Kausalya a/p M Pathmanathan & Anor v The Legal Representatives of Jamuna a/p Narayanan, deceased & Anor [2014] 2 MLJ 836

Court of Appeal (Putrajaya)

Polygamous Marriage in Hindu Law

2.     The marriage of the Deceased and their mother (PW2) was allegedly solemnised on 20 December 1975 at the Thiru Murugan Alayam Temple in Kuala Krai, Kelantan.

3.     Thereafter, both the Plaintiffs and their parents (meaning the Deceased and PW2) lived together as a family.

4.     Subsequently, however, the Deceased was transferred to Penang. On being so transferred, he went back to live with the First Defendant and their children until his death.

5.     The Deceased died intestate on 15 December 2002 and letters of administration for his estate was taken out on 30 October 2003.

6.     Both the First Defendant, being the wife of the Deceased and the Second Defendant, being the son of the Deceased with the First Defendant, were named as administrators and beneficiaries of the estate of the Deceased in the letters of administration. There was no mention of PW2 and the Plaintiffs in the letters of administration.

7.     Sometime in 2010, the Plaintiffs discovered that they were not included as beneficiaries to the estate of the Deceased.

8.     They claimed that they are the lawful children of the Deceased, and as such should have been named as beneficiaries.

9.     They made attempts, through their solicitors, to contact the Defendants, so that they would be included in the list of beneficiaries to the estate of the Deceased. However, they alleged that the Defendants never reciprocated.

10.  They, therefore, filed a suit in the High Court seeking for an order that their names to be included in the list of beneficiaries; and also, for an order that the Defendants disclosed the value of all the assets of the estate of the Deceased.

11.  At the High Court, the First Defendant denied that the Deceased was ever married to PW2 or that the Plaintiffs are the children of the Deceased.

12.  She claimed that she was the only wife of the Deceased. As such, she refuted the claim of PW2 as being the Deceased’s second wife.

13.  She also testified that she had never communicated with PW2 during the lifetime of her husband, the Deceased.

14.  In addition, the Second Defendant was not duly served with the writ and statement of claim at the time of trial, as the Second Defendant was residing in Australia and could not be contacted although reasonable opportunity had been accorded to the Plaintiffs to serve the writ and statement of claim outside jurisdiction.

15.  On the day of the trial, the learned counsel for the Plaintiffs sought an adjournment until service of the writ and statement of claim could be made to the Second Defendant, but the learned High Court judge denied the request.

16.  As such, the learned judge proceeded with the trial against the First Defendant only.

17.  The trial judge arrived at the finding that Hindu law did not recognise polygamous marriages without any legal basis.

18.  The trial judge had not referred to any authority to support this view, besides referring to portions of the report, which were unclear as to the legal status of polygamous marriages under the Hindu law.

2.     Whether the Deceased and PW2 went through a marriage in accordance with the Hindu custom

(a)  The learned High Court judge took the view that there was no valid marriage between the Deceased and PW2 on the basis that the Hindu law does not recognise polygamous marriages.

(b)  It should also be noted that the trend of legislation in India has finally resulted in the Hindu Marriage Act 1955, which not only abrogates pure Hindu Law but also states that no marriage between any two Hindus may be solemnised after the Act comes into force if one of them has a spouse living at the time of the marriage.

(c)  Hence, the Plaintiffs’ counsel submission that in there is recognition of second marriages amongst Hindus in the Hindu law is rather misconceived.

(d)  This is because according to the High Court, in the Hindu law, second marriages are not recognised. In fact, marriages are regarded as monogamous and polygamy is never the norm even in ancient Hindu society.

(e)  However, the Court was unable to agree with the learned High Court judge because the Court found that the learned High Court judge arrived at such a finding without any legal basis.

(f)    In addition, the Court emphasized that the learned High Court judge did not refer to any authority to support their view that Hindu law does not recognise polygamous marriage.

(g)  In fact, the learned High Court merely referred to two pages of the Report on the Royal Commission on non-Muslim Marriage and Divorce Law dated 15 November 1971 and was unable to show where in the report that clearly stated a Hindu marriage is monogamous in nature, or that polygamous marriages are prohibited.

(h)  On the contrary, the Court found that polygamous marriage is recognised under the ancient Hindu law.

(i)     The Court was guided in this regard by the Indian Supreme Court decision of Smt Parayankandiyal Eravath Kanapravan Kalliani Amma and Others v K Devi and Others AIR 1996 SC 1963, in which the Court, in deciding the validity of a second marriage contracted by a Hindu during the subsistence of the first marriage, referred extensively to several ancient Hindu law texts and concluded that, while monogamy prevailed in Hindu society, polygamy was allowed under the Hindu law, but was discouraged by society.

(j)     The passage clearly implied that monogamy is a requirement of the supreme law of conjugal duties. However, it should be noted that the sages did not forbid polygamy, which was common at the time, but their legislation tended to discourage it by imbuing the first marriage with religious significance.

(k)   It is clear from the preceding that, while polygamy was not permitted, a second marriage was permitted in a limited sense, and only under strict conditions, such as when the object of marriage failed completely.

(l)     Aside from these considerations, there is nothing in the Hindu Law as it applied to marriages prior to the enactment of the Hindu Marriage Act 1955, that made a male Hindu’s second marriage during the lifetime of his previous wife void.

(m)   As a result, if a second marriage occurred, children born of such a marriage were not illegitimate and had equal inheritance rights, provided the marriage was not otherwise invalid.

(n)  Thus, the Court determined that the same position must apply in Malaysia for polygamous marriages in Hindu society.

(o)  The Court also found that polygamous marriages based on Hindu law would be valid only if they were performed prior to the Law Reform (Marriage and Divorce) Act 1976 (Act 164), and not after.

(p)  Section 4 of the Law Reform (Marriage and Divorce) Act 1976 (Act 164) is clear on this and it reads: –

“Subsisting valid marriages deemed to be registered under this Act and dissoluble only under this Act

(1) Nothing in this Act shall affect the validity of any marriage solemnized under any law, religion, custom or usage prior to the appointed date.

(2) Such marriage, if valid under the law, religion, custom or usage under which it was solemnized, shall be deemed to be registered under this Act.”

2.     Validity of Marriage between the Deceased and PW2

(a)  The learned High Court judge held that the Plaintiffs failed to adduce sufficient evidence to establish a valid marriage between the Deceased and their mother.

(b)  The learned High Court judge was of the view that, except for PW2’s testimony, there were no independent witnesses called to corroborate PW2’s evidence.

(c)  The learned judge also held in the judgment that no marriage certificate or any documentary evidence was adduced to support the finding of a marriage between the Deceased and PW2.

(d)  In contrary, the Court was unable to agree with the learned High Court judge.

(e)  This is because, the learned High Court judge had placed undue importance on the fact that PW2 failed to produce a marriage certificate or any other documentary proof that the marriage was performed at the temple.

(f)    The Court affirmed that it is common law that the Plaintiff has only the burden of demonstrating that there was a marriage ceremony followed by cohabitation before a presumption in favour of a valid marriage is triggered in proving a valid marriage.

(g)  In this respect, the Court quote Sir Jocelyn Simon P in the case of Mahadervan v Mahadervan [1962] 3 All ER 1108 (at p 1117 of the judgment), where His Lordship held that: –

“If it is not presumptuous to say so, it seems to me that ‘decisive’ might be said to beg the question: what is the weight of evidence which is required to decide the issue? In my view, where a ceremony of marriage is proved, followed by cohabitation as man and wife, a presumption is raised which cannot be rebutted by evidence which merely goes to show on a balance of probabilities that there was no valid marriage: it must be evidence which satisfies beyond reasonable doubt that there was no valid marriage. In other words, the presumption in favour of marriage in such circumstances is of the same weight as the presumption of innocence in criminal and matrimonial causes. A jury would have to be directed that to displace the presumption, the husband must prove his case in such a way that they can feel sure that there was no marriage.”

(h)  In the present case, PW2 in her evidence had testified that she and the Deceased were married at the Hindu temple in Kuala Krai, Kelantan. The Defendants did not challenge this in cross-examination. As such, the evidence is deemed admitted by the Defendants.

(i)     The Court decided that there is no reason why the evidence needs to be corroborated. Hence, the Court found that PW2 to be a credible witness as her evidence was consistent throughout the trial.

(j)     There is no requirement in law that the Plaintiffs have to adduce a marriage certificate to corroborate the evidence of a marriage ceremony, or that independent witnesses who were present at the wedding should be called to testify in Court.

(k)   On the contrary, as the Court pointed out earlier in this judgment, Section 4(2) of (Act 164) deems such marriage to be registered under the Act.

(l)     In addition, the Court found that PW2’s evidence has sufficiently established that the Deceased and PW2 cohabitated together after the marriage because when PW2 was asked on the issue of cohabitation, PW2 answered that she lived in Johor Bahru with the deceased for a few years before the Deceased was transferred to Penang.

(m)   This evidence clearly showed that the Deceased and PW2 were cohabitating as husband and wife after their marriage and the same evidence remained unchallenged by the Defendants.

(n)  Based on PW2’s evidence, the Court concluded that there was a marriage ceremony followed by cohabitation between the Deceased and PW2.

(o)  As a result, the presumption in favour of a valid marriage, as held in Mahardevan’s case, is triggered, which means that the Deceased’s marriage to PW2 was valid, and the Defendants failed to rebut this presumption.

(p)  In a nutshell, the Court determined that the Deceased and PW2’s marriage was valid, and that the Plaintiffs, as the offspring of that marriage, are legitimate children and beneficiaries of the Deceased’s estate.

1.      According to Section 5 of the Law Reform (Marriage and Divorce) Act 1976 (Act 164), those who married under this act are prohibited from contracting other marriage during the continuation of other marriage, implying that polygamous marriage is prohibited.

2.     Furthermore, several ancient Hindu law texts concluded that, while monogamy prevailed in the Hindu society, polygamy was legal but discouraged by society.

3.     However, polygamous marriages based on Hindu law apply if the marriage is solemnised prior to the Law Reform (Marriage and Divorce) Act 1976 (Act 164), and not after.

4.     To conclude, if a second marriage occurred prior to the Law Reform (Marriage and Divorce) Act 1976 (Act 164), children born of such a marriage, if not otherwise invalid, were not illegitimate and had equal inheritance rights.