SWAYAMPAKULA SUBBARAMAYYA Vs. SWAYAMPAKULA VENKATASUBBAMMA

JUDGEMENT

(1.) My learned brother has prepared a judgment dealing with both the points that arise in this appeal, namely, the question of fact whether there was a form of marriage gone through by the first respondent with the deceased Janakiramamoorthy and the question of law whether such a marriage is valid according to Hindu law. I have had an opportunity of seeing that judgment and it would have been unnecessary for me to deliver a separate judgment of my own but for the fact that, on the question of the factum of the marriage, I find myself unable to agree with the conclusion arrived at by my learned brother. I am of opinion that no sufficient reason has been shown for disturbing the finding of the trial Judge on this point. ....

(2.) [Then his Lordship discussed the evidence and concluded that there was an actual marriage.]

(3.) On the other point, however, I find myself in full agreement with my learned brother, and, as the subject will be dealt with very fully by him in his judgment, it seems hardly necessary for me to say more than a few words on that part of the case. The question also has been discussed at considerable length and in an exhaustive manner by the learned author of Mayne's Hindu Law, 10 edition, paras 123 to 127. What has been said by the learned author in his book and what will be said by my learned brother in his judgment which is about to be delivered more or less exhaust everything useful that can be said on the topic and I need only add a few general words of mine own. There is no doubt, in my opinion, that though anuloma marriages were recognised by several of the Smriti writers, at the same time and almost in the same breath they were condemned. This recognition cum condemnation by the Smriti writers ripened later on into a definite prohibition by the time of the Puranas, for we find that in the Puranic period such marriages were regarded as improper and invalid, the reason given for this change by the commentators being that such marriages were regarded as not permissible during the Kali age. This sort of change in the law unconsciously brought about by the general acceptance of the views of the text writers and the Puranas by the community is not uncommon. There are other subjects in which the old Hindu law has been similarly modified or has become obsolete. Whether the word used is ananushteeyam or varjyam it is very clear that, after the Buranic period and certainly after the well known commentators wrote their commentaries, marriages of this kind, especially marriages between a Brahmin and a Sudra girl, were universally regarded as not permissible under the law during the Kali age. After all, much importance cannot be attached to what is contained in the texts of the Smritis or what the commentators have said, in the absence of the real sanction behind what the Smritis and the commentators have written, namely, the sanction of long usage and acceptance by the community, which alone gives the contents of these Smritis and the commentaries their real force as law. My learned brother has been able to find some corroboration of the actual usage in the Hindu community from the accounts of travellers from the seventh century A. D. onwards. There has been, as pointed out by him, an invariable usage not to permit marriages between a Brahmin and a Sudra girl for at least a thousand years past and this in my opinion affords very strong corroboration of the view which one arrives at independently that marriages of this kind, though permitted in very ancient times, had ceased to be regarded as permissible under the later Hindu law. Indeed the final conclusion expressed by Mr. Srinivasa Aiyangar in his book Mayne's Hindu Law, 10 edition in paragraph 127 appears to me to be quite correct, namely: Whatever may be the correct interpretation of the Mitakshara on the point, marriages between members of different castes have been prohibited and discontinued by the usage of the community for such a length of time that the only legal course is to treat them as invalid except where there is a custom or enactment to the contrary.