151-NLR-NLR-V-48-RATNAMMA-Appellant-and-RASIAH-Respondent.pdf
Ratnamma v. Rasiah.
475
1947Present: Dias J.
RATNAMMA, Appellant, and RASIAH, Respondent.
S. C. 695—M. C. Jaffna, 3J53.
Marriage—Hindu Custom,—Tying of Thali—Sufficient if symbolic—Habit and
repute—Presumption—Consent of father of minor—Is it necessary ?
The tying of a thali is essential for the validity of a Hindu customarymarriage. It is sufficient, however, if a symbolic thali be used providedit is intended to serve as a thali.
Where parties p-fter going through a valid customary form of marriagelive together as husband and wife, a presumption of marriage by habitand repute arises.
The want of consent of the father of a minor who contracts a Hinducustomary marriage does not invalidate the marriage where the unionhas been consummated.
^^PPF.AIj from a judgment of the Magistrate of Jaffna.
No appearance for the applicant-appellant.
W. Thambiah, for the defendant-respondent.
Cur. adv. vuit.
478
DIAS J.—Ratnamma v. Rasiah.
September 17, 1947. Dias J.—
This is an application under the Maintenance Ordinance by Ratnammawho claims she is the lawfully wedded wife of the respondent TambiahRasiah.
The union was not registered. The parties are Jaffna Tamils. Inregard to such persons, there can be a valid marriage without registra-tion—Valliammai v. AnnammaV ; Poopalaratnam v. Sabapathi-Pillai
The evidence shows that in January, 1937, a marriage ceremony accord-ing to Hindu rites was performed between the parties by ParameshwaraKurukkal, the priest of the Kanaarmadam Temple. This ceremonywas intended to be a marriage. It was public and guests were present.The priest has given evidence to the effect that he performed all therites of a '‘second rate” Hindu wedding. He says “The bare essentialswanted for a wedding are the Pilliayar Poojah and the tying of thethalikody in the presence of the aged people by a priest and the presenta-tion of the kurai. All these were done at this wedding but only the kodyand not the thali was tied ”. It is common ground that this was not donebecause “ the planets were unfavourable for the tying of the thaliIt is believed that when the planets are not propitious and the usual goldthali is tied, the bridegroom will die within a short time after the cere-mony. Therefore a symbolic thali was tied instead. The priest says“ A piece of turmeric was tied to it (i.e., the kody) in place of the thali. I
questioned NagalingamHe said the planetary positions
were not favourable and that the thali could not be tied. We tied theturmeric as it is a requirement of religion. There is provision in theShastras that the officiating priest can use his discretion as to what shouldtake the place of the thali. If no piece of saffron was fixed to the kodyin place of the thali, it was not a valid marriage”. If this priest’s viewis right the tying of the thali is essential but it may be a symbolic thaliand the officiating priest has a discretion in the matter. The priest iscorroborated by the witness Velauthaipillai that a piece of saffron wasused as a symbolic thali.
The respondent called M. Vaiteswara Kurukkal, the officiating priestof the Vairava Temple, as an expert. He agrees that the tying of thethali is an essential requisite for a Hindu marriage according to thecustomary rites. He agrees that there are various forms of ceremonialwhich vary according to the status of the contracting parties, but he sayshe has not heard of a symbol like turmeric being used in place of the goldthali. At one stage he said, “ According to the wishes of the partiesanything can be tied as a thali”. At another stage he said that thethali must be of gold. “ If there is no gold thali I will not perform themarriage, as the rites cannot be performed in accordance with religion ”.
It is clear that the tying of the thali is an essential requirement for thevalidity of a marriage between Hindus according to customary rites andif this is not done the marriage ceremony is bads. But I am not satisfiedthat a gold or metal thali is essential for that purpose. On the materials1 (1900) 4 N. L. R. 8.* (l921 G. L. Rec. 210.
3 See Muthuhisna's Theeawalami p. 211.
DIAS J.—Ratnamma v. Rasiah.
477
before me, I think a symbolic thali, provided it was intended to be usedas such and in fact was so used, may serve as a thali. It is the spirit andthe intention behind the act which matter.
It is clear that after this ceremony the parties believed they werelawfully married and lived together as man and wife and were receivedby their relatives and friends as husband and wife. What is more, onMarch 1, 1938, when a child was bom to the applicant, the respondentgave notice to the Registrar of the birth and in the cage “ Were theparents married ” he stated “ Married according to Hindu rites ”—P 1.It is only when he is sued for maintenance that the irregularity of hismarriage struck him.
Where parties after going through a valid customary form of marriagelive together as husband and wife, a presumption of marriage by habitand repute arises—Valliammai v. Annammai (supra). It is -equallyclear that where there has been a customary marriage ceremony withoutobserving the requisite rites usually performed at such marriages, thepresumption does not arise—Selvaratnam v. Anandavelu1; Thiagaraja v.Kurukal *. For the same reason where a registered marriage is invalidowing to some legal impediment, the presumption of a marriage byhabit and repute cannot arise—Weeraperuma v. Weeraperuma‘.
I am, however, not satisfied that the evidence shows that the customaryrites were not performed in this case. A gold or metal thali was not tied,but a symbolic thali was appended to the kody and tied, and there is notsufficient evidence to show that this was irregular. On the contrary,everybody including the appellant, believed that the ceremony wasregular. I, therefore hold that a presumption by habit and reputearises in favour of the applicant and that presumption has not beenrebutted.
It was argued that the consent of the bride’s parents not having beenobtained for this marriage, therefore, it was invalid. In Selvaratnam v.Anandavelu (supra) de Krester J. took the view that if one of thecontracting parties was a minor, then, in addition to the minor’s consent,the consent of the father is necessary to make the marriage of a JaffnaTamil valid. Wijeyewardene J. who was associated with de Kretser J.,however, was doubtful whether the want of parental consent wouldinvalidate the marriage, especially after it had been consummated. Iam inclined to favour the view expressed by Wijeyewardene J. The mainpoint for decision in that case was whether a customary Hindu marriagecontracted without observing the rites and ceremonies usually performedat such marriage was valid. Both the learned Judges answered thatquestion in the negative.
I therefore allow the appeal. The Magistrate has held that the respon-dent’s present income is Rs. 70 a month and he assessed the maintenanceat Rs. 15 a month. I see no reason to hold that this assessment is in-correct. The order appealed against is therefore set aside. The respon-dent will pay to the appellant Rs. 15 a month as maintenance. As therewas no appearance for the appellant I make no order as to costs of appealbut she will be entitled to her costs in the lower court.
Appeal allowed.
1 11941) 42 N. L. R. 487.* (1923) 25 N. L. R. 89.* (1938) 39 N. L. R. 433.