PARAMASAMI PILLAI Vs. SORNATHAMMAL

JUDGEMENT

(1.) THIS second appeal arises out of a suit filed by the appellant claiming to be the reversioner to the estate of one Deiva Pandian who died issueless on 6-7-1957 for setting aside a sale deed executed by Deiva Pandian in favour of the first defendant in the suit and for recovery of the suit properties. On an objection taken by the first defendant, the third defendant was added as a party to the suit on the ground that she was widow of Deiva Pandians' father and as such entitled to his estate. The plaintiff contended that the third defendant was not a woman at all, that therefore there could be no valid marriage between her and Deiva Pandian's father and that consequently she was not Deiva Pandian's father's widow. The trial court held that the marriage between the third defendant and Deiva Pandian's father was valid. it also held that the plaintiff was not the reversioner to Deiva pandian's estate, that the sale deed executed by Deiva Pandian in favour of the first defendant was executed for consideration, and that it was not executed because of fraud and undue influence, and dismissed the suit. The Lower Appellate court came to the conclusion that the sale deed executed by Deiva Pandian in favour of the first defendant was not supported by consideration, and that therefore it would not be valid. On the question of the validity of the marriage between the third defendant and Deiva Pandian's father, it held that the third defendant was a sexless person and though it was disposed to hold that the marriage between her and Deiva Pandian's father could not be valid it felt bound by the authority to hold that there was a valid marriage, and that in any case the question of the validity of the marriage between the third defendant and Deiva pandian's father was one which could have been raised only by Devia Pandian's father and not by third parties like the plaintiff. in the result it dismissed the plaintiff's appeal.

(2.) I think the finding of the lower appellate Court that the third defendant was a sexless person is correct. In effect it means that the third defendant was not a woman. The third defendant refused to submit herself to a medical examination and it is in evidence that Deiva Pandian's father married Deiva Pandian's mother after he had married the third defendant, apparently because the third defendant was unfit for sexual Intercourse. The third defendant had described herself as Ali and it was also in evidence that she had no breasts. She did not menstruate either, the admission by P. W. 1 that the third defendant had a hole cannot be held to mean that she had a vagina. What could be seen is a cleft rather than a hole. On the whole I am satisfied that the conclusion of the Lower Appellate Court that the third defendant was not a woman is correct.

(3.) THE next question that arises is whether the marriage between her and Deiva pandian's father was valid. The argument on behalf of the plaintiff is that a marriage can be only between persons of opposite sex, that one of them must be a male and another a female, and that unless the third defendant were female there could be no valid marriage between her and Deiva Pandian's father and the marriage would be a total nullity. For this proposition the plaintiff (appellant herein) relied upon the decision in A v. B, AIR 1952 Bom 486 where, Tendolkar, J. , after an elaborate discussion of all the Sanskrit texts bearing on the subject held that such a marriage would be absolutely null and void under the Hindu Law. The learned Judge criticised the opinion of Mayne in Mayne's Hindu Law, 10th Edn. on the ground that Mayne did not have all the Sanskrit texts presented to him. He also criticised the decision in Bhagwati Saran Singh v. Parameswari Nandan, ILR (1942) All 518= (AIR 1942 All 267) and that of a Full Bench of this Court in amrithammal v. Vallimayil Ammal, ILR (1942) Mad 807= (AIR 1942 Mad 693) (FB ). Both the decisions were criticised on the ground that they placed great reliance upon the opinion of Mayne. The decision of the Calcutta High Court in Ratan Moni debi v. Nagendranarain Singh, ILR (1945) 1 Cal 407= (AIR 1949 Cal 44) was accepted as correct by the learned Judge and he stated that the decision would be reinforced by the various texts that he himself had cited in his judgment. In the calcutta case it was held that a wife whose husband was impotent at the time of marriage and had never been able to consummate the marriage was entitled to a decree for nullity of marriage. As against this, reliance was placed by the respondents on the decisions in Smt. Ramdevi v. Rajaram, Kantilal v. Viinala, AIR 1952 Sau 44 and Mallareddy v. Subbamma, AIR 1956 Andh 237. In Kantilal v. Vimala, AIR 1952 Sau 44, where the Court held valid a marriage with a person whom it described as an Impotent and sexless woman and whose genital organs were said to be not at all developed and who was said to have no ability to perform the sexual act and be an active party to coitus. In that case the woman had very rudimentary development of the internal organs and the secondary sex characteristics were not all developed. She had not been menstruating at all. This decision followed the Full Bench decision of this Court fn ilr (1942) Mad 807= (AIR 1942 Mad 693) (FB ). The decision in AIR 1956 Andh 237 holds that though the marriage of an impotent person is condemned as reprehensible and improper, still if the marriage had been performed and solemnised with the customary rites and ceremonies, it will be deemed to be valid, that the marriage is not void ab initio, but only voidable, and that so long as the wife does not choose to get the marriage annulled under Section 12 of the Hindu marriage Act, she is entitled to be maintained by her impotent husband.