SREEKUMAR Vs. PREMA

JUDGEMENT

(1.) WE are unable to share the view taken by the learned Single Judge in Section a. No. 416 of 1973 (Ker) against the judgment in which this appeal has been preferred. The second appeal arose out of an application filed under the Madras marumakkathayam Act, by the husband, for dissolution of marriage, against his wife, under Section 7 of the Madras Maru-makkathayam Act. The application was dismissed by the Munsiff, allowed on appeal by the District Judge, whose judgment was set aside by the learned Single Judge of this Court, restoring the order of the Munsiff. Although no specific objection was taken either before the appellate Judge or in second appeal to the maintainability of an appeal, or second appeal, the learned Judge has recorded that these would probably be maintainable in the light of the principle of the decision in Adaikappa Chettiar v. Chandra-sekhara Thevar, AIR 1948 PC 12. As no question of the maintainability of the present appeal was urged before us, we have proceeded on the footing that the appeal is maintainable.

(2.) ON the merits, we regret that we are unable to endorse the learned Judge's view. The District Judge on appeal, noticed that the petitioner-husband had deposed in his evidence that the marriage had been performed in accordance with the custom of the community (Thiyyas of Cannanore and Tellicherry) to which both parties belonged and which was governed by the Madras Marumakkathayam act. This aspect of the testimony of P. W. I was not challenged in crossexamination, and there was no rebuttal evidence contra on the side of the counter-petitioner, the wife. The learned Single Judge took the view that in cross-examination P. W. 1 had admitted that the marriage was performed in accordance with the vedic rites accompanied by Sapthapathi, This, we are afraid is not a correct way of understanding the deposition of P. W. 1. His statement was that on the occasion of the marriage, there was a Homam by the santni of Peralasseri Temple, for the purpose of propitiating some serpants, and that the marriage was performed in front of the fire lit for the purpose of homam. We do not understand how this statement in the deposition can in any way detract from the clear statement made by P. W. 1 that the marriage was performed in accordance with the customary ceremonies On the other hand, it is only to make out that in addition to the customary ceremonies, there was also a Homam for propitiating serpants. This would not detract from the requirements of Section 4 of the Madras Maramakkathayam Act which reads as follows:

(3.) WE are aware of the judgment of a learned Judge of this Court in Govindan nair v. State, 1971 Ker LJ 674 = (1972 Cri LJ 122) to the effect that the requirement of Section 4 of the Madras Marumakkathayam Act and the proof of the customary ceremonies enjoined thereby cannot be regarded as having been satisfactorily established unless the party concerned has expressly deposed that there was presentation of cloth by the male to the female. No doubt, that was in relation to a Nair marriage under the Travancore and Cochin Nayar Act in almost similar language, and in connection with a criminal case. The learned judge observed: "the mere fact that some ceremonies were performed at the guruvayoor temple will not mate it a valid marriage recognised by the community unles the vital features of the function are proved by evidence. " earlier, the learned Judge observed :