The main legal point established in the judgment is that under the Marumakkathayam Law, a marriage between a Marumakkathayee and a person with a prior marriage is void, and renouncing the Marumakkathayam law by mere declaration is not permissible.

Venkataramana Rao, J.

1. This appeal raises a question of some importance regarding the validity of an alleged marriage between the plaintiff and the defendant. The plaintiff is a Brahmin by birth and follows the Hindu religion. The defendant is a Nair lady belonging to a respectable Nair tarwad of Malabar. In December, 1934, the plaintiff was the Managing Director of a film company known as the South Indian Film Corporation which has since gone into liquidation. The defendant was employed in the said corporation. It is alleged in the plaint that on the 21st December, 1934, the plaintiff and the defendant went through a form of marriage according to Hindu rites and ceremonies at a village called Tiruneermalai, a few miles distant from Madras and from that day up to 4th April, 1935, lived together as husband and wife. It is further alleged that the defendant left for her place thereafter and refused to return and live with the plaintiff. Hence the plaintiff instituted the suit, out of which this appeal arises, for restitution of conjugal rights. The defendant denies the factum of the marriage and her living with the plaintiff. According to her she went on a months leave in April to her place and resigned the post she held in the Film Company. Even assuming the marriage to be true, she denied the validity of the marriage and questioned the jurisdiction of the Court to entertain the suit. Her pleas in regard thereto are thus outlined in paragraphs 3 and 14 of her written statement:

3. The defendant is a Hindu, permanently resident in the Kadirur Village, Kottayam Taluk, North Malabar, governed by the Marumakkathayam Law of Inheritance and states that under Section 11 of the Madras Marumakkathayam Act, the present suit is not maintainable and that it should be dismissed in limine.

14. On the 21st December, 1934, the date on which the plaintiff alleges in the plaint to have married the defendant and even long prior thereto, the plaintiff has been a married man having married in his own community and the said marriage was subsisting on the said date. The defendant states that under Section 5 of the Madras Marumakkathayam Act, the plaintiff was legally incompetent on account of the continuance of his prior marriage to marry the defendant on the said date and any such marriage is void.

2. It is admitted that the plaintiff was a married man and had a wife living on the date of the marriage. Among the issues raised were the following:

1. Was the defendant a Marumakkathayee on the date of the alleged marriage?

2. Is the suit not sustainable for the reasons set out in paragraph 3 of the written statement?

5. Is the plaintiff not legally competent to marry the defendant as stated in paragraph 14 of the written statement?

3. An application was taken by the defendant on the 30th July, 1936, for trying issues 1 and 2 as preliminary issues. The plaintiff filed a counter-affidavit opposing the application wherein he deposed as follows:

Further, as stated in the plaint, the petitioner has openly and willingly married me with all the religious ceremonies according to the Hindu Shastras. She did not want to take advantage of the protection given to her under the Act. She was fully aware before and at the time of my marriage with her that I had already a wife. She has even expressed to others that she was marrying me in spite of her rights under the above Act which she was saying she was giving up to marry me. I have got respectable witnesses to prove all these facts.

4. The plaintiff amplified this plea at the time when the application was heard thus:

"Plaintiff states that there has been a marriage, that even in spite of the Marumakkathayam Act, the marriage is valid, that the defendant is not governed by Marumakkathayam law, that at the time of marriage, relinquished that law of inheritance and succession, and that even if she has not relinquished, the marriage is valid." Vide the order dated 4th August, 1936.

5. On the pleadings and on the oral sub