1. Defendants 1, 2 and 8 in O.S. No. 61 of 1950 on the file of the Court of the Subordinate Judge, Tuticorin, appeal against the decree of the learned Judge by which it was held that the properties in Schedules 1 to 4 of the plaint be divided into five equal shares and that plaintiffs 1 to 3 and the first defendant do each get one such part towards the share to which each is entitled and also that the remaining part be divided into two equal halves of which one half be allotted to the share of the fourth plaintiff and the other half be allotted to the share of the second defendant. There were other consequential directions which need not be considered in detail.
3. The facts which have given rise to this litigation are as follows: One T. Ramaswami Reddiar belonging to the village of Virusampatti, Koilpatti taluk, was possessed of properties which are the subject-matter of the above suit and he died on 13th December, 1949, leaving behind him his second wife, the second defendant, his fourth wife, the fourth plaintiff and children by the deceased third wife and the fourth wife. Ramaswami Reddiar's first wife, Avudai Ammal had predeceased him and their daughter was Ellammal whose daughter is the fourth plaintiff. The second defendant is childless whereas the first defendant is the son of the deceased third wife of Ramaswami Reddiar. By his fourth wife, the fourth plaintiff, Ramaswami Reddiar had three sons, plaintiffs 1 to 3 and three daughters who are defendants 3 to 5. During the lifetime of Ramaswami Reddiar, he had effected a partition of his properties under Exhibit B-3 dated 24th February, 1947, and it is the plaintiff's case that the partition was brought about secretly without the knowledge of the fourth plaintiff to defraud plaintiffs 1 to 3 of their legitimate share in the family properties. On that ground the claim was that ignoring the partition deed, the properties of Ramaswami Reddiar should be divided into five equal shares out of which each of his sons should get one share and the other share be divided among the fourth plaintiff and the second defendant being his co-widows.
4. There were various defences raised which are unncessary to be detailed at length. One of them was that Exhibit B-3 was a bona fide and fair family settlement by which all the properties were divided by Ramaswami Reddiar himself as the head of the joint family in exercise of his rights as such and on that ground the suit ought to be dismissed. Another important contention raised by defendants 1 and 2 was that the marriage between Ramaswami Reddiar and the fourth plaintiff being incestuous and invalid in law as it is prohibited under the Hindu Law or for the matter that by any recognised system of jurisprudence, the fourth plaintiff had not become the legally wedded wife of Ramaswami Reddiar with the result that plaintiffs 1 to 3 who are born of this marriage are the illegitimate sons not entitled to any partition. It was further alleged that at the time of the so-called marriage, Ramaswami Reddiar was seventy years of age and the fourth plaintiff was aged only about twelve, that they did not live together as husband and wife, that the fourth plaintiff was having illegal intimacy with other people so much so that plaintiffs 1 to 3 and defendants 3 to 5 are the children of adulterous relation who can have no claim to the properties of Ramaswami Reddiar. Such being the case the first defendant being the only legitimate son of Ramaswami Reddiar and the second defendant the only legitimate widow are entitled to the entire properties.
5. The learned Subordinate Judge framed as many as sixteen issues which reflected the various contentions raised and finding most of the issues in favour of the plaintiffs passed a preliminary decree the substance of which had already been adverted to above.
6. Aggrieved by that, defendants 1 and 2 and the eighth defendant who is an alienee of some items from the second defendant have preferred the above appeal. The following genealogical tree is intended to give an idea as to how the parties are related:
R. Ramaswami Reddiar (Died on 13-12-1949).
"7. It will be seen at a glance that the fourth plaintiff is the daughter's daughter of Ramaswami Reddiar who claims to have been married to her own grandfather according to a custom prevalent in their community with the result that plaintiffs 1 to 3 and defendants 3 to 5 had been begotten on the fourth plaintiff by Ramaswami Reddiar. It is contended by Mr. A. Sundaram Ayyar for the appellants that even if plaintiffs 1 to 3 and defendants 3 to 5 had been begotten on the fourth plaintiff by Ramaswami Reddiar, still decency and morality, not to speak of religious sentiments cannot countenance a marriage which is incestuous in nature and if that is so plaintiffs 1 to 3 can have no claim whatever to the properties of Ramaswami Reddiar. The answer to this argument put forward by the plaintiffs is that according to a custom obtaining among the Reddiars in Tirunelveli district, it is proper for a person to marry his daughter's daughter and if such a custom can be upheld then the plaintiffs' suit should be decreed if it is found that Exhibit B-3 was not valid."
8. While, therefore, emphasising the validity of Exhibit B-3, we have first of all to find out whether any such custom as pleaded by the plaintiffs can be recognised by a Court of law. No instance of a Court of law and justice having recognised the validity of the marriage of a person with his grand-daughter has been brought to our notice. But the learned Subordinate Judge was of the opinion that in view of the oral evidence let in as well as the fact of the marriage of Ramaswami Reddiar with the fourth plaintiff, such a custom can be validly recognised. To say the least the alleged custom is revolting to all principles of morality, decency and eugenics. The marriage between a man and his daughter's daughter comes within the prohibited degrees of relationship as laid down in the Mitakshara which is to the effect that a man cannot marry a girl if their common ancestor being traced through his or her father is not beyond the seventh degree in the line of ascent from him or her or if their common ancestor being traced through the mother is not beyond the fifth degree in the line of ascent from him or her. Tested in that way there is, no doubt whatever, that the marriage is prohibited.
9. The question, therefore, is whether as stated by the learned Subordinate Judge, among the Reddiars of South India a man can validly marry his own daughter's daughter. The learned Subordinate Judge was inelined to think that in the present case the caste had accepted the marriage as a valid one and treated the parties thereto as members of the caste and that being so, the Court cannot declare such a marriage null and void. He relied upon the observations of this Court in Muthuswami Mudaliar v. Masilamani (1909) 20 M.L.J. 49 : I.L.R. 33 Mad. 342, but we are not satisfied that there are any observations in that decision which would validate an incestuous marriage even if it is recognised by the caste or community. The learned Judge also refers to, "Castes and Tribes of Southern India" by E. Thurston, Volume III, 1909 and relies upon the passages at pages 239 and 240 for justifying his conclusion. The extract from the book is to the following effect:
"Among the Reddis of Tirmevelly," Dr. Shortt writes "a young woman of sixteen or twenty years of age is frequently married to a boy of five or six years or even of a more tender age. After the marriage she, the wife lives with some other man, a near relative on the maternal side, frequently an uncle and sometimes with the boy-husband's own father. The progeny so begotten are affiliated on the boy-husband. When he comes of age he finds his wife an old woman and perhaps past child-bearing. So he, in his turn contracts a liaison with some other boy's wife and procreates children".
We are not told as to when and where exactly was it that Dr. Shortt found the instances mentioned but even if they had existed sometime ago, no civilized society ought to recognise such practices or a Court administering justice should recognise such sordid practices. The learned Judge then says that in Exhibit B-3 Ramaswami Reddiar himself had stated that he had married the fourth plaintiff according to the caste custom and therefore he allotted shares to plaintiffs 1 to 3 born of that wedlock. Exhibit B-2 is a settlement deed executed by Ramaswami Reddiar in favour of his second wife, the second defendant, and Exhibit B-10 which is a registered will executed by him in favour of the first defendant also refers to the fourth plaintiff as the legally wedded wife of Ramaswami Reddiar and that plaintiffs 1 to 3 and defendants 3 to 5 were born of that wedlock. We do not for a moment cast any doubt on the statements of fact contained therein or that plaintiffs 1 to 3 and defendants 3 to 5 were born to the fourth plaintiff by Ramaswami Reddiar but the question is, is it open to a Court of law to recognise such a revolting custom. On behalf of the plaintiffs five specific instances of marriages between a grandfather and his grand-daughter were cited.
10. P.W. 3 Kamakkammal who was aged about seventy at the time she gave evidence deposed that she had married her own maternal grandfather Chennappa Reddiar and had a son by name Kumarandi Reddiar. P.W. 9 who at the time of his examination on 19th June, 1952, was aged about 75 deposed that his second wife Shenbagathammal was his grand-daughter by his daughter Lakkammal and that the marriage between himself and his grand-daughter took place about twenty or twenty five years back. He further deposed that the marriage between a grandfather and his grand-daughter is a common feature and a frequent occurrence among the Reddiar community. In cross-examination he admitted that there are seventy houses of Reddiars in Veerapandiapuram and that there are no other instances of this kind in his village though there are instances in other villages. The fourth plaintiff as P.W. 1, no doubt testified to her marriage with Ramaswami Reddiar and to her begetting six children by him. P.W. 2, Kondu Reddiar aged about sixty in 1951 stated that it was common in their caste for a grand-father to marry his own grand-daughter. He gave instances of Suppa Reddiar of Virasampatti having married his own daughter's daughter, Ambalam Ramalinga Reddiar of Duraisamipuram having married his own daughter's daughter and Kamakkammal of Venkatachalapuram having married her own grandfather; Vellapothi Reddiar of Arunachalapuram had married his own daughter's daughter. The witness stated that such a custom in their community is in vogue from time immemorial. In cross-examination he was not quite definite about some of the instances mentioned by him but we see no reason to disbelieve the witness on that score. We have already referred to the evidence of P.W. 3. P.W. 4 who was aged seventy at the time of his examination also referred to the custom among the Reddiar caste for a man to marry his own daughter's daughter. Having perused the evidence of the plaintiff's witnesses as regards instances of a grandfather marrying his own grand-daughter we do not think that there is any reason to say such marriages had not taken place.
11. What we have now to decide is whether the alleged custom can be legally recognised by a Court of law. It is not a custom prevalent in a specific family. Nor is it a custom which is recognised by the entire Sudra caste as such. For the matter of that, Reddiars as a caste are unknown as they belong to the Kappu community of the Sudra caste. It is not pretended that the alleged custom prevails anywhere outside a few villages in the district of Tirunelvely among the Reddiar community. We have carefully to scrutinise and find out that even if such marriages had taken place and had been approved by the community whether that should be perpetuated. As stated in Mayne on Hindu Law and Usage (11th Edn.) the Sanskrit word which is used by Manu and Yajnavalkya for custom in Sadachara or the usage of virtuous men. The learned author says that Sadachara or approved usage should not be contrary to Dharma though in India custom or usage having the force of law will override the texts of law-givers. The requisites of a valid custom are that the same should be ancient, certain and reasonable and that also should not be opposed to decency or morality. No custom which is opposed to public policy can be recognised by any Court of law. Nor can immoral usages, however much practised be countenanced. As to the test of immorality it must be determined by the sense of the community as a whole and not by the sense of a section of the people. See the observations of Oldfield, J., in Deivanayaga Padqyachi v. Muthu Reddi (1920) 39 M.L.J. 525 : I.L.R. 44 Mad. 329 at 333. We have not been shown that the alleged custom is either ancient or certain or reasonable. A few instances in a community microscopic in nature, cannot constitute a valid custom which a Court of law will recognise and enforce. A custom which is abhorrent to decency or morality however long practised and recognised by a particular community, can find no kind of enforcement by a Court of law. Not one decided case so far as we are aware, has approved of a custom which is contrary to the sacred writings or which puts a premium on incest and immorality. If such a custom can be recognised, there is nothing untoward in legally acknowledging that a man can marry his own grandmother. We are, therefore, of the opinion that the chief attributes of a custom namely, that the same should not be opposed to public policy, abhorrent to decency and morality or inconsistent with the practices of good men are not present. We therefore, feel no doubt whatever that the civilised and cultured society in which we live and progressive country in which we are, should not approve of an incest which would not find favour even under primitive or tribal societies. The attempt in this case is to get a judicial recognition of the propriety of a most revolting and obscene practice under the guise and pretext of usage or custom said to have the force of law and it need hardly be emphasised that no tribunal in a civilised country can tolerate or approve of it.
12. In these circumstances it seems to us that since the marriage of the fourth plaintiff with Ramaswami Reddiar is illegal the plaintiffs are not entitled to succeed. The appeal, has, therefore, to be allowed and the suit dismissed. We are of the opinion that nothing could be said against the validity of the partition under Exhibit B-3 which would be binding not only on the plaintiffs but on defendants 1 and 2 as well. There will be no order as to costs in this appeal.