S. SETHURATHNAM PILLAI Vs. LUCY BASKARA JOSEPHINE STYLING HERSELF AS BASKARA ALIAS DOLLY SETHURATHNAM AND ORS.

JUDGEMENT

(1.) THE plaintiff, the appellant, filed a suit for a declaration that the second defendant is not his legitimate or illegitimate daughter. The plaintiff is a land owner, who had about 50 or 60 acres of fertile wet lands in Kulitalai. He lost his father at the age of 17 or so. He was married on 5th of May, 1935 to one Ammakannu Ammal, who came from the same caste, i.e., Karkatha Vellalas. He married again in 1958 and the second wife is one Saraswati. The first defendant is the daughter of one Duraisami Pillai, a Christian. Her father was an Assistant Engineer in Kulitalai from about 1944 till 1950. The first defendant claimed that she had married the plaintiff on 15th August, 1944 and that the second defendant is the daughter born out of their wedlock. According to her, she lived with the plaintiff at several places till, about 1966. Then he ceased to take interest in her. She, therefore, filed a petition under Section 488, Criminal Procedure Code, in the Court of the Additional First Class Magistrate, Tiruchy, and she claimed maintenance of Rs. 500 as maintenance for herself and for her daughter. The learned trial Magistrate rejected her application. On appeal to the High Court it was contended that the learned trial Magistrate, without deciding whether in fact a marriage had taken place, had held that since the daughter had been baptised as a Christian and had lived as a Christian, the story of the first defendant that she was convested to Hinduism before she married the plaintiff could not be accepted, that the marriage set up by her was not proved and that the second defendant was not a child of the plaintiff so as to be entitled to the maintenance. This Court set aside the order passed by the trial Magistrate and awarded the first defendant maintenance at the rate of Rs. 200 per month and rejected the application for maintenance of the second defendant. This Court accepted that the plaintiff's marriage with the first defendant had been celebrated according to the Hindu rites after her conversion into Hinduism and that even if it were to be held that the first defendant was not converted to Hinduism before marriage, her marriage with the plaintiff was valid. Against the order of the High Court, there was an appeal to the Supreme Court. Their Lordships did not think it necessary to decide the case on the merits. After referring to the filing of the present suit by the plaintiff for a declaration regarding the factum and validity of the marriage, the Supreme Court held that in the summary proceedings under Section 488, Criminal Procedure Code, it could not be denied that there was some evidence on which the conclusion of the High Court could be reached. At the end of their judgment, dated 25th March, 1970, their Lordships observed as follows:

(2.) THE learned District Munsif of Tiruchirapalli held that the first defendant was not the wife of the plaintiff and that the second defendant was not his daughter.

(3.) THE plaintiff, aggrieved by the judgment of the learned Subordinate Judge, has filed this appeal. The contentions of the respective sides resolve themselves into two questions, viz., (1) whether there was a marriage between the plaintiff and the first defendant and (2) whether in the event of the factum of marriage being not taken to be proved, the presumption of marriage based on continuous cohabitation for several years could be drawn on the facts of the present case. There is also a subsidiary question as to whether the second defendant is the legitimate or illegitimate daughter of the plaintiff and the first defendant.