Gnanamuthu Udayar and Another vs Anthoni and Others

Ramaswami, J.—This second appeal is preferred against the decree and judgment of the learned Subordinate Judge of Tiruchirapalli in A. S.

No. 201 of 1950, reversing the well-considered Judgment of the learned District Munsiff of Ariyalur in O. S. No. 434 of 1946.

The short facts are : The plaintiffs who are Christian Udayars have purchased the suit property for Rs. 500/- under Ex. A-1 dated 11-11-1942

from the deceased Maria Arogyam and Maria Arogyam''s grandson and Sowri Animal. The case for the plaintiffs is that Maria Arogyam is the

lawfully wedded wife of Maria Susai Udayar, that Maria Susai Udayar''s divided brother is the first defendant, and that Maria Susai Udayar died in

or about 1939 surviving him his widow Maria Arogyam, his daughter Sowri Ammal and his son Antoniswami. By 11-11-1942 Antoniswami and

his wife had died leaving behind them their son Hirudayaswami.

In the sale deed Ex. A-1 this Hirudayaswami is represented by Maria Arogyam. Subsequently,-Hirudayaswami also died. The plaintiffs after

purchasing these properties have obtained patta for the same. The first defendant Sowrimuthu Udayar and the other defendants, who claim to be

the heirs of Maria Susai Udayar, obstructed the plaintiffs and therefore Bandobust petitions were filed in the Deputy Collector''s Court, Ariyalur,

and subsequently the suit, out of which this second appeal arises, has been filed for recovery of possession and mesne profits.

On the other hand, the first defendant and the other defendants put forward a three-fold contention viz., that Maria Arogyam is not the lawfully

wedded wife of Maria Susai Udayar; secondly, that the first defendant and Maria Susai Udayar were undivided and the suit properties were

acquired with their joint funds; and thirdly, that the defendants have prescribed title to the suit properties by adverse possession,

The learned District Munsiff upheld the contentions of the plaintiffs and decreed the suit. On appeal the learned Subordinate Judge came to a

diametrically opposite conclusion and dismissed the suit. Hence this second appeal by the defeated plaintiffs.

Before entering into the really important question viz., whether Maria Arogyam was the legally wedded wife of Maria Susai Udayar or not, we

shall dispose of two other points raised. In this case there is no question of joint family and the benefits of survivorship arising therefrom, because

the parties are Indian Christians. Turning to the allegation that the suit properties have been acquired with the joint funds of Maria Susai Udayar

and the first defendant, there is not a title of evidence in support of the same.

The plaintiffs have filed the sale deeds Exs. A-64 to A-70 under which Maria Susai Udayar had purchased properties by himself, plaintiffs, have

also filed pattas Exs. A-2 to A-6 as well as Exs. to A-37, and rent receipts Exs. A-7 to A-27, A-40 to A-57 and A-59 to A-6''3, showing that

Maria Susai Udayar has been paying last for the suit lands. The defendants on the other hand have not filed any kist receipts to show that the first

defendant was paying any rent for the suit properties during the lifetime of Maria Susai Udayar or after the death of Maria Susai Udayar or after

the death of Maria Susai Udayar.

In fact D.W. 1 admits both. The first defendant merely alleged that he had contributed funds towards the purchase of the suit properties but he was

not able to lead any evidence to establish the same. Therefore, the learned District Munsiff correctly decided that the suit properties belonged

exclusively to Maria Susai Udayar.

In regard to acquisition of title by prescription pleaded by the defendants, the evidence on record does not show that the defendants have

proved the same. They have not filed pattas and kist receipts or adduced reliable oral evidence to show that they have been enjoying the suit

properties in their own right and adversely to Maria Susai Udayar and his heirs.

Therefore, the only point which has got to be considered is whether Maria Arogyam was the lawfully wedded wife of Maria Susai Udayar or

not. If she is found to be the lawfully wedded wife, the plaintiffs would get title to the suit properties and if it is found that she was not the lawfully

wedded wife of Maria Susai Udayar, the parties being Indian Christians, the defendants would become entitled to the suit properties.

The allegations on which this contention that Maria Arogyam was not the lawfully wedded wife of Maria Susai Udayar is based are two-fold.

There is no dispute that Maria Susai Udayar had married one Perianayagam and that that Perianayagam, who was his cousin (senior uncle''s

daughter) after living with him for 9 to 10 years deserted him and that thereafter in spite of diligent search her whereabouts were not known for 10

or 15 years.

Thereafter Maria Susai Udayar had united himself with Maria Arogyam, another cousin (junior uncle''s daughter) - Vide Ex. B-20. See also the

testimony of Maria Arokiam as P.W. 1 in C. C. 654 of 42 S. M. Perambalur that she got married to Maria Susai Udayar Ex. B-12. Was this

course permissible under Sec. 108 of the Indian Evidence Act? Secondly, the evidence in this case clearly shows that this Maria Arogyam had got

married to Maria Susai Udayar by a Schismatic priest in 1905 or 1906: vide Ex. B-20. What are the legal consequences of such a marriage by a

Schismatic priest under Canon Law?

There can be no dispute that Maria Susai Udayar and Maria Arogyam were living as husband and wife to the knowledge of the people in the

locality and their Christian relatives. Maria Arogyam had borne no less than five children who have been brought up and baptized and married

within the Christian fold. On the foot of these facts we have also to examine whether such a union between Maria Susai Udayar and Maria

Arogyam could not lead to the presumption set out in Halsbury''s Laws of England (Simonds Edition), Vol. 19, page 812.

The principle of Sec. 107 of the Indian Evidence Act is that when once a state of things is shown to exist, there is in law a presumption of its

continuance for a period for which such state of things ordinarily lasts. Section 107 of the Evidence Act is merely a deduction from this

presumption. If a person is shown to have been alive within 30 years of the date on which the question whether he is alive or dead arises, there is a

presumption of his being alive, and the burden of proving that he has died lies on the person who asserts his death. This presumption of his being

alive is, however, rebutted if it is shown that he has not been heard of for seven years by those who, if he had been alive, would naturally have

heard of him; and, on such proof being given, the burden of proving that he is still alive is, under Sec. 108 of the Act upon him who asserts that he

is alive. The presumption under Sec. 108 is as to the fact of death at the time the question is raised and not at any particular antecedent time. There

is no presumption also as to the cause and circumstances of the death. Kottapalli Vcnkateswarlu Vs. Kotta-palli Bapayya and Others ; In re, Seshi

Ammal, AIR 1958 Mad 463).

In this case Perianayagam had disappeared for 10 or 15 years before Mariasusai contracted a form of marriage with another cousin of his

Maria Arogyam. If Perianayagam had not died without leaving any trace normally her relatives would have known about her whereabouts. In these

days of postal and telegraphic communications, even if the woman had continued to live in Ceylon, her people in the village would have heard of

her.

But the fact that in spite of diligent search her whereabouts were not known for 10 or 15 years prior to Maria Susai marrying Maria Arogyam,

clearly shows that it was safe to presume her death. On that conclusion to which Maria Susai was entitled to come to, he was entitled to look upon

himself as a widower and undergo a form of marriage with his other cousin Maria Arogyam. It stands to common sense that when the second wife

was equally like the first wife a cousin of Maria Susai, the entire villagers including the parents of Maria Arogyam, must have come to this

conclusion as otherwise they would not allow a bigamous marriage and the children being bastards.

This also rules out that Maria Arogyam was the permanently kept concubine of Maria Susai. The close relationship and the fact that these

respectable lower middle class Christians would not permit such an irregular liaison are clinching circumstances negativing such a possibility. In fact

the children were all baptized and received in the Christian fold and treated as pucca Catholics. Maria Arogyam continued to be a practising

Catholic at the time of the trial and her children were all married at Vedavakkam Church as stated by the documentary evidence.

Maria Susai had always treated them as his legitimate children. They were so looked upon by their relatives and neighbours. In these circumstances

it is legitimate for us to conclude that this is a case where the presumption u/s 108 of the Indian Evidence Act arises and the form of marriage

underwent by Maria Susai with Maria Arogyam was not a bigamous one.

Point 2:- In regard to marriages among Indian Christians they are looked at from two standpoints viz., the law of the land and the Canon Law.

Both will generally coincide but not necessarily so. In such a case marriage performed according to the taw of the land governing the parties will

make the marriage valid and the offspring legitimate.

The Christian Marriage Act is a Code repealing and embodying the provisions of several prior Acts which were taken from the numerous

English Marriage Acts. The preamble states :

Whereas it is expedient to consolidate and amend the Jaw relating to the solemnization in India of the marriages of persons professing the Christian

religion.

Section 4 provides that

every marriage between persons, one or both of whom is or are a Christian or Chritsians, shall be solemnized in accordance with the provisions of

the next following section; and any such marriage solemnized otherwise than in accordance with such provisions shall be void.

Section 5 provides that

marriages may be solemnized in India by any of the five different persons, (1) persons who have received ordination, (2) clergymen of the Church

of Scotland, (3) Ministers of religion licensed under the Act, (4) Marriage Registrars appointed under the Act, and (5) persons licensed under this

Act to grant certificates of marriage between Native Christians.

But under the Canon Law where Roman Catholic parties are married by Schismatic Priest, that marriage will not be recognised by the Catholic

Church. They would look upon such a union as willing more than ""concubinage"" and the offspring would be described as illegitimate i.e. not bom in

holy wedlock state as has been the case here - vide Ex. B-19 and B-20. But that would not invalidate the marriage in the eye of the law of the land

or make the offspring illegitimate in the eye of the law of the land. But even Canon Law has got important qualifications regarding such marriage''s

which are called putative marriages which will engage my attention later.

I shall now briefly refer to the decisions relied upon by the learned advocate Mr. A. Durairaj for the proposition that the manage of Maria

Susai with Maria Arogyam by a Schismatic Priest was perfectly valid under the Christian Marriage Act and the progeny perfectly legitimate.

In Lopez v. Lopez, ILR 12 Cal 706, it was held:

Where a man and a woman intend to become husband and wife and a ceremony of marriage is performed between them by a clergyman

competent to perform a valid marriage, the presumption in favour of every thing necessary to give validity to such marriage is one of very

exceptional strength and, unless rebutted by evidence, strong, distinct, satisfactory and conclusive, must prevail. Piers v. Piers (1849) 2 HLC 331,

followed.

According to the rule of the Church of Rome, a dispensation from the proper ecclesiastical authority is necessary to give validity to a marriage

between a man and the sister of his deceased wife.

In this case the parties were Roman Catholics and intended to become husband and wife, and a ceremony of marriage was performed between

them by a clergyman competent to perform a valid marriage: held that the Court was bound to presume that a dispensation necessary to remove

the obstacle to the marriage on the ground of affinity had been obtained.

In Rev. Father Caussavel v. Rev. Saurez, ILR 19 Mad 273, the facts were: S, an Episcopally ordained priest of the Syrian Church under the

jurisdiction of the Patriarch of Antioch, solemnized two marriages according to Roman ritual without publishing or causing to be affixed the notices

of such marriages required by Part III of the Indian Christian Marriage Act. It was proved that S. used the Roman ritual with the sanction of his

Bishop who was appointed by the Patriarch.

It was held that S, having received Episcopal ordination was authorized to solemnize the marriage according to the rules, rites, ceremonies and

customs of his Church and that it was not shown that a marriage solemnized with the Roman ritual under the sanction of the Bishop of the Syrian

Church was not solemnized according to the rules, rites, ceremonies and customs of the Syrian Church.

In Kolandaivelu v. J. Degnidt, ILR 40 Mad 1030: (AIR 1918 Mad 601) (FB), the meaning of the word ""solemnize"" in section 4 of the Christian

Marriage Act has been explained and it was held that marriages of Christians with persons who are not Christians must be solemnized in one or

other of the manners provided in the Act, that the general effect of the Act is to require that every marriage where one of the parties is a Christian

must as a condition of validity be solemnized in one of the prescribed forms, excluding the form prescribed by section 9 unless both the parties are

Native Christians and that the Act however is only concerned with the forms in which the marriage is to be solemnized, and does not deal with

objections to the validity of the marriage.

In Peter Philip Saldanha Vs. Anne Grace Saldanha, the Bombay High Court had to deal with a civil marriage underwent by persons professing the

Roman Catholic faith, and which marriage is not valid under the Canon Law. It was held that a civil marriage contracted before a Registrar in

accordance with the provisions of the Indian Christian Marriage Act, 1872 by persons professing Roman Catholic faith is valid and legal, however

repugnant it may be to the Canon Law of the Church of Rome and that the Act deals with the forms of solemnization of marriages of all Christians

in India, including Roman Catholics and that the prohibition contemplated by section 88 of the Act would not extend to a prohibition as to the form

of marriage.

In Lala Gokuldas and Another Vs. John Kantaraj, the facts were : The parties to a marriage were Indian Christians and were in a position to

contract a lawful marriage. The bridegroom took the oath required by section 42 of Christian Marriage Act, and made two false declarations (i)

that the bride was of age and (ii) that the parties lived within the district of the Marriage Registrar. As a result of the false declarations, the

bridegroom obtained a certificate which entitled them to marry, there being no statement in it showing any lawful impediment to such marriage.

The marriage was solemnized by a Marriage Registrar who was authorised by in this behalf, in accordance with the provisions of the Act. It was

held that the marriage being otherwise valid, the mere fact that the bridegroom induced the Registrar to solemnize the marriage by making false

declarations could not render the marriage illegal and void u/s 4 of the Act in view of the provisions of section 77 of the Act.

In Gnanasoundari Vs. Nallathambi alias Jokiam Jebamalai and Others, it was held that a marriage between a Catholic and Protestant solemnized in

any of the ways provided by the Indian Christian Marriage Act is not a nullity. ILR 54 Bom 288: Peter Philip Saldanha Vs. Anne Grace Saldanha,

and ILR 12 Cal 706, were retted on.

But even on the foot that this was not a valid marriage according to the Canon Law, if it is a putative or invalid marriage where at least one of

the parties was in good faith-in this case it may be safely assumed that both the parties were in good faith-the consequences under the Canon Law

are set out in the following standard treatises :

(1) A. H. Van Vliet''s Notes on the Canon Law of Christian Marriage at page 8 :

(a) What is putative marriage? (b) attempted marriage?

(a) ''Putative'' is an invalid marriage but at least one of the parties is in good faith. Can. 1015, S. 4. It remains putative until both parties know of its

nullity.

(b) ''Attempted'' is the marriage contracted by those who are aware that they cannot marry.

* * * * * *

What should be noted about a putative marriage? Children either conceived or born or both of such a marriage are legitimate (Can. 1114. There

are two exceptions).

N.B. 1. According to Noldin (III, n. 515) and others the marriage, which is invalid because of lack of the required form, is not to be considered

putative even if at least one of the parties was in goad faith.

Other authors (cfr. Sipos, p. 504, footnote 4) say that even when a marriage is invalid because of defectus formae, it will be putative in case one

of the parties was in good faith.

Cappello is of opinion that the civil (or before a non-Catholic minister) marriage of a Catholic, who is in good faith owing to his great ignorance,

may be per accidents putativum, i.e., if there is really bona fides.

(2) Augustine''s Commentary on the New Code of Canon Law, Book III, Volume V, Fourth Revised Edition, at page 332 :

Taking marriage as the lawful basis and principle, Can. 1114 states that ""those children are legitimate who are conceived or born in valid or

putative wedlock''. This law favours the offspring, for it supposes that a child may be conceived out or lawful wedlock, and yet be legitimate if his

parents were married at the time of his birth. But legitimacy always requires a marriage, whether certainly or putatively valid.

A marriage is certainly valid if contracted without an invalidating impediment and according to the form prescribed by the Church. A putatively

valid marriage is one contracted with due observance of the prescribed form, but with an invalidating impediment, the existence of which is

unknown to one of the parties. This case, of course, occurred more frequently, the more impediments were set up in course of time.

Hence it was found necessary, since the time of Magister Rolandus, to regard the offspring of such invalid marriages as legitimate. But good faith is

strictly required, and is assumed until sentence against the validity is given by competent authority. Hence children bom out of such wedlock would

beheld legitimate even if the ecclesiastical court would afterwards annul the marriage.

(3) Bouscaren and Ellis, Canon Law, Second Revised Edition, page 595 :

CANON-1114. Children who are conceived or born of a valid or putative marriage are legitimate, unless at the time of conception the use of the

marriage there-to-fore contracted was forbidden to the parents because of solemn religious profession or the reception of a sacred order.

The Principle of Legitimacy. Putative marriage is defined in canon 1015, S. 4. However, a marriage is usually not regarded as putative if it is invalid

for want of form. This apparent limitation on the definition as given in the Code is implied in the older law and has been confirmed by the Code

Commission. But it remains true that in special circumstances such a marriage may be putative. If a marriage is either valid or putative, either at the

time of conception or at the time of birth, the children are born legitimate, subject to the exception to be stated.

(4) Woywod and Smith''s Practical Commentary on the Code of Canon Law, New and Revised Edition, page 646:

Matrimonium putativum is an invalid marriage in which at least one of the parties contracted marriage in good faith; it remains putativum until both

parties become certain of its invalidity (Canon. 1015).

The terms mentioned in this Canon occur repeatedly throughout the marriage laws of the Code, and one has to refer to this terminology frequently.

The Code states that the consummation of marriage is presumed when the parties have been living together after their marriage. The presumption

of law has this effect that it puts the burden of proof on the one who denies what the law presumes to have taken place.

Our civil marriage laws agree in this particular with the church law. Canons 1825 to 1828 give the rules governing presumptions in law. The

Committee for the Authentic Interpretation of the Code declared that a marriage is a matrimonium putativum only when contracted in the proper

legal form coram Ecclesia, but is made invalid by an occult impediment unknown to at least one of the parties.

The net result of this analysis is that even regarded as a putative marriage, the children born to Maria Susai and Maria Arogyam are legitimate

entitled to succeed to the properties of Maria Susai Udayar.

The marriage laws of all civilised countries contain provisions regarding these putative marriages. The exception to section 494 of the Indian

Penal Code states :

This section does not extend to any person whose marriage with such husband or wife has been declared void by a Court of competent jurisdiction

nor to any person who contracts a marriage during the life of a former husband or wife, if such husband or wife, at the time of the subsequent

marriage, shall have been continually absent from such person for the space of seven years, and shall not have been heard of by such person as

being alive within that time provided the person contracting such marriage shall, before such marriage takes place, inform the person with whom

such a marriage is contracted of the real state of facts so far as the same are within his or her knowledge.

Section 21 of the Indian Divorce Act states :

Where a marriage is annulled on the ground that a former husband or wife was living, and it is adjudged that the subsequent marriage was

contracted in good faith and with the full belief of the parties that the former husband or wife was dead, or when a marriage is annulled on the

ground of insanity, children begotten before the decree is made shall be specified in the decree, and shall be entitled to succeed, in the same

manner as legitimate children, to the estate of the parent who at the time of the marriage was competent to contract.

Section 16 of the Hindu Marriage Act, 1955 states :

Where a decree of nullity is granted in respect of any marriage u/s 11 or section 12, any child begotten or conceived before the decree is made

who would have been the legitimate child of the parries to the marriage if it had been dissolved instead of having been declared null and void or

annulled by a decree of nullity shall be deemed to be their legitimate child notwithstanding the decree of nullity :

Provided that nothing contained in this section shall be construed as conferring upon any child of a marriage which is declared null and void or

annulled by a decree of nullity any rights in or to the property of any person other than the parents in any case where, but for the passing of this Act

such child would have been incapable of possessing or acquiring any such rights by reason of his not being the legitimate child of his parents.

There is a similar provision in Section 26 of the Special Marriage Act, 1954.

Point 3 :-Finally, the settled law both in the United Kingdom and in India regarding the presumption and proof of marriage are set out in

paragraphs 1323 and 1324 of Volume 19 of Halsbury''s Laws of England (Simonds Edition) at page 812 :

1323. Presumption from cohabitation. Where a man and woman have cohabited for such a length of time and in such circumstances as to have

acquired the reputation of being man and wife, a lawful marriage between them will generally be presumed, though there may be no positive

evidence of any marriage having taken place, and the presumption can be rebutted only by strong and weighty evidence to the contrary.

1324. Presumption of validity. Where there is evidence of a ceremony of marriage having been gone through, followed by the cohabitation of the

parties, everything necessary for the validity of the marriage will be presumed, in the absence of decisive evidence to the contrary, even though it

may bee necessary to presume the grant of a special licence.

These principles are embodied in the following Indian Case Law; Ramamani Ammal v. Kulanthai, 14 Moo Ind App 346 at p. 351 (PC); AIR

1934 517 (Lahore) Chockalingam Pillai Vs. Sami Batter and Another, ; Dularey Singh v. Suraj Bali Singh, AIR 1918 Oudh 103; Bibee

Wuheedun v. Syed Wusee Hossain, 15 Suth WR 403; Gokal Chand v. Parvin Kumari, AIR 1952 SC 231; Tileswar Ahom v. Khohuli Abomani,

AIR 1951 Ass 148 ; Thunthi and Others Vs. Dhani Ram, AIR 1927 185 (Privy Council) ; Sulakhan Singh v. Santa Singh, AIR 1920 Lah 476;

Sastry Velaider Aronegary v. Sembecutty Vaigalie, (1881) 6 AC 364: Mouji Lal v. Chandrabati Kumari, ILR 38 Cal 700 at p. 707 (PC);

Bahadur Singh Dalip Singh v. Kartar Singh, AIR 1958 MP 1: 1 Madh BLR 425; Administrator General of Madras v. Anandachari, ILR 9 Mad

466.

The entire case law has been exhaustively and analytically set out in Corpus Juris of India, Chitaley and Appu Rao''s monumental work, The Indian

Evidence Act Vol 6 S. 114 N. 118, Legitimacy and N. 128, Proof of Marriage (ibid).

The facts of this case clearly show that both the presumption and proof laid down in the above extract are applicable here.

Therefore, looked at from any point of view, the conclusions of the learned District Munsiff flow from the evidence on record in the light of the

discussion of law above and the decree and judgment of the learned Subordinate Judge do not flow from the evidence on record in the light of the

discussion of law set out above. The decree and judgment of the learned Subordinate Judge are set aside and the decree and judgment of the

learned District Munsiff are restored. This second appeal is allowed but in the circumstances without costs. No leave.