The main legal point established in the judgment is that the requirement of proving customary ceremonies for a valid marriage under S.4 of the Madras Marumakkathayam Act can be satisfied by a statement that the marriage was performed in accordance with the marumakkathayam custom, especially when the said statement has not been effectively challenged.

1. We are unable to share the view taken by the learned single judge in S. A No. 416 of 1973 against the judgment in which this appeal has been preferred. The Second Appeal arose out of an application filed under the Madras Marumakkathayam Act, by the husband, for dissolution of marriage against his wife under S.7 of the Madras Marumakkathayam Act. The application was dismissed by the Munsiff, allowed on appeal by the District Judge, whose judgment was set aside by the learned single judge of this Court restoring the order of the Munsiff. Although no specific objection was taken either before the appellate judge or in Second Appeal to the maintainability of an appeal, or Second Appeal, the learned judge has recorded that these would probably be maintainable in the light of the principle of the decision in Adaikappa v. Chandrasekhara Thevar (A.I.R.1948 P.C.12). As no question of the maintainability of the present appeal was urged before us, we have proceeded on the footing that the appeal is maintainable.

2. On the merits, we regret that we are unable to endorse the learned judge's view. The District Judge on appeal, noticed that the petitioner-husband had deposed in his evidence that the marriage had been performed in accordance with the custom of the community (Thiyyas of Cannanore and Tellicherry), to which both parties belonged and which was governed by the Madras Marumakkathayam Act. This aspect of the testimony of PW.1 was not challenged in cross-examination, and there was no rebuttal evidence contra on the side of the counter-petitioner, the wife. The learned single judge took the view that in cross-examination P.W.1 had admitted that the marriage was performed in accordance with the vedic rites accompanied by Sapthapathi. This, we are afraid is not a correct way of understanding the deposition of P.W. 1. His statement was that on the occasion of the marriage, there was a Homam by the Santhi of Peralasseri Temple, for the purpose of propitiating some serpents and that the marriage was performed in front of the fire lit for the purpose of Homam. We do not understand how this statement in the deposition can in any way detract from the clear statement made by P. W.1 that the marriage was performed in accordance with the customary ceremonies. On the other hand, it only makes out that in addition to the customary ceremonies, there was also a Homan for propitiating serpents. This would not detract from the requirements of S.4 of the Madras Marumakkathayam Act which reads as follows:

"4. (1) Save as provided in S.5, the conjugal union of a marumakkathayi female with

(i) A male belonging to the same community as such female or

(ii) A male not belonging to such community and whether a marumakkathayi or not, shall be deemed for all purposes to be a legal marriage if

(a) the parties to the union are not related to each other in such degree of consanguinity or affinity that conjuglal union between them is prohibited by any custom or urge of the community to which they belong or either of them belongs; and

(b) the union

(i) was openly solemnised in accordance with the customary ceremonies, if any, prevailing in the community to which the parties belong or either of them belongs before the date on which this Act comes into force, or

(ii) is so solemnised in accordance with such ceremonies on or after the date on which this Act comes into force and, where either or both the parties are minors, with the consent of the guardian or guardians of such minor or minors; or

(iii) was registered as a marriage under the Malabar Marriage Act, 1896, before the date on which this Act comes into force.

(2) A conjugal union between minors or between a minor and major which would otherwise be a valid marriage under sub-section (1) shall not be deemed to be invalid merely on the ground that the consent of guardians or guardian of such minors or minor was not obtained to the union.

(3) Notice of every marriage contracted on or after the date on which t