Marumakkathayam marriage
PS Venkataraman vs AC Janaki (1939) 1 MLJ 520, AIR 1939 Madaras 595.
Madras High Court Judgment
In this case the validity of the alleged marriage between PS Venkataraman and AC Janaki was in question.
PS Venkataraman, the plaintiff, is a Brahmin by birth and follows the Hindu religion. He was the Managing Director of a Film company in Madras.
AC Janaki, the defendant, is a Nair lady belonging to a respectable Nair tarward of Malabar. She was employed in the said Film company in Madras.
PS Venkataraman alleged in his plaint that he and AC Janaki went through a form of marriage according to Hindu rites and ceremonies at a village called Tiruneermalai, a few miles away from Madras, on 21st December 1934.
From the day of marriage on 21st Dec 1934 the day up to 4th April 1935 (for about 4 months), they lived together as husband and wife in Madras.
Thereafter, she left Madras and went to her parents’ home at Malabar and refused to return and live with PS Venkataraman. Hence he filed the suit for restitution of conjugal rights (to come and live with him).
But AC Janaki, the defendant, denied the factum of marriage and her living with him. She stated that she resigned her post in the said Film company and left Madras in April itself. Even assuming the marriage to be true, she denied the validity of the said marriage and questioned the jurisdiction of the Court to entertain the suit.
Her written statements are: “The defendant (AC Janaki) is a Hindu, permanently resident in the Kadirur village, Kottayam Taluk, North Malabar, governed by the Marumakkathayam Law of Inheritance. Under Sec.11 of the Madras Marumakkathayam Act, the present suit is not maintainable.”.
She further alleged that on the alleged date of marriage, i.e. 21st December 1934, the plaintiff PS Venkatraman, has been a married man (i.e. he married another lady) having married in his own community and the said earlier marriage was subsisting on the date.
She, AC Janaki further stated that under Sec.5 of the Madras Marumakkathayam Act, the plaintiff (PC Venkataraman) was legally incompetent to marry AC Janaki, on account of the continuance of his prior marriage. Hence the alleged marriage between PC Venkataraman and AC Janaki is a void one.
PS Venkataraman said “AC Janaki has openly and willingly married me with all the religious ceremonies according to Hindu Shastras. She was fully aware before and at the time of my marriage with her that I had already a wife. She expressed her willingness and relinquished her rights under the customary of law of Marumakkathyam, which prohibited a Nair female to marry a married man. I have got respectable witnesses to prove all these facts.”
The question here was whether such marriage a valid one or not.
As per the Hindu custom (prior to 1949 Hindu Marriage Act) a Hindu can marry another lady, during his first wife is living, and such second marriage is a valid one.
But as per the Nair custom, a Nair girl married a man, who had already married another lady, is not a valid marriage.
The Trial Court (Madras City Civil Court) dismissed the suit filed by PC Venkataraman on the ground that the marriage is not a valid one.
He filed appeal before the Madras High Court.
In the High Court, the question was whether AC Janaki was a Marumakkathayee, on the date of her alleged marriage on 21st Dec 1934, and whether the said marriage is valid one.
The defendant, AC Janaki was a Nair female governed by Marumakkathayee law. The Marumakkathayee law is a customary law followed and observed by the Nairs of Malabar. It cannot be denied that Nairs are Hindus and in the religious and social life they are governed by the same Shastras that govern the rest of the Hindus, who inhibit the Presidency of Madras, of which Malabar is a part.
The Marumakkathayee law, whether it is a school of Hindu law, or a customary law, is a law which is prevailing in the Madras Presidency followed and observed by a certain section of the Hindus.
As observed by Mayne in his book on “Hindu Law” 10th Edition, at page 97: “In India there is no lex loci, every person being governed by the law of his personal status.” That is, a Hindu carries his personal law with him wherever he goes. His personal law is applicable wherever he lives.
Mayne again observed - “The Hindu law is not merely a local law. It becomes the personal law and a part of the status of every family law which is governed by it.”
Again the question arises: What is the law by which a person is governed, regard should be had to the law of the class or family to which he belonged. Of course, if he did not belong to any particular class or family it would be the general doctrines of Hindu law prevalent in that province wherein he resided. Once it is determined what the personal law of a person is, it will continue to be obligatory force on him.
Venkatasubba Rao, J, in Morarji vs AG of Madras (1928) 55 MLJ 478 remarks thus: “While ordinarily a British Indian subject can change his domicile and acquire a new law along with a new domicile, this right is denied to a Hindu. It must be borne in mind that I am now dealing with the law to be administered by a British Indian Court. Under that system of law, a Hindu carries of along with him his personal law wherever he goes and he cannot, however, fixed his determination may be, get rid of that law. Is the person a Hindu? Then, wherever the law of British India admits the operation of a personal law, his rights and obligations are determined by the Hindu law, that is, the law of his religion, subject to the exception that by statute any part of that law may be abrogated.
THUS once it is known that a person is a Nair and belongs to a Malabar Tarwad, it follows that the personal law by which he is governed is the Marumakkathayam law of Malabar except in so far as that law has been modified or altered by Statute.
In this case, the law that will be applicable to the defendant (AC Janaki) will be the Marumakkathayam law as modified by the Madras Marumakkathayam Act of 1932.
Under that Act, a Marumakkathayee is defined as “a person governed by the Marumakkathayam Law of Inheritance”.
Under that Act, a Marumakkathayam is defined as “the system of inheritance in which descent is traced in the female line but does not include the system of inheritance known as the Aliyasantana.”
It is not denied that the defendant (AC Janaki) was a Marumakkathayee within the meaning of the Act before the date of marriage. If she was Marumakkathayee, under Sec.5, Clause 2, any marriage contracted by a male with a Marumakkathayee female during the continuance of a prior marriage of such male, shall be void, notwithstanding that his personal law permits of polygamy.
Thus, if on the date of the marriage the defendant (AC Janaki) was a Marumakkathayee, there can be no doubt that her marriage with the Plaintiff (PC Venkataraman) is void.
But it is contended that the defendant (AC Janaki) renounced the Marumakkathayam law and ceased to be a Marumakkathayee and therefore the marriage must be deemed to be valid. The question is, is this contention tenable?
Whether a person by a mere declaration can renounce the personal law by which he is governed? Raja Iyer, the advocate for the plaintiff PS Venkataraman was not able to cite any direct authority on that point.
But OTG Nambiar, who appeared for the defendant (AC Janaki) stated that it is a well-established principle of law that no person can alter the devolution of his estate by his own will. The same principle would also apply to the laws of the family or what may be called the law relating to personal status.
In effect, the personal law by which a person is governed can only be renounced or changed in one of the modes recognized by law. One such is a change of religion. The other is by migration from one province to another. So far as India is concerned or by going and settling oneself in another country. Excepting by those modes it is not open to a person to renounce by a mere declaration the personal law to which he is subject.
Mayne in his book on Hindu law observes: “A man cannot alter the law applicable to himself by a mere declaration that he is not a Hindu. He can only alter his existing status by becoming a member of such a religion as would destroy that status and give him a new one.”
The dicta of the Judicial Committee as to the voluntary character of customs in Abraham vs Abraham (1863) 9 MIA 195 imply a multiplicity of persons as well as of acts, and though they allow a man to transfer himself from the class to which he has hitherto belonged to another class, do not in either class permit him to make a law for himself different from that which governs his fellows. Such a permission would, in fact, be inconsistent with any rational notion of a law.
Therefore the personal law in all matters will continue to govern him. He cannot get rid of it however fixed his determination is, as observed by Venkatasubba Rao J. It must only be done in a mode recognized by law.
Raja Iyer, Advocate for the plaintiff PS Venkataraman, cited the decision of the Privy Council in Abraham vs Abraham (1863) 9 MIA 195 that it is competent for one to be leave his caste and enter other caste and be governed by the rules and regulations of the latter and therefore it would be open to the defendant (AC Janaki) to leave the Nair community to which she belonged and enter into a marriage with the plaintiff.
The fallacy in this argument is that the defendant was not leaving any community to which she belonged and entering into any other community. It cannot be asserted with any degree of reason that the defendant can become a Brahmin by marrying the plaintiff and enter into the community to which the plaintiff belonged. All that is alleged in this case is that by declaration she renounced the benefit of the Marumakkathayam Act by going through the form of Hindu marriage alleged by the plaintiff.
By conversion, a man can renounce the law by which he is governed and continue to elect to abide by the old law or the law of the religion which he has adopted in cases where there is no statutory prohibition, but until he does so, the old law will govern.
If there was no change of religion, the personal law would have a continuing obligatory force upon him.
In the result, the High Court confirmed the Trial Court order (which held that the marriage is not a valid one) and dismissed the Appeal.
**
