110-NLR-NLR-V-18-CHELLAPPA-et-al.-v.-KUMARASAMY-et-al.pdf
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Present : Ennis J* and De Sampayo J.CHELLAPPA et al. t>. KUMARASAMY et al.308—IX 0, Jsffiui) 9,437.
Tesawalamai—Bight of wife to deal with immovable property withoutcontentofhusband—Marriageaccording to Hinducustom after
having gtven notice of marriage under the Marriage Ordinance.
UndertheTesawalamai amarried woman isnot competent
to dealwithher immovableproperty without theconcurrence of
her husband.
Where parties, alter giving notice of marriage under the MarriageOrdinance of 1907, went . through a marriage ceremony accordingto Hindu custom*—
Held, that the marriage, was not invalid.
In re Friromsttu1 commented upon.
FJlHE facts are set out in the judgment of Ennis J.Bawa, KmC. (with him Bdasingham), for appellants.Arulanandam (with him J. Joseph), for. respondents.Our. adv. cult.
1016.
33
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191$, “ September 80, 1915. Ennis J.—*•
Cfi^ppaThe plaintiffs-appellauts in this case sued for a declaration of title
Kunwra* tAjcertain land, and' for possession. *,
8Gm** . T)xe plaintiffs are0 husband and wife, and the .second defendant, is their daughter.. It is in question on the' appeal whether the firstdefend&nt is the husband of the second defendant.
On October 11, 1905, .the first plaintiff transferred the land indispute to his daughter, the second defendant, and on September18, 1910, a conveyance of the land to the second plaintiff, whichpurports to have been made by the second defendant, was* executed.
The learned District Judge has found that the ooifoeyance wasin fact executed by the second defendant, but that it was inoperative,in that the husband of the second defendant did not join in theconveyance.
Two points were argued on the appeal. First, whether thedefendants were married at the date of the execution of the deed,and, secondly, if they were married, whether the wife could effect avalid transfer without the consent of her husband. On the secondpoint it is conceded that by the law of tbe country a husband's •consent is necessary, but it was contended that the Tesawalamaiallowed a wife to deal with her property without the consent of her- husband. The contention is hardly consistent with clause 1 ofsection 4 of .the Tesawalamai, and I can see no reason to considerthat provision obsolete. The mean argument in the case is the first.
On September 15, 1910, a marriage between the defendants wasbeing solemnized, and there is no doubt that the Hindu ceremoniesfor a valid marriage were complete. The Registrar of Marriageswas present at the time, or shortly afterwards, but the first plaintiffand the first defendant had fallen out about the amount of dowry,and the first defendant refused to sign the marriage register andki$ the house. It has bedn urged that .there was no consent by thefirst defendant. I do not think that this is so. He had consented,and had in fact allowed the Hindu ceremqny to be complete.His refusal to complete a marriage under the Marriage Ordinancedid not affect the Hindu ceremony or his consent to that. Withina month. of the ceremony the defendants met, and have since livedtogether as man and wife. The only point left for considerationis whether the Hindu ceremony constituted a valid marriage.
Counsel for the appellants rely on Vairamuttu's case,1 where itwas held that after notice of marriage under the Marriage Ordinancehad been given there could be no subsequent valid marriage. byHindu custom.
This case was decided on August 7, 1885, on a consideration ofthe Marriage Ordinances of 1863 and 1865. In 1895 an Ordinancewas, enacted which declared (section 16) that no marriage shohld bevalid unless registered. The section contained a proviso exempting
* (2866) 7 S. C, C. 66.
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Turn-domiciled Hindus. This was repealed the following year by 3 1818.Ordinance .No. 10 of 1896. All the Marriage Ordinances have since Ennisbeen consolidated in the Orjlinarfbe No. 19 of 1907, but section 18 ^of the Ordinance No. 2 of 1895 has not been0 re-enacted. SinceVairanmttu’s case, therefore, there has been a declaration by the j somy^Legislature againBt the validity of unregistered marriage®, andlater a definite repeal of that provision, and nowhere now is there•any express provision declaring unregistered marriages invalid.
In 1900, in the case of Valliammai v. Annammai,1 a Full Bench ofthe Supreme Court held that in Ceylon there can be lawful marriageswithout registration thereof under the local Ordinances, and in myopinion the decision in that case is ample authority for the learnedDistrict Judge’s decision in this, and is consistent with the Legislativeintention which must be inferred from the definite repeal of theformer prohibition.
I would dismiss the appeal with costs.
Da Sampayo J.—
I agree with the judgment of my learned brother on both thepoints argued before us. So far as 1 know, this is the first casein recent times in which it has been contended that under the lawprevailing in Jaffna a married woman is competent to deal withher immovable property without the concurrence of the husband.The Tesawalamai, section 4, clause 1, which was cited' on behalfof the plaintiffs, scarcely supports "the contention, for It expresslysays *' the wife, being subject to the will of her husband, maynot give anything away without the consent of her husband.”Reference was also made at the argument to 6ome passages ofMuthukishna’s Tesawalamai, in which some old decisions of thelocal Courts are noted; but they are neither authoritative norconsistent. The best of the decisions in Muthukishna's Teaa-walamai is that reported at page 269. It is a judgment of theSupreme Court, and there it was decided, on the authority of theTesawalamai, section 4, clause 1, above referred to, that the wife’sdeed was in contravention of the husband's right, and could notbe supported by the Tamil law. I think that the disability of amarried woman is the same under the Tamil customary law asunder the general law prevailing in the Island. The main question,however, is whether the first and second defendants were legallymarried. The following are the facts relating to that question.A marriage between them having been arranged; the relatives andfriends of the parties assembled at the second defendant’s parents’house &n September 15, 1910, for the wedding ceremony. > A Hindupriest was present and performed the religious part of the ceremony,and the usual forms were also gone through according..to custom.
* (1400) 4 N. L. R. 0.
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o It appears, however, that it was intended that* after this ceremony,XtejasiiPSYo the ferriage should also be registered on the same day.. Notice ofmarriage had been duty given for that purpose, and the registrarCkeOappa alfio came. But, •after the customary marriage* ceremony, somedilute arose between tlje first defendant and the second defand-*amv 0 ant's |ather as to the dowry which had b&n promised, and thefirst defendant refused to proceed to the registration of the marriage,and left th£ house. The deed of transfer, the validity of which isnow in question, was executed by the second defendant .three daysafter, namely, on September 18, 1910. Hie first defendant did notconsent to its execution, and had no knowledge of«it until thecauses which led to the present action arose. But soon afterwards—
I infer it was within a month, as the plaintiffs allege the Hinduceremony was in fact performed in October, 1910—the first defend-ant and second defendant came together as husband and wife,and there has never been any question until recently as to theirbeing lawfully married. There is no proof whatever that the Hinduceremony was perfomed in October, and not on September 15,and the point was apparently abandoned at the trial. In the acircumstances the question is whether a valid marriage did ordid not .take place on September 15, 1910. Generally speaking,there are three requisites for a valid marriage, namely, com-petency, intention to marry, and a recognized form of marriage.There is no dispute in this case as to the first two requisites, andit is equally without doubt that under our law the customaryform of marriage is good, independently of registration* I amsatisfied on the evidence that in this case all the various rites,religious and other, in vogue among the Tamils were observedand perfomed. But it is said that as notice of marriage underthe provisions of the Marriage Ordinance had been given and theparties had intended also to register the marriage, the customarymarriage which the parties actually went through is a mere nullity.The plaintiffs mainly rely bn the authority of In re ArumogatnVairamuttu,1 where a notice of marriage had been given to theregistrar but was not proceeded with, and the parties subsequentlycontracted a Hindu marriage. The headnote of the report ofthat case is somewhat misleading, and when the judgments areexamined it will be found that that case is no authority for thepresent contention. Both Fleming C.J. and Lawrie J. thoughtthat by the Ordinances of 1863 and 1865, which were then inoperation, a marriage was not valid in the absence of registration,and their decision was based on that view of the law. Fleming C.J.expressly dissented from the previous case, Bgbina v. Dingi Baba ?to the contrary. Lawrie J.f if I understand his judgment rightly,thought that, though registration was not essential in the first,instance, the policy of the law required that the marriage should* (1885) 7 S. C. C. 36.* (IMS) 5 8. €. C. 9.
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be registered some time oreother. Dias J., who^also look part in °
Babina t>.. Dingi Baba,1 * dissented from the view of the majorityof tile Court. Accepting that * decision, however, as a correctexposition of the law as it then stood, it is clear »that in view of tiie qhtkappalater legislation it is no longer an authority on the question,Kuntara-
section 15 of the Marriage Ordinance, No. 2 of 18&, it was enacted > ******tiiat “ no marriage contracted after this /Ordinance comes intooperation shall be valid unless it shall have been duly solemnizedby a minister or a registrar in manner mid form as is hereinafterprovided.'' But this section was repealed almost immediatelyafter by Ordinance No. 10 of 1896. Here, then, is proof of a policywhich is quite contrary to that which was supposed, in In reArumogam Vatramuttu* to be the policy of the previous Ordinances.
That ease was cited in VaJUammai v. Annammai,3 but was notfollowed, and Bonser C. J. conodered that even under the Ordinanceof 1863 registration was not essential to a marriage, thus revivingthe authority of Babina v. Dingi Baba.1 I may also refer to Kingv. Perumal,4 and Oimaraine v. Punchikamy,5 which were decidedon the same view of the existing law.
Only one other point remains to be noticed. Mr. Bawa, forthe plaintiffs, argued that as the registration was intended to takeplace on..the..same day as the Hindu rite, and did not take" place,the Hindu rite did not constitute the marriage even in the estimationof the parties. I believe it is usual among Hindus both to celebratea religious marriage and to. register the marriage afterwards. ButI- cannot see on what principle the one can be said to vitiate theother! nor do I think my distinction can be drawn from .the factthat both were to take place on the same day.' Of course, whenthe parties go through the religious and customary ceremony,they must intend thereby really to contract a marriage. Counselaccordingly argued that in this case the intention was negativedby the feet tiiat the marriage was not consummated immediatelyafterwards, and that the second defendant signed the deed onSeptember 18 wihout describing herself as the wife of the firstdefendant. In my opinion these circumstances are wholly insuffi-cient for the purpose. The reason for the first defendant leavingtiie house after the marriage ceremony has already been explained.
It is quite clear that by taking tiiat step he merely intended toinduce tiie first plaintiff to give the dowry he had promised. Asregards the deed, it was evidently prepared at tiie instance and onthe instructions of tiie first plaintiff, and it is not reasonable to drawany inference against the second defendant from the omission intiie deed to describe her as the. wife of the first defendant. On tiieother hand, tiie first defendant and second defendant very soon
i (&8S) 5 3. C. C. 9.*3 (2900) 4 N. L, R. 8.
* (2386) 7 S. C. C. 66.«■ (1911) U AT. L. R. 496.
* (19m 15 L. £. SOL
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loll*. afterward began to cohabit in the pl$ixfidfTa own house, with theirjfaL&&w>&xo consent and approval, and the plaintiffs ought not to be heard td& say that they knew all the time that .the second defendant, theirCheUappa daughter, and the0 first defendant were not married. Moreover,«’• Surname the first and second defendants have given evidence in this case,and there is to my mind no question that they intended by theperformanceoof the Hindu rites to marry each other.
For these reasons I think the judgment appealed from is right,and would dismiss the appeal with costs.
Appeal dismissed.