Judgment

SHAH, J. :- Perumal Nadar married Annapazham (daughter of Kailasa Nadar - an Indian Christian) on November 29, 1950, at Kannimadam in the State of Travancore-Cochin according to Hindu rites. Annapazham 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 acting through his mother Annapazham as his guardian filed 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 suit was defended by 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 decreed the suit. Perumal appealed to the High Court of Madras, but without success. With certificate under Article 133 (1) (c) of the Constitution, this appeal is preferred.

2. Three contentions are urged in support of this appeal: (1) 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.

3. Annapazham was born of Christian parents and she followed the Christian faith. She married Perusal 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 wife 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 Perumal and of Annapazham and an agreement was executed by Perumal and Annapazham reciting that:

"Individual No. 1 (Perumal) 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, this 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 onwards, that we shall not part each other both in prosperity and 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 acknowledgment of the marriage.

4. The High Court on a consideration of the evidence recorded the following finding:

"Oral evidence was adduced to prove that the marriage was celebrated according to Hindu rites and Samskaras. 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 manner prevailing among the Hindu Nadar community of Travancore."

Perumal who had previously been married to one Seethalakshmi agreed to and did go through the marriage ceremony. It is in evidence that marriages 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.

5. 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 Annapazham was converted to Hinduism before sh