# PERUMAL NADAR (DEAD) BY L.RS v. PONNVSWAMI

- **Citation:** [1971] 1 S.C.R. 49
- **Court:** Supreme Court of India
- **Decided:** 1970-03-17
- **Bench:** J. C. Shah, K. S. Hegde, A. N. Grover
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/perumal-nadar-dead-by-l-rs-v-ponnvswami-5088
- **Pages:** 7

## Headnote

49
Hindu Law-Marriage between Hindu and former Christiarr-Proof
of conversion to Hinduism-No formal purification ceremony necessary
LBona fide intention accompanied by unequivocal conduct sufficient.
Madras Hindu (Bigamy Prevention and Divorce) Act 6 of 1949Act applicable anly to those domiciled in Madras.
Indian Evidence Act I of 1872, s. 112-Presumptio11 as to legitimacy
of child.
·
One Perumal Nadar, a Hindu, married Annapazham, daughter of
an Indian Christian, on November 29, 1950 at Kannimadam in the State
of Travancore-Cochin according to Hindu ·rites.
Of the two children
born of the marriage one died. The younger child, a son born in 1958,
a.cling through his mother, the aforesaid Annapazham, as his guardian,
tilecl an action in the Court of the Subordinate Judge, Tirunelveli, for
separate possession of a half share in the properties of the joint family
held by his father Perumal.
The auit was defended by Perumal.
The
trial court decreed the suit and the High Court confirmed the decree.
In 'appeal to this Court by certificate Perumal, the appellant, contended :
(i) that Annapa.ham was an Indian Christian and a marriage between
a Hindu and an Indian Christian must be regarded as void; (ii)' that
the marriage was invalid because the appellant was already marlried
before he married Annapazham and bigamous marriages were prohibited
by Madras Act 6 of 1949; (iii) that the appellant and Annapazham
were living apart for a long time before the birth of the plaintiff and
on that account the plaintiff could not be regarded as a legitimate child
of the appellant.
HELD: (i) The question whether marriage between a Hindu male
and a Christian female iS"" valid or not did not arise folr consideration in
the present case because the finding of the Courts below that Anna-
~azham was converted to Hinduism before her marriage with Perumal
was amply supported by evidence. [52 D-E]
·
A person may be a Hindu by birth or conversion. A mere theoretical allegiance to the Hindu faith by a pers0n born in another faith does
not convert· him into a Hindu, nor is a bare declaration that he is a
Hindu sufficient to convert him to Hinduism.
But a bona fide intention
to be converted to the Hindu faith, accompanied by conduct unequivocally expressing that intention may be sufficient evidene< of conversion.
'No formal ceremony of purification or expiration is necessary to effectuate
convorsion. [52 E-F] ·
Muthusami
Mudallar v.
Musifamani alias Subramania Mudaliar
I.LR. 33 Mad. 342 and Goona Durgaprasada Rao v. Gaona Sudarasanaswami, I.LR. (1940) Mad. 653, refe"Ted to.
The evidence in the. present case established that
th~ parents of
Annapazham arranged the marriage. The marriage was performed
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SUPREME COURT REPORTS
(1971] I s.c.R.
according to 1-lindu rites and ceremonies in the presence of relatives
who were invited to attend : custon1ary ceremonies peculiar to a marriage
between l-lindus were performed : no objection was raised to the marriage
and after the marriage Annapazham was accepted by the local Hindu
Nadar community as belonging to the Hindu faith; and the plaintiff v,:as
alsv treated as a Hindu.
On the evidence there could be r..o- doubt that
Annapazham bone fide intended to contract marriage with Perumal .
. Absence of sp.::cific expiatory or purificatory ceremonies would not be
'iut11C'icnt to hold that she was not convc:rted to Hinduism before the
n1arriage ccremonv \Vas performed.
The fact that the appellant chose
to go th:-ough the marri•tgc ceremony according to Hindu rites \.vith
Annapazha1n in the pfcscncc of a large number of persons clearlv indi·
cat~J that he accepted that Annapazham was converted to Hindusm
b(:fure the mar'riage cererriony was perforn1ed. f53 C·EJ
(ii) On the facts and pleadings the High Court was right in holding
that it \.Vas not proved that the appellant was domiciled in the Statt! of
~a<lras nt the <late of his
marria~c with Annapazham.
He could not
therefore rely upon the provisiu1is of the Madras Hindu (Big

## Text

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PERUMAL NADAR (DEAD) BY L.RS.
v.
PONNVSWAMI
March 17, 1970
[J. C. SHAH, K. S. HEGDE AND A. N. GROVER, JJ.]
49
Hindu Law-Marriage between Hindu and former Christiarr-Proof
of conversion to Hinduism-No formal purification ceremony necessary
LBona fide intention accompanied by unequivocal conduct sufficient.
Madras Hindu (Bigamy Prevention and Divorce) Act 6 of 1949Act applicable anly to those domiciled in Madras.
Indian Evidence Act I of 1872, s. 112-Presumptio11 as to legitimacy
of child.
·
One Perumal Nadar, a Hindu, married Annapazham, daughter of
an Indian Christian, on November 29, 1950 at Kannimadam in the State
of Travancore-Cochin according to Hindu ·rites.
Of the two children
born of the marriage one died. The younger child, a son born in 1958,
a.cling through his mother, the aforesaid Annapazham, as his guardian,
tilecl an action in the Court of the Subordinate Judge, Tirunelveli, for
separate possession of a half share in the properties of the joint family
held by his father Perumal.
The auit was defended by Perumal.
The
trial court decreed the suit and the High Court confirmed the decree.
In 'appeal to this Court by certificate Perumal, the appellant, contended :
(i) that Annapa.ham was an Indian Christian and a marriage between
a Hindu and an Indian Christian must be regarded as void; (ii)' that
the marriage was invalid because the appellant was already marlried
before he married Annapazham and bigamous marriages were prohibited
by Madras Act 6 of 1949; (iii) that the appellant and Annapazham
were living apart for a long time before the birth of the plaintiff and
on that account the plaintiff could not be regarded as a legitimate child
of the appellant.
HELD: (i) The question whether marriage between a Hindu male
and a Christian female iS"" valid or not did not arise folr consideration in
the present case because the finding of the Courts below that Anna-
~azham was converted to Hinduism before her marriage with Perumal
was amply supported by evidence. [52 D-E]
·
A person may be a Hindu by birth or conversion. A mere theoretical allegiance to the Hindu faith by a pers0n born in another faith does
not convert· him into a Hindu, nor is a bare declaration that he is a
Hindu sufficient to convert him to Hinduism.
But a bona fide intention
to be converted to the Hindu faith, accompanied by conduct unequivocally expressing that intention may be sufficient evidene< of conversion.
'No formal ceremony of purification or expiration is necessary to effectuate
convorsion. [52 E-F] ·
Muthusami
Mudallar v.
Musifamani alias Subramania Mudaliar
I.LR. 33 Mad. 342 and Goona Durgaprasada Rao v. Gaona Sudarasanaswami, I.LR. (1940) Mad. 653, refe"Ted to.
The evidence in the. present case established that
th~ parents of
Annapazham arranged the marriage. The marriage was performed
50
SUPREME COURT REPORTS
(1971] I s.c.R.
according to 1-lindu rites and ceremonies in the presence of relatives
who were invited to attend : custon1ary ceremonies peculiar to a marriage
between l-lindus were performed : no objection was raised to the marriage
and after the marriage Annapazham was accepted by the local Hindu
Nadar community as belonging to the Hindu faith; and the plaintiff v,:as
alsv treated as a Hindu.
On the evidence there could be r..o- doubt that
Annapazham bone fide intended to contract marriage with Perumal .
. Absence of sp.::cific expiatory or purificatory ceremonies would not be
'iut11C'icnt to hold that she was not convc:rted to Hinduism before the
n1arriage ccremonv \Vas performed.
The fact that the appellant chose
to go th:-ough the marri•tgc ceremony according to Hindu rites \.vith
Annapazha1n in the pfcscncc of a large number of persons clearlv indi·
cat~J that he accepted that Annapazham was converted to Hindusm
b(:fure the mar'riage cererriony was perforn1ed. f53 C·EJ
(ii) On the facts and pleadings the High Court was right in holding
that it \.Vas not proved that the appellant was domiciled in the Statt! of
~a<lras nt the <late of his
marria~c with Annapazham.
He could not
therefore rely upon the provisiu1is of the Madras Hindu (Bigamy fri;: ..
~·ention anc! Divorce) Act 6 of 19149. [54 F] ·
(iii) There \Vas a concurrent finding by the courts below that there
\\'~ts no evidence lo establish thrit the appellant living in the same village
a~ Annapazhail1 had no accc'\s to her during the tin1e when the plaintiff
cou!d huvc been hegottcn.
Therefore, in view of s. 112 of the Indian
Ev:dcnce Act it could not he held that the plaintiff was an illegitimate
chiid. [55 A-BJ
Chilukuri Venkatesivarlu v. Chi/11k11ri VC'nkatanarayanf., [1954] S.C.R.
425. Karapayc v. Mayandi. I.LR. 12 Rar.g. 243 (P.C.) and Ammat/u;yee
v. Kumaresai.". fl 967] I S.C.R. 363, applied.
CrvIL APPELLATE JURISDICTION :
Civil Appeal No. 354 of
1967.
Appeal from the judgment and decree dated August 25, 1965
of the Madras High Court in Appeal No. 177 of 1961.
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S. V. Gupte, R. Thiagarajan, Janendra Lal and B. R. AgarF
wala, for the appellant.
N. H. Hingorani and K. Hingorani, for the respondent.
The Judgment of the Court was delivered by
Shah, J.
Perumal Nadar married Annapazham (daughter of
1'- ,tilasa Nadar-an Indian Christian) on November 29, 1950, at
K:mnimadani in the State
of Travancore-Cochin
according to
Hi:1du rites. Ann; 1 ·iwn gave birth to two children-the first on
September 14. 1951 and the other on March 5. 1958. The elder
child died shortly after its birth. The younger named Ponnuswami
octing through his mother Annapazham as his guardia;i filed an
.i.:•ion in the Court of the Subordinate Judge, Tirunelveli, for
separate possession of a half share in the properties of the joint
family lield by his father Perumal.
The suit was defended by
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PERUMAL v. PONNUSWAMI (Shah, J.)
51
Perumal contending that he had not
married Annapazham as
claimed by her; that if it be proved that marriage ceremony had
been performed, it was invalid, and in any event Ponnuswami was
an illegitimate child and could not claim a share in his estate. The
Trial Court rejected the defence, and dec;reed the suit.
Perumal
appealed to the High Court of Madras, but without wccess. With
certificate under Art. ! 33(1)(c) of the Constitution, this appeal is
preferred.
Three contentions are urged in support of this appeal : (I)
that Annapazham was an Indian Christian and a marriage between
a Hindu and an Indian Christian is regarded by the Courts in
India as void; (2) that the marriage was invalid because it was prohibited by the Madras Act 6 of 1949: (3) that Annapazham and
Perumal were living apart for a long time before the birth of Ponnuswami and on that account Ponnuswami could not be regarded
as a legitimate child of Perumal.
Annapazham was born of Christian parents and she followed
the Christian faith.
She married Perumal when she was about
19 years of age. It is not now in dispute that on November 19,
1950 she went through the ceremony of marriage and lived with
Perumal as his wifo for several years thereafter. The children born
to Annapazham in September 1951 and March 1958 were entered in the Register of Births as Hindus.
On the occasion of
the marriage, printed invitations were sent to the relatives of Peru·
ma! and of Annapazham and an agreement was executed by Peru·
ma! and Annapazham reciting that :
"Individual No. I (Peruma\) among us has married
Individual No. 2 (Annapazham) as settled by our parents
and also with our full consent. As our relatives are of
the opinion that our marriage should be registered, thi~
agreement has been registered in accordance therewith.
We have executed this agreement by consenting that
both of us shall lead a family life as husband and wife
from this day m:wards, that we shall not part each other
both in prosperity anr! adversity and that we
shall
have mutual rights in respect of the properties belonging to us, under the Hindu Mitakshara Law."
The marriage ceremony was performed according to Hindu rites
and customs : a bridal platform was constructed and Perumal tied
the sacred thali which it is customary for a Hindu husband to tie
in acknowledgement of thi: marriage.
The High Court on a consideration of the evidence recorded the
H
following finding :
"Oral evidence was adduced to prove that the marri·
age was celebrated according to Hindu rites and Sams-
52
SUPREME COURT REPORTS
(1971] l S.C.R.
karas. Invitations were issued at the time of the marriage
and usual customary tying of thali was observed.
After
the marriage she ceased to attend the Church, abandoned
the Christian faith and followed the Hindu customs and
manuer prevailing among the Hindu Nadar community
of Travancore."
Perumal who had previously been married to one Seethalakshm.i
agreed to and did go through the marriage ceremony. It is in evidence that mi:rriage between Hindu males belonging to the Nadar
community and Christian females are common and the wife after
the marriage is accepted as a member of the Hindu Nadar community
Mr. Gupte on behalf of Perumal contends that a valid marriage may take place between two Hindus only and not between a
Hindu and a non-Hindu and in the absence of any evidence to show
that /\nnaj.lazham was converted to Hinduism before she mairied
Perumal, the marriage, even if performed according to the Hindu
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rites and ceremonies, is not valid in law. Counsel also contended.
that the evidence that Annapazham ·Jived after the marriage is a
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Hindu will not validate the marriage.
It is not necessary to decide in this case whether marriage between a Hindu male and an Indian Christian female may be regarded as valid. for, in our judgment, the finding of the Courts below
that Annapazham was converted to lfinduism before her marriage
with Perumal is amply supported by evidence.
A person may be
a Hindu by birth or by conversion. A mere theoretical allegiance
to the Hindu faith by a person born in another faith does not convert him into a Hindu, nor is a bare declaration that he is a Hindu
sufficient to cqnvert him to Hinduism.
But a bona fide intention
to be converted to the Hindu faith, accompanied by conduct unequivocally expressing that intention may be sufficient evidence of
conversion.
No formal ceremony of purification or expiation is
necessary to effectuate conversion.
In Muthusami Muda/iar v. Masilamanl alias Subramania
Mudaliar(') the validity of a marriage according to Hindu rites
between a Hindu and a Christian woman fell to be determined. It
was held that the marriage contracted according to Hindu rites by
a Hindu with a Christian woman, who before marriage is converted to Hinduism, is valid, though the marriage was not in strict
accordance with the Hindu system of law. Such a marriage is still
common among and recol!flised as valid by the custom of the
caste to which the man belongs.
In Gaona Durgaprasada Rao and Another v. Goona Sudarasanoswami and others(2 ), Mockett, J., observed that no gesture or
(!) !.L.R. 33 \fad. 342.
(2) l.L.R. (1940] Mad. 653.
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PERUMAL V. PONNUSWAMI (Shah, J.)
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declaration may change a man's reugion, but wnen on the facts it
appears that a man did change his religion and was accepted by
his co-religionists as having changed his religion and lived ~d
died in that religion, absence of some formality cannot negative
what is an actual fact. Krishnaswami Ayyangar, J., observed that
a Hindu who had converted himself to the Christian faith returned
to Hinduism and contracted a second marriage during the lifetime of his first wife and remained and died a Hindu having been
accepted as such by the community and co-religionists without
demw·.
Absence of evidence of rituals relating to conversion
cannot justify the Court in treating him as having remained a
Christian .
The evidence clearly establishes
that the parents of Annapazham arranged the marriage. The marriage was performed according to Hindu rites and ceremonies in the presence of relatives
who were invited to attend : customary ceremonies peculiar to a
marriage between Hindus. were performed : no objection was raised
to the marriage and after the marriage Ar.napazham was accepted
by the local Hindu Nadar community as belonging to the Hindu
faith, and the plaintiff was also treated as a Hindu. On the evi- .
dence there ca;n be no doubt that Annapazham bona fide intended
to contract marriage with Perumal. Absence of specific expiatory
or purificatory ceremonies will not, in our judgment, be sufficient
to hold that she was not converted to Hinduism before the marriage ceremony was performed,
The fact that Peruinal chose to
go through the marriage ceremony according to Hindu rites with
Anilapazham in the presence of a large number of persons clearly
indicates that he accepted that Annapazham was converted to
Hinduism before the marriage ceremony was performed.
The second contention has little substance. The Madras Hindu
(Bigamy Prevention and Divorce) Act 6 of 1 !149 provided by ss.
3 & 4(1) :
.
'
S. 3-"This Act applies to Hindus domiciled in the
State of Madras.
Explanation.-This Act shall also apply if either of
the parties to the marriage was a Hindu domiciled in the
State of Madras."
S. 4 ( 1 )-"Notwithstanding any rule of law custom
or usage t.o the contrary, any marriage solemn~ after
the commencement of this Act between a man and a
woman either of whom has a spouse living at the time
of such solemnization shall be void, whether the marriage is solemnized within or O\ltside the State of Madras :
Provide«
"
'
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SUPRBME COURT REPORTS
(1971] I S.C.R.
Mr. Gupte contended that Perumal was domiciled in the village of Kannamkulam, Taluka Nanguneri, District Tirunelveli in
the State of Madras and on that account governed by Mad:as
Act 6 of 1949, and since Perumal had been previously married
to Scethaiakshmi who was alive, his marriage with Annapazham
was invalid. The Courts below have held that Perumal had married Scethalakshmi
before. he married Annapazham,
and that
Se~thalakshmi was alive at the date of Perumal's marriage with
Annapazh;;m. But no contention was raised in the written statement
filed by Perumal that he
was domiciled in the Slate of
Madras.
The marriage with Annapazham took place in Kannimadam which is admittedly within the territory of the State of
Trnv"ncore-Cochin and after the marriage Perumal and Annapazham lived at Kannimadam. M Thangiah Nadar P.W. 2, and
Kailasa Nadar P.W. 4 have deposed that the families of Annapazham and Perumal were the subjects of the Travancore Maharaja and that evidence was not challenged.
Perumal and AnnapazhJm were married according to the ceremonies which make a
valid marriage : they had liwd as husband and wife and if it was
the case of Perunml that the marriag~ was, by reason of the. prohibition contained in Madras Act 6 of 1949, invalid. it was fo1·
him to set up and tn establish that plea by evidence.
It is true
thnt un attempt wus made after pluintiff closed her case to suggest
to witne»cs examined thnt he Perumal was u resident of Kannumkulam und that he occnsionnlly visited Kannimadnm where he
had n house.
But no argument was raised that Perumal
was
domiciled in the State of Madras.
In the absence of any such
contention, the Trial Court held that Perumal was not domiciled
in the State of Madrus.
It cannot be held in the absence of a
specific plea and issue raised to that end that Perumal was domiciled in the State of Madras and was on that account governed
by the proviiions of the Madras Hindu (Bigamy Prevention and
Divorce) Act 6 of 1949. We agree with the High Court that it
is not prnv'd that Perumal was domiciled in the State of Madras
at the date of his marriage with Annapazham.
Nor can we accept the contention that the plaintiff Ponnuswi;n1i is ~n illegitimak child. If it be accepted that there was a
vahd mamage between Perumal and Annapazham and during the
subsistence of the marriage the plaintiff was born, a conclusive
established that at the time when the plaintiff was conceived Perupresumption arises that he was the son of Perumal, unles~ it be
ma! had no access to Annapazham.
There is evidence on the
record that there were in 1957 some disputes between Annapazhrun
and _Perun:al.
Annapazham had lodged a complaint before the
Magistrates court that Perumal had contracted marriage with one
Bhagavathl,
That complaint was dismissed and the order was
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PFRUMAL V. PONNUSWAMI (Shah, J.)
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confirmed by the High Court of Madras. Because of this com·
plaint, the relations between the parties were strained and they
were living apart. But it is still common ground that Perumal and
Annapazham were living in the same village, and u11:less P~rumal
wus ~blc to establish absence of access, the presumpt10n raised by
s. 112 oi the Indian Evidence Act will not be displaced.
In Chilukuri Venkateswarlu v. Chilukuri Venkatanarayana(')
in a suit filed by a Hindu son against his father for partition it
was contended that the plaintiff was not the legitimate child of the
<l~fendanl. The defendant relied upon certain
documents by
wi:ich he irnd agreed to pay maintenance to the plaintiff's mother,
and upon a deed gifting a house to her and assertions made in a
previous suit that he had no intercourse with her after he married
a second wife.
The Court in that case observed, following the
judgment of the Privy Council in Karapaya V· Mayandi(') that
"nou-access could be established not merely by p'1sitive or direct
evidence; it can be proved undoubtedly like any other physical
fact by evidence, either direct or circumstantial, which is relevant
10 the issue under the provisions
of the Indian Evideu~e Act,
though as the presumption of legitimacy is highly favoured by lnw
it is ne~cs,ury that pr9.of of non-access must be clear and satisfnc·
tol'y'', and since on the busis of that proof there was evidence on
lhe !'ccord thut the plaintiff's mother lived in the hou~c gifted to
h~r by her hu~bund und there was no impossibility of colmbitatlon
between the parties, there wus no acceptable evidence of nonaccess.
In Ammathayee v. Kumaresain( 8 ) this Court held that the conclusive presumption under s. 112 of the Indian Evidence Act can
only be displaced if it is shown that the parties to the marriage
had no nccess at any time when the ch:' :I could have been begotten,
There is a concurrent finding of the Trial Court and the High
Court that there is no evidence to establish that Perumal living in
the same village as Annapazham had no access to Annapazham
during the time when the plaintiff could have been begotten.
The apr,cal fails and is dismissed with costs.
G.C.
(1) [1954] s.c.R. 425.
(2) l.L.R. 12 Rang. 243 (P,'C,)
(3) [19671 1 S.C.R. 353.
Appeal dismissed,