# A. L v. R. S. T. VEERAPPA CHETTIAR

- **Citation:** [1963] Supp. 2 S.C.R. 244
- **Court:** Supreme Court of India
- **Decided:** 1963
- **Bench:** S. J. IMAlf, K. SuBBA RAo, N. Rajagopala Ayyangar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/a-l-v-r-s-t-veerappa-chettiar-2769
- **Pages:** 36

## Headnote

Hindu Lmo-A ... ,.. marriagt-ful of-Difference bolwa11
A...,.. alld
BmAma marriage-Pruumplion that tlitf'y Hindu
marriage i.! ;,. BraAma form-Objector must prove tAt conlmryEffect of bridegroom beari•g e:<pe•1ea of marriagt-Kanyadan.
The main question involved in both the appeals was
whether the marriage of Bangaru Ammal was in Arura form
or in Brahma fonn. The contention of the appellant wa• that
it was not in Asura fonn. Except a bare allegation in the
plaint that the said marriage Wall held in Asura fonn, the
plaintiffs did not give any particulars or set up any custom in
the community to which the parties to the marriage bel~nged.
They bad given evidence that a sum of Rs. 1,000 Wall paid all
'parisam' to the father of bride but that evidence had been
rejected by both the courts. Respondents pointed out to the
giving of Kambu by bridegroom's party to the bride's party at
the time of betrothal and expenditure of R•. 300/· by bridegroom's party in connection with the marria~e of Bangaru
Ammal and maintained that it was Asura marriage.
HeUJ, that the marriage of Bangaru /\mmal wa• not in
Asura fonn but in Brahm~ form. There was nothing to show
that there was a practice in the family to give Kambu as
•parisam' for the bride or Kam bu Wall paid as 'parisam' at the
time of the betrothal ceremony in connection with the marriage
of Bangaru Ammal. The father of the bride had spent large
amounts and the bridegroom's party had spent only about
Rs. 300/- in connection with the said marriage. The expenditure incurred by the bridegroom's party was
not and
could not have been the consideration for the father giving his
daughter in marriage. There is a presumption in Hindu Law
that every Hindu marriage is in Brahma form and that presumption ball not been rebutted in this case. The court was
entitled to presume that the necessary ceremony of Kanyadan
must have been performed. As no consideration passed from
the bridegroom to the father of the bride, the father must be
held to have made a gift of the girl to the b ridcgroom.
,
2 S.C.R.
SUPREME COURT REPORTS
The essence of the· Asura marriage is the sale of a bride
for a price and it is one of the unapproved forms of marriage
prohibited by Manu for all the four castes of Hindu society.
The vice of the said marriage lies in the receipt of the price by
the bride's father or other persons entitled to give away the
bride as a consideration for the bride. Uthe amount paid or
the ornament given is not the consideration foc taking the
bride but only given to the bride or even to the bride's father
out of affection or in token of respect to them or to comply
with a traditional or ritualistic form, such payment cl_ocs not
make the marriage an Asura marriage. There is also nothing
in the texts to indicate that the bearing of the e>.penditure
wholly or in part by the bridegroom or his parents is a 'condition or a criterion of such a marriage, for in such a case the
bride's father or others entitled to give her in =rriagc do not
take any consideration for the marriage, or in any way be~t
thereunder. The fact that the bridegroom's party bcars·the
expenditure may be due to varied circumstances. Prestige,
vanity, social custom, the poverty or the disinclination of the
bride's father or some of them may be the reasons for the incurring of expenditure by bridegioom's father on the marriage
but the money so spent is not the price or consideration for the
bride. Even in a case where the bride's father, though rich,
is -disinclined to spend a large amount on the marriage functions and allows the bridi:groom to incur the whole or part of
it, it cannot' be said that he has received any consideration or
price for the bride. Though in such a case if the bridegroom's
father had not inc'Uffed the said expenditure in whole or in •
part, the bride's father might have to spend somc·moncy on
that account, such an indirect result could not be described
as price or consideration for giving the bride.
Asura marriage is
a
ma

## Text

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1962
244 SUPREME COURT REPORTS [1963} SUPP.
A. L. V. R. S. T. VEERAPPA CHETTIAR
"·
S. MICHAEL ETC.
(S. J. IMAlf, K. SuBBA RAo and
N. RAJAGOPALA AYYANGAR, JJ.)
Hindu Lmo-A ... ,.. marriagt-ful of-Difference bolwa11
A...,.. alld
BmAma marriage-Pruumplion that tlitf'y Hindu
marriage i.! ;,. BraAma form-Objector must prove tAt conlmryEffect of bridegroom beari•g e:<pe•1ea of marriagt-Kanyadan.
The main question involved in both the appeals was
whether the marriage of Bangaru Ammal was in Arura form
or in Brahma fonn. The contention of the appellant wa• that
it was not in Asura fonn. Except a bare allegation in the
plaint that the said marriage Wall held in Asura fonn, the
plaintiffs did not give any particulars or set up any custom in
the community to which the parties to the marriage bel~nged.
They bad given evidence that a sum of Rs. 1,000 Wall paid all
'parisam' to the father of bride but that evidence had been
rejected by both the courts. Respondents pointed out to the
giving of Kambu by bridegroom's party to the bride's party at
the time of betrothal and expenditure of R•. 300/· by bridegroom's party in connection with the marria~e of Bangaru
Ammal and maintained that it was Asura marriage.
HeUJ, that the marriage of Bangaru /\mmal wa• not in
Asura fonn but in Brahm~ form. There was nothing to show
that there was a practice in the family to give Kambu as
•parisam' for the bride or Kam bu Wall paid as 'parisam' at the
time of the betrothal ceremony in connection with the marriage
of Bangaru Ammal. The father of the bride had spent large
amounts and the bridegroom's party had spent only about
Rs. 300/- in connection with the said marriage. The expenditure incurred by the bridegroom's party was
not and
could not have been the consideration for the father giving his
daughter in marriage. There is a presumption in Hindu Law
that every Hindu marriage is in Brahma form and that presumption ball not been rebutted in this case. The court was
entitled to presume that the necessary ceremony of Kanyadan
must have been performed. As no consideration passed from
the bridegroom to the father of the bride, the father must be
held to have made a gift of the girl to the b ridcgroom.
,
2 S.C.R.
SUPREME COURT REPORTS
The essence of the· Asura marriage is the sale of a bride
for a price and it is one of the unapproved forms of marriage
prohibited by Manu for all the four castes of Hindu society.
The vice of the said marriage lies in the receipt of the price by
the bride's father or other persons entitled to give away the
bride as a consideration for the bride. Uthe amount paid or
the ornament given is not the consideration foc taking the
bride but only given to the bride or even to the bride's father
out of affection or in token of respect to them or to comply
with a traditional or ritualistic form, such payment cl_ocs not
make the marriage an Asura marriage. There is also nothing
in the texts to indicate that the bearing of the e>.penditure
wholly or in part by the bridegroom or his parents is a 'condition or a criterion of such a marriage, for in such a case the
bride's father or others entitled to give her in =rriagc do not
take any consideration for the marriage, or in any way be~t
thereunder. The fact that the bridegroom's party bcars·the
expenditure may be due to varied circumstances. Prestige,
vanity, social custom, the poverty or the disinclination of the
bride's father or some of them may be the reasons for the incurring of expenditure by bridegioom's father on the marriage
but the money so spent is not the price or consideration for the
bride. Even in a case where the bride's father, though rich,
is -disinclined to spend a large amount on the marriage functions and allows the bridi:groom to incur the whole or part of
it, it cannot' be said that he has received any consideration or
price for the bride. Though in such a case if the bridegroom's
father had not inc'Uffed the said expenditure in whole or in •
part, the bride's father might have to spend somc·moncy on
that account, such an indirect result could not be described
as price or consideration for giving the bride.
Asura marriage is
a
marriage where
the bride's
father
or any
other
person
entitled to give away the
bride takes Sulka or price for giving the bride in marriage.
The test is two-fold. There shall not ooly be a benefit to the
father, but that benefit shall form a consideration for the sale
of the bride. When this clement of consideration is absent,
such a marriage cannot be described as Aswa marriage.
Jail:iaondaa
Gopaldaa
v.
Harileiaa1tdtu Hullulia1tdtu
(1676) I. L. R. 2 Bom. 9, Vijarangam v. LaWman, (1871) 8
:llom. H. C. Report. 244, Mulhv Aiyar v. OAidantbara Aiyar,
(1893) 3M. L. J. 261, Ohunilal v. 8UIUjram, (1909) I. L.R. 33
Born. 433, 8. Aulhikesa!!"l" Ohelty v. 8. Ramanvjan OheUy,
(1909) I. L. R. 32 Mad. 512, Oabrielnathmwatniv. Valliammai
Ammal, A. I. R. 1920 Mad. 884, Ratnalhanm v. Bomaavndaryi
196Z
A.L.V.R.S.T.
V1nappo · C"'lliar
...
S; MkliMI 11<.
JJBZ
A.L.V.R.S.T.
v .... ppo Clrouiltt
••
S. Michail 1te.
246 SUPRE¥E COURT REPORTS [1963] SUPP.
Mvdaliar, (1921) 41 M. L. ]. 76, Samu Aaari v. Anachi
Ammal, (1925) 49 M. L. J. 554; Kaikuanath Mudaliar v.
Paraaalcthi l'adivanni, (1934) I. L. R. 58 Mad. 488, Sivangalingam Pillai v. K. V. Ambalayana Pillai,
A. J. R. 1938 Mad .
479; V. S. Velavutha Pandaram v. 8. Suryamurthi Pillai
(1941) 2 M. L.J. 770 i.nd Vedakummapprath Pillai v. Kulathinl:aiKuppan, (1949) 2 M. L.J. 804, referred to.
Crvn. APPELLATE JURISDICTION : Civil Appeals
Nos. 131 and 132 of 1960.
Appeals from the judgment and decree dated
April 4, 1952, of the Madras High Court in Appeal
No. 816 of 1947 and No. 83 of 1948.
A. V. ViS1vanatha Saatri, R. Ganapathy Iyer,
K. Paraaaran and G. Gopalakr-iahnan,
for the
appellants.
K.
Bhimaaankaran,
I>urgabai·
Deahmukh,
A. Narayana Swami and R. Thiagarajan, for the
respondents 2 to 4.
R. Gopalakriahnan, for respondent No. 2 (Jn
C. A. No: 132 of 1960).
1962. November 19. The Judgment of the
court was delivered by
s.u.n .. , J.
SUBBA RAO, J.-These appeals filed by a
certificate issued by the High Court of Judicature
at Madras raise a question of Hindu Law pertaining
to marriage in 'Asura form'.
The material facts
may be
briefly stated : To
appr.eciate the
facts and
the contentions of the parties
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Muthusami Naicker
I
Senior wife
I
.
Konda Bommu N a1cker
(died 23.10. 1876)
I
I
Shanmuga Valla
Konda Bommu Naicker
(died 21.1. 1901 l
I
Kandaswami N aicker
(died 31.7.1881
I .
Married
I
Errammal
(died 2.2.1933)
I
l
i
l I
Bangaru Ammal
(died 14.12.1930)
married also 8 other wives of
whom the last to die were :
(a)
Meenakshi Ammal (died
5.6.1938)
(b) Krishna Ammal
(died
10.11.1938)
(c)
Vellayammal
alias Chinnathayammal
(died 2.5.1940).
I
Junior ve
I .. k
Kamayasam1 11c er
(died 31.7.J)l)
I
Ponnuth;:e
(died 13.3)38)
I
MutLusami~a~a:
P_ara~aDorairaja (2nd Plff.) asam1
s1vam
alias
3rd Plff.) (4th PHI.)
Thanipuli
chami (1st
Plff.)
1962
A.L. V. R.S.1.
Vtnappa Chcttiar
v.
S. Michael ate.
Su6ba R®,. I.
248 SUPREME COURT REPORTS fl963] SUPP.
Thevaram is an ancient impartible zamindari
in l\fadurai District. Shanumuga valla Konda Bommu
Naicker was zamindar from 23.8.1876 to 20.1.1901.
On his death on January 21. 1901 Bangaru Ammal,
his daughter, got his entire estate under the will
executed by him.
To discharge the debts incurred
by her father
Bangaru Ammal
executed on
March 13, 1913 a mortgage of her properties for a
sum of Rs. 2,15,000/- in favour of one Chidambram
Chettiar. On his death his son Veerappa Chettiar
filed on April 16, 1921, C.S. 31 of 1925 against
Bangaru Ammal in the Subordinate Judge's Court,
Dindigul for the recovery of a sum of Rs. 5,49,6338-7 being the balance of the amount due under the
said mortgage.
The suit was compromised and
on July 28, 1928, a compromise decree was passed
therein. Under the compromise decree the mortgaged properties were divided into three Schedules
A, B & C and it was provided that if a sum
of Rs. 3, 75,000/-was paid by July 31, 1931, the
mortgage must be deemed to have been fully discharged but in default the properties in Schedule A
of the decree were to become the absolute properties
of the plaintiff. · B Schedule properties i.e., some of
the pannai lands and the C Schedule properties, i.e.,
those already alienated by Bangaru Ammal were
released from the mortgage. One K. V. Ramasami
Iyer, the Manager of the estate was appointed
Receiver of the A Schedule properties and he was
directed to deposit the surplus income into court
towards the payment of the amount due under the
compromise decree. Before the expiry of the period
prescribed under the said decree Bangaru Ammal
died on December 14, rn:m, and her mother
Errammal claiming to be her heir on the ground
that Bangaru Ammal's marriage was held in 'Asura
form' filed I.A. No. J!lO of J!l!ll in the court of the
Subordinate Judge, Dindigul,
for directing the
Receiver to hand over the estate lo her. Veerappa
Chettiar in his turn filed I.A.No.170 of 1932 for
•
·\
.. -
249 SUPREME COURT REPORTS [1963) SUPP.
directing the Receiver to deliver possession of A
Schedule properties on the ground that the term prescribed under the compromise decree had expired
and the balance of the amount due under the decree
was not paid to him. In the petition filed by
Errammal she raised the question of the validity
and the binding nature of the compromise decree on
her.
After elaborate inquiry on February 1, 1933,
the learned Subordinate Judge, though he held that
the marriage of Bangaru Aroma! was in' Asura form',
dismissed her petition for the reason that the
mortgage was valid and binding on her and allowed
the petition filed by Veerappa Chettiar directing the
delivery of the possession of A Schedule properties
to him. On February 2, 1933, Veerappa Chettiar
had taken delivery of A Schedule properties and
on July 19, 1933 he was registered as proprietor of
Thevaram estate by the Collector of Madura.
On February 2, 1933, Errammal died executing
a will dated January 30, 1933, in favour of her
nephew Thangachami Naicker. It may also be
mentioned
that
three
of
the co-widows
of
Shanmugavalla survived Errammal. They died one
after another and the last of them Vellayammal passed away on May 2, 1940.
Thangachami Naicker
along with one of the widows filed appeals to the
High Court against the said judgments but those
appeals were dismissed by the High Court on the
ground
that
they were
not maintainable. As
Thangachami Naicker interfered with the right of
Veerappa Chettiar with regard to certain ta!!ks and
water courses in Zamindari he filed O. S. 2 of 1934
in the Subordinate Judge's court of Dindigul against
Thanchami Naicker and obtained a decree declaring
his right to the said tanks. The appeal filed by
Thanchami Naicker against that decree was also
dismissed with costs on April lO, l 9JO.
In execution of the decree for costs Veerappa Chettiar got the
property alleged to be in possession of Thanchami
1962
A.C..V.R. ~.T.
Veiroppa Ch1ttiar
••
S. Michael etc.
Subba Rao. J.
1961
A.L.V.R.S.T.
Vt,,•Pla Chlttlar
v.
S. Mkhli1l 11r.
Sub/Ja R .. , /,
250 SUPREME COURT REPORTS [1963) SUPP.
Naicker attached. One S. Michael (son ofThanchami
Naicker) objected to the attachment of the said pro·
perty on the basis of a sale in his favour by the
alleged reversioners to 1 he estate of Bangaru Ammal.
That petition was dismissed on August 23, 1944.
The said claimant S. Michael filed 0. S. No. 52 of
1944 in the court of the Subordinate Judge, Dindigul
for setting aside the said claim order. To that suit
Veerappa Chettiar and Thangachami N aicker were
made party defendants.
On January 31, 1945 the
alleged reversioners to the estate of Bangaru Ammal
filed 0. S. 14 of 1945 in the Court of the Subordinate
Judge, Dindigul against Veerappa Chettiar, his
younger brother and defendants 3 & 9 who were
alleged to be the tenants in possession of some of the
items of;the plaint Schedule properties. The flaintiffs in
that suit are
the grandsons
o
one
Kandaswamy Naicker shown in the genealogy a
paternal uncle of Shanmugavalla Konda Bommu
Naicker. They claimed that they are the reversioners
to the estate of Bangaru Ammal on the ground that
Bangaru Ammal was married in 'Asura form'. It is
alleged in the plaint that succession opened in their
favour when Vellayammal died on May 2, 1940 and
that the compromise decree passed against Bangaru
Ammal was not binding on them and that in any
view the property set out in Schedule C and C·l
attached to the plaint did not pass to Veerappa
Chcttiar under the said decree.
The contesting defendants in both the suits
pleaded that the marriage of Bangaru Ammal was
not in 'Asura form', and therefore the plaintiffs in
0. S. 52 of 1944 were not the reversioners to the
estate of Bangaru Ammal, that the compromise decree
was binding on the estate ancl that C and C-l
Schcclulc properties also passed to the decree holder
thereunder and that in any view the suit was barred
by time.
\
....
•'
2 s.c.R.
SUPREME COURT REPORTS
251
It is seen from the foregoing narration of facts
that the same questions of fact and law arise in both
the suits for the title of the plaintiffs in 0. S. No. 52
of 1944 was derived under a sale deed from the
plaintiffs' in 0. S. No. 14 of 1945. Therefore the
plaintiffs' claim in the former suit will stand or fall
on the plaintiffs' title in the latter suit. For that
reason both the suits were heard together by the
Subordinate Judge . and appeals arising from his
common judgment· by the High Court.
The learned Subordinate Judge held on the
evidence that the marriage of Bangaru Ammal with
the Mannarkottai . zamindar was in Asura form as
Mannarkottai zamindar had spent Rs. 300/- to
Rs. 575 for Bangaru Ammal's marriage and that
circumstance was in view of certain decisions of the
High Court would make it an Asura marriage. He
further held that the aforesaid compromise decree
was binding on the plaintiffs.
As regards C .and C. 1 Schedule properties he
held that they had passed to Veerappa Chettiar
under the compromise decree as part of the Thevaram
Zamindari and thatthe plaintiffs were not in possession within 12 years of the suit in regard to item 70
of the C Schedule. On those findings he dismissed
O.S. No. 14 of 1945 with costs. In O.S. 52 of 1944
he held that the plaintiff therein acquired a valid
title as he purchased the land in dispute therein
from the plaintiffs in the other suit who are the reversioners to the estate of Bangaru Ammal and that
the decree in execution of which the said property
was attached was not binding on the estate of said
Bangaru Ammal. In that view he decreed the said
suit.
As agains.t the decree passed in O.S. 52 of
1944, Vecrappa Chettiar filed an appeal in the High
Court of Madras being A.S. No. 816 of 1947.
As
against decree in O.S. 14 of 1945 dismissing the
1962
A.L.V.R.S.T.
Ynroppa CfullNir .
v.
S. Midatl ""
Subbo Rao, J,
1962
A.l.Y.R.S.T.
Y urappa Ch11tiar
••
S. Mi,M1l ete.
Suhbo R .. , J.
252 SUPREME COURT REPORTS [1963] SUPP.
plaintiffs' suit they filed an appeal to the High Court
being A.S. 83 of 1948. Veerappa Chettiar filed
cross-objections therein. Both the appeals were heard
together by the High Court. The High Court held
that in Bangaru Arnmal's marriage the practice of
giving Kambu or flour or what is called the taking
of Mappetti (millet flour box) before the betrothal
was followed and thafthe marriage expenses were
entirely borne by the Manuarcottai Zamindar presumably in pursuance of the practice existing in the
community or in pursuance of an arrangement between the parties and therefore the marriage was
Asura. The High Court further held that under
the compromise decree only Melwaram right in C
and C. l Schedule properties passed to Veerappa
Chettiar but as there was no clear evidence as to who
was in actual possession of the said lands and as the
persons in actual· occupation of the land were not
impleaded in the suit, it was necessary in the interest
of the parties to reserve the right of the ·plaintiffs to
recover possession of C and C. l Schedule lands in an
appropriate proceedings instituted for the purpose.
In regard to item No. 70 of C. Schedule land the
High Court agreed with the finding of the Subordinate Judge.
The High Court also negatived the
plea of limitation, with the result A.S. No. 816 of
1947 was dismissed with costs and A.S. No. 83 of
1948 subject to the said modification was dismissed
with costs. Hence the appeals.
Both the appeals were heard together as they
raised common pomts. The arguments of Mr. A.V.
Viswanatha Sastri, the counsel for the appellant, may
be summarised thus : The marriage of Bangaru
Arnmal with a Mannarcottai Zamindar was not held
in Asura form and therefore the plaintiffs in O.S. 52
of 1944 being her father's uncle's grand-children were
not reversioners to her estate. According to Hindu
Dharamshastras the main distinction between Brahma
and Asura form of marriages is that while in the
I •
(
'
-
2 S.C.R. SUPREME COURT REPORTS
l!-53
former there is a gift of the bride, in the latter there
is a sale of the bride. Except a bare allegation in
the plaints that the said marriage was held in Asura
form the plaintiffs did not give any particulars or set
up any custom in the community to which the parties
to the marriage belonged. They have adduced evidence to the effect that a sum of Rs. 1,000/- was
paid as parisam by the Mannarcottai Zamindar to
the bride's father for taking the bride but both the
courts having rightly held that the said payment was
not established by the evidence erred in making out
a case of a different consideration for the marriage.
The first court held. wrongly that the fact that
MannarcottaLZamindar spent Rs. 300/- to Rs. 575/-
for the marriage expenses would make it an asura
marriage while the High Court went further and erroneously held that there was a general custom in the
community to pay the bride's price by way of giving
Kam bu grain and· Kambu flour at the .time of the
settlement of marriage and that for the bridegroom's
party to bear the expenditure for celebrating the
marriage and that in the case of Bangaru Ammal's
marriage the said Kambu was given and that the
expenditure for the marriage was incurred by the
Mannarcottai Zamindar presumably in pursuance of
the practice existing in the community or in pursuance of an arrangement between the parties.
Apart
from the fact that no such custom was pleaded, there
was no evidence to sustain the said custom. That
apart the mere giving of Kambu as a ceremonial
relic of the past or the bearing of the expenditure on
the marriage wholly or .partly by the bridegroom's
party could not be a bride's price as contemplated by
the Sastras, for the bride's father in those events
could not be said to have received any price for the
bride. In short the learned counsel attacks both the
legal and the factual findings arrived at by the High
Court.
The gist of the learned counsel for the
re;p Jai.!rits, Mr. B!i.eema•anka.,an's contention may
1962
A.L.V R.S.T.
V11rop/14 Ch.ttiar
v.
S. Mit:luul ttt:.
SuhbaRao, J,
JHZ
A.L.V.R.S.T.
v.,,t#G C/lllliar
v.
S MiclMel '"•
Sabha Rao, I.
254 SUPREME COURT REPORTS [196J) SUPP.
be briefly stated thus : According to Dharam Shastra~
there were eight forms of marriage in Hindu Law,
four approved
and four unapproved. But
as
centuries rolled by most of them became 'lbsolete and
at present there arc only two forms of marriage,
Brahmu and Asura. Whatever may have been their
comparative merits in the bygone days, they have
now come to be recognized as two valid forms of
marriage that can be followed without any sense of
inferiority by all the castes. Though in remote
antiquity the Asura form of marriage might have
involved a real sale transaction, at present it would
be enough to constitute such a marriage if a ritual
form was observed indicating the consciousness of
the community or the parties contracting the marriage
that it was an Asura marria~e. This consciousness
may be indicated by the ceremonial giving ofKambu
at the time of betrothal or by the bridegroom's party
meeting the expenses wholly-or substantially of the
marriage. That apart in th~ present case there
is clear evidence that the practice in the community
to which Bangaru Ammal and her husband belonged
that Kambu is given by the bridegroom's party to
the bride's party at the time of betrothal and the
·bridegroom's party bears the expenditure of the
marriage which clearly indicate that the bride's
father or in his absence by the bride's relatives
entitled to 11:ive her away in marriage get a clear
benefit for giving the bride, and further there is
evidence that the said practice was followed in the
case of Bangaru Ammal's marriage. What is more
to constitute a Bralurtu marriage there should be a
'Kanyadhan' but in this case it has been found that
there was no 'Kanyadhan' and therefore if the
marriage of Bangaru Ammal could not have been
in 'Brahma form' it could have been only in the
alternative form, namely Asura form.
Before we advert to the arguments advanced
we would like to make some general observations.
I I
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We are not concerned here with the relatives importance of the sajd two forms of marriages at the
present day but only with the conditions laid down by
Shastras for the said 'two forms of marriage and
with a question 'as to which form was adopted in
Bangaru Ammal's marriage. Nor are we concerned
with a question whether the institution of marriage
in Brahrnu form i~ now maintained in its original
purity. We are also in these appeals not concerned
with any customary form of marriage but only with
a marriage sanctioned by Hindu Law, for no custom
was pleaded in derogation of Hindu Law.
But there
may he a custom in a community not in derogation
of the Hindu Law but in regard to the manner of
complying with a condition laid down by Hindu Law,
that is to say if the criterion for an Asura marriage
was that there ·should be a sale of the bride, there
may be a custom in a community in regard to the
manner of paying !he consideration for the sale. It
may be mentioned that in this case the learned
counsel for the respondents does not rely upon any
custom even in the later sense but on) y oil the
practice obtaining in the community in support of
the evidence that . the said practice was followed in
Bangaru Ammal's marriage.
The main question therefore is what are. the
ingredients of an Asura form of marriage.
As the
Manu Samhita has always been treated by sages and
commentators from the earliest time as being of a
paramount authority, I.et us. look to it for guidance.
The following
vefr!.~s from Manu Samhita as translated by
Mahma~ha Nath Dutt Shastri read as
follows:-
'
CJIAPTER Ill, Verse 21:
They (different types of marriages) are known
a~ the Brahma, Daiva;A'raha, Prajapatya, A'8Ura,
Gan1,hania, RakBhd.'9a and Paisacha, which forms
the eighth.
1962
A.LVRS.T.
·v11rapftc CA1lliv
"·
S. Miclia1l 1te
Subba Roo, J.
1962
A.L.V.R.S.T.
VlmPP. 0Mttiar
...
S. Miduul ele.
S11b6o Rao J.
256 SUPREME COURT REPORTS [1963] SUPP.
Verse 24:
The four forms of marriage the seers have ordained as proper for Brahmanas : only the Rakshasa
form as proper for Kshatriyas, and 1he A 'sura form
as proper for Vais'yas and S'udras.
Verse 25:
Thus out of these five forms of marriage,
three are lawful, and two are sinful (unlawful).
Let a man never marry a wife either in the Pisacha
or in the A'sura form since these two forms are
prohibited.
Verse 27:
The form (of marriage) in which well-attired
bride, decorated with ornaments, is given in marriage
to an erudite, good-charactered bridegroom especially invited by the bride's father himself to .receive
her, .is called Brahma.
Verse 31:
The form, in which the bridegroom, on pay·
ing money to her father and to herself, out of the
promptings, of his own desire, receives the bride in
marriage, is called A' sura.
Verse 51 :
An erudite father of a girl shall not take anything by way of Sulka from her bridegroom. By
taking a dowry out of greed, he becomes the seller
of his off-spring.
Verse 53:
Even the acceptance of abovine pair (by·the
father of the bride from the bridegroom) is designated
as a dowry by certain authoritil'S, (the acceptance of)
I .
2 S.C.R.
SUPREME COURT REPORTS
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a dowry be it costly, or be it of insignificant value,
constitutes the sale of the girl:,
Verse 54 :
A marriage in which the bride's relations do
accept the dowry
(voluntarily presented by the
bridegroom's father, etc.) is no sale (of the bride),
since such a present is but an adoration of the
bride done out of love or affection.
Verse 98 (of Chapter IX)
Even a S''lldra mmt not take any price (lit.
duty or pecuniary consideration) for the hands of his
daughter when giving her away in marriage. Such
acceptance of money constitutes a sale of the girl in
disguise.
The gist of the verses is that before Manu
Smriti came into existence the A'sura form was considered to be proper for Vaishs and Sudras but it
was prohibited for the Brahmins and Kashatriyas.
But Manu was emphatic · that the said form of
marriage was sinful for all castes including the
Shudras.
There fa no amhiguity in the verses in
regard to the. general prohibition to all castes, for
Verse No. 98 emphasizes that even a S'udra must
not take any price for, the hand of his daughter when
giving away in marriage.
The next question is what is the critetjon of
an A'sura marriage according to Manu. A contrast between the terminology in the definition of
Brahma marriage arid that of A'sura marriage brings
out clearly his intention. The following words stand
out in the definitions. They are 'dana' (giving)
'Kanyapradanam' (the taking of the bride), 'Dmvina'
(wealth), 'dattava' (after having given), 'Saktitah'
(as much as he can), 'Svacchand.l/G' (as according
to his will).
The word 'Apradana' is used in the
1"1
A..L.V.R.S.T.
V111ap/JO C..1ti•r
v.
s. MiehMl •IC.
Su6i>o Ra, J.
1962
A.l..V.R. ".T.
v.111..-Ha C.VlfMrr
...
. '". Mie6ul 1tc,
258 SUPREME COURT REPORTS [1963] SUPP.
definition of A'sura marriage in contradistinction to
the word 'dana' in Brahmu form of marriage, while
in the Brahmu form of marriage the father makes a
gift of the hride, in the A'sura form the bridegroom
takes the bride otherwise than by a gift. In the
former the father gives the bride decorated with ornaments, while in the latter the bridegroom takes the
bride after giving wealth to the father of the bride
and the bride.
While in the former the father
voluntarily gives the bride in the latter the bridegroom
out of his
own
will pays
as much
money as he
can
to the
father
and takes his·
bride. The words ·Saktit,ah' and 'SMcchandya'
imply that the payment is made because the bridegroom can and the girl is taken because he wills,
that is to say a bridegroom who seeks the hand of
a bride takes her as he can afford to buy her from
her father.
The transaction is equated to that
of a sale, for all the ingredients of sale were present.
If there is any ambiguity that is dispelled by Verse
51 and Verse 54. In Verse 51 Manu makes it clear that
by taking a dowry out of greed the father becomes
the seller of his off-spring. 'Sulka' means the taking
of a gratuity or price.
The expression 'dravina' in
Verse 31 is clarified by the use of the word 'Sulka'
in Verse .51. What is prohibited is Sulka or the
price for the bride. Verse 54 brings out the d istinc·
tion between 'Sulka' or 'dravina' paid by the bridegroom as a price for the bride and the dowry given
for the bride as a present out of love or affection or
in adoration of the bride. Verse 98 further empha ·
sizes that what Manu prohibits is the sale of a bride
for price. A'sura marriage, . according to Manu,
is a transaction of sale in which the girl is sold for a
price.
Practically the same meaninit though expressed in different phraseology is given by other Hindu
Law-givers.
The following
translations ftiven by
Max Muller in the 'Sacred Boob of the East', of
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SUl>REME COURT REPORTS
259
the various sages may now be extracted :-
Baudhayana text I, II, 20 (7) :
'(If the bridegroom receives a maiden) after
gladdening (the' parents) by money (that is) the rite
of the Asuras ( asura).'
Ve.rse 2 :
'Now they quote also (the following venes) :
It is declared that a female who has been purchased
for money is not a wife. She cannot (assist) as
sacrifices offered to the ('.JOds or the manes. Kasyapa
has stated that she is a slave.'
Bawll&ayana
Pr1JBna
I -Adhyaya
11,
Kandika 21-Verse 3:
'Those wicked men who, sedu.:cd by greed,
give away a daughter for a fee, who (thus) fall
(after death) into a dreadful place of punishment and
destroy their family down to the seventh (generation).
Moreover they will repeatedly die and be born again.
All (this) is declared (to happen), if a fee (is taken).'
Vaaishtha-Ohapt,er I-JTerae 35.
•If, after making a bargain (with the father,
a suitor) marries (a damsel) purchased for money,
that (is called) the Manusha-rite.'
·
Naradd-Ohapter XII-Verae 42.
When a price is (asked for the bride .by the
father and) taken (by him), it is the form termed
Asura.
'GautaflliJ, 'Ohapter IV-Verae 11.
I
Th'c form .~f marriage. in which a bride is
purchased for mog!=Y· is. called the A'suram.'
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JI .L.I' .11.S.~
V,.,app. CA.llln
••
s. Miellul 111.
SuHoR•, I.
1962
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V '""PP. chtuiar
v.
S. Miclratl elc.
Subb•Raa, J.
260 SUPREME COURT REPORTS [1963] SUPP.
Vishnu-Chapter XXIV-Verse 24.
'If the damsel is sold (to the bridegroom), it is
called an Asura marriage.
'Yagnyavall'Ya' : 'The
asura
by
largely
giving of money ; the Gandharva by mutual consent;
the Rakshasa by forcible taking by waging war and
Paisacha by deceiving the girl'-Translation of
Srisachandra Vidyaamava: 1918 Edition page 126:
In the Mitakshara the said text is commented
upon thus:-
"The Asura marriage is that in which money
is largely given (to the father and others in
exchange for the girl).
•Apastamba': 'If the ~uitor pays money (for
his bride) and marries her (afterwards) that
(marriage is called) the Asura-rite.'
'Kautilya ': Arthasastra:
'Sulkadanat Asura'-the word used is "Sulka"
Medhatithi, in his commentary on Verse 54 of
Manu Samhita points out that the receipt of money
or money's worth for the benefit of the girl
(Kanyarthe) does not amount to her sale, and is
desirable as it tends to enhance her self.esteem and
also raises her in the estimation of others, and con·
eludes with the observation that receipt of a dowry
for the girl (kanyartham dhanagrahanam) is prescribed by thus stating the good arising from it
(arthavadena) : Vide ( 1941) 2 M.L.J. 770 at 772.
Apte's Dictionary: page 239: Col; Ill.
Asura is explained thus : 'One of the eight
forms of marriage in which the bridegroom purchase'!
the bride from her fatlfcr or
other paternal kinsmen' ... Manu 331 and Yagnayavalkya l.61 arc cited .
2S.C.R.
SUPREME COURT REPORTS
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The said sages and commentators accepted the
view expressed by Manu and in effect described
A'sura marriage as the transaction where a bridegroom purchases a girl for a price paid to the father
of the girl or to kinsmen who are entitled to give her
in marriage.
The distinction between the bride's
price and the presents to the bride is also recognized.
The learned Judges of the High Court relying
upon the text of AJ>asthamba observed that the
payment to the bride s father is for the purpose of
complying with Dharma and not as a consideration
for a commercial transaction. The interpretation
may explain away on Dhannic principles the sordid
nature of the transaction, but does not detract from
its essential incidents. We, therefore,
hold that
A'sura marriage is nothing more than a transaction
of marriage whereunder a bridegroom takes a bride
for the price paid by him to the bride's father or
others entitled to give her and therefore in substance
it is a sale of the !:>ride.
It is said that the incurring of the expenditure
of the marriage by the bridegroom is also a consideration for giving the
bride. In this context
reliance is placed on the Law and Custom of Hindu
Castes by Arthur Steel. This book was written
in 1868. The author appears to have collected the
laws and customs obtaining in the Presidency of
Bombay, and had compiled them for the purpose of
convenience of reference. At page 24 the author
says: 'There are eight kinds of marriages recognized in
the Sastras :-1, Brahm, where the charges are
incurred solely by the girl's father;
x x x x x
5, Usoor, where she,is taken in exchange for wealth,
and married; this species is peculiar,:_in the Wys and
Soodra castes, B.S. (M!it), See Munoo, 3.20,34, It is
considered as Uscorwiwuha, and stree·soolk, and the
money, if unpaid, is an unlawful debt, B-2, 199.
The definition of Asura by the author does not
c arry the matter further, for it is consistent 'with that
1962
A.L.V.R. ~.T.
Y111al>Jlo OMttia1
v.
s. Miewl lie.
$M6ba Rao, J.
1962
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V1e111ppo Gllttliar
v.
S. Mi<Aatl 1le.
SubbaRao, J,
262 SUPREME COURT REPORTS [1963] SUPP.
given in the Hindu law Texts but what is relied
upon is his definition of Brahmu marriage as one
where charges are incurred solely by the girl's father.
From the said definition a converse proposition is
sought
to
be
drawn viz :
that
marriage
would be Asura marriage if the charges were
incurred mainly
by the
bridegroom's
father.
Firstly the definition of Brahmu marriage by
the learned Author does
not conform with the
definition of the said marriage by the law-givers.
Secondly it does not follow from the passage that if
the bridegroom's father incurs the expenditure the
marriage is an A~ura marriage. If that be so, the
author would have stated in his definition of Asura
marriage that such incurring of the expenditure
would make a marriage an Asura marriage. This
valuable compilation of the laws and customs of the
day · does riot throw any light on the question now
raised before us.
Let us now see whether there is any merit in
the contention that the concept of sale for a price has
by progr'ess of time lost its content and that at the
present time a mere form of sale irrespective of a
real benefit to the bride's father would meet the
.requirements of an Asura · marriage. No text or
commentary taking that view has been cited to us.
Indeed the case law on the subject does not countenance anv such subsequent development.
The earliest decision on the subject cited to
us is that of the Divisional Bench of the Bombay
High Court 'Jaikisondas Gopaldas v. Harkisondas
HulleshandM'. (') Green J, defines the Asura marriage at page 13 : 'The essential characteristic of the
Asura form of marriage appears to be the giving of
money or presents by the bridegroom or his family
to the father or parental kinsmen of the bride, or,
in tact, a sale of the girl by her father or other relation having the disposal of her in marriage in
(I) (1876) I. L. R. 2 Bom. 9.
,
I
,
2 S.C.R.
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263
consideration of money or money's worth paid to
them by the intended husband or his family.'
In 'Vijarangam and Damodhar v. Lakahuman
and Lakshmi' (1) · WestJ. gives in interesting back·
ground to the origin of the institution of the Asura
marriage and observes: "Of the several Shastras called
by the plaintiff's and the defendants in this c:ase, all
agree that the giving and receiving of money for the
bride is the distinctive mark of the Asura form of
marriage."
In 'Muthu Aiyar v. Ohidambara Aiyar, (')
the money was paid by the bridegroom's. people to
the bride's father to meet expenses of marriage.
The Subordinate Judge found on the evidence that
the bride's father received the monev for his own
purposes and not for' ·bride's benefit' and therefore
the marriage was an Asura one. The High Court
in a short judgment accepted the finding and said.
"it being found that ' a money payment was made
to Thailu's father we 'are not prepared to differ from
the courts below in tpeir opinion as to the nature
of the marriage.'' This decision is relied upon· in
support of the contention that where the bridegroom
incurs the expenditure of the
marriage, such a
marriage is Asura marriage. But this decision is not
a considered one. The
appeal being a second
appeal, the learned Judges accepted the finding of
fact given by the Subordinate Judge, namely that
the money payment 'was made to the bride's father
and were not prepared , to differ from it. The dis1
inclination of the learned Judges to interfere in the
second appeal on a question of fact cannot throw
any light on the point that has directly arisen before
us.
Chandavarkar J. in 'Ohunilal v. Surajram'(')
accepted the aforesaid definition when he said: "Where
the person who gives ·a girl in marriage received
(I) (1871) 8 Dom. F..C. R<J>•>rts 244. .
(2) (1893) M.L.J. 261.
(3) (1909) I.L.R, 33 Dom. 433.
1562
A..L.Y.R.S.T.
V ,.,,,J>:J C41ttiar
Y,
S. MicAa1l llc.
1962
A.l.V.R.S.T.
Y111appa Ch1lliar
v.
S. Miclaa1l 11&.
264 SUPREME COURT REPORTS [1963] SUPP.
money consideration for it, the substance of the
transaction makes it, according to Hiudu Law, not a
gift but a sale of the girl. The money received is
what is called bride-price; and that is the essential
element of the Asura form. The fact that the rites
prescribed for the Brahmu form are gone through
cannot take it out of that category, if there was
pecuniary benefit to the giver of the girl. The Hindu
law-givers one and all condemn such benefit and the
Shastras, regarding it as an ineradicable sin, prescribe
no penance for the sale of a bride." The learned
Judge also accepted the presumption that every
marriage under the Hindu Law is according to the
Brahina form but it can be rebutted by evidence.
In 'S. Authikesavulu Ghetty v. S. Ramanujan
Ghetty' (1) at the
betrothal ceremony a married
woman of the caste to which the parties belonged
proceeded from the bridegroom's house to the house
of the bride carrying certain presents consisting of
cocoanuts, betel and nut, garlands, black-beads, saffron
red powder, etc. in a tray. There was also a pagoda
and a fanam in it. There was also an arrangement
at that time that the bridegroom's father had to pay
certain amount to the bride and the bride's father
had also to give some jewels to the bridegroom. It
was contended that the marriage was an Asura
marriage. The learned Judges said that the distinctive mark of the Asura marriage was the payment
of money for the bride, and that the payment of a
pagoda and 2i annas could not have been intended to
be the consideration for the bride where the bride's
father spent thousands of rupees himself and gave
presents of considerable value to the bride and the
bridegroom. This decision, therefore, emphasises
that mere payment of small amounts as a compliment
to one of the parents cannot be treated as a consideration for the sale of the bride. It also lays down tbat
all the circumstances of the case will have to be looked into to ascertain whether any amount was paid
as price for the bride.
(I) (1909) J.L.R. 32 Mad. 512.
,
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2 S.C.R.
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265
A Divisional ~ch of the Madras High Court
in 'Gabrielnathaswam1i v. Valliammai Ammal' (')
negatived the contention that the mere fact that a
bride's parents receive!l what is known as 'parisam'
it would lead to the qlμclusion that the marriage of
the girl took place jn Asura form and not in Brahma
form. The lear~eqJμ~ges observed: "It may be that
parisum is a relic of w4!lt in old. days was regarded
as the price for the pride. x x x x The real
test is whether in the community or among the parties
the payment of 'pi+~am' was tacitly understood as
being substantially il payment for taking the girl in
marria~e. That will .