The legal incapacity of Devadasi women to enter into a valid marriage prior to 1948 and the requirement for proof of marriage to establish consequential rights under the Hindu Marriage Act.

P. SHANMUGAM, J.

1. The unsuccessful plaintiffs before the Sub Court, Tuticorin are the appellants herein. The plaintiffs filed the suit for partition of 42/96 share and mesne profits. The brief facts which are necessary for the disposal of this appeal are as follows.

2. The first plaintiff claims to be the wife of late Muthukrishna Pillai. According to her, he died on 12.11.86 leaving behind him, the plaintiffs 2 to 6 and the children of the first respondent as his heirs to succeed to the properties mentioned in the schedule. The case of the respondents before the Sub Court was that the first plaintiff was not the wife of late Muthukrishna Pillai and the plaintiffs 2 to 6 were not born out of lawful wedlock; that the late Muthukrishna Pillai was not living with her as husband and wife and that the late Muthukrishna Pillai had already partitioned the entire suit properties among himself and his sons by partition deed dated 29.1.81 and therefore, the suit was not maintainable. The other written statements of the respondents are not relevant for the disposal of this appeal and hence, they are not referred to. On the above pleadings, the learned Subordinate Judge, Tuticorin framed nine issues, marked Exhibits A-1 to A-24, B-1 to B-5 and after considering the oral evidence of P.W.1 and D.W.1, held that the first plaintiff was not the legally wedded wife of Muthukrishna Pillai and the children born to them are not legitimate and consequently, dismissed the suit.

3. In this appeal, the main submission of the learned counsel for appellants is that the Court below failed to see that the marriage was proved not only by long cohabitation but also by documentary evidence on record and that the parties have acknowledged the fact that the first appellant was living with the late Muthukrishna Pillai as husband and wife and the children were born to them and which fact was admitted by late Muthukrishna Pillai. The learned counsel also referred to the legal presumption that would arise on the long cohabitation between them as husband and wife and therefore, the Court below ought to have decreed the suit.

4. Mr. P. Rathinadurai, learned counsel appearing on behalf of the respondents referring to all the exhibits submitted that the learned Subordinate Judge by cogent and convincing reasons had held that there is no factum of marriage and consequently, all the arguments and contentions of the learned counsel for appellants fall to the ground. He also referred to the oral and documentary evidence in his support and pleaded that the judgment does not call for any interference by this Court.

5. We have heard the respective learned counsel elaborately and considered the materials available before us carefully. The main question that arises for our consideration in this appeal is, whether, there was a marriage between the first appellant and the late Muthukrishna Pillai. The fact that the first appellant belonged to “Devadasi” community and that there were no witnesses alive to speak about the alleged marriage between them is admitted. Even in her evidence as P.W.1, she says that she does not remember the date of her marriage and that the marriage took place in front of the “Kuthuvilakku”-lamp and that there is no documentary or oral evidence to prove the factum of marriage. In this context, it is relevant to refer to the status of a “devadasi” woma n. The Tamil Nadu Devadasis (Prevention of Dedication) Act, 1947 (Act XXXI of 1947) has put an end to the practice of Devadasis and dedication of women as Devadasis to a life of prostitution. Section 3 of the said Act says that the dedication of a woman as a Devadasi, whether before or after the commencement of the said Act is hereby declared unlawful and void and any woman so dedicated shall not be deemed to have become incapable of entering into a valid marriage. From this, it is clear that prior to 1 7.1.48, the Devadasi women were incapable of entering into a valid marriage. Section 34(8) of