balusami reddiar, minor by ... vs balakrishna reddiar, minor and ... on 23 april, 1956 (1)

8/21/2019 Balusami Reddiar, Minor by ... vs Balakrishna Reddiar, Minor and ... on 23 April, 1956 (1)

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Madras High Court

Madras High Court

Balusami Reddiar, Minor By ... vs Balakrishna Reddiar, Minor And ... on 23 April, 1956

Equivalent citations: AIR 1957 Mad 97

Author: G Menon

Bench: G Menon, B A Sayeed

JUDGMENT

Govinda Menon, J.

1. Defendants 1, 2 and 8 in Oa. S. No. 61 of 1950 on the file of the Court of the Subordinate Judge of

Tuticorin appeal against the decree of the learned Judge by which it was held that the properties in Schedules

1 to 4 of the plaint be divided into five equal shares find that plaintiffs 1 to 4 and the first defendant do each

get one such part towards the share to which each is entitled and also that the remaining part be divided into

two equal halves of which one half be allotted to the share of the fourth plaintiff and the other half be allotted

to the share of the second defendant. There were other consequential directions which need not be considered

in detail.

2. The facts which have given rise to this litigation are as follows: One T. Ramaswami Reddiar belonging tothe village of Virusampatti, Koilpatti taluk was possessed of properties which are the subject-matter of the

above suit and he died on 13-12-1949, leaving behind him his second wife, the second defendant, his fourth

wife, the fourth plaintiff and children by the deceased third wife and the fourth wife. Ramaswami Reddiar's

first wife. Avudai Ammal, had pre-deceased him and their daughter was Ellammal whose daughter is the

fourth plaintiff. The second defendant is childless whereas the first defendant is the son of the deceased third

wife of Ramaswami Reddiar.

By his fourth wife, the fourth plaintiff, Ramaswami Reddiar had three sons, plaintiffs l to 3 and three

daughters who are defendants 3 to 5. During the life-time of Ramaswami Reddiar he had effected a partition

of his properties under Ex. B-3 dated 24-2-1947, and it is the plaintiffs' case that the partition was brought

about secretly without the knowledge of the fourth plaintiff to defraud plaintiffs 1 to 3 of their legitimate sharein the family properties. On that ground the claim was that ignoring the partition deed, the properties of

Ramaswami Reddiar should be divided into five equal shares out of which each of his sons should get one

share and the other share be divided among the fourth plaintiff and the second defendant being his co-widows.

3. There were various defences raised which are unnecessary to be detailed at length. One of them was that

Ex. B-3 was a bona fide and fair family settlement by which all the properties were divided by Ramaswami

Reddiar himself as the head of the joint family in exercise of his rights as such and on that ground the suit

ought to be dismissed. Another important contention raised by defendants 1 and 2 was that the marriage

between Ramaswami Reddiar and the fourth plaintiff being incestuous and invalid in law as it is prohibited

under the Hindu law or for the matter of that by any recognised system of jurisprudence the fourth plaintiff

had not become the legally wedded wife of Ramaswami Reddiar with the result that plaintiffs 1 to 3 who are

born of this marriage are the illegitimate sons not entitled to any partition.

It was further a leged that at the time of the so-called marriage, Ramaswami Reddiar was seventy years of age

and the fourth plaintiff was aged only about twelve, that they did not live together as husband and wife, that

the fourth plaintiff was having illegal intimacy with other people so much so that plaintiffs 1 to 3 and

defendants 3 to 5 are the children of adulterous relation who can have no claim to the properties of

Ramaswami Reddiar. Such being the case the first defendant being the only legitimate son of Ramaswami

Reddiar and the second defendant the only legitimate widow are entitled to the entire properties.

4. The learned Subordinate Judge framed as many as sixteen issues which reflected the various contentions

raised and finding most of the issues in favour of the plaintiffs passed a preliminary decree the substance of


Indian Kanoon - http://indiankanoon.org/doc/454111/ 1


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which had already been adverted to above.

5. Aggrieved by that, defendants 1 and 2 and the 8th defendant who is an alienee of some Items from the

second defendant, have preferred the above appeal. The following genealogical tree is intended to give an idea

as to how the parties are related.

R.RAMASWAMI REDDIAR

(D. on 13-12-19

|

___________________________|_______________________________________ | | | | | | | | Avadal Aammal

(Ist wife) Valliammal (2nd wife) Suppammal (3rd wife) Fourth wife (Deft. 4)

(Died) (Deft.2) (Died) (Deft.1) | | |

| | Ellammal | (Plaintiff4) |

____________________________________________________________________| _______

| | | | | |

| | | | | |

Deft.3 Piff.1 Deft.4 Deft.5 Piff.2 Piff.3

It will be seen at a glance that the fourth plaintiff is the daughter's daughter of Ramaswami Reddiar who

claims to have been married to her own grandfather according to a custom prevalent in their community with

the result that plaintiffs 1 to 3 and defendants 3 to 5 had been begotten on the fourth plaintiff by RamaswamiReddiar.

It is contended by Mr. A. Sundaram Iyer for the appellants that even if plaintiffs 1 to 3 and defendants 3 to 5

had been begotten on the fourth plaintiff by Ramaswami Reddiar still decency and morality, not to speak of

religious sentiments cannot countenance a marriage which is incestuous in nature and if that is so, plaintiffs 1

to 3 can have no claim whatever to the properties of Ramaswami Reddiar. The answer to this argument put

forward by the plaintiffs is that according to a custom obtaining among the Reddiars in Tirunelveli district, it

is proper for a person to marry his daughter's daughter and if such a custom can be upheld then the plaintiffs'

suit should be decreed if it is found that Ex. B-3 was not valid.

6. While therefore, emphasising the validity of Ex. B-3, we have first of all to find out whether any such

custom as pleaded by the plaintiffs can be recognised by a Court of law. No instance of a Court of law and

justice having recognised the validity of the marriage of a person with his granddaughter has been brought to

our notice. But the learned Subordinate Judge was of the opinion that in view of the oral evidence let in as

well as the fact of the marriage of Ramaswami Reddiar with the fourth plaintiff, such a custom can be validly

recognised.

To say the least the alleged custom is revolting to all principles of morality, decency and eugenics. The

marriage between a man and his daughter's daughter comes within the prohibited degrees of relationship as

laid down in the Mitakshara which is to the effect that a man cannot marry a girl if their common ancestor

being traced through his or her father is not beyond the seventh degree in the line of ascent from him or her if

their common ancestor being traced through the mother is not beyond the fifth degree in the line of ascent




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from him or her. Tested in that way there is no doubt, whatever, that the marriage is prohibited.

7. The question, therefore, is whether as stated by the learned Subordinate Judge, among the Reddiars of

South India a man can validly marry his own daughter's daughter. The learned Subordinate Judge was inclined

to think that in the present case the caste had accepted the marriage as a valid one and treated the parties

thereto as members of the caste and that being so, the Court cannot declare such a marriage null and void.

He relied upon the observations of this Court in Muthusami Mudaliar v. Masilamani, ILR 33 Mad 342 (A),but we are not satisfied that there are any observations in that decision which would validate an incestuous

marriage even if it is recognised by the caste or community. The learned Judge also refers to "Castes and

Tribes of southern India" by E. Thurston. Vol. III 1909, and relies upon the passages at pages 239 and 240 for

justifying his conclusion. The extract from the book is to the following effect:

"Among the Reddis of Tinnevelly" Dr. Shortt writes "a young woman of sixteen or twenty years of age is

frequently married to a boy of five or six years or even of a more tender age. After the marriage she, the' wife

lives with some other man, a near relative on the maternal side, frequently an uncle and sometimes with the

boy husband's own father. The progeny so be gotten, are affiliated on the boy-husband. When he comes of age

he finds his wife an old woman and perhaps past child-bearing. So he, in his turn contracts a liasion with some

other boy's wife and procreates children.

We are not told as to when and where exactly was it that Dr. shortt found the instances mentioned but even if

they had existed sometime ago, no civilised society ought to recognise such practices or a Court administering

justice should recognise such sorded practices. The learned Judge then says that in Ex. B-3 Ramaswami

Reddiar himself had stated that he had married the fourth plaintiff according to the caste custom and therefore

be allotted shares to plaintiffs 1 to 3 born of that wedlock. Exhibit B-2 is a settlement deed executed by

Ramaswami Reddiar in favour of his second wife, the second defendant, and Ex. B-10 which is a registered

will executed by him in favour of the first defendant also refers to the fourth plaintiff as the legally wedded

wife of Ramaswami Reddiar and that plaintiffs 1 to 3 and defendants 3 to 5 were born of that wedlock.

We do not for a moment cast any doubt on the statements of fact contained therein or that plaintiffs 1 to 3 anddefendants 3 to 5 were born to the fourth plaintiff by Ramaswami Reddiar but the question is, it is open to a

Court of law to recognise such a revolting custom. On behalf of the plaintiffs five specific instances of

marriage between a grand-father and his grand-daughter were cited.

8. P. W. 3 Kamakkammal who was aged about 70 at the time she gave evidence deposed that she had married

her own maternal grandfather Chennappa Reddiar and had a son by name Kumarandi Reddiar. P. W. 9 who at

the time of his examination on 19-6-1952 was aged about 75 deposed that his second wife Shenbagathammal

was his granddaughter by his daughter Lekkammal and that the marriage between himself and his

grand-daughter took place about 20 or 25 years back. He further deposed that the marriage between a

grand-father and his grand-daughter is a common feature and a frequent occurrence among the Reddiar

community.

In cross-examination he admitted that there are 70 houses of Reddiars in Veerapandiapuram and that there are

no other instances of this kind in his village though there are instances in other villages. The fourth plaintiff,

as P. W. 1, no doubt testified to her marriage with Ramaswami Reddiar and to her begetting six children by

him. P. W. 2, Kondu Reddiar, aged about 60 in 1951 stated that it was common in their caste for a

grand-father to marry his own grand-daughter. He gave instances of Suppa Reddiar of Virasampatti having

married his own daughter's daughter, Ambalam Ramalinga Reddiar of Duraisamipuram having married his

own daughter's daughter and Kamakkammal of Venkatachalapuram having married her own grandfather;

Vellapothi Reddiar of Arunachalapuram had married his own daughter's daughter.




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The witness stated that such a custom in their community is in vogue from time immemorial. In

cross-examination he was not quite definite about some of the instances mentioned by him but we see no

reason to disbelieve the witness on that score. We have already referred to the evidence of P. W. 3. P. W. 4

who was aged 70 at the time of his examination also referred to the custom among the Reddiar caste for a man

to marry his own daughter's daughter. Having perused the evidence of the plaintiff's witnesses as regards

instances of a grand-father marrying his own grand-daughter we do not think that there is any reason to say

that such marriages had not taken place.

9. What we have now to decide is whether the alleged custom can be legally recognised by a Court of law. It

is not a custom prevalent in a specific family. Nor is it a custom which is recognised by the entire Sudra caste

as such. For the matter of that. Reddiars as a casts are unknown as they belong to the Kappu community of the

Sudra caste. It is not pretended that the alleged custom prevails anywhere outside a few villages in the district

of Tirunelveli among the Reddiar community. We have carefully to scrutinise and find out that even if such

marriages had taken place and had been approved by the community whether that should be perpetuated.

As stated in May no on Hindu Law and Usage, 11th Edn. the Sanskrit word which is used by Manu and

Yajnayalkya for custom is Sadachara or the usage of virtuous men. The learned author says that Sadachara or

approved usage should not be contrary to Dharma though in India custom or usage having the force of law

will override the texts of law-givers. The requisites of a valid custom are that the same should be ancient,certain and reasonable and that also should not be opposed to decency or morality. No custom, which is

opposed to public policy can be recognised by any Court of law. Nor can immoral usages, however much

practised, be countenanced.

As to the test of immorality it must Be determined by the sense of the community as a whole and not by the

sense of a section of the people See the observations of Oldfield J. in Deivanayaga Padayachi v. Muthu Reddi,

ILR 44 Mad'329 at p. 333: (AIR 1921 Mad 326(2) at p. 328) (B). We have not been shown that the alleged

custom is either ancient or certain or reasonable. A few instances in a community microscopic in nature,

cannot constitute a valid custom which a Court of law will recognise and enforce. A custom which is

abhorrent to decency or morality, however long practised and recognised by a particular community, can find

no kind of enforcement by a Court of law. Not one decided case so far as we are aware, has approved of acustom which is contrary to the sacred writings or which puts a premium on incest and immorality.

If such a custom can be recognised, there is nothing untoward in legally acknowledging that a man can marry

his own grand-mother. We are, therefore, of the opinion that the chief attributes of a custom, namely, that the

same should not be opposed to public policy, abhorrent to decency and morality or inconsistent with the

practices of good men are not present. We, therefore, feel no doubt whatever that the civilised and cultured

society in which we live and the progressive country in which we are, should not approve of an incest which

would not find favour even under primitive or tribal societies. The attempt in this case is to get a judicial

recognition of the propriety of a most revolting and obscene practice under the guise and pretext of usage or

custom said to have the force of law and it need hardly be emphasised that no tribunal in a civilised country

can tolerate or approve of it.

10. In these circumstances, it seems to us that Since the marriage of the fourth plaintiff with Ramaswami

Reddiar is illegal the plaintiffs are not entitled to succeed. The appeal has, therefore, to be allowed and the suit

dismissed. But we are of the opinion that nothing could be said against the validity of the partition under Ex.

B-3 which would be binding not only on the plaintiffs but on defendants 1 and 2 as well. There will be no

order as to costs in this appeal.



balusami reddiar, minor by ... vs balakrishna reddiar, minor and ... on 23 april, 1956 (1)

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