A. Vaidyalingam vs Valliammal

Rengasamy, J.—This revision is directed against the order of the learned Judicial Magistrate, No. II, Coimbatore, awarding the maintenance

to the respondent herein u/s 125, Criminal Procedure Code, in M.C. No. 14/91 dated 4.8.1993.

The respondent herein, who claims to be the wife of the revision petitioner, claimed maintenance from the revision petitioner on the ground that

the revision petitioner, who married her in the year 1958 in a Badagar temple in Ooty and gave birth to 3 sons through the revision petitioner, had

abandoned and as he is living with a concubine now, she required Rs. 1,000 per month for her maintenance.

The respondent, though denied the marriage between them, admitted the cohabitation for more than 3 decades and according to him as this

petitioner was not his legally wedded wife, she is not entitled to claim maintenance. The learned Judicial Magistrate No. II, Coimbatore, accepting

the case of the petitioner before him, passed orders directing the revision petitioner herein to pay maintenance at the rate of Rs.250/- per month to

the respondent.

The Learned Counsel for the revision petitioner mainly relies upon two aspects to defeat the claim of the respondent herein for maintenance and

they are 1) the respondent was already married to another man who is still alive and 2) as the respondent was admittedly a Christian and as there

was no marriage between them according to the provisions of the Christian Marriage Act, there is no valid marriage either under the Christian

Marriage Act or under Hindu Marriage Act and the mere cohabitation for any number of years with the respondent herein will not confer the status

of the wife to her to invoke Section 125 of the Criminal Procedure Code, for claiming maintenance.

Admittedly, the revision petitioner herein is a Hindu and the respondent herein was a Christian by birth. The respondent has stated in her

evidence that before her marriage, the revision petitioner herein converted her as a Hindu by naming her as Valliammal and they got married in a

Badagar Temple and she has been following Hinduism thereafter throughout. The learned Judicial Magistrate has found both the grounds

mentioned above, in favour of the respondent herein, namely, the wife, and therefore has ordered for maintenance at the rate of Rs.250/- per

month. Now, let us take the second ground first as to the validity of the marriage in view of the difference in the religion of these parties.

As the respondent herein was admittedly a Christian before her marriage, though the Christian Marriage Act does not prohibit the marriage

between a Christian and a non-Christian, Section 4 of the said Act insists that the marriage shall be solemnised in accordance with the provisions of

the Christian Marriage Act. In this case, admittedly, the provision under this Act was not followed, for the marriage between these parties. The

Hindu Marriage Act does not recognise the marriage between a Hindu and a non-Hindu and therefore though the revision petitioner is a Hindu, his

personal law will not recognise the marriage between him and the respondent herein unless she was also a Hindu at the time of the marriage. But

the respondent herein has taken up the plea that she was a Hindu at the time of her marriage as she was converted as a Hindu before her marriage.

Even though the revision petitioner has disputed the solemnisation of the marriage between him and the respondent herein in a Badagar Temple in

Ooty and his version is that the respondent herein had joined him when she was working in Ooty and they were living together all along for nearly

30 years though there was no marriage between them, there is no reason to disbelieve the evidence of P.W. I, the respondent herein, as to the

marriage between them in the temple. Even otherwise u/s 7(A) of the Hindu Marriage Act as amended under the State amendment, even a

declaration in any language understood by the parties in the presence of the relatives, friends or some others that they take the other to be the wife

or husband, is sufficient to constitute a valid marriage. But the requirement is that both parties must be Hindus at the time of this type of

''Suyamariyadhai'' marriage.

The Learned Counsel for the revision petitioner Mr.N.P.K.Menon would contend that when the respondent herein was admittedly a Christian

before her marriage, she could have become a Hindu only by conversion by following some ceremonies or formalities for which there is no proof

and further the respondent has not spoken in the evidence that she had renounced her parents'' religion namely Christianity, and that she had

developed faith and attachment only to Hinduism, and therefore even if she was named as Valliammal by the revision petitioner herein, it will not

amount to conversion to Hinduism for the purpose of valid marriage between them and hence even if there was any marriage between them, the

same will not be valid. The Learned Counsel Mr.N.P.K.Menon has cited a decision of this Court in Ratanji D. Morarji v. The Administrator

General, Madras (55 M.L.J. 478) wherein Venkatasubbarao, J, has observed that an Austrian origin lady domiciled in Great Britain lived in India

for several years and as she became formally converted to the Hindu faith and the ceremony of conversion was performed by a society known as

the Hindu Missionary Society, which had for its object, conversion of the people of other faiths, the conversion was acceptable to the Hindu fold.

But in this case as such conversion by any ceremony or through any society was not effected, it is argued that there is no proof for the conversion

of the respondent herein to Hinduism.

The Learned Counsel for the revision petitioner refers to the Bench decision of this Court in B. Ramayya Vs. Mrs. Josephine Elizabeth and

Others, wherein a view was taken that the mere fact that a person, who had renounced the Hinduism made a declaration that he had become a

reconvert to Hinduism, was totally inadequate to make him a Hindu in the absence of other evidence showing that there was reconversion to

Hinduism. According to the Learned Counsel for the revision petitioner, from the ratio of this decision, something more is required other than the

mere declaration that one had converted to a particular religion to accept the conversion. So far as a non-Hindu is concerned, for getting into the

religion of Hinduism, no ceremony or mode is prescribed under the Hindu Law even though some social organisations have taken up the cause of

performing certain ceremonies to those who want to enter into this sphere of religion. Anyone may embrace the Hindu religion but the difficulty will

be only in admitting to any community, as Hinduism is demarcated by different castes. The Supreme Court in Perumal Nadar v. Ponnuswami

Nadar ( 1970 (II) M.L.J. 121) has held that no formal ceremony of purification or expiation is necessary to effectuate conversion to Hinduism, but

a mere theoretical allegiance to the Hindu faith by a person born in any other faith, does not convert him into a Hindu nor a bare declaration that he

is a Hindu, is sufficient to convert him to Hinduism, but a bona fide intention to be converted to the Hindu faith accompanied by conduct

unequivocally expressing that intention, may be a sufficient proof for such conversion. The dictum of this decision is that a person of another religion

can also become a Hindu not by mere oral declaration but with a sincere intention to follow the Hindu faith which also should be exhibited by his

conduct in following the practices that were prevalent in the section around him. Therefore, the ceremony or ex-pation is unnecessary for such

conversion. Even in the decision in Ratanji D.Morarji v. The Administrator General, Madras (referred supra), relied upon by the Learned Counsel

for the revision petitioner, it is observed that membership of a caste is not a necessary prerequisite for being a Hindu and any person of non-Hindu

origin can covert to Hinduism. In Goona Durga Prasad Rao v. Goona Sudarsana Swami (I.L.R. 1940 Mad 653) it is held that not only the

performance of expiatory ceremonies but also the formal renunciation of the religion are not the ingredients for conversion to Hinduism. In a recent

decision of this Court in Sarojiniammal v. Narayanan (1991 (I) Law Weekly 163), Srinivasan, J, has referred to all the decisions that are available

on this subject and the learned Judge, following the decision in Perumal Nadar v. Ponnuswami Nadar (referred supra), has found that no particular

ceremony is prescribed for reconversion to Hinduism. Therefore, the law is clear that no purification ceremony is required to a non-Hindu for

admitting him/her to Hinduism and it is only the genuine desire to become a Hindu followed by the conduct of living as a Hindu, is the real test for

such conversion. In the light of this principle, now let us look into the way of life of the respondent herein to find out whether who was a Hindu or a

Christian after her union with the revision petitioner.

Though her Christian name was Gregariamma alias Teresa, she was known as Val-liammal from the day when she began to live with the revision

petitioner. The evidence of P.W. I is that the revision petitioner himself had converted her Christian name to the Hindu name before her marriage

and only after converting her, the revision petitioner married her. In the cross examination, it was elicited from her that she was visiting all the Hindu

temples after her marriage. P.W. 2 is a Hindu and he has given his daughter to the son of the respondent. This shows that as the respondent herein

was treated as a Hindu woman, P.W. 2, who is a Hindu, has given his daughter to the son of respondent. The revision petitioner, who was

examined as R.W.I, has not stated anywhere in his evidence that the respondent was living as a Christian even after she joined him. Therefore, to

dilute the evidence of P.W. I that she became a Hindu by conversion, there is no evidence on the revision petitioner''s side. As the mode of life of

the respondent was a Hindu, as she was going to Hindu temples and there is nothing to show that she had not renounced her parental religion, it

has to be accepted that she was a Hindu, all along after joining the revision petitioner herein, through whom she has borne 3 sons. Once it is

concluded that she was a Hindu, then the marriage between the revision petitioner and the respondent will be valid as it was a marriage between

two Hindus in a Badagar temple.

With regard to the first ground urged, viz. a previous marriage between the respondent and another person by name Lazar, the revision

petitioner relies upon only certain documents placed before the Court, though the attempt to connect these documents herein has not been

successfully done. Ex. R-2 is said to be the baptism certificate of the respondent. The respondent has admitted in her evidence that her parents

were Viswasam and Susai Mary in the village Thuraikudiyiruppu and her Christian name was Gregaria. Ex. R-2 Baptism register contains the

names of Viswasam and Susai Mary, the name of the parents of the girl Gregaria, who was baptised on 23.6.1935 after her birth, 30 days before

the date of baptism. This was issued by the Catholic Priest attached to Kallikulam Church. According to the Learned Counsel for the revision

petitioner, Ex. R-3 is the marriage certificate for the marriage of the respondent with one Jesu Lazar on 4.6.1956 in Kallikulam Church and Ex. R-

4 is the register maintained in the Church for the signature of the married couple in which the details of their parents given and as the entries in these

documents tally to the place, age and parents of the respondent, these documents establish the marriage between Jesu Lazar and the respondent

herein on 4.6.1956 in Kallikulam Church. In Ex. R-3, the name of the girl is shown as Gregarial, age 21, belonging to Thuraikudiyiruppu Village

etc. Her father''s name is shown as Viswasam Nadar. In Ex. R-4, the register in which the parties have signed, the father''s name of the bride is

mentioned as Viswasam Nadar of Thuraikudiyiruppu. The Learned Counsel for the revision petitioner would argue that as Ex. R-2 proves that

Gregarial was born in May 1935, her age at the time of the marriage under Ex. R-3 in 1956 was 21, the father of the respondent herein was

Viswasam- Nadar and the Christian name of the respondent Gregarial is also mentioned in Ex. R-3 and the document Ex. R-3 is an unimpeachable

piece of evidence to prove the marriage of the respondent with Jesu Lazar. On the other hand, the Learned Counsel for the respondent

counteracts this argument contending that there is no evidence to connect these documents Ex. R-2 to Ex. R-4 with the respondent herein though

the name Gregarial, her father''s name Viswasam Nadar and place Thuraikudiyiruppu are mentioned in these documents and unless there is

evidence to connect these documents with the respondent, the Court cannot presume that they relate to only to this respondent and as the revision

petitioner has not let in evidence to connect these documents with the respondent, the evidentiary value of these documents is next to Nil.- It has to

be admitted that the revision petitioner has not adduced any evidence to connect this document with the respondent. Even though R.W.4

attempted to say that there was a marriage between the respondent herein and one Lazar in the year 1956 in Kallikulam Church, he would state

that he did not know the father of the respondent and as the procession of the marriage party went through his house, he saw the respondent with

her husband on that day. He did not belong to the village of the respondent though he would say that her village is about 1 1/2 kms. distance from

his village and the respondent''s father was not known to him. When he had only the occasion to see the marital party going in a procession in the

year 1956, it is highly improbable for him to identify the name of the bridegroom after a period of 37 years when he had not acquainted with them.

The evidence of R.W.4 has been rightly rejected by the Court below. The revision petitioner has not spoken in his evidence that he was aware of

the marriage of the respondent personally with a person by name Lazar in the year 1956 or that he came to know about that from anybody. In his

evidence, he has simply stated that he obtained the copies from the Church regarding the marriage of the respondent. Therefore, absolutely there is

no oral evidence to connect the documents Exs.R-2 to R-4 with the respondent herein. For the sole reason that the names of the respondent, her

father and place tally with the entries in Exs.R-2 to R-4, the Court cannot presume that these documents must relate to the respondent herein. In a

village where a large number of Christian families are living, sometimes, the father''s name may be identical to a few persons. Therefore, when that

possibility exists, the Court cannot brush aside that circumstance and conclude the fact by mere presumption. Even though P.Ws.2 and 3 have

simply spoken about the contents of Exs.R-2 and R-3, they are unable to say anything more than that, as they were not personally aware of the

events that led to these entries. Therefore without any evidence to connect the respondent to these documents, the identification that Gregarial

mentioned therein, is the respondent herein, is not safe to act upon the entries therein to conclude that the respondent herein was already married to

Jesu Lazar. Secondly, even though only in the argument it is contended by the Learned Counsel for the revision petitioner that the Jesu Lazar

mentioned in Exs.R-3 and R-4 is alive even today, neither R.W.I the revision petitioner herein nor any of his witnesses have said that the said Jesu

Lazar was alive at the time when the respondent joined the revision petitioner. But the Learned Counsel Mr.N.P.K.Menon would argue that if the

first marriage with Jesu Lazar is accepted then the burden is upon the respondent to establish that Jesu Lazar was dead and thereby her marriage

with the revision petitioner was valid and, as the respondent has not stated that her first husband was dead, it has to be presumed that he is still

alive. Once again I have to say that there is not even an allegation by the revision petitioner that her first husband was alive when she was living with

him. When no such allegation was made, there is no question of proof on the side of the respondent that her first husband was dead before 1958.

Therefore, the documents Exs.R-2 to R-4 have no weight to substantiate the contention of the revision petitioner to liberate him from the liability to

pay maintenance. Even though the presumption u/s 114 of the Evidence Act for the long cohabitation of a man and woman is to treat them as

husband and wife, certainly it is a rebuttable presumption and such presumption will not arise if it was proved that one of them was already married

as held in Dalavayi Nagarajamma Vs. State Bank of India and Others, . In this case for the reasons stated above, as the alleged first marriage itself

is not proved in the manner known to law, the learned Magistrate was right in not accepting both the contentions urged by the revision petitioner.

Admittedly, the revision petitioner is not maintaining the respondent, who is his wife, and is now living with another woman through whom he

has a child also. Therefore, his liability to maintain the respondent cannot be disputed. Coming to the quantum of Rs.250/- awarded by the lower

Court, the revision petitioner was working in the Electricity Board as Junior Machine Operator in 1991 when this petition was filed and his salary

at that time was only Rs.2,000 per month, as spoken by P.W. 1 herself. But the revision petitioner is now-retired in June 1992. Therefore, now he

is not getting any salary and only with the retirement benefits which he got, he has to maintain himself and his illegitimate child, whom he got,

through his second wife. The 3 sons of the respondent are all majors and therefore, the respondent is entitled to claim maintenance from her sons

also if she is unable to maintain herself. Therefore, I feel that it is a fit case in which this Court has to interfere to reduce the quantum fixed by the

Magistrate, taking into consideration of the means of the husband. I feel that Rs.200/- per month will be a reasonable amount towards maintenance

payable by the revision petitioner. Hence, even though the order of the lower Court is confirmed with regard to the liability of the revision petitioner

to pay maintenance, the quantum is reduced to Rs.200/-

Hence, subject to the modification of the quantum of maintenance, reducing from Rs.250/- to Rs.200/- per month, the revision shall stand

otherwise dismissed.