Case: Perumal Nadar (Dead) By L.R.S Vs. Ponnuswami

1. Perumal Nadar married Annapazham (daughter of Kailasa Nadar - an Indian Christian) on November 29, 1950, at Kannimadam in the State of Travancore-Cochin according to Hindu rites. Annapazham gave birth to two children - the first on September 14, 1951 and the other on March 5, 1958. The elder child died shortly after its birth. The younger named Ponnuswami acting through is mother Annapazham as his guardian filed an action in the Court of the Subordinate Judge, Tirunelveli, for separate possession of a half share in the properties of the joint family held by his father Perumal. The suit was defended by Perumal contending that he had not married Annapazham as claimed by her; that if it be proved that marriage ceremony had been performed, it was invalid, and in any event Ponnuswami was an illegitimate child and could not claim a share in his estate. The Trial Court rejected the defence, and decreed the suit. Perumal appealed to the High Court of Madras, but without success. With certificate under Article 133(1)(c) of the Constitution, this appeal is preferred.Annapazham was born of Christian parents and she followed the Christian faith. She married Perumal when she was about 19 years of age. It is not now in dispute that on November 19, 1950 she went through the ceremony of marriage and lived with Perumal as his wife for several years thereafter. The children born to Annapazham in September 1951 and March 1958 were entered in the Register of Births as Hindus. On the occasion of the marriage printed invitations were sent to the relatives of Perumal and of Annapazham and an agreement was executed by Perumal and Annapazham reciting thatNo. 1 (Perumal) among us has married Individual No. 2 (Annapazham) as settled by our parents and also with our full consent. As our relatives are of the opinion that our marriage should be registered, this agreement has been registered in accordance therewith. We have executed this agreement by consenting that both of us shall lead a family life as husband and wife from this day onwards, that we shall not part each other both in prosperity and adversity and that we shall have mutual rights in respect of the properties belonging to us, under the Hindu Mitaksharamarriage ceremony was performed according to Hindu rites and customs : a bridal platform was constructed and Perumal tied the sacred Thali which it is customary for a Hindu husband to tie in acknowledgment of the performance of the marriage ceremony.

Reasoning: 9. The evidence clearly establishes that the parents of Annapazham arranged the marriage. The marriage was performed according to Hindu rites and ceremonies in the presence of relatives who were invited to attend : customary ceremonies peculiar to a marriage between Hindus were performed : no objection was raised to the marriage and after the marriage Annapazham was accepted by the local Hindu Nadar community as belonging to the Hindu faith, and the plaintiff was also treated as a Hindu. On the evidence there can be no doubt that Annapazham bona fide intended to contract marriage with Perumal. Absence of specific expiatory or purificatory ceremonies will not, in our judgment, be sufficient to hold that she was not converted to Hinduism before the marriage ceremony was performed. The fact that Perumal chose to go through the marriage ceremony according to Hindu rites with Annapazham in the presence of a large number of persons clearly indicates that he accepted that Annapazham was converted to Hinduism before the marriage ceremony wasagree with the High Court that it is not proved that Perumal was domiciled in the State of Madras at the date of his marriage with Annapazham.12. Nor can we accept the contention that the plaintiff Ponnuswami is an illegitimate child. If it be accepted that there was a valid marriage between Perumal and Annapazham and during the subsistence of the marriage the plaintiff was born, a conclusive presumption arises that he was the son of Perumal, unless it be established that at the time when the plaintiff was conceived, Perumal had no access to Annapazham. There is evidence on the record that there were in 1957 some disputes between Annapazham and Perumal. Annapazham had lodged a complaint before the Magistrates court that Perumal had contracted marriage with one Bhagavathi. That complaint was dismissed and the order was confirmed by the High Court of Madras. Because of this complaint, the relations between the parties were strained and they were living apart. But it is still common ground that Perumal and Annapazham were living in the same village, and unless Perumal was able to establish absence of access, the presumption raised by Section 112 of the Indian Evidence Act will not be displaced.There is a concurrent finding of the Trial Court and the High Court that there is no evidence to establish that Perumal living in the same village as Annapazham had no access to Annapazham during the time when the plaintiff could have been begotten.