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.

INTEREST ON INTEREST & COMPOUND INTEREST

(Philip K. Thayil B. A , M. L., Advocate, Ernakulam)

There is probably no matter into which more totally unnecessary complications are imported than the matter of interest for a debt which was not paid according to the promise. Is compound interest the same as interest on interest? Is compound interest essentially different from simple interest? Is realisation of interest on interest or compound interest a contravention of the provisions of the usurious Loans Act? Is the right to realize compound interest a legally protected interest? These are interesting questions of interest and are attempted to he answered briefly hereunder in the light of balance of authorities.

Is compound interest the same as interest on interest? There is a bewildering diversity of judicial opinions on this. One of these opinions is this;- "compound interest is not interest on interest; it is interest on a sum or sums which were interests but which on default or liquidation immediately become principal", see Shamsunder & others v. Harban Singh A.I R.1915 Lahore, P. 346 per John stone and Shah Din JJ. In this case their Lordships upheld the right of the plaintiff to compound.interest.

Another judicial opinion is that compound interest and simple interest are not two kinds of interests. Mr Hallifax A.C.J observed in Kishenlal v. Bapu 94 I. C. 971, that simple interest and compound interest are not two kinds of Interests. His Lordship maintains that the only difference between them is that one is paid regularly and the other is not, meaning thereby that simple interest on unpaid simple interest is compound interest But his Lordship nevertheless maintains that simple interest and compound interest are not two kinds of interests.

Still another judicial opinion is found in the Privy Council decision 8. R. M.S. 0. Chettiar v. Loo Thon Poo 1940. P. C. 60 Here their Lordships discussed and considered the question "whether the charge of compound interest, that is to say, interest on interest ought to be allowed". Compound interest is here explained as interest on interest. This Privy Council decision and a long series of English decisions like R.S. Lylee v. Chappet 1932 I K. B. 691 lay down that it ought not to make any difference to the validity of a transaction by way of a loan whether the parties go through the form of payment by the borrower of the whole amount and redelivery of the same amount by the money lender, or the transaction is carried out without any such payment by treating the amount of the principal and interest still due as a debt acknowledged by the borrower to the amount of the agreed debt. It is only just that because of the default of the debtor to pay the amount of interest at the stipulated time the creditor must not be made to lose his interest on that amount. It is again only just that the defaulting debtor must not be rewarded with the privilege of a fresh advance without interest.

The difference between interest on interest on the one hand and capitalized interest on the other is interesting to note. To say that one is compound interest and the other is not is to attach too much importance to a quibble on words, a verbal controversy devoid of legal consequences. Yet there is in essence difference between interest on interest and interest on capitalized interest. The former is interest on interest, the latter is interest on capital and the latter is legally protected right of the money lender. There is the dam up law that interest must not exceed the principal and there was a section in the Travancore Civil Procedure Code that interest must not exceed 50% of the principal. There is now in the Indebted Agriculturists Debt Relief Act (Act 111 of 1956 a provision in S. 5 to the effect that the amount of the interest payable by an agriculturist shall not exceed one half of the principal amount outstanding at the commencement of that Act. There is no statutory prohibition of the capitalization of the defaulter interest. When interest is added to the principal, according to Romer L. J in Inland Revenue Commissioners v. Holder (1931) L. K B 81 and Lord Inglis in Reddie v. Williamson 1. Macph. 228 not only becomes principal but thereafter ceases to be dealt with as principal-see also 1943 Mad. 157 which also does justify the capitalization of defaulted interest, and realizing interest on such consolidated amount If interest is added on to interest alone the interest thus accumulated may easily be hit by the damdupat law or the above mentioned Act 111 of 1956 (S. 5), or the usurious Loans Act. In Khimji v. Chunilal Ambaidas A. I. R. 1919 Bom 131, the amount sought to be recovered was for the most part made up of interest which largely exceeded the principal-a manifest contravention or flagrant violation of the damdupat law-and there was an agreement in writing in this case whereby the debtor agreed to pay interest upon interest. It was decided in this case that there was nothing to prevent the court from awarding the full sum claimed both as a matter of natural inference from the agreement and as a matter of Hindu law. The rule of damdupat it was held in this case does not prevent an agreement between the debtor and the creditor to capitalize interest at a stage when the interest does not exceed the principal. All Smrithi writers and commentators, this judgment says, are agreed that there must be an agreement between the debtor and the creditor to capitalize interest in order to justify the calculation of interest in future on the sum made up of the principal and interest thus agreed to be capitalized. If interest is added on to interest which is not capitalized the law of damdupat and S. 5 of the Act 111 of 1956 will be easily contravened or violated.

Interest on capitalized interest is legally recognized and protected by a catena of decisions even of the House of Lords and the Privy Council There is the overwhelming preponderance of judicial authorities of the Indian High Courts in its favour. In Holder V. Inland Revenue Commissioners, 1932 A. C. 264 (affirming Inland Revenue Commissioners V. Holder (1931) 2 K. B. 81) the Court of Appeal approved the statement of Lord Cowan in Reddie V. Williamson (1863) 11 Macph. 228 "that the periodical interest at the end of each year is a debt to be then paid and which must be held to have been paid when placed to the debit of the account as an additional advance by the bank for the convenience of the obligants". The case went to the House of Lords and the decision was confirmed, see 9, Halsbury's statutes 443. In Paton V Inland Revenue Commissioners 1938 A. C.341 however the point was dealt with by Lord A kin one of the most outstanding luminaries in the judicial horizon in the following terms: "The question is whether when the charges are added to the existing indebtedness at the end of one half-year and the whole sum brought down is a debit item at the beginning of the next half year, so that interest is charged on the last half-year's interest, the charges have been paid. The ordinary man would, I think, say that so far from being paid, they are added to the ordinary indebtedness because they are not paid; and I see no reason why the law should say anything different". His Lordship then quoted Russel L, in Re Jauncy B ird v Arnold (1926) Ch. 471, with approval that the contention that the interest must be deemed to have been paid would really amount to a travesty of the actual facts; because in the case of such a provision as is contained in the present deed which enables the interest to be capitalized the interest is not capitalized because it is in fact paid, but because it has not been paid.

His Lordship (Lord Atkin) further referred to the "'system adopted by the bank.........for the purpose of giving them compound interest without perhaps flaunting the fact before their customers.

Capitalization of defalted interest and realizing interest on such consolidated amount is an age old custom of bankers. This customary right of the bankers is legally recognized and protected by manifold pronouncements of very high iudicial authorities. For example see (a) 1907 2 ch. 448; (b) 1922 1 ch. 126; (c) 1B&B 420; (d) 32, L J. ch. 540-545; (e) 1898. 2. Q. B. 467; (f) Exparte Bevan. 9. Ves. 223' (g) 5. B & Aid. 34; (h) 1931. 2. K.B. 89; (i) 1932. 1. K. B 6; (T) 1938. A. C. 341; (k) 1932. A. C. 264; (1) 1940. P. C. 60; etc.

A series of Privy Council decisions have recognized and protected this right of the lender to realize interest on the defaulted interest. In Venkata Rao Garu v. Gade 1936 P. C. 283, a mortgage suit, this interest on capitalized interest was called compound interest and it was laid down here also that compound interest is in itself perfectly legal but compound interest on the principal moneys being in excess of and outside the ordinary and usual stipulation may well be regarded as in the nature of a penalty. The plaintiff in this mortgage suit was allowed compound interest (interest on the defaulted interest) at the same rate as the simple interest.

In S. R. M. S. C Chettiar v. Loo Thon Poo 1940 P. C. 60 also the Privy Council recognized and upheld the right to realize interest on the capitalized interest. The true view in the above House of Lords and the Privy Council decisions is that periodical interest when becomes due is a debt to be then paid (ie. at each rest) and which must be held to have been paid when placed to the debit of the account as an additional advance by the bank. The effect of the mode of dealing between banker and customer is, according to the long standing usage governing their relations to treat the interest accruing at each rest as discharged by borrowing an equivalent sum from the bank in precisely the same way as if the customer had given the bank a cheque upon the account for the amount in question with which the bank extinguished the interest and then placed the amount of the cheque to the debit of the account as an ordinary draft-see also P. Mudaliar v. N. Ayyar 1943. Mad. -157 & (1932) I. K. B. 691 which also upheld the right of the money lender to realize interest on capitalized interest. In this Madras case his Lordship Patanjali Sastri observes thus: "It will be seen that the mode of dealing adopted by the parties is what is u ually followed, between banker and customer; and it is well established that the effect of this system is to capitalize the interest at the end of each year and treat it as a fresh advance by the bank; in other words according to the usage prevailing between bankers and customers it is an implied term of their dealing that the banker is to be treated as having made an advance to the customer at the end of each year or half-year as the case may be of a sum equivalent in amount to the interest accruing during that period so as to enable the customer to discharge the interest increasing the principal of his debt by a corresponding amount.........This usage which has been adopted by bankers in England for over a century had its origin as a device to secure compound interest by circumventing the usury laws under which agreement for charging compound interest was usurious and illegal". This observation of his Lordship Patanjali Sastri is based on very unshakably deep-rooted catena of decisions for over hundred years in England and several decades in India.

But an observation diametrically opposed to this is found in Anthony v. Mala Catholic Union Bank Ltd., 35 Cochin 542 by Krishna Menon J. This was a suit by a bank for the balance due under an over draft account. There was an agreement between the plaintiff and the defendant for capitalization of defaulted interest and for realizing interest on such consolidated principal. The learned District Judge observed that there was an implied term, in the agreement to the effect that the bank should be considered to have made an advance to the customer at the end of each quarter of a sum equivalent in amount to the interest accrued within that quarter so as to enable the customer to discharge the interest pertaining to that period. This observation of the learned District Judge is based on a series of House of Lords, Privy Council and Indian decisions. More over it is in conformity with the opinions of the most eminent writers on Banking Law, like Paget, Tannan, Hart, Sheldon, Grant and Davar etc. But his Lordship Krishna .Menon says that the observation of the learned Districi Judge that there is such an implied term is an 'absolute fallacy'.!here is no such implied term according to Krishna Menon,J. It may interestingly be noted here that Lord Atkin, the Lord of the Privy Council, and his Lordship Patanjali Sastri and a long series of High Court judges in India have recognized and upheld this implied term.

Another almost unique feature about this Cochin decision is that counter interest is allowed to the small payments made by the debtor towards the discharge of the large debt due to the bank. The payments thus made by the debtor are treated by his Lordship as open payments. When a debtor makes payment to a creditor and when the paid amount is appropriated towards the bigger debt due by the payer to the creditor how can there be open payments? Further when a debtor who owes a large sum to a creditor makes a payment to the creditor the natural presumption is that it is to be adjusted towards the debt and not mere open payments, for the well known maxim is "Debtor non proeumitur donare'. Anyway this decision is contrary to the well known authorities of the system of account keeping See Devaynis v Noble Clayton's case (1816) 1 Mer. 529 the principles deducted from which have been enacted in Ss.59,60, and 61 of our Indian Contract Act (1872). "The appropriation is made by the very act of setting the two items (credit and debit items) against each other. Upon that principle all accounts current are settled and particularly cash accounts"-see Clayton's case. The balance is struck after appropriation and the suit in the Cochin Case was for the balance due under over draft accounts

Interest on capitalized interest is allowed in a very long series of decisions of the Indian High Courts-eg (a) A, T. R. 1915. Lahore 346; (b) 94 I C. 971; (c) 1919. Bom. 131; (d) A. I. R.1929 All. 59; (e) 1904. 31 Cal. 233;(f) 1946. Mad. 35; (g) 1935. Mad. 165; (hi 1943. Mad. 157; (i) 1919. All. 1; (j) 17.1. C. 9; (k) 119.1. C. 468; (1) 111. I. C. 694; (m) 1918. A. C. 372; (n) 1943. Mad. 158.

Capitalization of defaulted interest and realizing interest on such capitalized interest is recognized by a series of Travancore Full Bench decisions also, Among these 1948 T, L. R. 847 may be specially noted. It was held in this case that there is nothing opposed to law in enforcing the right to interest on capitalized interest. But if defaulted interest is not capitalized, interest on non-capitalized interest is not countenanced See Raman Pillai v.Neelakanta Iyer 194f. T. L. R. 716. In Philippose v. Geevarghese Kathanar 29. T. L. J, 1275 (F B.) the right to realize interest on capitalized interest was recognized and legally enforced. In Meenakshi v. Lakshmi 31. T. L. J. 528, interest on capitalized interest at every quarterly rest was allowed In Eapen v. Kochugovindan 10 T. L. J. 367, this right was recognized. See also Smkara Pillai v. Kunjulakshmi 1944. T. L. R. 324.

The right to compound interest was recognized by "Kunjulakshmi Amma v. Narayan Pattar 33. Cochin 448, Even the Agriculturists' Act (XVIII of 1114) does not affect the right to compound interest even when the debt is secured.

The right to interest on interest was considered and upheld by the Kerala High Court (D. B,) in A. S. 26 of 1955 (an unreported decision) judgment pronounced on 23-3-1956. This was a suit to recover money lent on security. Their Lordships held thus: "We do not think that there is anything in the Cochin Agriculturists' Relief Act (Act XVITI of 1114) or in any other law which prohibits parties from agreeing to treat arrears of interest as principal......Here the defendant agreed to have arrears of interest treated as principal and to pay " interest on such principal as if he paid the interest to the bank and the bank advanced it to him as a fresh loan. We therefore hold that the plaintiff is entitled to have arrears of interest treated as principal and to claim interest on such principal."

In Venkateswara Iyer Harihara Iyer v. Mathew George and others 1951 K. L T. 353 interest on capitalized interest is upheld. This is a Full Bench decision. This was also a case of secured debt. By Varghes Ouseph v. Lakshmi Amrnal Pichi Ammal and another 1951 K. L. T. 382, also the right to capitalize defaulted interest is recognised as not affecting Sn. 31 C.P.C. of Travancore. But when interest is not capitalized and interest is calculated on such non-capitalized interest the accumulation of such unqualified interest alone will be easily hit by Sn, 31 C. P. C. of Travancore. In Norayana Kochu kunju and another v. John Joseph and others 1950 K. L.T. 487 interest on capitalized interest is allowed subject to Sn. 31 of the Travancore C. P. C. This code is not in force now and there is no corresponding section in the code now in force:

Further authorities for compound interest (interest on capitalized interest) is found in:-

(I). Paget's Law of Banking 5th Edition P. 67 and 68.

(II). Sheldon Practices & Law of Banking (V. P. Sheldon) 5th Edition (1946) P. 204 and 205.The banking practice of adding interest to principal to enable the bank to realize compound interest is dealt with by Sheldon. Sheldon says:- "Money advanced on mortgage to secure a fluctuating balance may be merged in the general account and compound interest charged".

(III). Tannan's Banking Law & Practice in India 7th Edition P. 241 and 242. He recognizes quarterly rests and compound interests. He also states the grounds to justify this compound interest.

(IV). Bashyam & Adigar, Negotiable Instruments Act iy50 Edition P. 278.

(V). Pollock & Mulla, Contract Act 1957 Edition at P. 490. Sundar Koer v. Eaisham Krishnan 1906. 34. LA. 9 at P. IS. Here it is held thus"Compound interest is in itself perfectly legal but compound interest at a rate exceeding the rate of interest on the principal moneys being in excess of and outside the ordinary and usual stipulations may well be regarded as in the nature of penalty". This Privy Council decision is quoted at P. 490 of Pollock & Mulla Contract Act, 1957 Edition.

At P. 492 of the same book we find thus: "A stipulation that interest in arrear shall be capitalized and added to the principal sum and that the whole shall carry interest at the contract rate is not by way of penalty" See also Sarya Prased v. BeniMadho (1883) All. W. N. 20S.

(VI) Grant on Bank & Banking. At P. 135 of this book it is found that taking of mortgage to secure fluctuating balance does not preclude ,'the banker from continuing to charge the customer with compound interest.

(VI1) Lee on Roman Law opines that Justinian was absurd in not allowing interest on interest.

(VIII) Hart's Law of Banking (Fourth Edition) P. 234, Compound interest, says Hart may become payable although the debt is the balance of a current account secured by mortgage. "In merchants' account when an annual account is made upon accounts current and a balance struck comprising both principal and interest due up to a certain day and that balance is carried to a new account bearing interest, compound interest is given in effect". See Attwood v. Taylor (1840) 1 M & G. 27. See also Exparte champion (1792). 3. Bro. C. C. 436 at 440; Parr's Banking Co v Yates [1898] 2. Q. B. 460. Where a mortgage is made by way of collateral security for such balance as may eventually be due from a customer to his bank it is no objection to charging the land with such balance that it has been partly composed of interest turned into principal by rests and interests on that interest according to the course of dealing between the two. See Lord Chancarty v. Latouche (1810) 1. Ball tfe BA20; Bufford v. Bishop (182A) 5. Mules 346.

(IX) Davar's Law & Practice of Banking 3rd Edition P. 228. Davar says that right to compound interest is based on special agreement or is acquired by acquiescence.

Lastly this right to compound interest will be lost by death or bankruptcy of either. -See Williamson v. Williamson (1869) 7. Eq. 542.

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.

NEW YEAR SALAD

(T. G. John, Advocate, Tricbur)

One more year has rolled by -- a year of cataclysmic events. In which the fragile, beautiful moon has slipped from the hands of the poets into the grips of the scientists. In the political arena, rhetoric, oratory, slogan-shouting and hijacking have taken the place of law and order at local, national and international levels.

Taking a flash-back of the legal arena of the world, we find many of the editors of magazines and newspapers and broad-casters of Nixon's Land balking, when the American Bar Association recommended a tough code to limit the flow of information to reporters in criminal cases. The Code was drafted by a Committee headed by Massachusetts Justice Paul Reardon and there was a general feeling that the Committee had gone too far. But all were agreed on one point that there was a real need to keep cases from being tried in the Press.

The judicial conference of the U. S. has cleared this mine-field a bit by adopting its own recommendations which attempt to discourage publicity that might influence a jury or judge and result in an unfair trial, but unlike the American Bar Association Code do not attempt to define any standard for the news media or police working beyond the confines of the court room. Instead they rely strictly on a judge's power to discipline those actually under his judicial supervision.

Still new rules have been worked by a Committee headed by U. S. Courts of Appeals Judge Irving Kauffman of New York who has called on Judges to forbid bailiffs, clerks and other Court personnel to give out information on a case unless it is part of a public record. They also urge that each court carefully define the environs of the Court-room where photographers and T. V. Cameramen may not take pictures. Like the A. B. A.  Code the federal rules would prohibit lawyers and prosecutors from divulging a confession, or an accused man^’s past record or making other statements that might result in an unfair trial. But the Kauffman rules do not provide for the two most important recommendations of the American Bar Association: (1) Exclusion under some circumstances of newsmen from preliminary hearings and other hearings (2) Recommendation that judges bring contempt of Court citations against newsmen who publish material will fully designed to influence a trial's outcome.

The American Press objected most strenuously to the last provision and as a result the Kauffman Committee preferred not to include such a rule, since the U. S. Supreme Court has yet to decide whether or not judges have the right to use their contempt powers in this way. The Kauffman Committee's recommendations are likely to become part of the rules in every federal court in the nation.

x                               x                         x                            x

Tailpiece:

Sir John Popham, the Lord Chief Justice who tried Sir Walter Raleigh and Guy Fawkes, studied law with the proceeds of his earlier career as a highwayman!

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.