JUDGMENT Satyanarayana Rao, J.
1. This appeal arises out of a suit for partition by the first plaintiff for Himself and on behalf of his two minor sons, plaintiffs 2 & 3 by the 3rd defendant. The first defendant is the widow of Alagu Chetti, son of the first plaintiff, by his first wife, Nachi Ammai. Alagu Chetti died on 15-4-1942. The second defendant is the minor son of Alagu Chetti by the first defendant. The first plaintiff, after the death of Nachi Animal, married Valliammai as his second wife. She however died leaving no issue early in 1934. On 14-7-1934, there was a marriage function between the first plaintiff and the third defendant according to what is described as the 'Suyamariyathai' cult or the self-respecter's cult under the auspices of the Purohit Maruppu Baugham or Anti Purohit Association. The third defendant was a widow of Reddi caste at that time, while the plaintiff is a Nattukottai Chettiar by caste.
Soon after the marriage function, they lived for sometime in Kottaiyur in the family house. Thereafter, the first plaintiff and the third defendant went to Malacca, where the first plaintiff was carrying on business. The second plaintiff was born on 7-2-1936 at Malacca. They returned to India later and a female child was born to them on 15-4-1940. They again went back to Malacca in 1941 and they could not return to India till 1946 owing to Japanese war. But during their stay at Malacca on 15-2-1942, third plaintiff was born and another female child was also born on 1-11-1945.
2. The plaintiffs claimed in the plaint a partition by metes and bounds of the properties specified in Schedules A to D and D-l and for the allotment of 3/4th share to them. There is also a prayer to direct the first defendant to account for the Jewels and cash mentioned in C, D and D-l schedules, which, according to the plaintiffs' case, were in the possession of the first defendant. Items 1 to 12 of the D schedule were, according to the plaintiffs, left in the custody of the first defendant and her husband for family use and items 13 to 22 of the D schedule and all the Jewels mentioned in the C schedule were entrusted to them for safe custody when they left for Malacca. They were all kept in a safe by the first plaintiff in the presence of the first defendant and her husband with a list and the safe was locked with Aligarh lock with four keys, of which one was retained by the first plaintiff and the others were delivered to the first defendant and her husband. But when they returned from Malacca, after the death of the first defendant's husband, when the safe was broken open, they found the safe empty.
When the first defendant was demanded to produce the jewels, she produced two boxes before mediators from her separate room containing some of the jewels mentioned in the C and D schedules, specified in para. 7 of the plaint. As regards the rest, she said that she did not come into possession. It is on tins basis that an account of the jewels and cash in schedules C, D and D1, though there is no specific allegation in the plaint regarding Dl schedule, was claimed. It was also prayed that Rs. 10,000 should be set apart to the two daughters of the first plaintiff by way of marriage provision from out of the joint family property and a Commissioner should be appointed for division of the immoveables. Schedule A to the plaint consists of two items of immoveable property. Schedule B of silver vessels and schedule C contains a list of jewels, which had fallen to the share of the first plaintiff at the partition effected between him and his brother on 14-11-1924 as per the partition lists. Schedule D contains particulars of the jewels made in the family by the first plaintiff after the said partition. Schedule Dl consists of two item--sovereigns 25 and cash Rs. 1000.
3. The suit was contested by defendants 1 and 2. The plea or the defendants was that there was no valid marriage between the first plaintiff and the third defendant and the issues o that union were not legitimate, that, therefore, the plaintiffs were not entitled to more than a half share in the family properties, and that there was no need for making provision for the marriage expenses of the illegitimate daughters of the first plaintiff. The defendants also denied the removal of the jewels alleged by the plaintiffs and claimed C and D schedule jewels to have belonged to the second defendant's grandmother Nachiammal. They, in their turn, alleged that the first plaintiff and the third defendant fraudulently removed and secreted many of the jewels and silver vessels of the joint family.
Immediately after the filing of the suit, a Com missioner was appointed to take an inventory of the Jewels etc., in the possession of the first defendant and there were 44 items, 27 items as per list I and 17 items as per list II in the inventory prepared by the Commissioner. The inventory list is Ex. A. 103 and the report of the Commissioner is Ex. A. 109. The defendants also claimed that some more properties belonging to the joint family should be brought into the hotchpot, which were omitted by the first plaintiff in the schedules attached to the plaint. Schedule 1 appended to the written statement specifies the immoveable properties, Schedule 2 silver vessels, Schedule 3 jewels, schedule 4 moveable properties belonging to the joint family and Schedule 5 contains Jewels exclusively belonging to late Alagu Chettiar's mother Nachiammal, which should not be included in the partition as they belong exclusively to the second defendant. Schedule 6 contains a list of the Jewels of Alagu Chetti, which belong exclusively to defendants 1 and 2 and Schedule 7 relates to the jewels belonging exclusively to the second defendant. Besides these claims some other matters were also brought into the controversy in the suit by the written statement.
4. It was claimed that Nachiammal's stridhanam and 'seer murai' which constitute her separate property amounting to Rs. 50,000 came under the control of the first plaintiff as trustee for her. The first plaintiff should be directed to account for that amount. It was further claimed that the business in Malacca carried on by the first plaintiff under the vilasam of RM. AL. ST. in partnership with his divided brother also belongs to the joint family. As the first plaintiff was in charge of it, he should account for the assets of the said partnership to defendants 1 and 2. The 'vevu' and other gifts made by the first defendant's parents, which constitute her stridhanam property, and which came into the possession of the first plaintiff according to the custom of the community and which was deposited with him for improvement, should also be accounted for in this suit. It was also complained that the first plaintiff gave no 'varusha bogam' for the family of defendants 1 and 2 either during the lifetime of Alagu Chetti or after his death, as he was bound to do for the living expenses of defendants 1 and 2 and Alagu Chetti and that he should, therefore, be directed to pay the amount.
5. The plaintiffs filed a reply statement in answer to the allegations made" in the written statement regarding the validity of the marriage and other matters pertaining to the Malacca business, jewels, silver vessels and other items of immoveable property.
6. As many as 17 issues were framed in the suit by the learned Subordinate Judge covering the contentions between the parties. He held that there was no valid marriage between the first plaintiff and the third defendant and that the children were illegitimate. He however found 'hat even on that footing, the plaintiffs were entitled to 3/4 share as illegitimate sons of a permanent union. In the case of Sudras, it was open to the father at the time of the partition at his choice to give to his illegitimate sons by a permanently kept concubine a share, which option was exercised during the course of the suit by the father the first plaintiff through his vakil. He found that the Malacca business was joint family business and that the two items of immoveable property acquired from out of those assets and described in Schedule I to the written statement were properties of the joint family in which the defendants were entitled to a share. He refused however to give any relief regarding the Malacca business as the court had no jurisdiction but he found that they were entitled to a declaration, as the firm was dissolved and that defendants 1 and 2 were entitled to a share in the assets of the Malacca firm, obtained by the first plaintiff on partition with his brother.
Regarding the stridhana money of Nachiammal, his finding was that the account was settled by Alagu Chetti during his lifetime and he granted a receipt Ex. A. 89 for the balance due in respect of it which was Rs. 13189-11-9 with interest. This he declared to be a debt of the entire family, which was payable by the family to the second defendant. The amount claimed under 'Varusha bogam' was refused as there was no demand for it before and that there was no legal basis to direct payment of any amount. It was also proved by the evidence that the first defendant has been getting some income from the family properties during that period.
Regarding the 'Stridhanam' amount of the first defendant, he found that except for the amount covered by the hundials, Exs. B. 7, B. 9, B. 10 and B. 11, which was proved to have been received by the first plaintiff, there was no basis for directing an account against the first plaintiff in respect of it. He rejected the claim of the first defendant in respect of the hundial, Ex. B. 8, dated 28-6-1928, drawn by the first defendant's father in favour of the first plaintiff with the vilasam of RM. AL. St. AL. St. for Rs. 3501 for Msmiyar saman (mother-in-law's property) on the occasion of the first defendant's marriage on the ground that the amount of the hundial belonged to Nachiammal and that there was no proof that the amount still remained unpaid when Nachiammal died.
There being no dispute regarding Schedule A and Schedule B properties a division was directed. But as regards the other schedules C, D and D. I and the schedules appended to the written statement as well as the items covered by the inventory his finding in para 88 of the judgment was this: that all the items mentioned in the Commissioner's inventory were Joint family properties, that the first defendant should account for all the items of the D schedule, which were not included in the inventory and that the first plaintiff will have to account for all the items in the plaint C and D. 1 schedules which are not found in the inventory. He directed that it should be ascertained during the partition proceedings which of the items in the inventory list corresponds to the items in the plaint C and D schedules.
7. The appeal is by defendants 1 and 2 in respect of the matters found against them, and there is a memorandum of cross-objections by the plaintiffs and the third defendant in so far as the findings are against them. Thus, the appeal and the memorandum of cross-objections practically cover the entire controversy, which the learned Subordinate Judge had to deal with but, in the arguments before us, the question seriously disputed & ably argued by counsel on both sides was one concerning the validity of the marriage between the first plaintiff & the third defendant. The other point which was canvassed by the appellants, was whether the learned Judge was justified in grants ing a decree for 3/4th share to the plaintiffs on the footing that plaintiffs 2 and 3 were the illegitimate sons of the first plaintiff. The dispute however regarding the schedules and the items and other matters was very much narrowed down during the arguments before us. The principal question for consideration, therefore, is whether there was a valid marriage between the first plaintiff and the third defendant.
8. It is for the first time that an interesting question of this nature affecting the right of the dissentients from orthodox Hindu religion and law to lay down their own code for marriages comes up before this court for consideration. The entire field concerning the requisites of a valid marriage under Hindu Law was covered and canvassed, before us by counsel on both sides. At the time of the marriage on 14-7-1934, the first plaintiff was a widower having lost two wives in succession and he was a Nattukottai Chettiar. The third defendant was a widow of the Reddi caste. The first plaintiff made attempts at the time to marry a girl of his own community but the girl's parents demanded large sums of money. He, therefore, joined the Purohit Maruppu Sangham' or Anti Purohit Association four months before the marriage. He did not like, as he wrote to his son, to marry in the Chetti community and thought of a mixed marriage. The choice fell upon the third defendant and the function was claimed to be in accordance with the self-respecter's cult. The self-respecters, it is in evidence, belong to the Anti Purohit Association and only Hindus are allowed into its fold. It was started recently, the first marriage having been performed according to that cult in 1929.
Unfortunately, there is no definite evidence regarding the objects of the cult and the principles on which the association was founded. Though it was admitted by P.. W. 9 that there are printed rules of the Anti Purohit Sangham, they were not produced. We asked learned counsel for the plaintiffs to produce the rules of the said sangam, if they were available at least in this court and for that purpose we gave him an opportunity, as we were prepared in the interests of justice to admit as additional evidence those rules, if produced but the learned counsel expressed his inability to produce them P. W. 9 who took a leading part in this movement and was associated perhaps as its Secretary from its inception, described the procedure adopted in such marriages. The President and Secretaries are elected from among the members for this Anti Purohit Association. The President and the Secretaries will issue invitations, to quote his words, "mentioning the names of the bridegroom and the bride and the date, hour and place of marriage. Near relations of parties, if any, wilt also join in the said invitation. The invitations will be issued to all notables. Such of them, who could not be present on the occasion would send congratulatory messages on the fixed day, at the fixed hour in the presence of the gathering, where some leading person will preside, the bride and the bridegroom will be introduced to the audience. Then in the presence of the entire gathering the bride and the bridegroom will exchange garlands and rings They will read a special form declaring fidelity to each other and to share equally in all joys and sorrows of each other. Such a declaration would be printed and circulated among all those present at the marriage. Congratulatory messages received would be read. There will also be speeches congratulating the parties concerned. Then there will be a dinner. The factum of marriage would be communicated to all papers with the photos of the parties concerned."
In his chief-examination, he stated that inter-caste marriages meaning inter sub-caste marriages, even if the woman be a widow, were recognised by his community, i. e., the Nattukottai Chetti community. He says further that there is no fixed rule "that such and such things should be observed for the celebration of a marriage" In their community. In the whole of his deposition, he does not claim that the observance of any of the formalities at the time of the marriage was made obligatory by the rules of the association. The object of the self-respecter's cult or the Anti Purohit Association, according to this witness, was to do away with practices, which according to them, were meaningless. The first plaintiff, P. W. 8, however, deposed that the important thing in such marriages is to make it known at a meeting of many people that a pair had become man and wife, that garlands and finger rings were to be exchanged and that the declaration contained in Ex. A. 2 must be read out. He does not, however, state why those were considered necessary, and whether the rules of the association made the observance of these things obligatory.
It may be a laudable object to simplify the procedure applicable to marriages laid down by the Sastras and custom. But whether an association of persons of different sub-sects can legislate themselves to lay down a procedure which results in a valid union between two spouses is a question, which requires deeper consideration. In this case it has also to be assumed that there is no obligatory procedure laid down by the association itself, even if it is open to it to lay down such a procedure to bring about a valid marriage. Custom or usage in the present case is out of the question as the association was started recently, & the practice even if it is obligatory, was not sanctioned by long usage apart from the question whether a conglomeration of persons drawn from different subsets of a caste could start a usage of their own so as to modify or alter the law laid down by Hindu Shastras. There may be a custom or us age of a particular caste or sub-sect or even of a family modifying Hindu law but a usage applicable to an association of persons of different sub-sects of a caste, so far as we are made aware was never judicially recognised.
9. The learned counsel for the plaintiffs attempted to sustain the validity of the marriage on more than one ground. The extreme contention put forward was that in the case of a non-regenerate class (Sudras) all that is necessary to constitute a valid marriage is proof of an agreement or 'consensus ad idem' between the spouses to enter into marital union and the expression of such an intention in some unequivocal and definite form. It is claimed that it is the right and privilege of a dissentient, sect to cut itself away from the general orthodox community and to constitute a separate class of Hindus with power and authority to regulate marriages among themselves in a form and a method prescribed and followed by themselves, for it is said that all that was not prohibited by Hindu law should be deemed to have been permitted.
It was strenuously argued and seriously maintained that in the case of Sudras, no religious ceremony was necessary for a marriage, if it conforms to any one of the eight forms of marriage recognised under Hindu law; the form adopted in the instant case conforms to the 'Gandharva' form of marriage and no religions rites are prescribed for it in the case of regenerate classes even and there was no need for them in the case of Sudras; all that is necessary for this form of marriage is an agreement between the two spouses which is the outcome of love, and if this is satisfied the legal nexus springs and the marital tie becomes indissoluble; in other words it brings about between the two the status of man and wife.
Learned counsel for the plaintiff however recognised, somewhat illogically, that mere agreement alone between the parties may not be sufficient but might require implementation by the declaration or the observance of a form as evidence of the agreement. It was also faintly suggested on the strength of a passage from Banerjce's "Marriage and Stridhana" 5th Edn. page 111 that even under the strict Hindu law, the observance of religious rites was merely of an evidentiary value and was not an integral and essential part of the samskara.
10. Marriage as an institution was recognised by all civilised nations from very early times. Its utility to bring about a settled life in an organised society cannot be gainsaid. Some considered marriage as a purely civil contract, while others treated it as a religious institution. In 'Lindo v. Ballisario', (1795) 1 Hag Con 216 at pp. 230, 231 and 232, (A) Sir William Scot J. summarised the legal conception of marriage as he understood it in these words:
"The opinions which have divided the world, or writers at least, on this subject, are generally, two. It is held by some persons that marriage is a contract merely civil, by others, that it is a sacred, religious, and spiritual contract, and only to be so considered. The jurisdiction of the Ecclesiastical court was found on ideas of this last described nature; but in a more correct view of the subject, I conceive that neither of these opinions is perfectly accurate. According to juster notions of the nature of the marriage contract, it is not merely either a civil or a religious contract; and, at the present time, it is not to be considered as originally and simply one or the other. It is a contract according to the law of nature, antecedent to civil institution, and which may take place to all intents, and purposes wherever two persons of different sexes engage, by mutual contracts, to live together ............ it cannot be a mere casual and temporary commerce, but must be a contract at least extending to such purposes of a more permanent nature, in the intention of the parties. The contract, thus formed in the state of nature, is adopted as a contract of the greatest importance in civil institutions, and it is charged with a vast variety of obligations merely civil. Bights of property are attached to it on very different principles in different countries ............ In most countries it is also cloathed with religious rites, even in rude societies, as well as in those which are more distinguished for their civil and religious institutions."
The Hindu conception of a marriage is that it is a 'samskara', a purificatory ceremony prescribed by religion. The English word "sacrament", which is very often used as interchangeable with 'samskara', may not accurately bring out the import of the Sanskrit word. "The word Sacrament has had a varied history and is full of associations likely to mislead. The Sanskrit word simply means a purificatory ceremony prescribed by religion. It suggests no idea of obligation or indissolubility. Whether the marriage relationship can be annulled or not would depend not upon its falling within the denotation of the word 'Samskara' but upon express texts". (Per Sir P. S. Sivaswami Iyer at p. 630 1 M. L. J. reprint Vol. 1 page 491). Marriage is a necessary 'Samskara' for all Hindus who do not choose to remain perpetual Brahmacharis or Sannyasins.
The Dharmasastras divide the life of a Hindu into four asramas, Brahmacharya, Gruhastha, Vanaprastha and Sannyasa. A Hindu cannot but be in one of the four asramas during his life. He cannot be outside them. Gruhasthasrama' the life of a householder, however, is praised by the pharmapastras. For women and Sudras, marriage is considered as an important, if not the only 'samskara', which is obligatory. The 'samskaras' are sixteen in number beginning with 'Garbhadhana' and ending with funeral rites.
There is however a divergence of opinion among the Smriti writers and commentators as to how many of these are allowed to women and Sudras. The better opinion seems to be that most of them including marriage should be allowed to women and Sudras. In the case of the latter however, the 'samskaras' should be performed without the utterance of the mantra or sacred text. The above view of marriage received judicial recognition in 'Venkatacharyulu v. Rangacharyulu', 14 Mad 316 (B), 'Kameswara Sastri v. Veeracharlu', 34 Mad 422 (C), affirmed in Gopalakrishnamaraju v. Venkatanarasa Raju', AIR 1914 Mad 432 (PB) (D) 'Sundarbai v. Shivnarayan', 32 Bom 81 (E).
11. Marriage is a Samskara for the man as well as the woman of the Sudra caste also. Marriage in Hindu law is not a mere contract. It is the rite of marriage which creates the indissoluble religious tie between the husband and wife. It is necessary to examine whether to constitute a valid marriage under Hindu law, ceremonies are essential and, if so, whether it is obligatory for the Sudras to observe such ceremonies. It was maintained at one stage of the arguments by learned counsel for the plaintiffs that even in the case of regenerate classes, i. e., 'dwijas' (Brahmana, Kshatriya and Vaisya), the observance of ceremonies is not essential to bring about a valid union between a man and a woman and that the ceremonies were utmost only of evidentiary value.
12. Smrithi writers describe eight modes, which are usually described as 'forms' of acquiring a wife. They are Brahma, Daiva, Arsha, Prajapatya, Asura, Gandharva, Rakshasa and Paisacha. A description of these eight modes is found in Manu III 27-34 (S. B. E.). A similar description is also found in the other smritis. It is unnecessary to quote the text of Manu as it is cited in the latest edition (11th) of Mayne's Hindu law at page 120. In the first four, the essence of the marriage is the transfer of dominion by gift (Kanyadana) by the proper guardian for the marriage. The transference therefore of the dominion over the girl is by the parent to the bridegroom by gift. In the 'Arsha' rite, no doubt, there is a small consideration for the giving of the girl but it is so insignificant that it may be ignored and may be treated as not forming the consideration for the transfer of the dominion over the girl.
In the 'Asura' form, the dominion is acquired by purchase, while in the 'Gandharva' form it is the mutual agreement of the maiden with her lover. In the 'Rakshasa' form, the dominion is obtained by force, while in the 'Paisacha' form, it is obtained by stealth. There is a well-known division of these eight into approved and unapproved forms. Manu prohibited the 'Asura' and 'Paisacha' forms of marriage, for all Varnas including Sudras. The first six in the order enumerated by Manu are lawful for a Brahmana, the four last for a Kshatriya and the same four except the Rakshasa for a Vaisya and a Sudra.
13. According to Manu, therefore, the 'Gandharva' form is common to all the four castes. We have referred in particular to this form, as it is claimed that the marriage in the present case was in the 'Gandharva' form and, therefore, valid. It becomes necessary therefore to pay particular attention to the 'Gandharva' form of marriage and its essentials.
14. It may be observed that in none of the Smritis are the ceremonies requisite for a marriage prescribed. Yajnavalkya describes the qualifications necessary for a bride in Achara Adhyaya, 3--52 as follows:
which is translated as follows: "without breaking (the rules) of studentship, let him marry a woman with auspicious characteristics, who has not belonged to another man, who is lovely, who is not a sapinda & who is younger (than himself)". (Translation of Srischandra Vidyaranyamitakshara -- p. 91).
The direction is "Udavahait" i.e., let him marry. According to what? It can only be according to the rules laid down in the Grihayasutras followed by the parties.
15. The 'Srauthasutras' prescribe the procedure for performing 'ishti' while the 'Grihyasutras' relate to the procedure for performing ceremonies relating to domestic life. Dr. Jolly in his Hindu Law and Custom, Tagore Law Lectures (1928 Edn) at p. 118 points out that, "The Smritis do not deal with the actual nuptial ceremonies because these things properly belong to the sphere of the Grihyasutras, which deal with the particular usages of the different Vedic schools. Thus in Kainas 228, too it is said that the sacrifice into the fire on the occasion of the marriage ceremony should be performed 'yathasmriti' what is explained In the commentary by 'Svagrhyaproktavidhina'. Yet occasional notices of marriage ceremonies in the smritis as well as in the Ramayana and Mahabharatha and elsewhere prove that there was a wide consensus of opinion regarding them. Thus the giving away of the bride in the midst of festivities to the bridegroom (kanyadhana, Sampradhana), the 'dextrarum junclio' (Panigrahana) tho Vedic Mantras accompanying these ceremonies (Panigrahanikamantra), the .sacrifice into the fire and the three courses round the nuptial fire, the seven steps together of the young couple (saptapadi), taking the bride home (vivaha) after which the whole ceremony has been named and other usages were universally observed and may be traced to the vedic age and in some parts even to the hoary past of the Indo-Carnatic period and even at the present day they are very widely observed."
16. While dealing with the law concerning men who break the agreement, Manu says:
"The nuptial texts are a certain proof (that a maiden has been made a lawful) wile; but the learned should know that they (and the marriage ceremony) are complete with the seventh step (of the bride around the sacred fire)". VIII, 227 (S. B. E.).
thereby implying that with the 'saptapadi the marriage tie becomes permanent and indissoluble, and that the status of husband and wife springs with the performance of 'panigrahana' and 'saptapadi'. 'Panigrahana' and 'saptapadi' are treated, therefore, as essential parts of a marriage. This text applied without exception to all kinds of marriages and to all 'Varnas' or castes. It is a general statement of the religious act, which results in the status of husband and wife. Both 'Manu' and 'Yajnavalkya' state, "that once only a maiden is given in marriage".
"Once is the partition (of the inheritance) made (once is) a maiden given in marriage (and) once does (a man) say I will give; each of these three (acts is done) once only." Vide Manu Chap. IX 47 and Yajnavalkya Achara Adhyaya Chapter III-65.
That means that the transference of dominion becomes complete and the marriage tie or legal nexus of husband and wife is brought into existence once and for all.
17. Asvalayana Grihyasutra Adhyaya I Kandika 6 enumerates the 8 kinds of marriages and then proceeds in Kandika 7 to state the procedure to be observed at the wedding, which implies that the procedure laid down therein applies to the eight kinds of marriages but subject however to the overriding consideration that the customs of the different countries and villages should toe observed at the wedding. (Vol. XXIX p. 166 et seq (S. B. E.). In the 7th Kandika of I Adhyaya, 19th sutra, he describes 'saptapadi' as hereunder:
"He then causes her to step forward in the northeastern direction seven steps with the words, 'for Pap with one step, for juice with two steps, for thriving of wealth with three steps, for comfort with four steps, for offspring with five Steps, for the seasons with six steps. Be friend with seven steps. So be thou devoted' to me Let us acquire many sons who may reach old age." (Vol. XXIX S. B. E. pages 169 and 170).
The other Grihyasutras also adopt more or less the same procedure. See also Paraskara Griya Sutra, 1st Kanda, 8th Kandika, Sutra, I (XXIX S. B. E. p. 283). There also 'saptapadi' is described. It is after marriage that a man becomes fit to carry on the Oarhapathya agni or the sacred domestic fire, i.e., one from the three 'agnis' or sacred fires described as 'Ahavaniya,' 'Garhapatya' and 'Dekshinaagni'.
18. That until the marriage ceremony takes place, the status of husband and wife does not spring can also be gathered from Baudhyana'. He states that "if one has intercourse with a maiden, who is sleeping intoxicated or out of her senses (with fear or passion) & weds her afterwards, that is the rite of the Paisacha", So that wedding is necessary even in the case of 'Paisachas'. Vasishta says that:
"if a damsel has been adbucted by force and not been wedded with sacred texts, she may lawfully be given "to another man; she is even liko a maiden." Vide, Vasishta XVII 73 S. B. E.
It therefore follows that religious rites are necessary for all marriages. This opinion is also supported by Mayne's Hindu law (11th Edn) pp. 12V and 128. The view of Manu receives support also from the following texts of Vasishta and Yama. Vasishta says, "In connection with the formation of the relation of husband and wife, agreement is first prescribed. Then taking by the hand is prescribed. It is said that mere agreement is defective and that of the two, taking by the hand is indispensable".
"Not by the pouring of water nor by the words of gift is the relation of husband and wife formed but it is formed by the rite of taking the bride by the hand and when they walk together the seventh step." (quoted in '14 Mad 316 at p. 319 (C)' ).
Basing their opinion on the texts of Manu, Vasishta and Yarna, it was held in '14 Mad 316 at p. 319 (C)', that the religious ceremony becomes complete when the 'saptapadi' is performed,
19. Reliance however was placed in the course of the argument on Manu V-152 where it is stated:
"For the sake of procuring good fortune to (brides) the recitation of benedictory texts (swastyayana) and the sacrifice to the Lord of creatures (Prajapathi) are used at weddings; but the betrothel (by the father or guardian) is the cause of (the husband's) dominion (over his wife)".
From this it is urged that religious rites are not essential and that this text is in direct contradiction to what is stated by Manu in Chapter VIII 227. As Kulluka Bhatta states, this text is not intended to contradict what is stated in the 8th Chapter but is only intended to declare that after the 'Kanyadana' and the acceptance of the gift Without the observance of the nuptial rites, the girl becomes subject to the rights and control, of the husband but she does not acquire the status of a wife until 'saptapadi' is performed as required by Manu VIII. 227.
The opinion of all the text writers including Colebrooke & strange & the modern writers agrees with the view that 'saptapadi' is necessary for bringing about the status of husband and wife. See also "Hindu law of Marriage and Stridhana" (5th Edn.) by Sir Gooroodass Banerjee, pp. 105 to 109.
20. The learned counsel for the first plaintiff contended that at least in the case of 'Gandharva' marriage, the ceremonies are not essential and that all that is required is an agreement between the maiden and her lover to live as husband and Wife. The definition of 'Gandharva' marriage in Manu Chapter 3-32 is:
"The voluntary union of a maiden and her lover, one must know (to be) the Gandharva rite which springs from desire and has sexual intercourse for its purpose".
Yajnavalkya defines the Gandharva form of marriage as a marriage by mutual consent and Vijnaneswara adds that Gandharva marriage takes place through the mutual love of the parties. On this Balambhatta in his commentary on Mitakshara states:
"In the case of Gandharva and other rites of marriage, in order to constitute the legal status of husband and wife, there must be performed the ceremonies of homa and all the rest up to saptapadi. As in the Grihya Parisista: The four forms of marriages, Gandharva, Asura, Paisacha and Rakshasa, though consummation may have taken place before, yet after it the homa ceremony must be performed. If such homa etc., ceremonies are not performed, then the girl so seduced or forcibly taken away etc., may be given away in marriage to another, according to the following text of Boudhyayana (iv. i. 15) and of Vasishta (XVIII, 73). "If a damsel has been abducted by force and not been wedded with sacred texts, she may lawfully be given to another man; she is even like a maiden".
Vide Yajnavalkya Achara Adhyaya page 128 Srisa Chandra Vidyarnava Edition. Though Balambhatta may not be a recognised authority in Madras, as the opinion is based upon the text of 'Baudhyayana' and 'Vasishta' and is also in con sonance with the opinion of other writers, there is no reason to reject his view on the ground that Balambhatta is not an authority in Madras. Parasara Madhaviyya referring to Devala's text states that "there need not be any doubt as to the status of husband and of wife being established in the forms of marriage beginning with the Gandharva for want of (the ceremony of) going round seven steps etc., for though these (ceremonies) are absent before taking (the bride) they take place subsequently, so says Devala: 'In the Gandharva and other marriages, the marriage ceremony should be performed again in toe presence of the fire, by all the three castes, when he (the bridegroom) is able. Also in Grihya Parisishta; 'In the Gandharva, the Asura and the Paisacha and in the Rakshasa, the meeting takes place first, and the homa (sacrifice) is ordained subsequently'. If the homa be not performed, the status of wife (does) not arise. Hence Vasishta and Baudhyayana quote the same texts already referred to."
See translation of Parasara Madhaviyam at p. 641, 1 M. L. J.
21. Medhathithi commenting on Manu Ch. 8 227 also is of the same opinion. He says:
"Dara means wife. The mantras used in the ceremony of wedding create a wife. The sacrament becomes complete by the use of those mantras. The twice-born alone can use mantras. As regards the marriage of a Sudra, in his case there are no mantras but other rites apply excluding the mantras. Therefore mantras must be taken as a distinctive feature of the ceremony called marriage. These mantras attain completion on the seventh step."
"If a Sudra lays the sacred fire as it does not thereby become the Akavaniya fire, so if a person marries a Sapinda girl, there may be the burnt offering, yet there would be no marriage."
'Nirnaya Sindhu' of 'Kamalakara Bhatta' (The text and the translation of Nirnaya Sindhu relevant to the portion of the judgment are collected in Appendix I to this judgment) also supports the above view. According to him even in Gandharva and other forms of marriages pouring of water as confirmatory of a gift is insisted upon by Yama. In that context Yama says:
"A man is not to be called the husband of a girl merely by pouring water in his hand or by declaring him her husband. But only by panigrahana ceremony (catching hold of the hands of the girl) and having taken seven steps with her."
Devala's text is also quoted but his opinion regarding which of the three classes are eligible for the Gandharva marriage is not accepted by all. He then refers to Parisista of Parasaramadhaviyya and quotes the text already referred to and after referring to the texts of Vasishta and Baudhyana he raised the question: "If a girl is not married with the chanting of mantras, she may be given to any other person in any kind of marriage. In that case what is the necessity when the girl is carried away by force, to make a special mention that in Rakshasa and Paisacha marriages she may be given to another man?" and replied as follows:
"A girl who does not accept the man who carried her away by force, as her husband, may marry again and it is immaterial in those marriages whether she is purified by samskara or otherwise".
Narada as quoted in Madanaparijata:
"The mantras for marriages are considered to be essential to make a girl a wife and the seventh step taken along with that girl is the culmination of that ceremony."
The same is said in Apararka and Smritichandriita also.
22. Apart from the views of the commentators above referred to, Priyanath Sen who was an erudite scholar and met with an untimely death and whose talent was appreciated and expressed by Sir Asutosh Mukherjea in the Introduction to the "General Principles of Hindu Jurisprudence" (Tagore Law Lectures 1909) refutes in the first instance the view expressed by Mayne in Hindu Law and Usage (earlier edition) that some of the forms of marriage under Hindu law are only euphemisms for seduction and rape. After pointing out that Mayne's assumptions were entirely unfounded and were not warranted by anything in Hindu law, he points out that Mayne's views proceeded on a total misconception of the fundamentals of the Hindu law of marriage. He concludes that religious ceremonies are essential in whatever form the marriage may be, after quoting the' opinion of Madhavaeharya and the text of Devala. To the question raised "Why Hindu law givers should have sanctioned the marriage of a girl obtained by use of force or fraud", the answer given by the learned Lecturer at p. 270 is:
"To this question an answer would at once suggest itself to those who understand anything about the Hindu sentiments regarding female chastity; a woman should not only be free from stain but free from all suspicion of any stain; a suspicion that she may have known another man even against her inclination might dissuade many people from afterwards marrying her; hence the requirement that the wrong-doer should in such a case afterwards duly perform the marital rites and take her as his wife, so Madhavaeharya points out that 'if the ceremonies are not performed, the marital relationship does not arise."
This view is also supported, says the learned author toy Vasishta and Baudhayana. He then concludes:
"After this if anybody says that the recognition of marriages gives a premium to the use of force or fraud, I shall recommend him to read the severe penalties prescribed by the Hindu law against the culprit who becomes guilty of such transgressions."
23. Prom the above examination of the Smritis and commentaries, it is obvious that there are really two essential elements necessary to constitute a valid marriage under Hindu law according to Shastras; one a secular element, viz., gift of the bride or 'Kanyadhana' in the four approved forms, the transference of dominion for consideration in the 'Asura' form and mutual consent or agreement between the maiden and the bridegroom in the 'Gandharva' form. These must be supplemented by the actual performance of the marriage by going through the form prescribed by the 'Grihyasutras' of which the essential elements are 'panigrahana' and 'saptapadi'. In the case of 'Rakshasa' and 'Paisacha' forms also, there should be a marriage rite in the form prescribed by the Shastras. This is the religious element. Both the secular and the religious elements are essential for the validity of a marriage. The 'Gandharva' form of marriage is no exception to the rule.
24. As pointed out in the 'Asvalayana Grihyasutras', the form of marriage prescribed by the 'sutras' is subject to modification by custom or usage. The courts have gone to the length of holding that even 'saptapadi' and 'panigrahans' may be dispensed with by custom or usage. It is unnecessary to consider whether this view is correct or not. If the community to which the parties belong has modified by long established usage the ceremonies prescribed by the 'Shastras' and has adopted new forms and new conventions, they must be recognised by the courts. But the essential requisite for recognition of such a custom is that it must be sufficiently ancient and definite and the members of the caste or sub-caste or family must recognise it as obligatory. It should not be left to the will of the caste or sub-caste to alter them at their will and pleasure, for the essence of custom or usage is that it is an ancient one recognised and adopted by the caste and has certainty about it.
In the present case, taking the sub-caste of the first plaintiff, it has been found on the evidence by the learned trial Judge that the form of marriage recognised by the Chettiar community is more or less the same as that observed by the regenerate classes. There is the tying of the 'tali' or 'tirumangalyam', the agreement, the homam in which mantras are recited by Brahmins and all these are treated as essential requisites for a valid marriage. Similarly in the case of Reddis to which community the third defendant belongs, the homa is done by Brahmins in the presence of the couple, and there are other observances which have been found by the learned Judge as forming part of the custom. The correctness of the findings in paras. 14, 15 and 16 of the judgment of the learned Judge has not been questioned before us. We must, therefore, take it as found by the learned Judge, that the Nattukottai Chettiar and the Reddi communities observe their respective customs as essential requisites, for a valid marriage.
25. It will be convenient to deal here with the contention raised on behalf of the contesting defendants that the 'Gandharva' form of marriage is obsolete. On this point, it is true there is a divergence of opinion among the text writers and also in decisions of courts. But this court in-- 'Brindavana v. Radhamani', 12 Mad 72 (F), dio not treat it as obsolete. On the contrary, it was pointed out that the opinion of Sir William Macnaughten that:
"The 'Gandharva' marriage is only one of the eight modes for the legalising of which no ceremonies are necessary and that all that is required to establish is mutual cohabitation preceded by a reciprocal amorous agreement"
is erroneous, for, according to Hindu texts, the religious element was as indispensable to a valid Gandharva marriage as the secular element. Reliance was placed upon a text of Devala and also the opinion of the compiler of Vyavastha Chandrika and of Colebrooke. On this ground, It was held, accepting the evidence of the ninth witness in the case and the text of Devala, that the marriage in that, particular case was not contracted in the prescribed form and that the intention to constitute the relation of husband and wife, which the observance of that form is designed to indicate, was wanting, and, therefore, there was no valid marriage.
Very recently the Patna High Court in-- Kamani Devi v. Kameshwar Singh', AIR 1946 Pat "316 (G), considered the question elaborately and expressed the view that the 'Gandharva' form of marriage was not invalid according to the "Mithila school of Hindu law and was available even to Brahmins. It was held that, for this form of marriage, nuptial rites and ceremonies including homa and 'saptapadi' were necessary.
26. There are certain 'obiter dicta' in 'Viswanathaswamy Naicker v. Kamu Animal', 24 Mad LJ 271 at p. 282 (H) that marriage in that particular community to which the zarnlndar belonged was not shown to be valid and that proof was necessary that it was in vogue. It was assumed in 'Maharajah of Kolhapur v. Sundaram Ayyar', AIR 1925 Mad 497 (I), that the 'Gandharva' form of marriage was obsolete. The Allahabad High Court in 'Bhaoni v. Maharaja Singh', 3 All 738 (J; condemned this form of marriage in strong terms by describing it as nothing more or less than concubinage & that it had become obsolete as a form of marriage. The learned Judges however did not refer to any of the texts and the opinion of the text writers on this question. In a later case in the same court 'Mt. Kishen Dei v. Sheo Paltan', AIR 1926 All l (K) Daniels J. observed at p. 6 as follows:
"Gandharba is one of the three most primitive end is more than the unregulated indulgence of lust"
and he rested his opinion on the decision in '3 All 738 (J)'. He did not however stop with those observations but used rather strong language in condemning this form of marriage, for he stated at pp. 6 and 7:
"To identify modern forms of marriage, such as those proposed by Dr. Gaur's Marriage Bill or allowed by the Hindu Widows Remarriage Act with this primitive and obsolete form would be historically unsound and socially reactionary."
In support of this view, he cited a passage from Mayne's Hindu law, 8th Edn. (p. 100). It is to be regretted that the learned Judge should have, without considering the authorities bearing on the question, indulged in such strong language in condemning this form of marriage. In the first place, it is wrong to have assumed that it is an unregulated indulgence of lust, overlooking the fact that even when by mutual agreement the parties are brought together in this form of marriage, the performance of the obligatory ceremonies is an essential requisite, and that it brings about, when the rites are performed, an indissoluble tie.
Among the Smriti-writers, Manu considers that this form is not altogether an unapproved form, in the sense that the stridhana property of women married in this form devolves upon the husband's family and not on the father's as in the other unapproved forms. Vide Manu Chapter IX--196. It is not stated why the learned Judge considered this form of marriage as historically unsound and socially reactionary. There is nothing odious when two persons 'sui juris' man and woman, agree to marry between themselves, & the choice was their own and not super-imposed by the guardian for the marriage, and make the tie permanent by going through the marriage rites prescribed by the Shastras. Surely the learned Judge would not have stated that the same would apply equally to other societies where the spouses of their own choice enter into a marriage tie. The learned author discusses this question at p. 129 of the llth Edn. of Mayne's Hindu law and Usage and expresses the view, that it is not obsolete, and this opinion is supported by Jagannatha and Gooroodass Banerjee "Marriage and Stridhana" 5th Edn., p. 93. The Gandharva form of marriage is, according to our view, not obsolete at any rate in this State.
27. If as held above the ceremonies are essential for the Gandharva form of marriage, the question is whether the same would apply in the case of Sudras At p. 161 (11th Edn.), Mayne, it is pointed out that the Sastraic rites observed by the three regenerate classes can be and are ordinarily observed by the fourth caste also, either with or without mantras and this opinion is based on '34 Mad 422 (C), 'Authikesavalu v. Ramauujaam', 32 Mad 512 (L) and '48 Mad l XI)1.
In '34 Mad 422 (C)', Krishnaswami Aiyar J. who delivered the leading judgment in the case, collected at p. 427 the texts relevant for the decision. The parties in that case were Sudras, and the question for decision was whether marriage was one of the samskares or religious rites in the case of Sudras as well as the regenerate classes. The authorities cited at p. 427 and in the subsequent pages undoubtedly establish that for the Sudras the 'samskaras' are without mantras. It is unnecessary to cover the same ground once more and examine the texts cited in tliat decision. We may refer however to a few of the authorities. Balambhatta quotes a text of Yama;
"The Sudra also must be similarly sanctified by the performance of the above rites but without the utterance of the sacred formulae."
This is in his commentaiy on Yajnavalkya Chapter II--10. See Yajnavaikya Smriti by Srisa Chandra Vidyarnava at p. 18. Parasara Madhaviyya referring to sioka 121 of Acharakanda (Yajnavaikya) points out that it imposes on a Sudra the duty of offering every day the five sacrifices, which all persons belonging to the twice-born classes have daily to perform, but that the mantra called 'namaha' should be pronounced. The five sacrifices, which a dwija must daily offer, are mentioned in sloka 102 of Acharakanda, i.e., the great sacrifices to the bhutas, the manes, the Gods, the Brahma and Men. Vide 'l M. L. J. page 70 (Reprint 1 M. L. J. page 66-671, where the translation of Parasara Madhaviyya is given.
28. Medhathithi's commentaiy on Manu, Chap. VIII-227 has already been cited.
29. Of course, a Sudra may not be entitled to kindle the 'vivahika' fire at the time of the 'saptapadi', but there is no objection for kindling a fire. 'Nirnaya Sindhu' after quoting the text of 'Yams', enumerates the 'shodasa' or the sixteen samskaras according to 'Vyasa' and then observes that nine samskaras beginning with a 'garbhadhana' and ending with 'karnavedha' are to be performed for women without mantras, and the tenth, vivaha or marriage ceremony is to be performed with mantras, whereas for Sudras, these (all these ten) are to be performed without mantras. He also supports his opinion by a reference to Madauaratna, Sarangadhara and Apararka as well as the commentaiy of Medliatithi already referred to. He also quotes the text of Vyasa, where it is stated that:
"Sudras though being the fourth varna, they too are included among the varnas. So they are entitled to Dharma, except uttering the Vedic mantras and the words 'svadha', 'svaha' and 'vashat'."
and also the following saying of Marichi:
"In regard to Sudras, who are (since they are) amantras (devoid of mantras), it is done by Brahmins with mantras"
and then he adds:
"This (chanting by Brahmin on behalf of a Sudra) is of all round application. This applies to all Sudradharmas. The mantras that are chanted should be only puranic and not vedic. This is According to Sulapani. This is to be adopted for women also."
Sudra Kamalakara describes the 'samskaras' for the sudras. It also refers to the texts of Yama and Vyasa, which are relied on in Nirnaya Sindhu and concludes that for the Sudras the 'Nama mantra' only is to be applied. He refers to Manu VIII-227. It is therein observed that the marriage rite is common to all the varnas as Yajnavaikya said Panigrahana is among the same varnas without making any distinction. He also states that it is said in the Harihara Bhashya that in the marriages of Sudra male with a Sudra woman only the acts without the mantra have to be done after going round the fire in the fourth and then sitting down and making the homa "I bow to Prajapathi" commenced by the Brahma priest and then placing seven small heaps of rice on the northern side, the bridegroom should make the bride take seven steps with the right foot with the words "I bow to Vishnu."
The text and its translation are given in Appendix II to the judgment.
30. The samskaras for Sudras are also elaborately discussed in the "History of Dharmasastra" by p. V. Kane, Vol. IE, who says that in the case of a Sudra, he should not say the mantra while performing the homa as 'agnyeswaha' but should think of Agni and suy 'namaha' and relies on the text of Manu Chap. X-127 that the religious rites for the Sudra are without mantras. Though some commentators permitted the 'vivahika' fire i.e., the fire kindled at the time of marriage, Medatithl and other commentators say that the Sudra would offer oblations in the ordinary nre and that there is no 'vivahika' fire for the Sudra.
31. In the face of these authorities and in view of the custom of the Nattukottai Chettiars and the Reddis as found by the learned Subordinate Judge, it is difficult to agree with the contention of the learned counsel fur the plaintiffs Mr. T. M. Krishnaswami Ayyar that as Sudras are incompetent to perform ceremonies, none of the ceremonies are essential for a valid marriage according to the Gandharva form or for the matter of that any other form. Prom the foregoing discussion, It is obvious that ceremonies are essential in the case of all the eight forms of marriage and that the said rule applies even to Sudras. This is the strict Hindu law regarding the mode by which a valid marriage could be effected.
32. As custom is "transcendant law" according to the sages, it is open to establish a custom modifying the ordinary Hindu law, i.e., a custom having the force of law. The essentials of a valid custom, whether it is a caste custom or a sub-caste custom or custom of a particular locality or of a family, were judicially considered and laid down in decisions. The subject is discussed elaborately in the latest edition (eleventh) of Mayne at pp. 63 to 67. It is needless to state that the customs must be ancient, certain & reasonable and they cannot be enlarged beyond the usage by parity of reason since it is the usage that makes the law and not the reason of the thing. This was also the view taken by the Supreme Court in 'Saraswathi Animal v. Jagadambal', (M). In the present case apart from the custom of Nattukottai Chettiars and the custom of Reddis concerning marriage rites, no other custom or usage satisfying the requinnents of a valid custom has been established,
33. Relying however on certain observations ot Sankaran Nair J. in 'Muthuswami Mudaliar v. Masilamani', 33 Mad 342 (N), it was strenuously contended that it was open to a dissentient body of persons drawn Irons different sub-sects of the same caste to start a new usage or custom regarding marriage forms, and that if a marriage function was performed in accordance with those newly started principles, so long as the marriage is recognised as valid by that body, the marriage should be held valid. In that case the principal question for decision was whether the marriage contracted in accordance with Hindu rites by a Hindu with a woman who was a Christian before marriage & who became converted to Hinduism was valid when such marriages were common and were recognised as valid by the custom of the caste to which the man belonged.
Applying the principle, that clear proof of usage will outweigh the written text of the law, it was held that the marriage was valid according to the usage of the community. The wider proposition, which is obiter, was also laid down by Sankaran Nair J. in that case, i.e., that where a caste accepts a marriage as valid and treats the parties thereto as members of the caste, the court will be slow to declare such a marriage void. At. p. .353 the learned Judge states this:
"It appears to me, therefore that the Hindu law to be administered by the Courts consists of the Shastras which claim divine sanction & are followed by the Brahmins generally & also of the usages or approved habitual practices of these communities, whose caste status depends upon the degree of conformity of their usages to the shastrag and if according to the usage of the community a marriage is valid, or the community recognises a marriage as valid then, in the absence of any statutory prohibition, I fail to see why it should not be recognised as valid, even without the requisites of a valid custom in derogation of what may be styled the ordinary Hindu law unless it offends against rules which would render any other marriage invalid."
The learned Judge at page 347 describes a caste as something which is invariably known "by a distinctive name for identification, it has its own rules for Internal management and has also got power of expulsion". On this footing, the learned Judge treated Kaikolars, the community with which he was concerned, as a separate and distinct caste. It will be a dangerous doctrine to lay down that a community, meaning thereby a definite body with the appellation of a sub-caste or caste should have liberty to lay down the requisites of a valid marriage without any statutory authority or even without the authority of a long established custom or usage. It is perfectly open to a dissentient sect or community to secede from the sacerdotal authority. But it is not open to such a conglomeration of persons to alter the Hindu law and lay down of their own as if they possess legislative authority. In the matter of religion, in the matter of social habits, it is perfectly open to them to make any alterations or any deviations from the recognised form of Hindu religion and society. But to go further and say that they can also alter the personal law e.g., marriage or inheritance from time to time in any manner they pleased, is to confer upon such a body legislative power for which there is no warrant either in Hindu law or elsewhere.
The proposition laid down by the learned Judge at page 353, therefore, in our opinion, is not sup ported by any authority. As was rightly pointed out by Mayne (11th Edn) at page 172, the question of marriage is not a question of the caste and therefore does not fall within its exclusive jurisdiction. The validity of a marriage has to be tested and determined in accordance with the provisions of the law governing the parties and not in accordance with the rules laid down by any association or a society. If the caste has been able to establish its usage regulating the form and the requisites of a valid marriage, such a usage being transcendent law is obligatory and it is binding not only upon the parties but also on the courts, who are bound to recognise and give effect to the usage.
34. Reference was made in the course of the arguments to the forms of marriage adopted by progressive Brahmos. As pointed out by Banerjee in "Marriage and Stridhana" there are two sects among Brahmos, the Adi-Brahmos, who regard themselves still Hindus and deprecate all legislation on the subject of Brahmist marriages, and the progressive Brahmists, who have no objection to declare that they are neither Hindus, Muhammadans nor Parsis, and who want a form of maniage not sanctioned by Hindu law or usage. The then Advocate General of Bengal was consulted, and he expressed a doubt whether the marriages performed in accordance with the procedure laid down by the progressive Brahmos would be valid, and the result was that they approached the Legislature for a simpler mode of effecting marriages.
As a result of their agitation, it is well known that the Special Marriage Act (Act 3 of 1872) was passed, which was amended subsequently in 1923. The origin and the necessity for the Act, con be gathered from the report of the Select Committee dated 21-12-1871 published in the Gazette of India. Sir James Stephen, whose opinion was quoted by Sankaran Nair J. was one of the members of the Select Committee. The only course, therefore, open to persons, who do not want to recognise the Hindu law forms of marriage and are unable to establish a usage validating such marriages is either to register the marriages under the existing statute law, if they are agreeable to subject themselves to the limitations imposed by the statute in that behalf, or, if they think that special legislation is necessary, it is incumbent 'upon them to approach the Legislature and have a law regulating their marriages placed on the Statute book. It is, therefore, in our opinion not possible to accept the freedom to legislate for themselves which was claimed on behalf of the self-respecter's suit and the Anti Purohit Association.
35. It may be pointed out, as already stated, that the associations in question have not been able to make any procedure obligatory to establish a valid form of marriage, assuming that they have power to do so, as the evidence does not establish the existence of any such binding rules. It was also claimed that as the third defendant is a widow and as remarriage of widows is undoubtedly permitted under 'the Hindu Widows Remarriage Act (Act 15 of 1856) and as the said Act does not prescribe any particular form It is not obligatory upon the parties either to conform to Hindu law or to establish any usage in that behalf and it is open to them by mere agreement followed by a declaration to bring about a valid marriage. This is especially so, it is claimed, as the texts relating to marriage are applicable only to virgins and not to widows or other persons who claim re-marriage. In support of this view, the opinion of Sarkar and some decisions were relied on. In Sarkar's Hindu law. 8th Edn. at p. 129, the following passage occurs:
"The latest commentators unanimously maintain the necessity of the performance of religious rites for the completion of marriage in all cases including even the Gandharva, although the well-known instance of Sakuntala's espousal by Dushyanta negatives that view. In order to arrive at a correct conclusion, we must take in-- to consideration the marriages of virgins, nonvirgins and widows, and the ceremonies that are common to them. Manu appears to lay down that the essential ceremony for creating the status or marital dominion of the husband is the gift of the damsel by the father or other person having authority in that behalf; the religious ceremonies being performed for procuring good fortune to the bride. Grown-up damsels who have passed the nubile age, as well as widows, are deemed 'sui juris' in this respect, and therefore may become self-given or give their ownselves in marriage to men willing to marry them. The secular gift and acceptance of the bride would be sufficient to create the relation of husband and wife between the acceptor and the woman. Even acceptance is not necessary for the completion of a gift, according to the author of the Dayabhaga, who maintains that the relinquishment by the donor causes the right of the donee, whose non-acceptance would extinguish the right created by the donor's act."
36. The text of Manu that is referred to was already adverted to and it was pointed out that that text as observed by Kalluka Bhatta is not in conflict with Manu Chapter VIII-227. The religious ceremonies are not merely for the purpose of procuring good fortune to the bride nor merely to serve as a piece of evidence but 'panigrahana' and the 'saptapadi' are essential to complete the marriage and to bring about the unalterable status of husband and wife, i.e., the legal nexus. The assumption that the Hindu law texts apply only to a virgin 'Kanya' 'virgo intacta', is not correct. According to Kulluka as pointed out by Tendolkar J. in 'A v. B. AIR 1952 Bom 486 (O)', marriage with a 'virgo intacta' is dharma, religious, but marriage with a girl, who is not 'virgo intacta.' is not forbidden, although it may be 'adharma' (not approved by religion). Manu Chapter VIII227 seems to suggest that nuptial texts apply only to virgins. In Yajnavalkya 152 the word used is 'striyam' i. e., woman. The commentary of Mitak-shara on 'Striyam' is that it was intended to prohibit marriage with a eunuch and the womanhood must be examined.
As pointed out in Mayne (11th Edn.) at paga 108, the rule that nuptial texts should be confined to virgins was not an imperative rule of law but only a moral precept, for remarriage of widows and marriage of those who were not virgins at the time of marriage, such as those who had al-j ready a son or who were pregnant at the time of marriage, was expressly permitted, though disapproved, and no other form of marriage is provided for non-virgins. See Manu IX--172, 175 and 177. But historically the son born to a woman who was not a virgin at her marriage was, though legitimate, not an 'aurasa' son in the technical sense.
In paragraph 105-A at p. 144 (Mayne 11th Edn.) the learned author refers to the decision of a single Judge of this court in 'Mandan Shetti v. Timmiavva', AIR 1940 Med 135 (P) where this view was adopted. To obviate any doubt that may be entertained regarding the applicability of the texts relating to Hindu marriages to the remarriage of widows Section 6 of the Hindu Widows Remarriage Act (15 of 1856) lays down that "Whatever words spoken, ceremonies performed or engagements made on the marriage of ft Hindu female who has not been previously married, are sufficient to constitute a valid marriage, shall have the same effect if spoken, performed or made on the marriage of a Hindu widow; and no marriage shall be declared invalid on the ground that such words, ceremonies or engagements are Inapplicable to the case of a widow."
This section is undoubtedly permissive in that it recognises the validity of applying the ceremonies and engagements applicable to unmarried woman tinder Hindu law also to the remarriage of widows What is more, words, that is mantras, may also be repeated and it is not open to anybody to question the appropriateness of the applicability of the forms and procedure and the mantras in the case of remarriage of widows. The fact that a particular rite of marriage was not prescribed by the statute is of no consequence. If the parties are governed by Hindu law, as the parties in this case are, in order to bring about a valid marriage even In the case of a widow, they must either observe the formalities and the ceremonies requisite for a valid marriage under Hindu law or at any rate such a form and such ceremonies which according to the usage of the community, caste, sub-caste or family govern their marriages in order to taring about and establish a valid marriage. If they do not choose however to conform to any of the forms recognised or permitted by Hindu law, it is open to them to have recourse to the statute, for example, Act 3 of 1872 and get the marriage registered.
The Legislature sanctioned the remarriage of widows and permitted the procedure applicable to Hindu marriages to the remarriage of widows also who are Hindus. The option is given to them either to follow one course or the other. The Hindu Widows Remarriage Act removed a ban as was done by later statutes of 1946 and 1949 in the case of Sagothra, intercaste and sub-caste marriages. To say that they are free from the shackles of the law, and it is open to them to establish a valid marriage by mere agreement between the parties is not a course permitted by law. They seek in this case to establish a valid marriage between the first plaintiff and the third defendant. They must establish such a valid marriage either according to Hindu law or usage recognised under Hindu Jaw or by adopting some statutory form permitted to them. They cannot claim to be above law and say that nothing is required to establish a valid marriage.
37. The decision in 'Ram Rakni v. Daulat Ram', AIR 1926 Lah 31 (I) (Q) related to a case under the Anand Marriage Act (Act 7 of 1909) but it was pointed out by the learned Judge relying on 'Lalchand v. Mt. Thakur Devi', 49 Pun Be 1903 (R) that it was not necessary for the validity of a marriage by a khatri widow that all the usual ceremonies, which have to be performed in the case of Khatri girl on her first marriage should be performed, and that in such cases, if the parties go through such ceremonies as they can reasonably arrange for and clearly and unequivocally express their intention to enter into the marriage relation with each other as husband and wife, such a union is a valid marriage.
It was found in '49 Pun Re 1903 (R)' that the ceremonies gone through and the publicity given and the measure taken were sufficient to constitute a valid marriage. The ceremony intended to constitute a legal marriage according to the custom and which is described as chadar andazi formed a part and was gone through and the girl with full knowledge consented to the ceremony and went through a legal marriage. But it was, however, found that the girl was a minor, and no parent or guardian was present to give consent. As consent by a competent person was absent in the case, which was necessary to the nexus of a valid marriage, there was no valid marriage. The observation in the case, therefore, which was extracted and followed in 'AIR 1926 Lah 31 (1) (Q)' must be understood with reference to the facts of the case.
38. The opinion of the Pandits in 'Juggomohan Mullick v. Saumcoomar Babee', 2 Morley's Digest 43 (S) that, "The eight forms are mere forms and ceremonies. The marriage is constituted by the persons saying 'I marry' etc., and agreeing to marry. It is the contract of marriage which is the essence of it"
Is not a complete statement of the law relating to marriage under Hindu law. We have said enough in the course of the judgment to show that this statement of the Pandits cannot be treated as an accurate complete statement of the law.
39. 'Mahomed Jan Khan v. Sundar', AIR 1934 All 334 (T) is a case where a custom was established, though the ceremony was of a simple nature. The ceremony consisted of a feast with two of the caste people, and one man gave the girl in marriage to the other. The custom was accepted. The giving of the woman to the future husband, his taking her and living with her as his wife after feasting some of the biradri appeared to be the requisite ceremony to effect a marriage. But even there the element of custom or usage, which is treated as binding so as to bring about the status of a husband and wife, was not ignored, though the form itself is a very simple one. These decisions do not support the extreme contention urged on behalf of the plaintiff; and if they are treated as authority to the contrary we must say in the light of the foregoing discussion that we respectfully dissent from those decisions.
40. There is one other decision of Rajamannar J. as he then was in 'Thirumalai Najcker v. Ethirajammah', AIR 1946 Mad 463 (U), which was strongly relied on behalf of the plaintiff. It also related to the marriage of a widow. The parties were Naickers. The ceremony of marriage consisted in the case of a widow of tying what is called naduveetuthali' which was found to be the custom among Naickers in such cases. The learned Judge found that the evidence adduced in the case was insufficient to establish that the tying of the 'naduveettuthali' was a custom among the Naickers to establish a valid form of marriage. At p. 440, the learned Judge observes that, in the state of the evidence adduced before him, he was forced to rest his conclusion on the presumption, that when the fact of the celebration of some form of marriage is established, a valid marriage must be presumed. The sentence is:
"In this state of the evidence I am forced to rest my conclusion not on a definite finding that it has been established before me that this form of marriage is valid, but rather on the general presumption which ought to be drawn in favour of a valid marriage, 'when the fact of the celebration of some form of marriage is established and it has not been established before me by evidence on behalf of the plaintiff that that form is invalid."
As we read the judgment, we do not consider that the learned Judge intended to lay down that if the parties who intended to contract a marriage, with a full knowledge of the rites prescribed for a lawful marriage either by the law applicable to them or by the usage of the community to which they belonged, deliberately chose some form of marriage not sanctioned by such law or usage, the parties could still invoke a presumption in favour of the validity of the rite they chose to adopt. Flouting the law cannot furnish, a legal basis for any such legal presumption. There is no room for the application of any presumption in the present case as we know definitely from the evidence as to what happened at the function of the marriage. Prom the mere fact that the first plaintiff and the third defendant lived as husband and wife for a number of years it cannot be presumed that there was a valid, marriage, if there is nothing more. If, as pointed out in 'Bai Diwali v. Moti Karson', 22 Bom 509 (V), certain ceremonies are performed, and it is not known after a long lapse of time as to what exactly was the nature of the ceremonies, there may be room for presuming the validity of a marriage, but in the present case there is no room for the application of any presumption.
41. What then is the position on the facts of the present case? Assuming that the Gandharva form of marriage was intended, in the absence; of the performance of any religious rites so as to bring about a valid marriage, it must be held that a valid marriage in that form between the first plaintiff and the third defendant was not established, No ceremonies of any sort either those prescribed by Shastras or those by usage having the force of law were performed according to the evidence in the case and none were prescribed by the rules of the association. There remains only the agreement between the parties & the declaration, the exchange of garlands rings & living together from 1934 as man and wife. The parties have not been able to establish a marriage according to Hindu law, i.e., according to the dharmashastras; they have not been able to establish that they conformed to the usage of either the Nattukottai Chettiars or the Reddis; nor have they been able to establish any independent usage having the force of law by which such a union brings about a valid marriage. There is no authority of any kind to support, the extreme contention that a mere agreement followed by a declaration and living together as husband and wife with the exchange of garlands and rings are sufficient to constitute a valid marriage under Hindu law.
42. The doctrine of 'factum valet' was also invoked to validate the marriage. The doctrine, it must be remembered, enables to cure the violation of a directory provision or a mere matter of form but does not cure the violation of the fundamental principles or the essence of the transaction. The scope of this doctrine was explained by the Privy Council in the well-known case of 'Balusu v. Balusu', 22 Mad 398 at p. 423 (W). If there are certain essential ceremonies, which are necessary for a marriage, the non-observance of those ceremonies or religious rites cannot be overlooked by applying the doctrine of 'factum valet'. The doctrine applies only where there is no initial want of authority or where there is 110 positive interdiction. If, according to Maau's text, certain essential rites are necessary for a valid marriage, unless it is shown by custom that those ceremonies have been modified, it is imperative upon the parties concerned to observe the formalities laid down by law. Non-observance of those ritea cannot be cured by applying the doctrine of 'factum valet'. There are very many ceremonies connected with the marriage, which are more or less non-obligatory or directory. If those ceremonies are not performed at the marriage, the omission may be cured by the doctrine of 'factum valet'.
As in the present case, no ceremonies have been observed, the doctrine of 'factum valet' cannot help the plaintiffs. Besides, in this case, as we have already pointed out, the first plaintiff & the third defendant deliberately chose to deviate from law and usage and adopted a marriage ceremony not recognised by either. The doctrine of 'factum valet' cannot, in our opinion, apply to such a case of deliberate transgression. We must, therefore, hold that no valid marriage has been established between the first plaintiff and the third defendant and that the issues of that union are illegitimate.
43. This finding leads us on to the consideration of the question whether plaintiffs 2 and 3 would be entitled to a share in the properties-Plaintiffs 2. and 3, being illegitimate sons of a permanent union, which does not amount to a valid marriage, it is claimed, they are entitled to a share in the joint family property at the choice of the father during his lifetime when he makes ,1 partition. Reliance was placed in support of this contention on the text of Mitakshara, Chapter I, Section 12, commentary on Yagnavalkya-Dayavibhaga 133-134. The text of Yagnavalkya is that even & son begotten by a sudra on a female slave may take a share at his father's choice. "Father's choice" is interpreted by Mitakshara as by "Pithuruichaya" i.e., by the father's choice or at his pleasure. Of course, if the father be dead, the brothers should make him a partaker of a moiety of a share but during the father's lifetime the illegitimate son has no right to claim a share against the father for he acquires no right by birth in the property. If there is no right by birth, the right to partition does not exist.
44. It is contended on behalf of the appellants that the text should be restricted to the division of self-acquired properties of the father and not to the joint family properties as in that event the existing rights of the other coparceners, who had acquired right by birth in the property would be diminished by the exercise of the choice of the father. The father could dispose of his self-acquired properties in any manner he pleases. He can make an unequal division. Under Hindu law, it has been established that the father has an overriding right to bring about a division of the property between himself and his son, subject however to the qualification that the allotment made by him is not unequal or unfair. There is no necessity for conferring a right on the father to allot a share to the illegitimate sons when he decides to divide his self-acquired property. It is open to him to give away the entire self-acquired property to the Illegitimate sons.
Under strict Mitakshara law, it is true that right by birth is recognised both in self-acquired property as well as in joint family property, the father having wider power of disposing of his sell-acquired property than in the case of joint family property but the theory no longer holds the field and It is unnecessary to empower the father to give a share to the illegitimate sons restricting his right to self-acquired property as without the text relied on, the father had otherwise ample power in disposing of his self-acquired property in any manner he liked. The text cannot, therefore, be construed as referring to self-acquired property. It applies, in our opinion, to joint); family property.
45. It was then argued that it applies only when the father exercises his superior right to divide the property when it was open to him to have exercised his choice of allotting a share to the illegitimate sons also along with the legitimate sons, but if as in the present case, the power is invoked after the institution of the suit, it is not open to the first plaintiff to now exercise his choice long after the institution of the suit. In 'Karuppannan Chetti v. Bulokam Chetti', 23 Mad 16 (X), the power was allowed to be exercised in a suit. There is no reason, therefore, to-restrict the choice only when the father exercises his parental right. It was there pointed out that there is no foundation for the suggestion that the text should be restricted to the self-acquired property of the fattier. The correctness of this decision was never disputed and we see no reason to differ from it.
46. The next argument was that the choice was not exercised by the father till long after the institution of the suit and that too after the division-in status was brought about by the institution of the suit. It was also pointed out that there was no pleading in respect of it and that, therefore, the question should not be allowed to be raised. The plaint proceeded on the footing that the sons were legitimate & claimed a 3/4th share. Of course, it was open to the plaintiffs to have put forward the alternative case of the first plaintiff having exercised his choice. But if the father continued in the bona fide belief that the marriage was valid and that the children were legitimate, he could not have exercised the choice consistently with his belief until after serious doubt was thrown upon it. It was then during the course of the arguments, as pointed out by the learned Subordinate Judge in para. 93 of the judgment, that the plaintiffs' learned Vakil stated that the first plaintiff did desire to give plaintiffs 2 and 3 an equal share with his deceased son. A division in status would not deprive the father of the right to exercise his choice as there was, no actual division by metes and bounds which became complete and final.
In '23 Mad 16 (X)'. also, the father was allowed to exercise the choice after the suit was instituted. We think that the view taken by the lower court is correct and that plaintiffs 1 to 3 are entitled to 3/4th share in the properties.
47. The finding regarding Nachiammal's stridhanam under issues 14, 15 and 16 was against the appellants and is not made the subject-matter of the appeal. The findings, therefore, in paras. 57 and 58 of the judgment regarding it became final.
48. The learned Judge found in para 68 time the hundial amount under Ex. B. 8 really belonged to Nachiammai and that it represents Mamiyar Sam an. The stridhanam property of Nachiammai could not strictly speaking be made the subject-matter of the suit and should not have been brought into the controversy relating to the partition of the joint family properties except to determine the liability of the family. The question whether this amount did or did not really enter into computation when the settlement under Ex. A. 89 was made, is not a matter which was gone into by the trial court and we think, in the circumstances of this case, that it is best to leave this question to be determined in a separate proceeding and not in this suit.
49. 'Varusha bogam' is not a payment, which is obligatory to be made by the first plaintiff land it .is really a matter of grace. Hence, it cannot be recovered in this suit. We agree with the conclusion of the learned Judge in para 61 of his judgment for the reasons given by him that this should be disallowed.
50. The claim for the first defendant's stridhanam is the bone of contention between both parties. On the one hand, it was contended by the plaintiffs that they should not have been made liable for the hundial amounts covered by Exs. B. 7. B. 9, B. 10 and B. 11 and on the other hand, it was claimed that the learned Judge should have directed an account of these hundial amounts and also the other amount which, it was claimed, was received by the first plaintiff. The first defendant claimed as much as Rs. 20,000 under this head, though she was not able to give details of it in the witness box. Though the first plaintiff curiously claimed that he never maintained accounts at for as he was at Malacca and he had no transactions at for, he however stated that he maintained accounts only from Dhatu by reason of the pressure of the Income-tax authorities.
It was remarked by the learned Judge in para 62 that the accounts of the father of the first defendant were not produced to substantiate the defendant's claim that the presents which were made to her and that they ultimately went into the hands of the first plaintiff. This, it was pointed out, was a mistake. It appears from the evidence that first defendant's brother was summoned to produce the accounts and the hundials. The batta memoes were printed and placed before us as well as the list of documents filed by the brother who produced the accounts on summons. This list is printed at p. 281 of the printed record. It shows that the brother produced the hundials now marked as Ex. B. 7 to B 11 and also three books of account, the day book of M. A. CT. VR. RK. of Pallathui' viz., the first defendant's father, his ledger and the marriage account of the first defendant.
The account books bear the seal of the court and they were put into court. The appellants were apparently under the impression that if certain items of this stridhanam are traced to the hands of the first plaintiff, it would be a case for directing accounts against the first plaintiff in respect of the amount and that it will be open to them to trace further items to his hands and to call upon him to account. That is the explanation offered on behalf of the appellants and we think there is substance in it for we see no reason why the account books were not marked - when, as a matter of fact, the other documents produced by that witness were marked, exhibited and relied on. We have our selves examined the accounts and we think that there is some force in the argument advanced on behalf of the appellants that there are other items also, which could be traced to the first plaintiff.
51. On behalf of the appellants C. M. P. No. 3507 of 1951 was filed supported by an affidavit of the first defendant. In it she gives an explanation for not getting them exhibited viz., that she was under the impression that after a preliminary decree is passed calling upon the father-in-law to account for all the amounts received by him the books could be exhibited. This affidavit was not contradicted by any counter-affidavit on behalf of the respondents. We think therefore that a good case for admitting them as additional evidence has been made out but as the accounts require proof, we cannot straightaway exhibit them in appeal. The first defendant will be entitled to an account against the first plaintiff in respect of her stridhanam money. There will be a direction that the first plaintiff should account for all the stridhanam monies of the first defendant proved to have been deposited with the first plaintiff for the benefit of the first defendant by her parents or other relations.
52. As regards the various schedules, there is no dispute before us regarding schedules A and B. In fact, there was no dispute even before the trial Judge. As regards schedule I appended to the written statement, the finding is in para 47 of the judgment and it was found that those properties were joint family properties. There is no dispute regarding it. The finding will stand.
53. As regards schedule 2 appended to the written statement, it was found by the learned Judge in para 71 that there is no proof that the family owned the silver articles set out therein. Nothing is shown to disturb that finding as the learned Judge has definitely found that Ex. B. 25 was not in Alagu Chetti's writing. We agree with that finding. The finding will, therefore, be confirmed.
54. Similarly with reference to Schedule 3 also, the finding of the learned Judge in para 74 of his judgment is that there is no sufficient evidence to establish that there were any jewels like those described in Schedule 3 in the custody of the first plaintiff and that he had suppressed them. No serious attempt was made to induce us to disturb this finding. For the reasons given by the learned Judge in para 74 of his judgment, we agree with that finding.
55. Regarding Schedule 4, the finding is in para 73. The learned Judge found that it was not established by the first defendant that inoveables other than those admitted in the reply statement existed and belonged to the family. This finding is attacked by the plaintiffs in the cross-objections but we see no substance in it. The finding is accepted.
56. As regards D. 1 schedule, the plaintiffs' case that they were put in the iron safe and that subsequently the first defendant and her husband took away two items, was not established. The first plaintiff however admitted the existence of these items as it was his case that while he wag in possession of them, he put them in the Iron safe before he left for Malacca, He admitted that these two items were joint family properties. In the circumstances, therefore, the finding of the learned Judge in para 81 that the first plaintiff must account for them for the purpose of partition must be upheld.
57. As regards C schedule, which consists of 23 items, the finding of the learned Judge is that the first plaintiff must account for 15 items as he is in possession of them and 8 items must be accounted for by the first defendant. It was also found by the learned Judge that all the inventoried items must be accounted for by the first defendant.
58. As regards the D schedule, his finding was that as the first defendant admitted possession of those items, she must account for all those items in the D schedule, which were not in the inventory list. The result of these findings is that the first defendant must account for all the items in the inventory, 44 in number comprised in two lits, besides the items in the D schedule not in the inventory. The first plaintiff must account for 15 items in the C schedule. Instead of referring to the various schedules, the more convenient method seems to us to have regard to the two inventory lists. The first list consists of 27 items and the second list consists of 17 items. Before the Commissioner, as appears from the Commissioner's report Ex. A. 109, first defendant stated that 27 items were in her husband's bureau and that her husband asked her to hand them over to Avangal meaning the first plaintiff when he comes. The other 17 items as per list II were given by Alagu to the child i.e., the second defendant. This admission was repeated by her in her evidence in the suit. She stated as D. W. 5 as follows:
"I showed some jewels to the Commissioner. When my husband left for Perundurai, he gave jewels to me and asked me to use some for my boy and give the rest to Avangal for safe custody. I thought Avangal meant plaintiff 1. Husband died of tuberculosis. All those jewels belong to us and plaintiff 1 has no right to them. So when the Commissioner came, I told him what husband had told me. When husband left for Perundurai, plaintiff 1 was at Malacca. Husband was very ill when he started for Perundurai and he died the next day alter reaching Perundurai. I showed to the Commissioner my own jewels also and plaintiff told the Commissioner that they had been given to me by my mother and that he need not note them down."
59. The 27 items, on her own showing, were items which must naturally go, according to her husband's instructions, to Avangal, i.e., the first plaintiff, which implies that they were joint family properties. We, therefore, think that the items as per list 1 of the Commissioner's inventory must be treated as joint family properties. We are, however, unable to agree with the learned Judge's finding regarding the 17 items in list II of the inventory. Her own statement is that Alagu Chetti gave them for the use of the child. Even if we do not accept the statement of the first defendant, there is no acceptable proof adduced by the flrst plaintiff to establish that these items, 17 in number, ever constituted properties of the joint family. The burden is on him to show that the items claimed by him are joint family properties. As he failed to discharge that burden and as it is evident from a perusal of the description of the jewels in the list that they are all jewels fit to be worn by a child, it is not unreasonable to infer that they were jewels made for the benefit of the child. Alagu Chetti had separate funds of his own and it would not be unreasonable to assume that he must have got them made for the child.
Apart from this, there is no proof on the side of the plaintiffs to establish that these items were joint family properties. 'The items must, therefore, be excluded from division. The items, we are told, were included in the D schedule. The modification, therefore, that is needed is that instead of making the first defendant liable for all the items as per the inventory, she should be made liable only for 27 items as per list I of the inventory. The direction that she should account for the D schedule items not in the inventory should stand as well as the direction that the first plaintiff must account for 15 items in C schedule not in the inventory. Out of the 8 items of the C schedule to which she was made accountable, if there are any items included in list II of the inventory, they must be excluded. These modifications must be carried out in the decree. The decree was not properly drafted and requires redrafting in the light of our findings.
60. In the result, the memorandum of cross-objections Js dismissed with costs of defendants 1 and 2. The appeal is allowed in part and the decree of the lower Court will be modified as indicated above. No order as to costs in the appeal.
APPENDIX I Order accordingly.
NIRNAYA SINDHU "Even in Gandharva and other forms of marriages, gift preceded by pouring of water is insisted upon. In that context Yama says:
"A man is not to be called the husband of a girl merely by pouring water in his hand or by declaring him her husband. But only by Panigrahana ceremony (catching hold of" the hands of the girl) and having taken seven steps with her."
Devala says in Parasaramadhaviya"
"In the marriage like Gandharva, the marriage ceremony should again be performed by the people of the three castes by competent men haying the fire as witness. Here by three castes is signified the three castes other than Brahmins, which three castes are eligible for the Gandharva marriage."
In the Parisista (or reminder-Chapter of Parasaramadhaviya), it is said as follows:
"In the marriages Gandharva, Asura, Paisacha and Rakshasa the girt is to be accepted first and then a homa (ritual in fire) is ordained. So, if the homa is not performed, the girl does not attain wife-hood and therefore she may be given in marriage to another man."
Vasishta and Baudhayana say in that context;
"If a girl who was carried away by force was not purified by marriage mantras or ceremony, she may be given to any other man according to rules as if she was a kanya (unmarried girl)."
(Here the Commentator says by carrying away by force is meant Gandharva and other marriages).
Here (a question arises): If a girl is not married with the chanting of mantras, she may be given to any other person in any form of marriage. That being so, special mention in the case of the girl being carried away by force in Rakshasa and Palsacha (forms) is meaningless. The reply is as follows:
"A girl who does not accept the man who carried her away by force, as her husband, may be given in marriage once again and it is immaterial in those marriages whether she is purified by samskara or otherwise."
Narada says in Madanaparijata:
"The mantras for marriage are considered to be essential to make a girl a wife, and the seventh step taken along with that girl is the culmination of that ceremony."
The same is said in Apararka and Smritichandrika also."
APPENDIX II IN THE SHUDRA KAMALAKARA Then the Samskaras of the Shudra. YAMA:
The Shudra should be purified by ceremonies in the following manner without mantra.
The rites of Garbhadanam (relating to the conception of one's wife), Pumsavanam (religious rites performed for the birth of a male child), Seemanthonnayanam, Jathakarma, Namakarnam, Niskramanam (taking the child in the open), Annaprasanam (ceremony of the first feeding with cooked rice), Vapanam (tonsure ceremony), Karnavedha (ear-boring ceremony), Vi-atadesa (investiture of the holy thread), Vedaramba (commencement of the study of Veda), Kesantham (ceremony of the cutting of the child's hair), Snanam (bathing ceremony), Udvaha (marriage), Vivahagni Parigraha (taking up of the lighted marriage fire), thretagnt sangraha (kindling of the three kinds of fire) are the sixteen purificatory rites ordained.
Having said this says as follows:
These nine ending with Karnavedha should be done in the case of the woman without mantra. But marriage should be done in her case with mantra. In the case of the Sudra the ten should be done without mantra.
In the Matsya (purana), it is said:
"In the case of the women, the Jathakarma, the Namakarana, Nishkrama, Amiaprasana, Chuda and Vivaha are the six samskaras. But, for the Shudras these six and the five Mahayagnas, thus making eleven.
Jayapala: In the case of the Shudras without Upanayana the nine samskaras beginning with. Garbhadana ending with Vivaha.
But Sarangadhara said: For the Dwijas there will only be sixteen. For the Shudras twelve only. For the mixed castes five only are the samskaras, according to the dharma of the family.
For the Shudras the 12 samskaras without the vedavrata, upanayanam, Mahanamni and. Mahavrita and with the 'Namamantra'.
Then 'Vivaha': For the Shudra the 'Namamantra' only.
Manu also: "The mantras relating to marriage are the determining cause of wife-hood and these complete with the 'saptapadi' (walking 7 steps). Thus it is understood by the learned."
Here the catching hold of the hand 'panigrahana) is common to all the vamas as Yajnavalkya said: "Panigrahanam is common to all varnas" without making any distinction.
Then Prayoga (performance of ceremony) :
"It is said in the Harihara Bashya in the marriage of Shudra male with the Shudra woman only the acts without the 'mantra' have to be done after going round the fire in the fourth and then sitting down and making the homa 'I bow to 'Prajapathi' commenced by the Brahma priest and then placing seven small heaps of rice on the northern side the bridegroom should make' the bride take seven steps with the right foot with the words 'I bow to Vishnu'.