T. Venkatadri, J.
1. This is an appeal preferred by the defendant Perumal Nadar, who died during the pendency of the appeal and whose legal representative Seethalakshmi Ammal has been brought on record against the judgment rendered in O.S. No. 37 of 1959, on the file of the Sub-Court, Tirunelveli, granting a decree to the respondent (Plaintiff) for partition and. separate possession of his half share in the suit properties.
2. The respondent minor Ponnuswami through his mother and next friend Annapazham, filed the suit for partition and separate possession, on the ground that his mother was the legally wedded wife of the appellant (Perumal Nadar) that they were married in November, 1950, and were living as husband and wife that he was born during their wedlock in the month of March, 1958 and that due to the evil habits and waywardness, his father Perumal Nadar neglected to maintain his mother and abandoned him. His father was under the influence of his sister and sister's husband, with the result the respondent's mother was notable to live with him on account of danger to her life and that both mother and son had to seek the protection of his grand-parents. Therefore, the present suit was filed as aforesaid.
3. The appellant Perumal Nadar resisted the suit on the ground that he was congenitally deaf and dumb, that at no time he underwent any form of marriage with Annapazham (respondent's mother) that even assuming that there was a marriage it was invalid in law (as she was a Christian at the time of the marriage and he being a Hindu), that even if there was a marriage with the respondent's mother that marriage would be void according to the Madras Hindu Bigamy Act of 1949, as at the time of the marriage he already had Seethalakshmi as his wife, and that in any event the respondent was not born to him, as he ceased to have cohabitation with Annapazaham more than five years before the suit. The respondent disputed the allegations in the written statement and filed a reply to the effect though his mother was a Christian at the time of the marriage she was a Hindu, that the marriage took place according to Hindu rites and samskaras, that in some criminal proceedings between the parties it was held that Seethalakshmi was not the legally wedded wife, that Perumal Nadar was made to execute the gift deed under undue influence and coercion in favour of his sister of the joint family properties which was invalid in law, that the respondent was entitled to ignore the said transaction and that therefore, he should be given a decree for his half-share in the suit properties.
4. On these pleadings, the parties went to trial before the learned Subordinate Judge, Tirunelveli, who framed a number of issues the important among them being whether Annapazham was the legally wedded wife of the appellant, whether the marriage was void under the Madras Hindu Bigamy Act and whether the respondent (minor Ponnuswami) was the son of the appellant (Perumal Nadar).
5. After consideration of the oral and documentary evidence in this case, the learned Subordinate Judge found that Annapazham was not a Christian at the time of her marriage, that the caste custom of the Nadar community permitted such marriages that Annapazham was the legally wedded wife of Perumal Nadar, that the marriage was not affected by the Madras Hindu Bigamy Act, and that the respondent was the legitimate son of Perumal Nadar. In the end, the learned Subordinate Judge decreed the suit of the respondent with costs.
6. It is against this judgment and decree that the defendant has filed the present appeal. Since the defendant died during the pendency of the appeal, Seethalakshmi Ammal has been brought on record, as his legal representative for purposes of this appeal.
7. Learned Counsel for the appellant contended before us that the marriage of the respondent's mother with the appellant (Perumal Nadar) was void, as she was a Christian at the time of the marriage. It is admitted that the respondent's mother, Annapazham was born and brought up as a Christian. She was attending Church before her marriage with Perumal Nadar.
8. Perumal Nadar was considered a wealthy man, according to the conception of the parties. When Perumal Nadar expressed a desire to marry Annapazham they entered into a registered agreement, Exhibit A-l, dated 29th November, 1950, where in it has been stated that it was the desires of the parents of Perumal Nadar and Annapazham that they should enter into a registered agreement of marriage, in addition to the celebration of the marriage according to the Hindu rites. The said agreement also stated that the parties should have mutual rights in respect of the properties belonging to them under the Hindu Mitakshara Law. This document was not disputed by anybody. Oral evidence was adduced to prove that the marriage was celebrated according to Hindu rites and samskaras. Invitations were issued at the time of the marriage and the usual customary tying of thali was observed. After the marriage she ceased to attend the church, abandoned the Christian faith and followed the Hindu customs and manners prevailing among the Hindu Nadar Community of Travancore.
9. Mr. Rajah Aiyar, learned Counsel appearing for the appellant, contended before us that the respondent's mother was born as a Christian and was married according to the Hindu rites with the appellant Perumal Nadar. There was no evidence of material placed before the Court that she was converted to Hindu religion before her marriage with Perumal Nadar. But learned Counsel himself admitted that there was no set formula or any religious rites or ceremonies for conversion of Christian woman to Hindu religion among the people of that locality where the parties lived. On the other hand, there is sufficient evidence to show, that it is customary among the Hindu Nadar Community in Travancore area to enter into marriage alliances with Christian women. Such marriages have been recognized by the community as valid in law, and usually after the marriage the married woman follows the customs and manners of her husband.
10. In an early case decided on similar facts, Muthuswami Mudaliar v. Masilamani (1909) 20 M.L.J. 49 : I.L.R. 33 Mad. 342 this Court held that a marriage contracted according to Hindu rites by a Hindu with a Christian woman, who before marriage, was converted to Hinduism, was valid when such marriages were common among and recognised as valid by the custom of the caste to which the man belonged, although such marriage might not be in strict accordance with the orthodox Hindu religion. Mr. Rajah Aiyar brought to our notice that there, it was a case where on the facts it was found that there was a conversion by the woman to the Hindu religion before she was married to her Hindu husband. But we have gone carefully through the text of the judgment in that case and we have found that no ceremonies or rites were observed by the lady who belonged to the Christian faith for converting herself into Hinduism before her marriage. The learned Judges observed, at page 344 as follows:
But it is unnecessary to consider that question as there is no doubt that the first defendant became a Hindu when she married her husband. She was a Roman Catholic Christian before her marriage. She removed the cross from her neck. Her forehead was smeared with holy ashes. The Brahman priest made homam and had the thali tied round her neck or in other words with her husband she accepted his religion also. The question then is whether a marriage of a Hindu with a convert from Christianity is valid.
The learned Judges held that it was a valid marriage.
11. In Morarji v. Administrator-General, Madras : (1928)55MLJ478 , one Mena Renda, who was of Austrian origin and domiciled in Great Britain, was a Theosophist and a Hindu by conviction. She was further a vegetarian and had been described as having been practically a Hindu in all her habits of life. She was formally converted to the Hindu faith by the Hindu Missionary Society, and she married a Hindu gentleman and also adopted the Hindu name of Sulochana. Before she died in 1923, she left a Will bequeathing all her properties to the petitioner, therein Morarji. In the proceedings relating to the Will, the question arose, was she a Hindu at the time of the execution of the Will. Venkatasubba Rao, J., an eminent Judge of the Court observed, thus at page 170:
A European does not become a Hindu merely because he professes a theoretical allegience to the Hindu faith, or is an ardent admirer and advocate of Hinduism and its practices; but if he resides long in India, abdicates his religion by a clear act of renunciation and adopts Hinduism by undergoing formal conversion, gives up along with Christianity his Christian name and deliberately assumes a Hindu name, marries in accordance with Hindu religious rites, a person who is a Hindu by race and religion and cuts himself off from his old environment and takes to the Hindu mode of life, in such a case, the Court may justly come to the conclusion that he has become a Hindu within the meaning of the Indian Succession Act...
12. The learned Judge declared that Mena Rendra otherwise called Sulochana was a Hindu at her death. Here again, Mr. Rajah Aiyar, learned Counsel, appearing for the appellant, drew our attention to the fact that there was a formal conversion from Christianity to Hinduism by the performance of Suddhi by Society.
13. Whether it is absolutely necessary for the parties to prove conversion from Christianity to Hinduism and what forms of ceremonies are necessary for such conversion were explained by Varadachariar, J., in Guruswami Nadar v. Irulappa Konar : AIR1934Mad630 In that case one Vedanayaga, a Hindu by birth, became a Christian and married a Christian woman. Sometime after the marriage, the Christian wife would appear to have gone over to Colombo Subsequently Vedanayaga, married a Hindu woman. The question was whether he was a Hindu at the time of the last marriage. The learned Judge observed at page 631 as follows:
No particular ceremonies are prescribed for them by the Smrithi writers nor have they got to perform any Homas. One has therefore to look to the sense of the community and from that point of view it is of particular significance that the community was prepared to receive Vedanayaga and defendant 5 as a man and wife and their issues as legitimate.
14. Now, Venkatasubba Rao, J., himself observed in Morarji v. Administrator, Madras : (1928)55MLJ478 that the question whether the person was a Hindu at the time of his or her death was a question of fact in each case. Again in Ramayya v. Elizabeth : AIR1937Mad172 , Venkatasubba Rao, J. (while Officiating Chief Justice) and sitting with Venkataramana Rao, J., had to consider a similar question. When his prior decision was quoted to him, he observed that the passage (already extracted) was clearly no authority for the position that a formal conversion was a pre-requisite to a person becoming a Hindu. In the case before them, they held that the evidence there fell far short of what was required to show that there was a reconversion to Hinduism. Later, in Durgaprasada Rao v. Sudarsanaswami : AIR1940Mad513 , a Division Bench of this Court had again to consider whether a Hindu convert to Christianity could, without the performance of a formal expiatory ceremony, come back to Hinduism under the Hindu Law, Mockett, J., observed at page 659:
I entirely agree that no gesture or declaration can change a man's religion, but equally I cannot see why, when on the facts it appear that a man did change his religion and was accepted by his co-religionists as having changed his religion, and lived, died and Was cremated in that religion, the absence of some formality, should negative what is an actual fact.
15. In the same case, Krishnaswami Aiyangar, J., observed at page 666:
'Expirations for many transgressions which in the past would have been insisted upon were and are now scarcely considered necessary or perhaps considered unnecessary.' A true and genuine change of heart, rather than the adoption of mere formalities, is the consideration that would in modern conditions appeal most to the modern mind.
16. The learned Judges, therefore, seem to be of the view that no formal conversion as such is necessary for conversion to hinduism from Christianity. Similarly in Vermani v. Vermani A.I.R. 1943 Lah. 51 a Full Bench of the Lahore High Court held that a Hindu convert to Christianity could revert to his original religion without any expiatory ceremony and that the conduct of the person showing that he was reconverted to Hinduism and received by his community as a Hindu was enough.
17. Thus, on a review of the entire case-law, it seems to us that Hindu law would apply even to converts to Hinduism and it is not necessary for its application that a person should be a Hindu by birth. Hindu law applied not only to a person who is Hindu both by birth and religion but also to a person who is a Hindu only by religion. But as Venkatasubba Rao, J., said the mere fact that a non-Hindu professes a theoretical allegiance to the Hindu faith or is an ardent admirer and advocate of Hinduism does not make him a Hindu. Long residence in India, abdication of the original religion by a clear act of renunciation, adopting the Hindu religion by a formal conversion thereto, assuming a Hindu name, marrying a Hindu according to Hindu rules and taking to the Hindu modes of life are proof that a non-Hindu has become a Hindu. But it is not necessary that every one of these tests should be fulfilled. It is also not necessary that there should be established a formal conversion to Hinduism. Since there are no ceremonies prescribed in the smrithis for conversion to the Hindu religion, one has to look to the sense of the community into which the convert is alleged to have been let in and if the members of that community are prepared to receive him as one of themselves, the fact that there has been no purificatory or expiatory ceremonies, does not militate against that person being treated in law as a member who has been admitted into the Hindu fold. In this case, therefore even Annapazham, the mother of the respondent, was a Christian before her marriage with Perumal Nadar, there is sufficient evidence to come to the conclusion that she became a Hindu after her marriage with Perumal Nadar, adopted a Hindu name, observed the Hindu mode of life and received as a Hindu by the members of her husband's community. Therefore, her marriage with the appellant, Perumal Nadar, was a valid marriage.
18. But learned Counsel for the appellant would contend that even assuming that it was a valid marriage, still it could be declared to be void under the Madra Hindu (Bigamy Prevention) and Divorce Act, 1949 as Perumal Nadar had already married Seethalakshmi, who has now come on record as his legal representative for purpose of this appeal.
19. This would depend upon whether the parties to the action, viz., the mother of the respondent and the appellant Perumal Nadar were residents of Madras State to which the Act would apply. There was acute controversy between the parties whether Perumal Nadar and Annapazham were citizens of Madras State or of former Travancore State.
20. If it was proved that they belonged to Trayancore State at the time of the marriage, then the question of bigamy would not arise and their marriage would not be declared to be void. The case of the respondent in the plaint is that his father Perumal Nadar was residing at Kanimadam within the erstwhile Travancore State. When the respondent's mother was married to Perumal Nadar, there was a registered agreement, Exhibit A-l in which Perumal Nadar was described as the son of Ponnuswami. Nadar, aged 41 years, agriculturist of Kanimadanoor, Kanyakumari Pakuthy. Both Perumal Nadar and Annapazham while admitting the execution of the document, described themselves as residents of Kanimadam. When one Subramania Mudaliar filed a suit, Exhibit B-2, on a promissory note executed by the father of the respondent's mother, it was alleged in the plaint that the suit amount was borrowed for meeting the marriage expenses of his daughter with Perumal Nadar of Kanimadanoor, Kanyakumari Pakuthy. When a child was born to Annapazham in 1958 the birth certificate Exhibit A-4 was given wherein the place of birth of the child was noted as Kanyakumari Pakuthy, Agaesteswaram Taluk, Kanyakumari District. The permanent residence of the mother of the child was noted as Kanimadam. Oral evidence was also adduced on the point. P.W. 2, a resident of Kanimadam, a place near Kanimadam, deposed that after the marriage the parties were living in Kanimadam. P.W. 3 who was residing in Kanimadam itself deposed that the defendant lived in Kanimadam, though he would add that it was after marriage. He also deposed that the defendant Perumal Nadar resided in Kannankulam, place one and a half mile, from Kanimadam. P.W. 4, the father of Annapazham, deposed that his daughter and Perumal Nadar always lived in the house at Kanimadam and that at the time of the marriage they were the subjects of Travancore Maharajah. He further deposed that the respondent was born at Kanimadam. Thus, there is substantial evidence to prove that Perumal Nadar was a subject of Travancore State and was living in Kanimadam, a place within Travancore State.
21. Learned Counsel for the appellant drew our attention to some documents filed in this case, to prove that, Perumal Nadar was a subject of the Madras State, to which the Act applied. For instance, under Exhibit B-l Narayana Nadar, the father of Seethalakshmi Ammal executed sale deed. Therein Perumal Nadar was described as belonging to Kannankulam. Again in Exhibit A-2 which is an extract from the register of birth, relating to the birth of a child in 1951, to Perumal Nadar and, Annapazham, the place of residence has been shown as Kannankulam in Tirunelveli District. Further D.W. 1 deposed that Perumal Nadar's father, was a native of Kannankulam, and that later he purchased lands at Kanimadam. D.W. 2 also deposed that Perumal Nadar was a native of Kannankulam and the husband and wife lived at Kannankulam He also deposed that the distance between Kanimadam and Kannankulam was about half a mile.
22. It is true that Perumal Nadar lived both in Kanimadam and Kannankulam. But it is quite clear that he had a house, lands and a granery at Kanimadam, where he would normally reside in order to attend to his cultivation. There is no sufficient evidence to show that Perumal Nadar and Annapazham permanently resided in Kannankulam, a place within Madras State at or after the time of marriage. Mr. Chellasami, learned Counsel for the respondent, rightly pointed out that in case of controversy the place of domicile should be taken into account. As we have already stated, in Exhibit A-l. Perumal Nadar was described as an agriculturist of Kanimadanoor, Kanyakumari Pukuthy. The word oor denotes the place of domicile. There is thus sufficient evidence to show that the parties were living in Kanimadam and not in Kannankulam.
23. Cheshire, in his book on Private International Law in the Chapter on Domicile at page 171 has stated the general rules of application in regard to domicile thus:
It is a settled principle that nobody shall be without a domicile and in order to make this effective the law assigns what is called domicile of origin to every person at his birth, namely, to a legitimate child the domicile of the father, to an illegitimate child the domicile of the mother, and to a founding the place where he is found...
24. There is a presumption in favour of the continuance of an exising domicile Therefore the burden of proving a change lies in all cases upon these who allege that a change has occurred. The relevant evidence of domicile would be naturalisation, purchase of house, the exercise of political rights, the establishment of children in business, the place where a man's wife and family reside etc. L.R. (1904) A.C. 287 In this connection, learned Counsel cited the case of Winan v. Attorney-General, where Earl of Halsbury, L.C, observed at page 288:.Where a domicile of origin is proved it lies upon the person who asserts a change of domicile to establish it, and it is necessary to prove that the person who is alleged to have changed his domicile had a fixed and determined purpose to make the place of his new domicile his permanent house.
25. In the other case cited by him Ramsay v. Liverpool Royal Infirmary L.R. (1930) A.C. 588 , it was observed that an intention to change a domicile of origin was not to be inferred from an attitude of indifference or a disinclination to move increasing with increasing years.
26. Following the principles laid down in the above cases, we think it is very clear that though there is some evidence to show that Perumal Nadar was living in both places, there is abundant evidence to show that Perumal Nadar treated Kanimadam as his oor where he had his house, lands, and granery. As respondent's mother was married to Perumal Nadar, her place of domicile would be that of her husband. Therefore we come to the conclusion that both Perumal Nadar and Annapazham were residents of Travancore State at the time of marriage, that, therefore, the Hindu Bigamy Act, 1949 would not be applicable to them and further that Perumal Nadar had not committed any offence under the said Act. Therefore, the marriage of Perumal Nadar with the respondent's mother was a perfectly valid marriage, even though Perumal Nadar had already married Seethalakshmi prior to this marriage.
27. Learned Counsel for the appellant next contended that even though the marriage of Annapazham who was a Christian before her marriage with Perumal Nadar, was a valid marriage and even though that marriage was not vitiated by the Hindu Bigamy Act of 1949, as the parties were subjects of Travancore State, still the respondent would not be entitled to partition as he was not born to Perumal Nadar. He drew our attention to the fact that respondent's mother filed a criminal complaint against Perumal Nadar in 1957 accusing that Perumal Nadar was keeping a concubine Seethalakshmi, who has been brought on record as the legal representative in this appeal, that he also married one Bhagavathimamal, at her house and praying that suitable proceedings should be taken against the accused. There was regular trial before the First Class Magistrate, Nagercoil, and the case was thrown out on the ground that the marriage of Annapazham with Perumal Nadar was not a valid marriage. Necessarily, she had to file a revision to the High Court, where a finding was given that her marriage with Perumal Nadar was a valid marriage, but he was acquitted on different grounds. Mr. Rajah Ayyar contended that during this period there would have been no love lost between the parties and it would not be possible for Perumal Nadar to have any connection whatsoever with Annapazham and that, therefore, the respondent could not have been born to Annapazham and Perumal Nadar at the relevant time. It was also urged by learned Counsel that Annapazham was driven out of the house in the year 1954 itself. But this important fact was not taken in the written statement. The suit was instituted on 21st August, 1959 when the respondent was one and half years old, he having been born on 5th March, 1958. Therefore, it is clear that the respondent would have been born when the criminal proceedings were pending. The birth register, Exhibit A-4 would show that the respondent was the second child and that he was born in Kanimadam, the permanent place of residence of Annapazham. In the written statement, filed by the appellant, there was no allegation of any bad conduct or unchastity against Annapazham, excepting the statement that the child was not born to him through Annapazham in any event. Oral evidence was also adduced to prove that during the relevant period Annapazham was living in her husband's place, Kanimadam. P.W. 2 deposed that Perumal Nadar and Annapazham lived together as husband and wife prior to the birth of the respondent. He also deposed that Annapazham did not leave her husband's house even during the pendency of the criminal case. It was also not disputed that the child was born in her husband's shelter. In those circumstances, we have to consider whether respondent is the son of Perumal Nadar, especially when he was born during wedlock.
28. It is settled law, that every child born of a married woman during the subsistance of the marriage is prima facie legitimate. In every case, the husband and wife must have had opportunities of access to each other during the period in which the child could be begotten and born in the course of nature and they must not be proved to be impotent. The presumption, however is not a presumption juris et de jure which cannot be rebutted but, a presumption only which may be rebutted by evidence of circumstances proving the contrary and such evidence must not be slight in its nature; but strong and satisfactory-See Halsbury's Laws of England, Volume III, page 87, paragraph 139, Lord Mansfield in the Banbury Peerage, case 57 E.R. 62 observed thus:
The presumption of legitimacy can only be legally resisted by evidence of facts sufficient to prove to the satisfaction of the Court having to decide the question that no sexual intercourse did take place at such a time, when by such intercourse, the husband could according to law, the laws of nature, have been the father.
29. In Morris v. Davies 47 E.R. 50, Lord Lyndhurst observed that the evidence for the purpose of repelling the presumption must be strong, distinct, satisfactory and conclusive
30. The causes of adulterine bastardy have been reduced to two: (1) the impotence of the husband, and (2) the absence of sexual intercourse between the husband and wife when the period of the wife's gestation commenced. The general rule of law or presumption in favour of legitimacy being so strong, the evidence to disprove the extistence of sexual intercourse between the husband and wife was necessarily to be conclusive. The presumption in favour of legitimacy was expressly declared by some writers not to be a presumption juris et de jure but one that was liable to be controverted, nor was proof necessary to controvert it required to be of the highest order. The Court is not concerned in cases of this nature with the question of the probability or the improbability of the legitimacy of the child but with the question of the impossibility alone. The only question that can be legally put to determine his legitimacy is this, whether there was by the laws of nature a possibility, under the circumstances of access or non-access, that such a child can be the real son of the parent from whom he claims to derive his title. The King v. Lufe 103 E.R. 316 is an authority for the view that the law requires before a person is deprived of that which is his birth right when he is born in marriage, that an absolute, natural, conclusive impossibility should be made out by the other side. In Mrs. Anne Rutledge v. Curuthers (1815) 4 Dows P.C 395, decision of the Scotland Court which was quoted in the Report of the proceedings of the House of Lords on the claim to the Barony of Cordner by Denis Le Merchant, 1828, Appendix Note (B) at page 345, while considering the legitimacy of the child, Lord Craig observed:.however great may have been the guilt of the mother, however uncertain it may be who was the real father, still at the time the child was begotten, the parents were married and there was no defect stated, no physical impossibility from distance or otherwise, of the husband being the father. It would be most dangerous, in the circumstances of that nature, to enter into any investigation or into any proof that the child was not a lawful child.
31. As far as our Indian Courts are concerned, they adopt the rules of presumption which is incorporated in Section 112 of the Indian Evidence Act and which contemplates a conclusive presumption of Law which can be displaced only by proof of the particular fact mentioned in the section, namely, non-access between the parties to the marriage, at a time, when according to the ordinary course of nature, the husband could have been the father. Access and non-access connote, as has been held by the Privy Council in Karapaya Servai v. Mayandi (1934) 66 M.L.J. 288 : I.L.R.(1934) Rang. 243 : 39 L.W.244 , existence and non-existence of opportunities for marital intercourse. It is also equally settled that non-access could be established not merely by positive or direct evidence; it could be established also by indirect evidence or circumstantial evidence; but it is necessary that the proof of non-access must be clear and satisfactory; vide Chilukuri Venkateswaralu v. Chilukuri Venkatanarayana : 1SCR424 ,
32. In the instance case, there is no clear and satisfactory evidence to prove that Perumal Nadar had no access to Annapazham during the relevant period. The defence was not able to rebut the presumption by adducing strong, distinct, satisfactory and conclusive evidence. At no time was Annapazham separated from the appellant Perumal Nadar. Even during the period of criminal complaint they were only supposed to have lived in opposite houses in the same street in the same village. There is no evidence to show that the husband was incapacitated from procreating any children. There was also no allegation of any unchastity on the part of Annapazham. Under the circumstances, we are of opinion that Perumal Nadar shall have had access to Annapazham and that the respondent was born to Annapazham by Perumal Nadar.
33. In view of our finding that the marriage of Annapazham with Perumal Nadar was a valid marriage, that the marriage was not vitiated by the Hindu Bigamy Act of 1949, and that the respondent is the legitimate son of Perumal Nadar, we confirm the judgment and decree of the Court below and dismiss the appeal with costs.