VISHNU NAMBOODIRI Vs. KUTTIPARU AMMA

JUDGEMENT

(1.) THIS appeal arises out of a suit for partition of the assets of a Nair female who died without leaving any issue. Plaintiff who is a namboothiri Brahmin, claimed that he was her lawful husband and was entitled under S. 19 of the Cochin Nair Act, XIII of 1095, to one half of her separate assets. Defendants 1 to 33 are the Marumakkathayee heirs of the deceased woman, being her mother and other members of the mother's thavazhi, who would be entitled to the other half of her assets if the plaintiff was her husband and who would be entitled to all her assets if the plaintiff was not her husband. On behalf of them it was contended in the lower court that the plaintiff had not legally married the deceased and that she was only living in concubinage with him. THIS contention was accepted by the lower court, and the suit dismissed. The plaintiff therefore filed the present appeal. After filing the appeal he died, and it is now being prosecuted by other members of his illom.

(2.) S. 3 of the Cochin Nair Act, which came into force on 23rd Edavom 1095 M. E. , corresponding to 5th June 1920 A. D. , provides: "subject to the restrictions of consanguinity and affinity recognised by the community, the conjugal union of a Nair female with (a) a Nair male or (b) any male, other than a Nair, with whom conjugal union is permitted according to social customs and usage, openly solemnised by the presentation of cloth to the female by the male, or in any other customary form before the date on which this Act comes into force and subsisting on such date, or so solemnised by the presentation of cloth after this Act comes into force, shall be deemed to be a legal marriage. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The plaintiff's case is that he lawfully married the deceased Ammukutty Alias Parukutty Amma on 23rd Dhanu 1103, according to the social usage, solemnised by presentation of cloth to her, and that while his marriage with her was subsisting she died on 15. 1. 1121 leaving no issue and he is therefore entitled under S. 19 of the Cochin Nair Act to one-half of the assets left by her. Defendant 1 is Parukutty Amma's mother, defendants 2 and 3 her brothers, and defendants 4 to 7 her sisters. Besides defendants 4 to 7 parukutty Amma had another sister named Kunchi Amma who predeceased her, and defendant 8 is the daughter of that sister. Defendants 9 to 33 are the other members of defendant's thavazhi, being the issue of defendants 4 to 8. The suit was contested on behalf of defendants 1 to 33 by defendants 1 to 7, defendants 1 and 3 to 7 filing a joint written statement and defendant 2 a separate written statement. They contended that the plaintiff was not Parukutty Amma's legal husband, that Parukutty Amma was originally married by one Gopalan Nair who was the brother of Pw. 5, that after his death the plaintiff contracted an intimacy with her which subsequently developed into a concubinage, that he had never legally married her and there was no marriage on 23. 5. 1103 as alleged in the plaint, that one Ammukutty Warasyar was the plaintiff's wife and he had five children by her, and that as Parukutty Amma was never legally married to the plaintiff he had no right at all to the assets left by her. In his evidence as Pw. 1 the plaintiff admitted that Ammukutty Warasyar was his wife before his marriage with Parukutti Amma, and that at the time of his marriage with parukutti Amma he had four children by her. But he also said that in 1101 before his marriage with Parukutty Amma, he had terminated his relationship with Ammukutty Warasyar and that it was after so terminating it that he married parukutty Amma. He admitted further that even after his marriage with Parukutty amma he had been consorting occasionally with Ammukutty Warasyar and had another child by her. His explanation for this was that, as his marriage with parukutty Amma proved to be barren, he consulted an astrologer who told him that it was because of Ammukutty Warasyar's grief on account of his separation from her that children were not being born to Parukutty Amma and that he resumed his relationship with Ammukutty Warasyar in order to appease her and enable children to be born to Parukutty Amma. At the time of hearing in the lower court it was contended on behalf of the defendants that since the plaintiff had married Ammukutty Warasyar before his marriage with Parukutty amma and the evidence relating to his divorce of her was unreliable in the light of his admission and the evidence of the other witnesses in the case relating to his relationship with her even after his marriage with Parukutty amma, the marriage with Parukutty Amma, even if true was illegal and void under s. 4 of the Nair Act since it was a marriage during the continuance of a prior marriage. In reply to this contention it was argued on behalf of the plaintiff that Ammukutty Warasyar being a female not governed by the Nair Act, the plaintiff's marriage with her, which was in the sambhandhom form, i. e. , by presentation of cloth, was no legal marriage at all and that therefore his marriage with her, even if it was subsisting on the date of his marriage with parukutty Amma, was no legal impediment to his marriage with the latter. The lower court dismissed the suit, deciding all question including the above contention, against the plaintiff, and holding that he had not legally married parukutty Amma by openly solemnising the marriage by the presentation of cloth as required by S. 3 of the Nair Act and she was only his concubine and not legal wife, that he was not therefore entitled to any share in the assets left by her, that his marriage with Ammukutty Warasyar was a legal marriage and was not one which could be ignored as constituting no legal relationship of husband and wife, that he had not divorced her before 12th Dhanu 1103 and his marriage with her was therefore a bar to a legal marriage with Parukutty Amma, and that even if he had married Parukutty Amma in the manner prescribed by S. 3 of the Nair act that marriage would therefore be illegal and void.

(3.) NUMEROUS authorities were cited before us in support of the proposition that law presumes in favour of marriage and against concubinage and that from continuous co-habitation for a number of years lawful marriage may be presumed. As we do not doubt the correctness of this proposition, and its correctness was also not disputed by the respondent's counsel, it is unnecessary to refer to all of them here. The law as laid down by the Privy Council in Mohabbat Ali v. Md. Ibrahim Khan, AIR 1929 PC 135, is that there is a presumption in favour of marriage and against concubinage when a man and woman have co-habited continuously for a member of years. After the marriage laws of Nairs have been defined and settled by the enactment of the nair Act of 1095, when a man and woman governed by that Act are found to have been continuously co-habiting for a long number of years as husband and wife, this well-recognised presumption will arise in their case also and can be applied to them. But this is only a presumption upon a matter of fact, and is, therefore rebuttable. Where an explanation is offered for the facts giving rise to the presumption, the Court cannot ignore the explanation and act on the presumption alone. Gokal Chand v. Parvin Kumari, AIR 1952 SC 231, the Supreme court has said that it is well settled that continuous co-habitation for a number of years may arise the presumption of marriage, but the presumption which may be drawn from long co-habitation is rebuttable and that if there are circumstances which weaken or destroy that presumption the court cannot ignore them. What circumstances or evidence would weaken or destroy the presumption must necessarily depend upon the facts of each case and no hard and fast rule can be laid down in regard to that matter. This principle has been recognised by the Privy Council in Sastry v. Sembucutty, VI AC 364, in which case their lordships quoted with approval the following passage from Piers v. Piers, 2 HLC 331. "the evidence for the purpose of repelling it (the presumption) must be strong distinct, satisfactory and conclusive. No doubt every case must vary as to how far the evidence may be considered as satisfactory and conclusive; but he lays down this rule, that the presumption must prevail unless it is most satisfactorily repelled by the evidence in the cause appearing conclusive to those who have to decide upon that question", In Ramlakhan Singh v. Gog Singh AIR 1931 Patna 219, it has been pointed out that although a certain presumption may arise in favour of the plaintiff yet it may be rebutted at the same time by circumstances brought to light in the plaintiffs' own evidence by means of cross-examination or otherwise independently of the evidence adduced by the defendant. To prove the circumstances repelling the presumption the party seeking to rebut it is not necessarily confined to the evidence adduced by him alone and has the right, as in all matters pertaining to evidence to rely also upon circumstances brought to light in the evidence of the opposite party. Such circumstances should be strong and conclusive and must be established satisfactorily, but in considering, whether they have been established satisfactorily the Court is entitled to look into all the evidence in the case, including the evidence adduced by the party relying upon the presumption, and not merely the evidence of the party seeking to rebut it.