1947 Present: Dias J.

RATNAMMA, Appellant, and RASIAH, Respondent.

S. C. 695-M. C. Jaffna, 3,153.

Marriage-Hindu Custom- -Tying of Thali-Sufficient if symbolic-Habit and repute-Presumption-Consent of father of minor-Is it necessary ?

The tying of a thali is essential for the validity of a Hindu customary marriage. It is sufficient, however, if a symbolic thali be used provided it is intended to serve as a thali.

Where parties after going through a valid customary form of marriage live together as husband and wife, a presumption of marriage by habit and repute arises.

The want of consent of the father of a minor who contracts a Hindu customary marriage does not invalidate the marriage where the union has been consummated.

APPEAL from a judgment of the Magistrate of Jaffna.

No appearance for the applicant-appellant,

H. W. Thambiah, for the defendant-respondent.

Cur. adv. vult.

476

September 17, 1947. DIAS J.-

This is an application under the Maintenance Ordinance by Ratnamma who claims she is the lawfully wedded wife of the respondent Tambiah Rasiah,

The union was not registered. The parties are Jaffna Tamils. In regard to such persons, there can be a valid marriage without registration-Valliammai v. Annammai 1[(1900) 4 N. L. R. 8.]; Poopalaratnam v. Sabapathi-Pillai 2 [(1921) C. L. Rec. 210.].

The evidence shows that in January, 1937, a marriage ceremony according to Hindu rites was performed between the parties by Parameshwara Kurukkal, the priest of the Kanaarmadam Temple. This ceremony was intended to be a marriage. It was public and guests were present. The priest has given evidence to the effect that he performed all the rites of a second rate " Hindu wedding. He says " The bare essentials wanted for a wedding are the Pilliayar Poojah and the tying of the thalikody in the presence of the aged people by a priest and the presentation of the kurai. All these were done at this wedding but only the kody and not the thali was tied ". It is common ground that this was not done because " the planets were unfavourable for the tying of the thali". It is believed that when the planets are not propitious and the usual gold thali is tied, the bridegroom will die within a short time after the ceremony. Therefore a symbolic thali was tied instead. The priest says " A piece of turmeric was tied to it (i.e., the kody) in place of the thali. I questioned Nagalingam ....... He said the planetary positions were not favourable and that the thali could not be tied. We tied the turmeric as it is a requirement of religion. There is provision in the Shastras that the officiating priest can use his discretion as to what should take the place of the thali. If no piece of saffron was fixed to the kody in place of the thali, it was not a valid marriage". If this priest's view is right the tying of the thali is essential but it may be a symbolic thali and the officiating priest has a discretion in the matter. The priest is corroborated by the witness Velauthaipillai that a piece of saffron was used as a symbolic thali.

The respondent called M. Vaiteswara Kurukkal, the officiating priest of the Vairava Temple, as an expert. He agrees that the tying of the thali is an essential requisite for a Hindu marriage according to the customary rites. He agrees that there are various forms of ceremonial which vary according to the status of the contracting parties, but he says he has not heard of a symbol like turmeric being used in place of the gold thali. At one stage he said, "According to the wishes of the parties anything can be tied as a thali". At another stage he said that the thali must be of gold. " If there is no gold thali I will not perform the marriage, as the rites cannot be performed in accordance with religion ".

It is clear that the tying of the thali is an essential requirement for the validity of a marriage between Hindus according to customary rites and if thi