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Thangammal v. Gengayammal And Others
Factual and Procedural Background
This appeal raised two questions: (1) whether the third defendant was divorced by her husband, Peruma Goundan, within six months after the marriage; and (2) whether the custom alleged in the plaint is true and valid. The two lower Courts found both questions in favour of the plaintiff, accepting the testimony of a number of witnesses who described the alleged divorce and the formalities observed. The court reviewed the evidence and agreed with the lower Courts' assessment. The second appeal was dismissed with costs. An application by counsel for the respondents to amend the plaint schedule and the schedules in the lower Courts' decrees (correcting the land's survey number from 310-A and 174 to 516-A) was allowed, there being no counter-affidavit denying those facts.
Legal Issues Presented
- Whether the third defendant was in fact divorced by her husband, Peruma Goundan, within six months after the marriage.
- Whether the custom alleged in the plaint (procedure involving the headman, payment of amounts, and removal of the tali) is true and valid in law.
Arguments of the Parties
Appellant's Arguments (Mr. S.S. Ramachandra Aiyar)
- The custom proved is not valid in law.
- The evidence shows the divorce was sought by the husband and forced upon the unwilling wife (i.e., a divorce against the wife's wish).
Defendant(s)'/Respondent's Position
- The defendants' pleaded case was that there was no divorce at all; they did not plead alternatively that, if there was a divorce, it was brought about against the wife's wish.
- Respondents' counsel (Mr. Sivaramakrishna Aiyar) applied for amendment of the plaint schedule and decrees to correct the survey number of the land to 516-A; no counter-affidavit denied those facts.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Mayne's Hindu Law, S. 37 (page 72) | Such a divorce, it is pointed out, is legal. | The court relied on this statement to support the conclusion that a divorce sought by both parties (mutual consent) is valid; only a divorce enforced against the wife's wish may render the custom illegal. |
Court's Reasoning and Analysis
The court examined the testimony of the witnesses called by the plaintiff, which described the husband seeking a divorce, the headman being approached, the headman asking the wife whether she would live with her husband, the wife's refusal, payment of the customary amount, and the wife untying her tali and giving it to her husband. The lower Courts had accepted this evidence and the appellate court found no reason to differ. The court rejected the appellant's contention that the divorce was forced upon an unwilling wife, noting there was no plea or evidence by the defendants to that effect. Citing Mayne's Hindu Law, S. 37, the court observed that a divorce by mutual consent is legal and that only a divorce enforced against the wife's wish might render the custom invalid. On these bases the court affirmed the lower Courts' findings and dismissed the appeal. The court also allowed the application to amend the plaint and decree schedules to correct the land's survey number to 516-A, there being no contrary affidavit.
Holding and Implications
SECOND APPEAL DISMISSED WITH COSTS.
Implications: The lower Courts' findings that a divorce occurred within six months and that the customary formalities proved are valid were upheld. The plaint and decree schedules were amended to correct the land's survey number to 516-A. The opinion does not discuss broader legal consequences beyond these direct effects and does not purport to establish a new precedent beyond applying the authority cited.
Two questions are raised in this appeal. One is whether the third defendant was in fact divorced by her husband, Peruma Goundan, within six months after the marriage of the parties, and the second, whether the custom alleged in the plaint is true and valid. On both the points the two lower Courts are in agreement and the questions are found in favour of the plaintiff. It has been found that in fact there was a divorce as alleged in the plaint and as spoken to by the plaintiff's witnesses. A number of witnesses were called and they spoke to the details as to what occurred at the time of the alleged divorce. Both the Courts have accepted their evidence and there is no reason to differ from the estimate of their evidence by the lower Courts.
The substantial question that is argued is that the custom which is proved is not valid in law. The custom that is actually proved is that if, on account of the disagreement between the parties, both the parties desire a divorce, then the divorce can be got in the manner spoken to by the plaintiff's witnesses, namely, the parties have to approach the headman and other relations, certain amounts are paid, the tali or the sacred thread tied round the wife's neck by the husband is taken off and given back to the husband. These are the formalities of divorce spoken to by the witnesses and that is the finding as to the custom.
It is argued by Mr. S.S Ramachandra Aiyar, the learned Advocate for the appellant, that what is spoken to by the plaintiff's witnesses is that it was a divorce sought by the husband and forced upon the unwilling wife; in other words, that it is a divorce brought about by the husband against the wish of the wife. There is no support for this in the evidence. The defendant's case is that there was no divorce at all and they have not pleaded as they might have pleaded in the alternative that even if there was a divorce, it was one brought about against the wish of the wife. But there is no such alternative plea and no such evidence adduced by the defendants. What is argued is that the evidence adduced by the plaintiff points to a case of divorce against the wish of the wife. On being taken through the entire evidence, I find no support for this suggestion. All the witnesses say that it was the husband who sought the divorce and went to the chief man; and later on, the chief man sent for the wife and asked her whether she would live with her husband. She refused, gave the money which, according to custom, should be paid, untied her tali and gave it to her husband. This is, therefore, a case in which the divorce was with the consent of both and not one brought about against the wish of the wife. If these are the incidents of the custom, there is no reason to hold that it is against the wish of the wife. There is no authority placed before me to hold that even if a divorce is sought by both the parties, they being unable to live together, such a divorce is invalid. In Mayne's Hindu Law, S. 37 (page 72) such a divorce, it is pointed out, is legal. It is only where the divorce is enforced against the wish of the wife, that the custom permitting a divorce may be illegal. The second appeal is dismissed with costs.
There is an application by Mr. Sivaramakrishna Aiyar the learned Advocate for the respondents, for the amendment of plaint schedule and the schedule in the decrees of the lower Courts as regards the description of schedule I, item B. The deceased Peruma Goundan, the father of the plaintiff and the husband of the third defendant-appellant, had only one land in Solangapalayam village and it was one-third of the total extent of 18 acres and odd. It was described in the plaint as being situated in two survey numbers, 310-A, and 174, both dry. It now appears that it is wholly in Survey No. 516-A. There is no counter affidavit denying these facts. If Peruma Goundan has only one land in the village and that its correct survey number is 516-A there is no reason why the amendment should not be made. The application is therefore allowed.
(No leave).
N.R.R
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