PORTUGESE POCKETS IN INDIA

A Study in International Law

(C. John Mammen)

Flash back into history—In 1948 A. D. Vasco da Gama arrived at Kozhikode and secured certain trading facilities from the Zamorin. By 1509 with Alfonso de Albuquerque at the helm they embarked on a policy of territorial conquest, fully exploiting the political intrigues among the South Indian Rulers. Albuquerque conquered Goa on November 25, 1510 and by the middle of the sixteenth century it became the established capital of "Portugese India".

Title by Conquest:—The Portugese claim of title to Goa by conquest is untenable. At the time of the conquest the 'Just War Principle' was current in International Law. Ayala basing himself on Roman Law advocates that the party waging an unjust war could acquire legal ownership in the men and materials captured. ''Though the Romans never began war save on just causes, their enemies who could not have just cause (for both sides could not have it) became owners even by Roman Law, of the property conquered by their enemies (Ayala De Jure et Official Bellini et Discipline Militari Libri III, I, II, 34, Pp. 22-23. Classics of International Law Ed. James Brown Scott, London, 1912.) "'. The fallacy of this view can easily be established. ''Just Cause" is a matter of opinion in the majority of cases, and ordinarily two parties go to war each with a 'just cause'. History has a knack of upholding the victor's cause as the just one, unless it is so prominent by its absence as in the case of Portugese Conquests. Still another facet of this 'Roman Illustration' that they conceded the men and materials captured by the enemy with an 'unjust cause is that they being the vanquished could not help it. At this point they were intelligent enough to impart the necessary flexibility to the law, so that they would not have had to watch in helplessness their law being ignored and disgraced by their victorious enemies.

Grotius opposes Ayala's view. He observes"............If the cause of war should be unjust all acts which arise there from are unjust from the point of view of moral injustice"(Grotius. De Jure Belli ac Pacis Libri Tres Vol. II Book III Ch. X. Classics of International Law, Ed. J. B. Scott. Pp. 718-19, London,1925.). He further points out that Ayala's views "not only lacks a rational basis but also incite men to wrong doing"(Giotius De Jure Praedae. Vol. I, Ch. XII, Pp. 112, Classics of International Law, Ed. J.B. Scott, London,1950). Oppenheim holds that territorial acquisitions in violation of an existing rule of customary or conventional International law are "tainted with invalidity and incapable of producing legal results beneficial to the wrong doer in the form of a new title or otherwise".(Oppenheim International Law, Vol. I. Pp. 142, 8th Ed. London 1955) But he proceeds further to observe that such an invalidity fan be condoned if other states recognize that territorial acquisition How the initial illegality could be wiped out by the complicity of other states -- even with the implied complicity of the victimized state -- is a point unintelligible.

Kelsen maintains that an annexed territory forms part of the victor's territory even if the war waged by the victor, against the vanquished was anillegal war. This principle is alleged to be based on "Effectiveness"(Kelsen, Principles of International Law, Pp. 214, London, 1953). If this view is accepted the doctrine of Prescription becomes superfluous and the International Code of conduct will turn out to be in accordance with the dictum 'Might is Right'. Also it is against the Charter of the U. N. which ordains that "All members shall refrain from the threat or use of force against the territorial integrity or political independence of any state"(Art. 2 (4) U N. Charter).

The only possible reasons the Portugese can advance for waging war are (a) for trading facilities and (b) for the propagation of Christian faith.

Since they were given ample concession and facilities by the hospitable native rulers, wars on that ground are ruled out. And waging war for religious conversion was unjust even according to International Morale of the sixteenth century

On grounds aforesaid the Portugese title to Goa was bad at the time of the conquests. But India cannot dwell at length on that point because this invalidity was corrected by long and continuous display of Portugese Sovereignty in Goa (See the Island of Palma's Case. Permanent Court of Arbitration (192S) No XIX. Extracted in Green's International Law Through the Cases, Pp. 350, London, 1951). The Government of India cannot raise the contention that the prescription did not run against the new Republic of India which is of recent origin, for the important ingredient in prescription is time and not the party against whom it runs.

Cultural and Religious Influences. --Sixty one percent of the population in 'Portugese India' profess the Hindu faith, only thirty six percent are Catholics (Portugese Official Statistics, Lisbon, 1951, quoted by Mr. Nehru, The Hindu, Pp. 5, Col, 8, July 26, 1955.). Even this percentage of Catholics is principally the fruit of -- or rather the result of -- the missionary works of St Francis Xavier, S.J. and others backed by the sceptor of sovereign political power. In spite of all this "These Christians of Goa still largely adhere to caste distinctions, claiming to be j Brahmins, Kshatriyas and Low Castes who do not intermarry"(W. W. Hunter, Imperial Gazetteer of India, Vol. XII, Pp. 258, Oxford, 1908.)

The Pope has agreed with Mr. Nehru at the Vattican that the Goan Problem had nothing to do with religion. (Keesing's Contemporary Archives 1955-56 (14372-A).

Pretensions to stick on to Goa for safeguarding the religions and cultural heritage of the population are flimsy since the Constitution of India specifically guarantees the religious and cultural interests of the minorities (Constitution of India. Arts. 29 (lj and 30 (1)).

INDIAN CLAIMS

I. Geographical Contiguity.—Dr. Salazar proclaims "we hold a nation to be distinct and separate social aggregate regardless of their geographical position.... We area judicial and political unit" (Dr Antonio de Oliveira Salazar, Doctrine and Action Pp.178, Lisbon,1939). Ordinarily a state is composed of a single block or adjacent blocks of territories. But to have another state right in between two parts of a state is an unusual phenomenon. So is the case with Pakistan with India dividing it, and Prussia just after World War I, with the Polish Corridor running right through its territory dividing it into two. It was but a narrow strip of land. Yet as to Germany's eastern frontiers with the Polish Corridor she refused to accept it as final. It has been a bone of contention between Poland and Germany (Greenan and Gathany, Units in World History. Pp. 558 & 75s London,1946). So the general concept is that various provinces of a state are almost invariably to be found adjacent or at least very close to each other. But to have thousands of miles between a province and the state is a preposterous notion, and to maintain that Goa is part of the Metropolitan Territory of Porugal and not her colony -to avoid the provi­sions of the Charter which brings the colonial world generally within the sphere of International responsibility(Journal of the General Assembly No. X, Pp. 249. New York, 1955) -- is fantastic. It is against all concepts of geographical contiguity and symbolises nothing but the diplomacy of Power Politics. In fact these enclaves represent age old ulcers on the geographical entity of India. It is a task ahead to cure it.

2. Nationality.-- Ethically Goans are undoubtedly of Indian stock and Portugal is tactful enough to leave that issue untouched. In 1955 the U. S. Secretary of State pronounced "All the world regarded Goa as a Portugese Province" and that he believed "they were under the Constitution of Portugal and the residents of these areas enjoyed the full rights of Portugese citizens"(John Foster Dulles The Hindu. Pp 6, Col 5, December 7 1955). Conceding his wisdom and honesty on consideration of the ratio population between Portugal and her over sea colonies about fifty-five percent of the seats in the Portugese Legislature should go to representatives from overseas(World Book, Vol II, Pp 3505, New York, 1954). This is hardly the case. So conferring of Portugese nationality on the natives of the colonies is no, better than a farce.

3. Security.-- Portugal like Pakistan is a member of various military alliances. She is a member of the NATO. In a situation of International emergency, Goa might overnight be transformed into a military base of a group of foreign states. In this age of ballistic and nuclear weapons, no state can reasonably contemplate such a contingency with complacence. It is a matter vital to the self-preservation of India. The crux of the issue is that tolerance of these pockets might create a situation of great insecurity for India.

4. Economic Implications -- If Portugese Goa is militarily a potential danger to India, economically it has been a perpetual parasite. Goa is a bootlegger's paradise. Large scale smuggling is a "big industry" over there. The prohibition in Bombay is jeopardized by Goa. Exorbitant smuggling defeats Indian interests and adversely affects the economy of the state.

Dr. Salazar asserts that Portugal's claims of sovereignty over her colonies was guaranteed by the Anglo-Portugese Treaty of 1373 and also by Art. 4 of the North AtlanticTreaty ''This engagement (Anglo-Portugese Treaty) has lasted now for nearly six hundred years and is without parallel in history'"(Winston S. Churchill, The Second World War, Vol V, Pp 147, London,1952 Article 1 of the treaty of 1373 runs as follows:-

"In the first place we settle and covenant that there shall be from this day fonvard...........true, faithful, constant, mutual and perpetual, friendships, unions, allian­ces, and deeds of sincere affection, and that astrue and faithful friends, we shall hence­forth, reciprocally be friends to friends, and enemies to enemies, and shall assist, maintain and uphold each other mutually by sea and land against all men that may live or die").The fact is this is an outdated and time-worn Royal treaty devoid of all its life and luster. As late as on November 14, 1957, the High Commis­sioner of U. K. in India stated "...............though Portugal is a member of the NATO, U. K. is not bound to help her in her quarrel with India. No such provision existed in the Pact"(Malcolm Mac Donald, Speech at Kozhikode, The Hindu, Pp. 9, Col. 4, Nov. 171957). In 1954 Mr. Nehru pointed out that NATO has no application to Goa since it was an alliance for the Atlantic Communities (Mr Nehru, Loksabha Proceedings, May l5, 1954; Loksabha Debates, Vol. V, Pp 7508 (Loksabha Secretariat Publication) New Delhi, 1954).

India attempted to solve the issue by peaceful negotiation. But when it was actually felt that Portugal does not see the writing on the wall, and is reluctant to copy the example of France in conceding their Indian territories, India closed her legation in Lisbon, and subsequently demanded the closure of Portugese legation in Delhi. Meantime Nationalist movements in Goa gathered strength. The Nationalists liberated two small enclaves Dadra and Nagar Haveli. Consequently the Portugese suppressed civilian rights and began a reign of terror and persecution in Goa. India more than once declined to accede to requests from local authorities to take over the liberated enclaves. They are being administered at present by authorities organized by the local population (M.C. Setalvad, at the International Court of Justice, the Hague, Hindu, Pp. 4, Col 5, Oct. 9, 1957) But India refused Portugal the right of way to her liberated enclaves And against this Portugal instituted a suit at the International Court of Justice. The suit is still pending.

The Indian Defence Minister declared in the U N. General Assembly.

"......Inhabitants of India cannot be Portugese any more than a tiger can be a vegetarian. It is an insult to the intelligence of the Assembly to suggest that parts of foreign occupied territories can be an integral part of the Metropolitan country.....There is no question of these men having rights of ordinary human beings in Goa........ Goa is the last remnant of imperialism in Asia.........the dictatorship of Portugal will fall before the onslaught of freedom. For us it is a social nuisance being the last smuggling centre (V. K. Krishna Menon, Speech at the U. N. General Assembly, The Hindu, Pp. 4,Col. 4, Oct 10,1957).

The concept of Law and Justice changes with the times. Divine right of Kings and notions similar, are being discarded by all civilized states- The doctrine of Social Justice and the Socialistic Pattern of Society is gaining ground. Only the consolidated weight of world opinion seems to be the possible kick to wake up Portugal into the latter half of the twentieth century.

A NOTE ON 1958 K L. T 130

(K. A. Venkitaswaran, Advocate, Trichur)

(1) In this writ application, an order of the Collector of Customs, Cochin (R4) was sought to be quashed. It was negatived by the Hon'. High Court on [the principal ground that the impugned order has merged itself when it was taken on appeal to the Collector of Customs, Madras (B), which in turn was confirmed on revision by the Govt, of India (c), the latter two authorities being outside the jurisdiction of the High Court. But is the assumption that R4 merged itself when B and C were passed correct?

(ii) In A. I. R. 1958 S. C. 86, Their Lordships of the Supreme Court had to consider whether a departmental order passed on April 20, 1948 confirmed in appeal on June 7, 1949 and again confirmed in revision on April 22, 1950 will attract the provisions of the Constitution. The majority took the view that it will not on the sole ground that the order on April 20, 1948 did not merge itself in the later orders in appeal and revision: Their Lordships opined that such orders "Can hardly be equated with any propriety with decrees made in a Civil suit under the Code of Civil Procedure by the Court of first instance and the decree dismissing the appeal there from by an appeal Court and the order dismissing the revision petition by a yet higher Court as has been sought to be done by the High Court in this Case, because the departmental tribunals of the first instance or an appeal or revision are not regular Courts manned by persons trained in law although they have the trappings of the Court of law. In the next place, while it is true that a decree of a Court of first instance may be said to merge in the decree passed on appeal there from or even in the order passed in revision, it does so only for certain purposes, namely, for the purposes of computing the period of limitation for the execution of the decree, or for computing the period of limitation for an application for final decree in a mortgage suit. Whatever be the theory under other systems of law, under the Indian Law and procedure an original decree is not suspended by the presentation of an appeal nor is its operation interrupted where the decree on appeal is merely one of dismissal. There is nothing in the Indian Law to warrant the suggestion that the decree or order of the Court or tribunal of the first instance becomes final only on the termination of all proceedings by way of appeal or revision. The filing of the appeal or revision may put the decree or order in jeopardy but until it is reversed or modified it remains effective". Their Lordships allowed the appeal on the narrow ground that the Constitution had no retrospective effect and did not touch the order passed on April 20 1948. It was not suspended nor its operation interrupted by the presentation of the appeal or revision both ending in dismissals. "The original order of dismissal, if there were no inherent infirmities in it, was operative on its own strength and it did not gain any greater efficacy from the subsequent orders of dismissal of the appeal or the revision except for the specific purposes hereinbefore mentioned.'

(iii) Such being the law, even though under the Sea Customs Act the Collector is deemed to act judicially, it is only a tribunal having the trappings of the court of law. Even in appeals and revisions under the Civil Procedure Code, the theory of merger has been explained and is limited to the two specific purposes mentioned above. Hence it is submitted that the above decision requires reconsideration.

Preparation of Ready, Weekly and Daily lists and the 'posting and adjournment of cases-- Instructions, issued by the High Court of Kerala.

In supersession of the existing instructions, the following instructions are issued on the above matters.

1.Ready list:- This is a running list of cases ready for hearing. A list of fresh cases that have become reado and are to be added to the list will be published every Saturday. Cases will be transferred from time to time from the Ready List to the Weekly List from which the Daily Cause Lists are prepared. Unless specially so ordered, no case will be included in the Weekly List until after the expiry of 14 clear days from its appearance in the Ready List.

2.Weekly List:- This is a running list of cases to be included in the Daily Cause Lists from day to day. A list of cases to be added to this list will be published every Friday and, unless specially so ordered, no case will be inc­luded in the Daily Cause List until after the expiry of one clear week from its appearance in the Weekly List.

The list should not be very long and should ordinarily include only such number of cases as are likely to be included in the daily lists within one month. The additions to the Weekly List will be made from the oldest cases available.

3.Daily Cause List:- This list will show the cases to be sent to the several Benches for hearing each day and will be published at 5 p.m. the previous day.

The daily list should not be very long and should ordinarily include only such number of cases, as are likely to he heard during the course of a week. The daily list should be re-arranged at the beginning of a term and at every avail­able opportunity like changes in the constitution of the benches so that the oldest cases will appear at the top of the list. When the list is arranged subject-wise, the subject under which the older cases occur should be placed at the top. If the list becomes too long, certain subjects may be held back and included in the list later when convenient.

Fresh cases added to the daily list shall ordinarily be entered at the bottom of the list. They may, however, be entered at the top of the list, if the bench has so ordered. Old and specially urgent cases entered at the bottom of a list will be pro­moted to the top of the list after the expiry of the week in which they were entered.

In cases where an outstation lawyer has been engaged, if a request is made to the Deputy Registrar, before the case has appeared in the daily cause list, for a posting to a particular day, the case will, as far as possible, be posted on that day immediately after the part-heard cases, if any.

4.Sitting Lists:- This will be published every Thursday and will show the sittings for the next week and the categories of cases which will be posted before each Bench.

5. Publication of the Lists:-Publication of the lists will be by affixture to the Notice Board of the Court. If the day on which a list is to be published falls on a holiday, the list will be published on the working day preceding the due date, or, in the case of lists other than the daily list, on the succeeding working day.

6. Leave and Adjournments:-All leave granted to counsel by the Hon'ble the Chief Justice will be subject to such general conditions as may be fixed from time to time. Under the orders now in force such leave will not apply to:

(1) Any case which has appeared in the daily cause list. (Leave will apply only to the addition of new cases and therefore will not be noted in the daily cause list);

(2) Criminal matters;

(3) Part-heard cases; and cases posted to specific dates;

(4) Cases of 1965 or earlier and Original Petitions, Writ Appeals, In­come-tax References and Tax Revision Cases of 1968 or earlier.

Requests for adjournment, or hearing out of turn, in respect of cases that have appeared in the daily cause list, should be made to the bench concerned as early as possible.                                                                                                                  No. DR. Mis. 18-/69: 31-1-1970.

EMINENT DOMAIN AND INDIAN CONSTITUTION

(N. Dharmadan, B. Sc, M. L., Advocate, Ernakulam)

The term 'Eminent Domain' is rather a literal translation of "Dominium eminens" the meaning of which simply stated is the power vested in the State to take private, property for public use. This power has been otherwise referred to as an element of sovereign or "summa Potestas". The genesis of this doctrine is ascribed to Hugo Grotius who in 1625 observed in his classical work "De Jure Bella at pads" as follows: "The property of subjects is under one eminent domain of the state so that the state or he who acts for it may use and even alienate and destroy such property not only in the case of extreme necessity in which even private persons have a right over the property of others but for ends of public utility to which ends those who founded civil society must be supposed to have intended that private ends should give way. But it is to be added that where this is done the state is bound to make good the loss to those who lose their property". As an attribute of its sovereignty every state has a power to acquire or requisition private property compulsorily for public necessity. This is an original right like the power of taxation and it is now a crucial part of constitutional law of every modern constitution. The common law of England recognized this right quite early. The crown could affect compulsory purchase or acquire property in exercise of the prerogative power & later this was made absolute by statute. In the United States of America, the Federal Govt, can take private property for public purpose on condition of payment of just compensation and similar power is also conferred on the State Governments. The taking of private property without payment of compensation by the Federal Government is forbidden under Fifth Amendment and by the State Government under the guarantee of the 'due process' clause of Fourteenth Amendment.

In India, the ambit of this doctrine was first defined in our Constitution in 1950, but later it had to be re-defined by constitutional amendments Our Constitution recognizes the power of the State to deprive a person of his property as a power distinct from other powers of deprivation of private owner of his property viz., the power of taxation and power of forfeiture etc. The general power of deprivation is exercisable subject to the condition of legal sanction and in the modern constitutional phraseology it is known as 'police power’. Therefore the power of deprivation is sub divided into two heads: (1) general power of deprivation of property, which is dealt with in Article 31 clauses (i) and (ii) deprivation in exercise of power of eminent domain contained in Articles 31 Clauses (2) to (6), 31 A, 31B and 9th Schedule to Constitution. The scope of the power of deprivation was a matter of controversy in the early years. The wide scope of the State's power dependent on the bifurcation of constitutional provisions embodied in clauses (1) and (2) of Article 31 was not very clear. Hence the Supreme Court did not accept the general power of deprivation in the first Sholapur Case AIR. 1951 SC. 41" The contention that clause (1) of Article 31 dealt with modes of deprivation of property by the State exclusive of that of "eminent domain" was rejected by the majority opinion in that case. But Das J. delivering dissent held that this interpretation of cl. (1) of Article 31 would make it redundant and would exclude the possibility of deprivation of property otherwise than by acquisition or taking possession of property. He observed that the scope of clause (1) was wider than that of clause (2) for the former enunciates the general provision that no person shall be deprived of his property save by authority of law and the latter lays down that deprivation of property can only be made under law on payment of compensation and for public purposes. This dissenting view was not again accepted by the Supreme Court in the second Sholapur case AIR 1954 SC 119. The Supreme Court reiterated the narrow view that Article 31 was a self contained provision exclusively dealing with the power of eminent domain and hence the clauses (1) and (2) could not be read mutually exclusive. They are only two components of the same concept. Clause (1) sets the first condition viz., no one would be deprived of his property by an executive action. Clause (2) makes provision for the further two conditions that deprivation of property could be exercised for public purpose and this could be brought about only subject to the condition of payment of compensation. This narrow construction of Article 31 had a damaging effect on the land reforms legislation. It over burdened the States with duty of paying just and adequate compensation even in cases in which the State neither acquired any property nor requisitioned it. Say for example there is the requirement of payment of compensation even if possession of a textile factory is taken over for the purpose of merely improving its management or even in cases where land is taken over for reclamation alone.

It is to get over these difficulties created on account of the strained structural construction of the two clauses of Article 31 that the first, fourth and seventeenth Amendments were passed in the years 1951, 1955 and 1964 respectively. Das J.'s liberal interpretation was given statutory recognition and the narrow view regarding the duty of the State for payment of compensation in all cases of subst­antial deprivation of property was abolished. Under the amended provisions the State can deprive a person of his property generally by authority of law under the police power in which case the constitutional requirement of payment of compensation cannot be insisted upon 'and also by the exercise of the power of eminent domain, i.e., the deprivation of property for some public purpose subject to statutory provision for payment or determination of compensation. The legislature fixes the quantum of the compensation or the principles governing the payment of compensation. Thus the amendments made the legislation for these purposes immune from challenge on the ground of violation of any fundamental right and also entrenched it by enlistment in the ninth-schedule. But the present position is very strange. Though the impediments before the State's right to regulate property rights for public purpose were successively removed by the first, fourth and seventeenth Amendments the latest pronouncement of the Supreme Court in the Golak Nath Case AIR. 1967 SC. 1643 has taken away the right to make a law Ninth Schedule statute in future with effect from 27th February.1967.

IF A CHRISTIAN WOMAN MARRIES A HINDU SOLELY IN A HINDU CEREMONY OF MARRIAGE IS SHE ENTITLED TO AN

ORDER FOR MAINTENANCE UNDER S. 488 OF THE

CRIMINAL PROCEDURE CODE?

By

J. Duncan M. Derrett, D.C. L.

Professor of Oriental Laws in the University of London

This short article is a criticism of Kunhiraman Nair v. Annakutty 1967 KLT 24 the decision of a single judge Mr. Justice K. Sadasivan. There can be no doubt but that his judgment met the needs of justice. The woman, whose right to maintenance had been challenged by a man who had kept her as his wife for several years and who had begotten a child on her, and who had recognized her as his wife and his child as legitimate, was certainly morally entitled to be maintained by him, and the learned judge, in upholding the magistrate's order did what any right-thinking man would have wished him to do. But technically the decision may have been wrong. And the Indian law should be reconsidered, so that a better state of affairs may be arrived at. If, as I contend, Sadasivan, J/s decision was incorrect in law, but right in morals, the case of Annakutty convicts the Indian law of error. Let us look into the matter.

Marriages between Christians and Hindus take place quite often. And it is of no use for upper-class Hindus, whether in Madras City or in New Delhi, to say that ''such people ought not to exist, it is better that we ignore them". There are castes, of which the best known is that of the Madras, amongst whom marriages between Christians and Hindu are common. Admittedly, the majority provide no practical problem, because one of the spouses is converted-- though even there an attempt is made sometimes to contend that the conversion was not complete or effective in law. When Christians are converted to Hinduism for this purpose, and the union is accepted by the caste, the matter is not worth scrutiny, and in practice the sincerity of the conversion, and its relation to public policy, is not entered into. A recent and typical case is Seethalakshmi v. PonuswamyILR. I966 2 Mad. 373, 1967 2 MLJ. 334. The fact that Pakistan might, in similar circumstances, take a very different view -- Mhd. Mustafizur Rahman v. Mrs.Rina Khana P. L. D. 1967 Dacca 652. Compare Mira Devi v. Aman Kumari AIR. 1962 M. P. 212 (profession of a religion is a formality). -- is neither here nor there, for Pakistan is not a secular state.

We are concerned here with marriages between Christians and Hindus in which neither spouse was converted prior to the marriage and each retained his or her religious affiliation. I think most readers would agree that India being a secular state it is high time that if there is (as there certainly is) a problem here there ought not to be one. As matters stand we have the personal law system, so that the Christian wife of a Hindu will have no rights against the Hindu at Hindu law unless the Hindu law itself recognizes the marriage as valid. Alongside this particular situation there is the Indian Christian Marriage Act, 1872, which permits non-Christians to marry Christians;-- It permits a Christian and a non-Christian to marry in the forms prescribed by the Act itself. In 1892 the Legislature believed that marriage between a Christian and a non-Christian was utterly outside the scope of the Act of 1872. This is made abundantly clear by the provisions of the Marriage Validation Act, II of 1892, which actually penalises any person licensed under S. 9 of the Act if he performs any such marriage (S. 6): i. e. such marriages must be performed under Parts I and III of the Act of 1872, or not under the Act -- and there is the Special Marriage Act, 1954, which permits Indians of any religion or none to intermarry. The argument often heard is that since we have these two statutes there should be no problem, since the spouses can get their marriages registered under either of them, and if they are not intelligent enough to do this, they deserve no consideration but what of their issue? Should they have been more intelligent in choosing their parents? I am afraid the difficulties of the couple who actually marry under Hindu rites, one of them being at the time a Christian, must be investigated in their own interests and in the interests of their children.

1 pointed out in my Religion, Law and the State in India London (Faber). 1968, p. 342 that the Hindu Marriage Act, 1955, left it completely uncertain whether Hindus who married Christians under Hindu rites and ceremonies would be governed in matrimonial matters and otherwise by the Hindu law. I had made the same objection in my earlier book, Hindu Law, Past and Present, but the only reaction was that a reviewer duly noted the fact. (S. Varadachariar at The Hindu– Sunday 23 Feb. 1958). In my Introduction to Modem Hindu Law (1963) Atbpara 262, I dealt with the topic very briefly, but a reviewer somewhat nastily declared that I was completely wrong. (S. S, Nigam at Law Quarterly Review, April 1965, p. 315. I had never heard of Mr. S. S. Nigam until I read his detailed and curiously-pitched review of my book, and I have never heard of him since apart from two articles on the development of Hindu law). I fear he himself did not know the Hindu law on the subject.

The position is that the Hindu Marriage Act provides for marriages between any two Hindus; and since it does not contemplate marriage between Hindus and Christians the "over-riding" section applies. The previous law is only abolished so far as the Act of 1955 makes provision, and (he previous law remains in force so far as it is not inconsistent with the Act's provisions (S. 4). From this it is evident that if a marriage between a Hindu and a Christian under Hindu rites was valid anywhere at Hindu law before 1955, it remains so still. But the matrimonial regime will not necessarily be that laid down in the Hindu Marriage Act, except in so far as Justice, Equity and Good Conscience so provide, until (that is to say) the non-Hindu spouse is converted to Hinduism, whereupon (I apprehend) the matrimonial reliefs set out in the Hindu Marriage Act would be available to them. But the reader will object: what is the use of this supposition, since the Indian Christian Marriage Act in the clearest terms provides that a marriage between a Christian and a Hindu not registered in accordance with that Act is void'? This requires careful scrutiny.

I think we should commence with the Indian Christian Marriage Act. The position revealed is exceedingly unsatisfactory. Sec. 4 of that Act provides that "every marriage between persons, one or both of whom is or are a Christian or Christians, shall be solemnized in accordance with the provisions of the next following section; and any such marriage solemnized otherwise than in accordance with such provisions shall be void." If this were to be taken literally the position would be as described by Napier, J., in his order of reference to the Full Bench in In re Kolandaivelu (1917) 40 Mad. 1030 (33 M. L. J. 148) at p. 1032-3.

"If this section is not to be so read (i e as not referring to marriages purporting to be solemnized in accordance with usage amongst Christians) it would follow that the legislature in 1872 has declared void all marriages according to casts custom between a Hindu and a Christian, with the necessary result that the children are illegitimate and cannot acquire rights of property. I very much doubt whether the legislature intended to interfere in this manner with Hindus among whom marriages are regulated by caste custom’

Sadasiva Ayyar, J., in the same order of reference (Ibid., at p. 1035) said,

"If the word 'solemnize' as used in the Act merely means 'celebration (including celebration with Hindu or Mussalman rites), the Act cannot be said not to violate the principle of religious neutrality followed almost without exception by the Indian legislature, a violation which visits followers of religions other than the Christian with very severe criminal penalties for doing acts not prohibited by those other faiths. A construction which credits the legislature with such violation should, if possible, be avoided. A Sunni Mussalman male and a male of one of several of the Shiah sects can validly marry according to his law in the permanent form and with Muhammadan rites a 'Kitabia'…If S. 68 of the Christian Marriage Act be interpreted as widely as has been done in Queen-Empress v. Yohan (1894) 17 Mad. 391 and Queen-Empress v. Paul (1897) 20 Mad. 12 a Khaz who performs a marriage between a Mussalman male and a Christian female according to Mussalman rites is liable to the punishment of transportation for ten years. Whereas a Christian minister or Marriage Registrar who performs a marriage with Christian rites or the declaration ceremonies mentioned in S. 51 between a Mussalman male and a Christian female is not subjected to any such penalty and performs a perfectly lawful and valid act. It may be said that when S. 4 declares that a marriage 'solemnized otherwise than in accordance with S. 5 between two persons though one of them alone is a Christian is void, the legislature does interfere with the Mussalman religion and the additional imposition of criminal penalties of a severe nature on such solemnization by the later S. 68 does not, in principle, carry the interference further."

In "spite of these sensible remarks the decision of the Full Bench was that when a Hindu purohit solemnizes marriage between a Hindu and a Christian (he of necessity could not be appointed a Marriage Registrar, not being a Christian) he is guilty of an offence under sec. 68 of the Indian Christian Marriage Act, 1872. The judgment of the court included the words, ''Under that Act all marriages of Christians must be performed, on pain of nullity, in one of prescribed forms". The reasoning was that the whole history of the legislation, in, England and then in India, was to prevent clandestine marriages. The reasoning is hardly sufficient to support that conclusion, which, though at first glance entirely supported by a literal interpretation of sec. 4, is obiter and was not required for the decision of the question, which was that of the purohit's guilt. In fairness one should point also to the obiter remarks of Shephard, J., at Queen-Empress v. Fischer (1891)14 Mad. 342, 361, and to the opinion of the Legislative Council expressed in the i Bangalore Marriages Validating Act, XVI df 1936 (Preamble). To be weighed along with the Madras we have the Allahabad and Bombay views. They too do not deal with our question directly, and provide only sidelights upon it. But both in Emperor v. Maha Ram (1918) 40 All 393 and in Saldanha v. Saldanha (1929) 54 Bom 288 the learned judges agreed with observations in Madras that the validity of marriages was not the chief concern of the Act of 1872, and opined further that the Act was not intended to operate to the prejudice of personal laws except as to matters of form. In the Allahabad case, the circumstances in which were not utterly dissimilar with those of the South Indian situations with which I am concerned now, the judges expressed great doubts whether the legislature could have intended to prohibit, or render void, marriages performed in a non-Christian form and valid by customary law. These are only opinions, though entitled to great weight, because common sense is behind them. In Sm. Swapna Mukherjee v. Basanta Ranjan Mukherjee AIR 1955 Cal. 533 which was a bigamy prosecution, the husband was acquitted because the court assumed that his alleged conversion to Hinduism was not valid and that therefore his marriage to a Hindu woman by Hindu rites was not a valid marriage, wherefrom he could not be guilty of bigany So strict an interpretation suited a criminal case of that description. But where their Lordships go on to say, without citation of authority, that a Christian cannot marry a Hindu under Hindu rites and ceremonies they take as established something which the law has not yet determined, and though not obiter this expression of opinion could conceivably be per incuriam To make matters worse we shall see that when it comes to proof of celebration of marriage for the purposes of applying sec. 488 of the Criminal Procedure Code, the courts have not insisted upon actual proof: thus it does not follow that the marriage is "void" if one cannot show that it has been performed with all due regard for the "prescribed forms" laid down in the Act. However, I must emphasize that the law had not (until our instant Kerala decision) gone so far as to dispense with proof of ceremonies conforming to the Act when there was proof that ceremonies inconsistent with the Act were actually performed: that is quite another matter.

Thus, taking into account the Madras Full Bench decision and the equally obiter opinions in Allahabad and Bombay, and the unsupported judicial opinion in Calcutta in more recent times, the legal position in Malabar as left in In re Kolandaivelu (1917) 40 Mad. 1030, 33 MLJ. 148 in 1917 is this: -

(1) Irrespective of the validity of any marriage solemnized under the provisions of the Act of 1872; and

(2) Irrespective of the validity of any marriage solemnized under non-Christian rites between two parties one of whom only is a Christian (an issue which was not thrashed out thoroughly in the Full Bench judgment);

(3) it is a penal offence to celebrate a marriage ceremony purporting to marry a Christian and a non-Christian otherwise than in strict accordance with the Act (the severity of the penalty depending upon the gravity of the offence);

(4) but it remains not finally decided whether a customary marriage between a Hindu and a Christian under Hindu rites is valid as a marriage, the general inference left after reading In re Kolandaivelu (1917) 40 Mad. 1030, 33 MLJ. 148 being that it is not. In an area of India governed by Madras autho­rities that inference prima facie rules until a decision to another effect is obtained from the High Court.

What does Hindu law say upon all this? In Mrs. Chandramani Dubey v. Ram Shankar Dubey AIR. 1951 All. 529, 1950 All LJ. 932 the matter was gone into thoroughly and it was held that Hindu law raised no objection to a marriage between a Hindu and a non-Hindu under Hindu rites. This need not be doubted. The dharmasastra rules do not contemplate a marriage between a Hindu and a non-Hindu of a sacramental, samskara type; but it is clear that the dharmasastra never exhausted the whole Hindu law of marriage, as even an elementary know­ledge of legal history would confirm. In Rajammal v. Mariyammal AIR. 1954 Mys. 38 it was held, following the Dubey case, that there is no rule of Hindu law which forbids the subsistence of a marriage one of the parties to which is a non-Hindu. The learned judge pointed to the ideals of the secular state and, rightly, held that the marriage was valid. In the Dubey case the couple did marry under the Act of 1872, and the problem had been about the rights of inheritance of the issue.

At this point the reader may ask, why was the Indian Christian Marriage Act, s;c. 4, not referred to in the case of Rajammal AIR, 1954 Mys. 38? The answer is simple. That Act was not introduced into Mysore state excepting the C. & M. Station, Bangalore) until 1 April 1951 under the provisions of sec. 3 of the Part B States (Laws) Act, Act 3 of 1951. The marriage between the Hindu male and the Christian female, valid at Hindu law, took place before that date.

Thus we are in this position, that marriages in parts of India where the Indian Christian Marriage Act was not in force (and is still not in force) at the relevant time the ceremonies we are discussing were not criminal offences and the marriages were (and are) valid if in accordance with caste usage and custom. But as soon as the Act was introduced (for in the greater part of India it has been introduced) the discrimination the learned judges in Madras complained of actually came into effect. Yet, the fact that celebration of such a marriage will be a crime does not determine whether the marriage is really "void". Such an anomalous situation is well known to all India. Several marriages (e. g. child marriages) which it is a crime to procure or celebrate are unquestionably valid

While I prefer the Allahabad view and deplore the decision in In re Kolandaivelu (1917) 40 Mad. 1030, as did the learned editor of the Madras Weekly Notes at the time (1917 M.W.N, cl.xxxiv-v), I am bound to take note of it, and so are the judiciary in the Malabar area of Kerala. Perhaps one day the Supreme Court will iron out this tangle. May be the contemplated Code of Family Law will arrive sooner. Meauwhile we cannot expect the High Court of Kerala to proceed as if there were no problem when the case is between persons domiciled in the Malabar area, who were subject to the Act since 1872.

Now in Kunhiraman Nair v. Annakutty 1967 K. L. T. 24, the wife applied under sec. 488 of the Criminal Procedure Code, and the husband denied the validity of the marriage. As we have seen, there were abundant materials which supported his previous belief that he was validly married to her. In June 1960 the couple were married simply and solely with-rites such as are recognizable as rites appropriate to the marriages of Nairs. The husband urged that the cere­mony was void under the Indian Christian Marriage Act. He was entitled to do so, relying purely and simply (though dishonestly) upon the wording of sec. 4. He did this because he and his wife belonged to Malabar, were married at Calicut and had their matrimonial domicile in Malabar. The order petitioned against was that of the Munsiff Magistrate of Manantoddy. Had the spouses belonged to the Cochin area or the Travancore area it would have been another story, since the Indian Christian Marriage Act was never introduced there. (The section reads "It extends to the whole of India (except the territories which, immediately before the 1st November 1956 were comprised in the States of (Travancore-Cochin, Manipur and Jammu and Kashmir)." See Civil Court Menual (M. L. J.) vol. I (1959), p. 636. Manipur in fact has received the Act as a result of the Part C States (Laws) Act, 30 of 1950. The Miscellaneous Personal Laws (Extension) Act, 48 of 1959, did not extend the I.C.M.A., 1872, to any territories). The learned judge said in 1967 K. L. T. 24, 25:

"We are not very much concerned in this case as to whether the marriage between the respondent and the revision-petitioner was solemnized under the provisions of the Indian Christian Marriage Act. For the purpose of S. 488 Cr P. C, it is enough if the respondent satisfies the court that she has been treated by the revision petitioner as his wife."

And the learned judge refers to an Orissa case which does not entirely bear him out (it was between two Christians!), and to which we shall turn presently.

If this were to be correct (it is not) we should have in modern Indian law two standards by which to assess matrimonial status. We have the validity of marriage as established by the personal law of the spouses, or the personal laws of the two spouses where these differ (a matter of some doubt in this instance;), and we have an ad hoc validity for the purpose of the Criminal Procedure Code. This cannot be right. The Criminal Procedure Code cannot authorize the magi­strate to treat as married two spouses who do not have the capacity to marry; where the marriage could not have taken place; where any actual marriage de facto cannot have been valid de jure; or where it has actually been declared null and void! This last point, which is obvious, had to be established in (Govindasami Mudaliar v. Muthulakshmi Ammal (1966) 1 M. L. J. 208: "Where there is a finding as to the status of the parties that there was no relationship of husband and wife between them, by a civil court, it would obviously bar a criminal court from entertaining a petition under S. 488 of the Code."

The law on these points, it is submitted, is as follows. The burden of proof of the subsistence of a vaild marriage lies upon the applicant wife: Manickam v. Poongavanammal A.I.R. 1934 Mad 323; older uncontradicted authorities to the same effect: Pwa Me v. San Hla A. I. R. 1914 Low. Bur. 266, Wafoon v. Ma Thein Tin AIR. 1914 Upp. Bur. 30. A definite finding that the applicant is the husband's wife must be recorded if the validity of the relationship is challenged. Only legally married wives are entitled to maintenance, and the High Court will interfere if the magistrate awards maintenance without justifying his action by a finding as to the relationship: A. T. Lakshmi Ambalam v. Andiammal, AIR. 1938 Mad. 66. In many such cases the man contends that the woman is only a concubine and that no valid ceremony ever took place. Such questions must be decided by the magistrate in his own court: Mt. Mangli v. Ganda Singh AIR 1932 Lah. 301, Mt. Ganga Devi v. Ram Sarup AIR. 1939 Lah. 24, approved in Mathura Bai v. Mt. Marachoo Kuer AIR. 1946 Pat. 176. If the question is whether the couple lived' as man and wife or as a man with his concubine, and if no evidence as to the marriage is forthcoming, the magistrate is not compelled, as a civil court is in restitution cases, to demand strict proof of the marriage ceremony. The presumption raised by several years of open and continuous cohabitation, accepted by the community as a marriage, and confirmed by the birth of issue taken generally as legitimate, will suffice and the magistrate may proceed upon that at basis alone K. J. B. David v. Nilamoni Devi AIR. 1953 Or. 10 (a marriage between Christians in Orissa, purporting to have taken place in conformity with theIndian Christian Marriage Act may be proved from cohabitation and repute for strict proof of the ceremony, e. g. the qualifications of the minister, may be impossible and unreasonable); Satish Chandra Sen Gupta v. Charu Bala A.I.R. 1962 Tri. 61; Bogis Mangati v. Applama A.I.R 1932Cal 866, 59C1 1257; Parvathy Ammal v. Gopala Goundar (saptapadi omitted) 1956 2 M. L. 3. 468; Veeraraghava Gramani v. Bommiammal (presumption held) A.I.R. 1955 N. U. C. 3194 (.Mad.); Gopal v. Gopal (presumption rebutted) A.I.R. 1955 N. U. C. 1039 (Punj.).

Where the marriage is challenged by the husband upon a ground which is plainly intelligible to the magistrate, or the High Court acting in revision of his order, there is no objection to the validity's being tried by him or by the High Court: Manickam v. Poongavannmmal (marriage between sub-castes valid at Hindu law though unknown to custom), AIR. 1934 Mad.323. Where the marriage was irregular but not invalid, the order under S, 488 must be made, even though the personal law shows that such marriages ought not to take place, and the magistrate may take judicial notice of the difference between irreguarity and nullity: Mating Pathan v. Ma San A. I. R. 1939 Rang. 207; Conally v. Conally A. I. R. 1931 Pat. 213, 133. T. C. 175. Where, however, the personal law or laws utterly forbid the marriage, as in Calawlia Jude v.Lancelot Jude 1945 2 Cal. 462, marriage under the Act of 1872 is void, notwithstanding compliance with its forms.

Where, on the other hand, the husband contends that, though he lived with the applicant as his wife, they could not have been validly married because of some abstruse point of personal law, upon which rulings are not readily to hand (as they were in our instant case), the magistrate may award maintenance and his order may be terminated or vacated if and when the husband succeeds in a declaratory suit or a petition for nullity in the civil court: E. S. Nath Das v. S. Dassi (1937) 41 C.W.N. 898; Satish Chandra Sen Gupta v. Cham Bala A. I.  R. 1962 Trip.61.

Now in many cases the personal law includes the right of divorce otherwise than by decree. It is notorious that a husband's divorce of his wife under Muhammadan law operates to put an end to her rights under S. 488, and he can exercise his right to divorce her even in his answer to her application! The magistrate has no jurisdiction to ignore this divorce. Similarly, many castes have customary divorces, and the husband's claim that the wife has already been divorced. In one very strong case the High Court held that the magistrate should have awarded maintenance under S. 488 though at one time the wife was living with the husband's brother as if she were his wife and so had raised the presumption that she had been divorced. But it was not proved on the husband's behalf that he divorced her under Hindu customary law, nor that any panchayat had met to dissolve the marriage or to recognise its dissolution by him; Babu Nandan v. Mt. Punia A. I. R. 1926 AH. 426.

In conclusion I am under the impression that in Kunhiraman Nair's case 5967 K.L.T. 241, the learned judge should have taken notice of the invalidity of the marriage, (since, whatever we think S. 4 of the Indian Christian Marriage Act ought to mean, an authoritative opinion of the Madras High Court was available to him), and should have set aside the magistrate's award-- even though that would have been hard on the hapless reputed wife. If he believed that the law of Travancore-Cochin applied, he should have taken issue as to domicile, and the question would have been argued and recorded. It evidently did not apply, and the Act of 1872 went to the root (or must have appeared to go to the root) of the marriage. True, strict proof of marriage is not always required, but where the marriage is denied upon the ground that no prescribed ceremony took place, but rather that a non-prescribed ceremony took place, and this is not contested by the wife, the whole suggestion of "marriage by repute" falls to the ground. It is wel known that solemn taking of women as concubines is an institution of Hindu usage, with which the Anglo-Hindu law has failed to cope adequately. On the whole S. 488 of the Cr. P. C. has enabled many second-class marriages to count as marriages for the summary protection of discarded women: and that is prob­ably consistent with public policy. The best way one would think, of teaching men not to take women in forms ostensibly matrimonial but actually and intentionally as initiatory of concubinage is to nail them under S. 488. But this argument is not enough to rescue the decision of Sadasivan, J., from technical inaccuracy.

Had the learned judge been properly served by counsel ha would, I surmise, have submitted the question to a Full Bench in the Kerala High Court. Had this been done the discrepancy between Malabar law and Travancore-Cochin law would have been ventilated, and some Kerala legislation would have resulted. The Kerala legislature has tidied up so many corners of the confused personal laws of Kerala that this surmise seems quite reasonable.

Meanwhile let us devoutly hope that S. 488 will not be allowed to create a new matrimonial status, called by a special name so that we have Hindu marriages, Muslim, Jewish, Christian, Parsi, and Special marriages, and a final category 'S.488 Cr. P. C. marriages'. That would really be intolerable.