SELVARATNAM et al. v. ANANDAVELU

121-NLR-NLR-V-42-SELVARATNAM-et-al.-v.-ANANDAVELU.pdf


Selvaratnam v. Anandavelu.
487
1941Present: de Kretser and Wijeyewardene JJ.
SELVARATNAM et al. v. ANANDAVELU.
45—D. C. (Inty.) Jaffna, 8/4 p.
Thesawalamai—Customary marriage of minor—Consent of father—Marriagewithout proper rites and ceremonies—Validity—Ordinance No. 19 of1907, s. 21 (Cap. 95).
A customary Hindu marriage contracted without the rites andceremonies usually performed at such marriages is not valid.
Per de Kretser J.—A customary marriage, contracted according toHindu rites, of a minor governed by the Thesawalamai is not valid withoutthe consent of the father.
Per Wijeyewardene J.—Quaere whether the want of consent couldinvalidate such a marriage especially where the marriage has beenconsummated.
^^PPEAL from an order of the District Judge of Jaffna.
The first respondent gave notice of his marriage with the third respond-ent. The second respondent thereupon filed a caveat objecting to theproposed marriage, alleging that the first respondent had married heraccording to Hindu rites and ceremonies. The District Judge afterinquiry held that first respondent had been married to the second respond-ent. The first respondent appealed against the order.
488
Selvaratnam v. Anandavelu.
H. V. Perera, K.C. (with him L. A. Rajapakse and E. C. de Zoysa), forfirst respondent, appellant.—The customary marriage sought to beproved in this case is not valid for two reasons, viz. : — (1) There was notsufficient ceremony; (2) there was no binding contract between the parties.
There was nothing real in the nature of a marriage ceremony, andwhatever ceremonies were gone through were not sufficient to create avalid marriage. There was no kurukkal present, no dhoby, no tying ofa thali. There was no music. It was only a mere pretence of marriage.Marriage as a social event requires a certain degree of publicity, especiallyin the case of a customary marriage. In the present case the marriage tookplace behind closed doors. Ramasamy, the father of the bridegroom, wasnot present. The presence of close relatives is essential in a customarymarriage of even the poorest—Muttukrishna on Thesawalamai, p. 190.
It cannot be said that Ramasamy consented to his son’s marriage.The son was 19 years old and was a minor. This case can be decided onthe sole ground that the father did not consent to the marriage. Therewas no binding contract between the parties. Section 21 of the MarriageOrdinance (Cap. 95) is applicable. See Thiagaraja v. Kurukkal.'
N. Nadarajah, for second respondent.—The marriage in this case cannotbe challenged as invalid for want of ceremony. See Sastry ValaiderAronegaryat al. v. Sembecutty Vaigalie et al.3; The King v. Perumal’;MuttukrisKncfs Thesawalamai, pp. 185-7.
The consent of the parent was not necessary. In Thiagaraja v.Kurukkal {supra) certain sections of the Marriage Ordinance (Cap. 95)were not fully considered. Sections 14, 15 and 17 deal with marriageswhich are expressly declared to be invalid. In none of those sections isconsent of parent, in the case of a minor, made necessary. Nor is absenceof consent of parent a ground for dissolution of marriage under section 18or section 42. Under section 43 the non-fulfilment of the requirement ofconsent which section 21 speaks of would only involve a penalty andwould not render the marriage invalid. See also section 39. Sections 21and 43 should be read together. Further, section 21 relates only toregistered marriages. For a customary marriage under Hindu law theconsent of parent is not necessary, for age is not a factor ^pr considerationSee Gout’s Hindu Code (1919), p. 231 ; Simpson’s Law of Inf chats, pp. 93-4 ;Mulla’s Hindu Law (1936), pp. 500-1 ; Mithra’s Guardian and Ward Act,p. 113; The King v. The Inhabitants of Birmingham'; Ram Harakh v.Jagar Nath et al.G; 202, P. C. Point Pedro, 3,994 Under the MarriageOrdinance, the marriage is good provided that the girl is not under 12 andthe boy is not under 16.
H. V. Perera, K.C., in reply.—We are not concerned in this case withHindu law in its original form. We are concerned really with Thesa-walamai which is applicable both to Hindus and non-Hindus. Even ina Hindu marriage, the father’s approval is necessary, not only in the caseof a girl but also of a boy—Gout’s Hindu Code, pp. 235, 226, 227. Underthe Thesawalamai it has already been shown that the marriage was invalid
1 (1923)25 X. L. R. S9.*(1928) SB. 4 Cr. 29 ; 108 Eng. Rep. 954.
* (1881)2 N. L. R. 322.GA. I. R. 1932 All. 5.
3 (1911)14 X. L. R. 490-’S- O. Minutes of April 5, 1936.
DE KRETSER J.—Selvaratnam v. Anandavelu.
489
for want of sufficient ceremony and the absence of close relatives,particularly the father, at the wedding. The ceremony in this casewas utterly lacking in reality.
When a minor marries the consent of parent or guardian is necessary.This rule is of universal application in Ceylon. A minor desiring to marrycontrary to the wishes of his parent has always to obtain permission fromthe District Court and'cannot circumvent the law by resorting to anycustomary marriage. The requirement of consent under section 21 ofCap. 95 will be overlooked under section 39 only in the case of a marriageregistered under the Ordinance. If Thesawalamai is silent as to consent,the Roman-Dutch law would apply. For the Roman-Dutch law on thepoint see Pereira’s Laws of Ceylon (1913), pp. 218-9; Voet 23.2.9;Stoney’s Translation of Voet 23.2, p. iv., where reference is made toJohnson v. McIntyre; Lee’s Introduction to Roman-Dutch Law (2nd ed.) ,p. 57, et seq.
Cur. adv. vult.
August 26, 1941. de Kretser J.—
Anandavelu, son of Ramasamy, aged 19, the first respondent in thiscase, gave notice of marriage with Rasaratnam, the third respondent.Thereupon Selvaratnam, the second respondent, filed a caveat objectingto the proposed marriage, alleging that Anandavelu had married heraccording to Hindu rites and customs in March, 1940. The evidencedisclosed that the date of the alleged marriage was March 25. TheRegistrar reported the matter to the District Court as required by theOrdinance and the District Judge after a lengthy inquiry has held thatAnandavelu had been married to Selvaratnam, and Anandavelu appealsagainst that order.
It seems to have been assumed at the inquiry that if Anandavelu’sfather had not given his consent the marriage would not be valid. Selva-ratnam had alleged that Anandavelu’s father did consent but fearing hisbrother Doraisamy, who disapproved of the unibn, had absented himselfon March 25 from his home after arranging for the marriage, which tookplace in his absence. The question whether Ramasamy had consentedwas of primary importance and the trial Judge realized this, but hethought the best way of approaching the subject would be to do so froma distance and as a result he made such a long detour that in the end hehas not dealt directly with this question- He believed the evidence ofSelvaratnam and her witnesses and therefore one may infer that he hasheld that Ramasamy did consent. He also held that a valid marriage hadbeen contracted.
It is difficult to follow the learned Judge’s reasoning in many parts ofhis judgment and Counsel for the respondent did not attempt to supportany part of it except the conclusion he arrived at. It is clear from theevidence that Ramasamy did not consent to his son’s marrying Selva-ratnam. The story related by Selvaratnam and her relatives would beconsidered preposterous but for the fact that the Judge with his experienceof Jaffna thinks it a thing that may have happened. Apart from the oralevidence there is the evidence given by the respondent’s witnessesregarding Ramasamy’s conduct on hearing of the marriage and there is
490DE KRETSER J.—Selvaratnam v. Anandavelu.
documentary evidence—one of the documents having been written inSelvaratnam’s house on the night of the alleged marriage—which provesthat Ramasamy had not given his consent.
Saravanamuttu, Selvaratnam’s uncle, who took a leading part inconnection with the marriage, stated that Ramasamy first consented butlater withdrew his consent, and then tried to make out that Ramasamyhad changed his mind again. It appears clear from the evidence thatwhen Selvaratnam attained puberty in November, 1939, Saravanamuttuand his brother Kitnasamy, father of Selvaratnam, made up their mindsto bring about a marriage between Anandavelu and Selvaratnam. Kitna-samy was not possessed of property; he was Ramasamy’s tenant andneighbour. Saravanamuttu lived next door to Ramasamy and hadmarried Ramasamy’s cousin and discarded her. Ramasamy was a manof some means; Anandavelu was employed in his shop. It is conceivablethat the young couple may have been attracted to each other but thereis not the slightest evidence of this. One can understand that Saravana-muttu and his brother would consider the match a very good one, but no'reason has been given as to why Ramasamy should not have sought abetter partner for his son. There is evidence that he did seek a bettermatch, for it is regarding that union that notice of marriage was given. -There is also evidence that Selvaratnam’s mother had contemplatedmarrying her daughter to her brother’s son, and that she was so upsetby what took place on the night of March 25, that she left her husbandKitnasmy between that night and March 30, on which date the letter2 R 3 was written.
Selvaratnam’s case is that the marriage was arranged only seven oreight days before. Saravanamuttu’s evidence is that on the morning ofthe 12th (by which is meant, apparently, the 12th day of Panguni orMarch 25), Ramasamy had informed him that his brother Doraisamywas hot in favour of the marriage and that he saw Doraisamy only thatnight. Kitnasamy states that his brother said : “ I hear that there isanother marriage proposal, therefore this must take place. All right, wewill see to it ”. The time and place of this remark are not clear. It atleast establishes that at the time of the alleged arrangement anothermarriage proposal was in the air. Kitnasamy says that it was on the 11th' that Ramasamy told him of Doraisamy and his opposition, and that hehad informed his brother that very night. Selvaratnam herself says thatshe heard of the marriage only that morning, and that seven or eight daysbefore she understood from her parents’ conversation that Doraisamy wasopposed to the marriage.
There can be little doubt that, having heard that a marriage was beingarranged for Anandavelu, Saravanamuttu and Kitnasamy decided onMarch 25 to achieve-their object as quickly as possible. It so happenedthat Ramasamy did not return home that evening and it was only afterhis absence was discovered that they at once took the opportunity to carryout their plan. Had the wedding been planned even that morning thearrangements would have been otherwise and the girl’s mother wouldscarcely have been taken so much by surprise. What is more, Selva-ratnam says that it was only after Anandavelu was brought to the housethat she was asked to get ready for her marriage. It would seem that
DE KRETSER J.—Selvaratnam v. Anandavelu.
491
Anandavelu was inveigled into the house during hisr father’s absence andthen the alleged marriage was rushed through. The account of themarriage reads more like a farce then a reality. There was no priestpresent, only three or four relatives, no neighbours, nobody on thebridegroom’s part, not even a friend of his, no music, and—closed doors!
It is necessary to realize that even in the case of minors there is acontract, and a contract presupposes agreement between two persons whoare willing to enter into the contract. The parents give their consent andso implement what was wanting in discretion on the part of the minors.Assuming that Selvaratnam, who had very little voice in the matter, wasa consenting party and that Anandavelu was a free agent (which is a moreviolent assumption) and also a consenting party, the question ariseswhether any marriage which took place that night was invalid by reasonof Ramasamy’s consent being wanting. Counsel for the respondent didnot argue that Ramasamy’s consent had in fact been given but he arguedthat it was unnecessary. Relying on certain sections of the MarriageOrdinance he argued that there was no section which said that amarriage without consent was. void but on the other hand section 39seemed to imply that it would be valid. Relying on Gout’s Hindu Code(page 231) ; Mulla’s Hindu Law (8th ed., pp. 500-501) ; A. I. R. 1932All., p. 5, he argued that under the Hindu law consent was not necessary.He further argued that if marriage under the Ordinance did not stipulateparental consent as a sine qua non it could not be possible that our lawintended that customary marriages should be on a different footing,more especially in view of the Hindu law.
In my opinion Mr. Perera was quite right when he argued that we werenot concerned with the Hindu law except in so far as it may through lighton the marriage ceremonies, but he went on to point out by reference toGout (pp. 226, 227, 235), that under the Hindu system the marriage wasarranged by the parents, the contract was made by them and was imple-mented by the children, one of the inevitable concomitants of theceremonial being the presence of the relatives and friends of the twocontracting parties. They took a vital interest in the marriage and, asArticle 12 of the Thesawalamai indicates, they took the place of deceasedparents in seeing that the marriage was a suitable one, that suitableprovision was made, and that the ceremonies were properly carried out.Mutukistna in his book on the Thesawalamai gives the different ceremoniesand the persons who would ordinarily be present at a wedding in Jaffna.I think it is impossible to say that the Hindu law did not require theconsent of the natural guardians of minors. It must be remembered,however, that the Hindu law fixed the age of discretion at 16 and that agewas left undisturbed by the Indian Act relating to majority. In our lawthe age of majority is fixed at 21, except in special cases.
As I said before, in the Court below no contention was raised thatconsent was unnecessary. So much did they consider consent necessarythat they invented the story of Ramasamy really consenting though hepretended not to. The trial Judge says : “ Almost every man in thisdistrict where early marriages are the rule knows that the father’s consentis necessary ”.
492
DE KRETSER J.—Selvaratnam v. Anandavelu.
Mr. Perera urged that, since the Hindu law did not apply, if the Ordi-nance did not apply we were thrown back on the Roman-Dutch law.Voet clearly states that the marriage of a minor without the consent of hisparents was of no effect. (Bk. 23, tit. 2, s. 9.) Marriage had its ownpeculiar rules. Although the contract was one which the law did notrecognize, public policy indicated that when a certain state existed itshould be regularized as often as and whenever possible. Lee in hisRoman-Dutch Law (3rd ed., p. 59) infers that the contract is voidable andnot void. I think it would be better to describe it as one which the lawdid not recognize but would not go out of its way to upset. Accordinglyif the parents subsequently gave their consent the marriage was recognizedas valid ab initio. We have the same “ referring back ” of the marriagewhen 9hildren born before marriage are legitimatized by the subsequentmarriage of their parents. So also might the minors ratify the marriagewhen they came of age. The Dutch jurists were dealing rather with casesof elopement and clandestine marriage than with circumstances such aswe are dealing with in the present case. Naturally the young couplewould not invoke the assistance of the Court and the Court would thereforeact only if an aggrieved parent appealed to it. Then the Court could nothelp giving the law its full effect and would be forced to declare themarriage void. (Lee p. 59; Nathan, vol. I., p. 225 ; Voet, Bk. 23, t. 2.)
It is of no particular interest to deal with the Edict of Charles V., anecho of which we have in section 43 of our Ordinance. The position thenunder the common law was that the Court could not say that a marriagewithout consent was valid. Nathan supports the view I have just stated(Vol. I., p. 225). So rigorous was the law that the children were regardedas illegitimate.
The English law is on much the same lines, based as it is, in this depart-ment, on the Civil law. In the case of The King v. The Inhabitants ofBirmingham' which was decided in 1828, Lord Tenterden C.J. held thatthe marriage of a minor whose father did not consent to the marriage wasnevertheless valid, the section requiring consent being treated as directoryonly. What had happened was this: an earlier statute made such amarriage void; a later statute repealed the section making the marriagevoid, and one of the sections rendered valid marriages which had beensolemnized under the earlier statute without consent. The new statutedid require consent unless there was no person authorised to give consent.Another section declared—“ If any valid marriage solemnized by licenceshall be procured by a party to such marriage to be solemnized betweenpersons, one or both of whom shall be under age, by means of falselyswearing to any matter to which such party is required personally todepose ”, not that the marriage shall be void but that all the propertyaccruing from the marriage shall be forfeited for the benefit of the innocentparty or the issue of such marriage. From these facts it was inferred thatthe marriage was valid.
It will be seen that while our Ordinance contains very similar provisionsthere are also differences. It seems to me that we had in mind the provi-sions of the Roman-Dutch law. Section 39 of our Ordinance does notsay that a marriage under the Ordinance without consent is valid. What
1 (108) English Reports, K. B., 954.
DE KRETSER J.—Selvaratnam v. Anandavelu.
493
it does is it shuts out evidence regarding certain defects, one of them beingthe absence of consent. It adopts, in other words, the policy of theRoman-Dutch law and authorises a Court to shut its eyes to the absenceof consent in the case of marriages registered under the Ordinance. Underthe Roman-Dutch law, it will be remembered, the Court was obliged togive effect to the law and to pronounce the marriage void, on applicationbeing made to it. In Ceylon the Court is not obliged to do so in the caseof marriages under the Ordinance. Section 21 which requires consent isof general application and therefore applies to marriages according tocustom. The position then is that relief has been given in the caseof marriages under the Ordinance but not in the case of marriagesoutside it.
The history of local legislation is interesting but does not, in my opinion,affect the question. More than once the Legislature tried to enforceregistration and much confusion has been caused by the requirement netbeing insisted on. Ordinance No. 13 of 1863 impliedly recognizedmarriage without registration but it very emphatically declared that amarriage without consent was “ utterly void ” unless it had been autho-rised by a District Judge. Section 27 enacted that no evidence of thewant of consent should be admitted “ after any marriage shall have beencontracted ”. This was an enactment of general application and wouldapply to a Hindu i arriage. Section 40 of Ordinance No. 2 of 1895confined the scope of the prohibition to marriages solemnized under theOrdinance. The change is noticeable. It was intended probably to giveeffect to the mind of the Legislature when it enacted section 27 of OrdinanceNo. 13 of 1863. Ordinance No. 2 of 1895 had insisted on registration butthe section requiring it was repealed in 1896. Then came the presentOrdinance. The Legislature therefore had before it the fact that registra-tion was not essential. With this knowledge it enacted section 39 and itgave relief only in cases of marriage under the Ordinance. The Court is. now empowered to shut its eyes to the fact that an element is wantingwhich the Ordinance expressly says is “ required for the said marriage ”.Why should there be this difference ? It seems to me that the Ordinanceprovides for a number of safeguards and that the cases which will escapethe precautions so taken are so few that it was considered better torecognize what had taken place irregularly rather than impair the value ofthe marriage state or affect the legitimacy of the children.
But the law never entirely condoned the irregularity, for section 43provided certain forfeitures to be imposed, on application being made toa Court either by the person whose consent was required or by theAttorney-General. The conferring of this power on the Attorney-Generalis significant. If no such application were made it would be because ofacquiescence and ratification could be assumed. If a marriage withoutconsent were valid, then it does not seem fair or proper to impose aforfeiture of rights which would ordinarily accrue from the marriage.Where the provisions of the Ordinance have been flagrantly floutedsection 42 declared such marriage null and void. Want of consent wasnot so drastically treated; and when one examines the various safeguardsand penalties provided it will be seen why it was not put in the samecategory as the cases mentioned in section 42.
42/36
494
WIJEYEWARDENE J.—Selvaratnam v. Anandavelu.
Section 21 provided for consent being obtained from the District Judgewhen it was unreasonably withheld. This section only emphasises thenecessity for obtaining consent and, as Mr. Perera rightly stated, thegeneral opinion is that consent must first be obtained. If consent were.not required in the case of customary marriages the most awkwardconsequences would ensue and many of the provisions of the Ordinancewould in fact be unnecessary. Any youthful couple, with the assistanceof their friends, relatives, and/or priests, would only have to go througha form of marriage according to custom and thereby avoid the necessityof going before a District Court and escape the forfeiture imposed bysection 43.
In my opinion the order of the District Judge must be set aside. AsSelvaratnam is a minor and her father is not a party to the proceedingsand cannot be condemned in costs, there will be no order for costs. TheRegistrar will issue his certificate.
Wijeyewardene J.—I have had the advantage of perusing the judg-ment of my brother and I agree that this appeal should be allowed withoutcosts.
The Additional District Judge has inferred from the evidence that thefirst respondent’s father consented to the alleged marriage between thefirst and the second respondents. I think that such an inference cannotbe drawn without taking an unreal view of the conduct of the variouspersons interested in the marriage. Moreover the evidence of the secondrespondent herself shows that, in this case, there has been a markedabsence of most of the .rites and ceremonies usually performed at Hindumarriages in Ceylon. The thali was not tied, a priest was not presentand neither a dhoby nor a barber took part in the ceremonies. Thefirst respondent was inveigled into the house of the second respondentand at the time no preparations had been made for the marriage ceremony.Almost immediately afterwards, his relatives made an effort to rescue thefirst respondent. The village headman entered the house within anhour or two but did not “ notice even any sign of camphor being burntor coconut being broken …. or a brass pot with mango leaves ”.Taking a view most favourable to the second respondent I do not thinkthat there could have been anything more than an abortive attempt at arudimentary form of marriage ceremony. Further the evidence forcesme to the conclusion that the first respondent was not a free agent atthe time and that he was prevented by threats from exercising hisjudgment.
As regards the point of law argued before us, I share the doubtsexpressed by Drieberg J. in 202, P. C. Point Pedro, 3,994 (S. C. Minutes,April 5, 1936) whether the want of the consent “ required ” under section 21of Ordinance No. 19 of 1907 could be held to invalidate the marriage,according to Hindu rites, of a minor under 21 years, governedby the Thesawalamai, especially where the marriage had beenconsummated.
Appeal allowed.