CENTRAL UNIVERSITY OF SOUTH BIHAR

GAYA-823001

SCHOOL OF LAW & GOVERNANCE

PROJECT ON

Balusami Reddiar vs. Balakrishna Reddiar,

Under the guidence of

Dr. Pawan Kumar Mishra
Submitted By.-
Rajeev Ananta
B.A. LLB(Hons)- 1st Semester
Enrollment No- CUSB1613125004
Subject Family; Property

Court Chennai High Court

Decided On Apr-23-1956

Case Number Appeal No. 1062 of 1952

Judge Govinda Menon and ;Basheer Ahmed Sayeed, JJ.

Reported in AIR1957Mad97

Acts Hindua Law; Evidence Act, 1872 - Sections 13

Balusami Reddiar, Minor by Guardian, Nagammal and

Appellant
ors.

Respondent Balakrishna Reddiar, Minor and ors.

Appellant Advocate A. Sundaram Iyer, Adv.

Respondent
T.K. Subramania Pillai, Adv.
Advocate

Disposition Appeal allowed

Cases Referred Deivanayaga Padayachi v. Muthu Reddi

About case studies

Hindu law--custom--marriage of man with his daughter's daughter --if could be
recognized ; 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. 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 father is not beyond the seventh degree in
the line of ascent from or her or if their common ancestor being traced through
the mother is not beyond the fifth degree in the line of ascent from him or her. -
- .....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.

Introduction
A country like India, which can still trace the origin of some of its laws to these
long established customs, has come a long way from the days when disputes
were resolved on the basis of the local customs and traditions prevalent in the
society. The reason for this change can be credited to the society itself. Customs
are the products of the general and oft repeated practices in the society and these
practices undergo the same gradual change as the society over the passage of
time. Hence, customs need to evolve, or the definition of custom, to
accommodate these changes in society. The Hindu Marriage Act, 1955 and
various other legislations have recognised customary practices as valid for
solemnizing a marriage and for other purposes. However, judicial interpretation
of the word custom has had a negative impact as the statutes could not
contemplate the problems that might arise with including customary
ceremonies.

Sources of Hindu Law

An understanding of Hindu law begins with the concept of dharma, which refers
to ones religious, legal, ethical, and social duties. Within Hindu law, the
highest source of dharma is the ruti, which literally translates as "what is
heard." The most important ruti literatures are the Vedas, which are of divine
origin and serve as the revelatory sources of Hindu law. The Vedas are the
oldest sacred texts of Hindu law.

The custom must be continuous - this is another important requirement of

custom. Continuance implies that a said custom has stood the test of time, i.e. it
has not been conveniently adopted and rejected; however, a single instance of a
breach of custom would not render the custom invalid.

Custom must be uniform - this is related to continuity. A uniform custom would

imply that the said practice that was followed or being followed has not
deviated/changed from the custom that had been originally conceived.

Certainty - A custom must be certain. It should not be a figment of imagination,

rather its practice has to be proved by facts and not by opinion, reason or
analogy.

Reasonableness and Public Policy - A custom must be reasonable to the parties

following the custom and should be in lines with the public policy. The latter
takes into account, the aspect of morality.

Facts the Case

One T. Ramaswami Reddiar belonging to the 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 share in 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.
Relevant cases:
Deivanayaga Padayachi vs Muthu Reddi And Two Ors. on 30 July, 1920

Equivalent citations: (1921) ILR 44 Mad 329

Bhaurao Shankar Lokhande v. State of Maharashtra , AIR 1965 SC 1564.

Gullipilli Sowria Raj v. Bandaru Pavani @ Gullipili Pavani , AIR 2009 SC

1085.

Ramalakshmi Ammal v. Sivanantha Perumal Sethurayar, (1872) 14 M.I.A. 570.

Surajmani Stella Kujur v. Durga Charan Hansdah, AIR 2001 SC 938

Deivanayaga Padayachi vs Muthu Reddi And Two Ors. on 30 July, 1920

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 a custom which is
contrary to the sacred writings or which puts a premium on incest and
immorality.
The facts are that this woman was kept by the first defendant who made a gift of
the property to her with the object that she should continue to be his mistress.
She did in fact remain in his keeping and lived with him as contemplated by
Exhibit B and to that extent therefore the immoral purpose which the donor had
in view was attained. It is well established that when a transaction is entered
into for an unlawful or immoral purpose and that purpose has been achieved, the
Court would not interfere at the instance of the particeps criminis to relieve him
from the legal effects of the transaction. In the decided cases it is well settled
that a person who entered into such a transaction is estopped from disputing the
nature of the transaction, if the immoral purpose for which it was entered into
has been carried out. It is, however, argued by the learned pleader for the
appellant that Section 6(A), Clause 2, of the amended Transfer of Property Act
has made a difference in the law in this country. That section says that no
transfer can be made for an unlawful object or consideration within the meaning
of Section 23 of the Indian Contract Act . The argument based on this clause is
that the transfer for such an object or consideration is ipso facie void and
therefore the transferor can come to Court and ask its assistance in getting back
the property.

In the case of Surajmani Stella Kujur v. Durga Charan Hansdah, the issue that
arose before the court was the validity of a custom which does not explicitly
make the solemnization of a second marriage void. In the case mentioned, the
appellant belonged to Oraon and the Respondent to Santhal tribes. The appellant
conceded that the parties being tribals, who otherwise professed Hinduism, are
not governed by the Hindu Marriage Act but by their Santhal customs and
usages. The Supreme Court in its judgement relying on Ramalakshmi Ammal v.
Sivanantha Perumal Sethurayar where it was laid down

In Bhaurao Shankar Lokhande v. State of Maharashtra treated as a precedent by

the Indian courts, a neo-buddhist husband appealed against his conviction for
bigamy. He had married another woman during the lifetime of his first wife. On
appeal to the Supreme Court, it was argued on behalf of the husband that the
essential ceremonies for a valid Hindu marriage were not performed when he
underwent the second marriage ceremony and therefore it was not a legally
valid marriage under Hindu law. The Supreme Court held that, "it was essential
for the purpose of Section 17 of the Act, that the marriage should have been
celebrated in due form. Merely going through certain ceremonies with the
intention that the parties be taken to be married will not make the ceremonies
prescribed by law or approved by any established custom". The Supreme Court
further cited Mullas Hindu Law to state, "There are two ceremonies essential to
the validity of a marriage, whether the marriage be in the Brahma form or the
Asura form, namely

Invocation before the sacred fire, and

Saptapadi, that is, the taking of seven steps by the bridegroom and the
bride jointly before the sacred fire."
Judicial Interpretation of "Custom" or "Usage"
The expression "custom and usage" has been defined under Section 3(a) of the
Hindu Marriage Act, 1955 as:

"3. (a) the expression custom and usage signify any rule which, having been
continuously and uniformly observed for a long time, has obtained the force of
law among Hindus in any local area, tribe, community, group or family:
Provided that the rule is certain and not unreasonable or opposed to public
policy; and

Provided further that in the case of a rule applicable only to a family it has not
been discontinued by the family."

Though by virtue of Section 4(a) of the Hindu Marriage Act, 1955 the Act has
an overriding effect on any pre-existing statutes, texts or customs for which
provisions have been made under this Act.

"4. (a) any text, rule or interpretation of Hindu law or any custom or usage as
part of that law in force immediately before the commencement of this Act shall
cease to have effect with respect to any matter for which provision is made in
this Act.

The Act has several provisions under which customs of communities override
the codified conditions. As the Hindu Marriage Act, 1955 is inclusive of all
other communities that are not Jewish, Parsi, Muslim or Christian. It is
important for the Act to recognize all other customs and ceremonies of different
communities for a marriage to be held valid under this Act. However, a careful
study of the judicial precedents indicate that the use of custom as a source of
law has in fact affected the rights of the parties concerned and women in
particular with respect to validation of marriages and bigamy.

Judicial decisions are replete with such decisions where either party to the
marriage, when a suit for maintenance or bigamy is brought use non-
performance of customary ceremonies to annul the marriage. There are several
instances in which by all other standards, cohabitation, parties living together as
wife and husband, children and other requirements or indicators are satisfied but
due to the non-performance of a ceremony the marriage has been annulled. One
such instance is Gullipilli Sowria Raj v. Bandaru Pavani @ Gullipili Pavani
where in the appellant who was a Roman Catholic Christian married the
respondent, a Hindu woman under the Hindu marriage act in accordance with
Hindu customs. The respondent bought a suit thereafter against the appellant for
nullifying the marriage. The main ground for declaring the marriage to be a
nullity was mainly misrepresentation by the appellant regarding his social status
and that he was a Hindu by religion, although it transpired after the marriage
that the appellant and his family members all professed the Christian faith. The
trial court dismissed the suit whereupon the respondent appealed to the High
Court which upheld the validity of the marriage. The husband appealed the
decision to the Supreme Court. Wherein the court referred to the preamble of
the Hindu Marriage Act.

Result
in Balusami v. Balakrishna, T. Ramaswami Reddiar died leaving behind him
his second wife, his fourth wife, and children by the deceased third wife and the
fourth wife. First wife had predeceased him, T. Ramaswami Reddiar married his
first wifes daughters daughter (i.e. his granddaughter) and had three sons with
her. It was alleged that the marriage between granddaughter and T. Ramaswami
Reddiar is incestuous, also that the sons produced were due to adulterous
relations of granddaughter. Whereas they counterclaimed that the custom
prevalent in their community allows for such incestuous marriage.

The court held that the alleged custom is revolting to all principles of morality,
decency and eugenics. No civilized society can accept such custom. The
marriage between a man and his daughter's daughter comes within the
prohibited degrees of relationship (Mitakshara) seventh degree from fathers
side, and fifth from mother. As very few cases of such marriage have been
reported it is not conclusive that such marriage is custom. Moreover, it was held
that 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.

Conclusion
Custom in the Hindu Marriage Act had to be included to bring the various
ceremonies that constitute marriage under the category of Hindu, but what was
deemed necessary to validate marriages has turned out to be a ground for
nullifying marriages in order to escape marriage or to avoid prosecution for
bigamy.

The various religious personal laws never contemplated cross-religious

marriages or modern domestic relationships. Moreover, with written texts,
customs and commentaries based on the patriarchal construction of the society,
the use of these sources as valid law is prejudiced towards men. While there are
instances where the rights of men have been violated due to the interpretation of
the word custom, it is largely women who have suffered. As is evident from
various judicial decisions discussed above as well as those that have not found a
mention here, there is an immediate need for a uniform civil code.

While the arguments for and against uniform civil code are many, there are at
least a few regulations that need to be adopted across all religions and castes
regardless of customary law. In the interests of women, who are most of the
victims, it is necessary to criminalise polygamy(bigamy), make registration of
marriages mandatory and liberally interpret the term custom, to include any
ceremony, with evidence of such ceremony to be a valid marriage.