Chellappa Et Al V. Kumarasamy Et Al.,

Present   : Ennis J. and De Sampayo J.   1915.

CHELLAPPA et al. v. KUMARASAMY et al.

308-D. C. Jaffna, 9,437.

Tesawalamai-Right of wife to deal with immovable property without consent of husband-Marriage according to Hindu custom after having given notice of marriage under the Marriage Ordinance.

Under the Tesawalamai a married woman is not competent to deal with her immovable property without the concurrence of her husband.

Where parties, after giving notice of marriage under the Marriage-Ordinance of 1907, went through a marriage ceremony according to Hindu custom,-

Held, that the marriage was not invalid.

In re Vairamuttu commented upon.

THE facts are set out in the judgment of Ennis J.

Bawa, K.C. (with him Balasingham), for appellants.

Arulanandam (with him J. Joseph), for respondents.

Cur. adv. vult.

436

September 30, 1915. ENNIS J.-

The plaintiffs-appellants in this case sued for a declaration of title to certain land, and for possession.

The plaintiffs are husband and wife, and the second defendant is their daughter. It is in question on the appeal whether the first defendant is the husband of the second defendant.

On October 11, 1905, the first plaintiff transferred the land in dispute to his daughter, the second defendant, and on September 18, 1910, a conveyance of the land to the second plaintiff, which purports to have been made by the second defendant, was executed. The learned District Judge has found that the conveyance was in fact executed by the second defendant, but that it was inoperative, in that the husband of the second defendant did not join in the conveyance.

Two points were argued on the appeal. First, whether the defendants were married at the date of the execution of tile deed, and, secondly, if they were married, whether the wife could effect a valid transfer without the consent of her husband. On the second point it is conceded that by the law of the country a husband's o consent is necessary, but it was contended that the Tesawalamai allowed a wife to deal with her property without the consent of her husband. The contention is hardly consistent with clause 1 of section 4 of the Tesawalamai, and I can see no reason to consider that provision obsolete. The main argument in the case is the first. On September 15, 1910, a marriage between the defendants was being solemnized, and there is no doubt that the Hindu ceremonies for a valid marriage were complete. The Registrar of Marriages was present at the time, or shortly afterwards, but the first plaintiff and the first defendant had fallen out about the amount of dowry, and the first defendant refused to sign the marriage register and left the house. It has been urged that there was no consent by the first defendant. I do not think that this is so. He had consented, and had in fact allowed the Hindu ceremony to be complete. His refusal to complete a marriage under the Marriage Ordinance did not affect the Hindu ceremony or his consent to that. Within a month of the ceremony the defendants met, and have since lived together as man and wife. The only point left for consideration is whether the Hindu ceremony constituted a valid marriage.

Counsel for the appellants rely on Vairamuttu's case,1[(1885) 7 S. C. C. 56.] where it was held that after notice of marriage under the Marriage Ordinance had been given there could be no subsequent valid marriage by Hindu custom.

This case was decided on August 7, 1885, on a consideration of the Marriage Ordinances of 1863 and 1865. In 1895 an Ordinance was, enacted which declared (section 15) that no marriage should be valid unless registered. The section contained a proviso exempting

non-domiciled Hindus. This was repealed the following year by Ordinance No. 10 off 1896. All the Marriage Ordinances have since been consolidated in the Ordinance No. 19 of 1907, but section 10 of the Ordinance No. 2 of 1895 has not been

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