RAJAMMAL Vs. MARIYAMMAL AND

JUDGEMENT

(1.) The appellant and respondent 1 in a joint petition applied under the provisions of the Mysore Silicosis Rules for the award of compensation to them for the death of their husband B. Periathambi from the Mysore Gold Mining Company of India Ltd., Kolar Gold Fields. The petition which contained a clear and unambiguous averment that each of them was the married wife of the deceased was jointly signed by the appellant and respondent 1, The Commissioner for Workmen's Compensation, K. G. F. recorded the evidence of the appellant and respondent 1 and the sister of the deceased and pronounced his order dated 10-6-1952 awarding the amount deposited by the Mysore Gold Mining Company as compensation for the death of Periathambi to respondent 1 and her son, respondent 2. He disallowed the claim of the appellant for apportionment of the compensation on the ground that being a Christian, her marriage with the deceased Periathambi who at the time of the marriage was a Hindu, was invalid and could not be recognized according to law.

(2.) The learned Counsel for the appellant contends: (1) that the Commissioner was wrong in going into the validity of the marriage inasmuch as no one disputed the validity of the marriage, and (2) that in any event, the conclusion of the Commissioner that the marriage was invalid according to law is opposed to law and therefore incorrect. The learned counsel for the respondents, however, supported the decision of the Commissioner on the ground that under Hindu Law, no marriage between a Hindu and a Christian can be valid or recognized.

(3.) The order of the Commissioner does not make it clear how or why or under what circumstances he came to consider the validity of the marriage when neither respondent 1 nor anyone else raised that question before him and when, as already stated, both the appellant and respondent 1 admitted in the joint petition they filed their respective status as married wives of the deceased Periathambi. Respondent 1 reiterated and affirmed this status of the appellant in her evidence before the Commissioner. The sister of the deceased also in her evidence specifically stated that the -appellant is the married wife of the deceased. The materials on record thus make it clear that apart from the averments and admissions in the petition and the oral evidence in the case that the appellant is the wife of the deceased Periathambi, the conduct of the relatives of the deceased and their treatment of the appellant point to the conclusion that she is the wife of the deceased. The presumptions of law are also in favour of legitimacy and the validity of marriages. It is conceded that Periathambi does not belong to the twice-born classes and it therefore follows that the strict injunction of Hindu Law that marriages must be within caste is not applicable to him. The doctrine of 'factum valet' viz. the proposition 'that which ought not to be done, if done, is valid will be applicable to the facts of this case and one of the effects of that doctrine is that when the factum of marriage is admitted every presumption should be made in favour of the validity of the marriage. It would be unjustifiable interference for the Courts to declare a marriage null and void when it is accepted by the members of the caste as valid.