Sarvasivadanam marriage among Nambudri Brahmins

Sarvasivadanam marriage among Nambudri Brahmins

The Judgment of the Madras High Court in 1889

Amayur alias Attupurath v. Kotmadhathil Itticheri

(1896)6 MLJ 319

Judgment by: Justice Parker and Justice Muthusamy Iyer.

Sarvasiwadanam marriage:

In this type of marriage, the daughter retains all the rights in the family properties in spite of her marriage, in the same way as a son does and if there is an agreement to that effect the son-in-law also will become a member of the family.

In Malabar these Sarvasivadanam marriages appear in practice to take palce only when the whole family is about to become extinct.

The question is: whether a man married in the Sarvaiwadanam marriage form, has right to inherit the property of his wife’s illam?

In this case:

The man/plaintiff married the last surviving girl in Mangampalli Illam, in Sarvasiwadanam form of marriage, to raise up child for the continuance of the Illam. No issue were born and the girl died. The husband/plaintiff claimed the property of his deceased wife.

It has already been held by the Madras High Court in Vasudevan v. Secretary of State for India, (1884) ILR M.157, that Nambudri Brahmins are governed by Hindu Law except so far as it has been modified by special custom adopted by them since their settlement in Malabar.

There can be no doubt that the Code of Manu is applicable to Nambudries, and indeed as far as this particular from of marriage is concerned the Nambudires of the West Coast have continued to follow Manu though on the West Coast this form of marriage has become obsolete.

In Malabar these Sarvasidvadanam marriages appear in practice to take place only when the whole family is about to become extinct. But if there were collateral relations they would inherit the estate of the father of the appointed daughter, under the Hindu law, when the daughter died without issues. If this be so, the husband could not get any share.

A text book of Customary law written in the year 1882 in the State of Travancore. But it is not an authority.

Justice Muthusamy Iyer:

The question is whether the husband is the lawful heir to his childless wife, if he married according to the Sarvasiwadanam form of marriage. That a Nambudri girl who is given in Sarvaswadanam form of marriage continues even after marriage to be a member of her father’s Illam and does not pass into her husband’s family as in the case of other forms of marriages. According to Mitakshara, property inherited by a daughter from her father devolves upon her death without issue on her father’s kinsmen in preference to her husband whose right of successin is restricted to her Stridhanam when she dies childless and when he has married her in one of the approved forms.

Manu says, he who has no son may appoint his daughter in this manner to raise up a son for him saying, “the male child who shall be born from his wedlock shall be mine for the purpose of performing my obsequies.”

Its legal import appears to be nothing more than the adoption of her son as his son by anticipation at the time of her marriage, coupled with the condition that she shall retain the status of a member of her father’s family and shall not become a member of her husband’s family notwithstanding her marriage.

Referring to the four descriptions of Putrika Putra, the third description of son of an appointed daughter is the child born of a daughter who was given in marriage with an express stipulation in this form. The child who shall be born to her shall be mine for the purpose of performing my obsequies. He appertains to his maternal grandfather as an adopted son.

Sarvasivadanam marriage operates therefore as the adoption of the son of a daughter when one is born and as an exception to the ordinary incident of marriage, viz. the wife takes the gotra or passes into the family of the husband for the purpose of inheritance.

The appointed daughter has the same right as the unmarried daughter of a Nambudri Illam in spite of her marriage by reason of her retention in it as its member.

Baudhayana says: ‘The son of an appointed daughter should offer the first ball of meal (Pinda) at the funeral obsequies, to his mother, the second to her father, and the third to his father’s father. Thus the father is omitted and the maternal grandfather is substituted for him.

Yajnavalkya says: “in reference to the son of an appointed daughter equal to him (Aurasa son) or equal to the appointed daughter herself.

When the appointed daughter is the son, the father’s obsequies are performed by her notwithstanding her sex. Thus by a fiction of law, she was treated as if she were a son, and that might also be a reason for ignoring her husband.

When he marries a girl born in the Illam in the Sarvasivadanam form of marriage, implies that when the Sarvasivadanam son-in-law is intended to be made an heir, he is constituted as such by special appointment.

It should also be remembered that Manu is a very ancient writer and much of what is to be found in his institutes is often not to be found except with modification in the usage of the people. Manu legislated for Krita Yuga; Yagnavalkya for Dwapara Yuga; and Parasara for the Kali Yuga.

In this case, the appellant/husband of the deceased wife, unable to show by satisfactory evidence that the usage of Nambudries reflects the text, nor the practice of appointing an heir when a person is invited to beget issue for the Illam, by reason of the Sarvasivadanam form of marriage.

Therefore the appeal of the husband fails.

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