So far as the 2nd petitioner is concerned, she is not 'a child' within the meaning of Section 488 and she is not entitled to any maintenance. In fact, Mr. Chellaswami did not submit any argument on this aspect of the matter. (In the rest of the paragraph the Court holds Ex. D1 a letter written by the wife to her husband, as unreliable. The order continues : )

10. P. W. 1 Bays that she is the daughter of an Executive Engineer. Her husband is a landlord owning lakhs of properties. He is owning a car. I consider that the sum of Rs. 200/- claimed by her for her maintenance is proper and quite adequate, I find that she is entitled to the maintenance amount of Rs. 200/- per mensem with effect from the date of her application namely 6-3-1967. The revision petition is allowed.

11. I order the respondent to make a monthly allowance of Rs. 200/- (two hundred) for the maintenance of the 1st petitioner, the wife of the respondent and to pay the same to the first petitioner.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //