Selvaratnam Et Al. V. Anandavelu

 

1941     Present: de Kretser and Wijeyewardene JJ.

 

SELVARATNAM et al. v. ANANDAVELU.

 

45-D. C. (Inty.) Jaffna, 8/4 p.

 

Thesawalamai-Customary marriage of minor-Consent of father-Marriage without proper rites and ceremonies-Validity-Ordinance No. 19 of 1907, s. 21 (Cap. 95).

 

A customary Hindu marriage contracted without the rites and ceremonies usually performed at such marriages is not valid.

 

Per DE KRETSER J.-A customary marriage, contracted according to Hindu rites, of a minor governed by the Thesawalamai is not valid without the consent of the father.

 

Per WIJEYEWARDENE J.-Quaere whether the want of consent could invalidate such a marriage especially where the marriage has been consummated.

 

APPEAL from an order of the District Judge of Jaffna.

 

The first respondent gave notice of his marriage with the third respond­ent. The second respondent thereupon filed a caveat objecting to the proposed marriage, alleging that the first respondent had married her according to Hindu rites and ceremonies. The District Judge after inquiry held that first respondent had been married to the second respond­ent. The first respondent appealed against the order.

 

H. V. Perera, K.C. (with him L. A. Rajapakse and E. C. de Zoysa), for first respondent, appellant.-The customary marriage sought to be proved in this case is not valid for two reasons, viz.: - (1) There was not sufficient ceremony; (2) there was no binding contract between the parties. There was nothing real in the nature of a marriage ceremony, and whatever ceremonies were gone through were not sufficient to create a valid marriage. There was no kurukkal present, no dhoby, no tying of a thali. There was no music. It was only a mere pretence of marriage. Marriage as a social event requires a certain degree of publicity, especially in the case of a customary marriage. In the present case the marriage took place behind closed doors. Ramasamy, the father of the bridegroom, was not present. The presence of close relatives is essential in a customary marriage of even the poorest-Muttukrishna on Thesawalamai, p. 190.

 

It cannot be said that Ramasamy consented to his son's marriage. The son was 19 years old and was a minor. This case can be decided on the sole ground that the father did not consent to the marriage. There was no binding contract between the parties. Section 21 of the Marriage Ordinance (Cap. 95) is applicable. See Thiagaraja v. Kurukkal.1

 

N. Nadarajah, for second respondent.-The marriage in this case cannot be challenged as invalid for want of ceremony. See Sastry Valaider Aronegary et al. v. Sembecutty Vaigalie et al.2; The King v. Perumal3; Muttukrishna's Thesawalamai, pp. 185-7.

 

The consent of the par

Click Here to Read the rest of this document