JUDGMENT P. Narayana Pillai, J. 1. The validity of a Nair marriage, of parties governed by the Travancore Nair Act, II of 1100 M.E., arises for consideration in this appeal. 2. The appeal arises from a suit for recovery of possession of properties. The properties are those included in schedules A to G annexed to the plaint. They belonged to one Narayanan Nair who died intestate on October 13, 1970. On August 21, 1951 he married the 7th defendant. Plaintiff who is his only child through her was born on October 16, 1952. On September 14 next year he contracted a second marriage. That was with the first defendant. Defendants 2 to 6 are Narayanan Nair children born through her. According to the plaintiff as Narayanan Nair second marriage was during the subsistence of the first marriage the second marriage is invalid and so plaintiff and the seventh defendant are solely entitled to his properties. Defendants 1 to 6 are now in possession of his properties. Plaintiff claims recovery of possession of these properties on behalf of herself and her mother. According to defendants 1 to 6 Narayanan Nair did not marry at all the seventh defendant and plaintiff is not his child. The trial Judge dismissed the suit finding that Narayanan Nair had not validly married the seventh defendant and that the plaintiff was not his legitimate child. 3. Section 8 of the Nair Act of 1100 provides that a subsequent marriage of a male or female during the continuance of a prior marriage shall be void. So the marriage of Narayanan Nair with the first defendant would be void if he had previously married the seventh defendant. 4. The first question to be considered is whether the marriage of Narayanan Nair with the seventh defendant is true. Plaintiff and first defendant were examined as P.W. 1 and D.W. 3 respectively. Each of them spoke in support of her case. Both of them were not present at the time of Narayanan Nair first marriage with the seventh defendant. That marriage took place at Ratnavilas between 3 O'clock and 4 O'clock on the night of October 1951. Besides the seventh defendant, who was examined as D.W. 2, and her mother, P.W. 2, Narayanan Nair brothersD.W. 1 and P.W. 6 and two neighbours P.Ws. 3 and 4 all of whom attended that marriage, also spoke about it. That marriage took place at Ratnavilas between 3 O'clock and 4 O'clock on the night of October 1951. Besides the seventh defendant, who was examined as D.W. 2, and her mother, P.W. 2, Narayanan Nair brothersD.W. 1 and P.W. 6 and two neighbours P.Ws. 3 and 4 all of whom attended that marriage, also spoke about it. D.W. 1 is the eldest brother of Narayanan Nair. He is an Ex M.L.A. and was a Councillor of the Alleppey Municipality for about 18 years. P.W. 6 is a practising Advocate. 5. The facts come out in the evidence of these witnesses are as follows:Narayanan Nair belonged to an aristocratic and influential Nair tarwad in Alleppey. In 1937 or 1938 when he was only 32 he partitioned away from the tarwad and thereafter acquired considerable wealth by conducting banking business and such other business. He lived alone as a bachelor in his own building called Lakshmivilas in Thundathil property. The properties on the western and eastern sides of Thundathil property also belonged to him. Ratnavilas where his first marriage took place was in the western property. Narayanan Nair got delivery of possession of that property on January 22, 1951 in execution of a decree he obtained against one Raman Pillai, father of the seventh defendant. Raman Pillai had died about two months before the delivery was effected. In the buildings in the properties on the western and eastern sides of Lakshmivilas lived two unmarried girls, in the western building the seventh defendant and in the eastern building the first defendant. The seventh defendant was then only 17 and was a student in the High school. She lived in the western house with her mother, P.W. 2 and uncle, Before shifting to the eastern house the first defendant and her mother were staying in a house about one furlong away. But the first defendant knew Narayanan Nair even before she with her mother shifted residence to the eastern building. 6. For about two or three years prior to 1951 Narayanan Nair and the seventh defendant were in love. He used to request her to come to his house and she used to decline that request. About 2 or 3 months prior to their actual marriage he gave her assurance that he would marry her. 6. For about two or three years prior to 1951 Narayanan Nair and the seventh defendant were in love. He used to request her to come to his house and she used to decline that request. About 2 or 3 months prior to their actual marriage he gave her assurance that he would marry her. From casual talk with her he came to know that she used to sleep in the western room in Ratnavilas. On August 21, 1951 by 12 O'clock in the night he managed to enter that room. After he entered it when he and the seventh defendant were engaged in conversation P.W. 2 and her brother, Raghavan Pillai, were roused from their sleep. Raghavan Pillai flashed a torch light and identified Narayanan Nair as the person who had at an untimely hour entered the house. Then he found fault with Narayanan Nair for having entered the room where his unmarried niece was sleeping and told him that he had brought disgrace to the family. After that he demanded Narayanan Nair marrying the seventh defendant without any delay. When Narayanan Nair pleaded for time till day break Raghavan Pillai was not agreeable to grant that request. Then Narayanan Nair agreed to marry the seventh defendant that night itself. Hearing the talk in the house during night neighbours gathered. Thereafter persons were sent to fetch Narayanan Nair brothers and respectable persons in the locality. P.W. 3, a contractor, whose house was only one furlong away, and P.W. 4, the Secretary of the Shops and Establishments Employees Union at the place, whose house was only less than a furlong away, were among those who came by invitation. P.W. 3 came even before Narayanan Nair brothersD.W. 1 and P.W. 6 came there. The presence of P.Ws. 3 and 4 at the time was spoken to by P.W. 2 also. When P.W. 3 came to Ratnavilas he saw Narayanan Nair there in a happy mood. It was by 2 O'clock that the persons who were sent for fetching D.W. 1 reached his house, about two miles away, and told him about the matter. It was with his mother that D.W. 1 lived in that house. His brother, P.W. 6, also happened to be there at that time. P.W. 1 called P.W. 6 and they together went in P.W. 6 car to Ratnavilas. It was with his mother that D.W. 1 lived in that house. His brother, P.W. 6, also happened to be there at that time. P.W. 1 called P.W. 6 and they together went in P.W. 6 car to Ratnavilas. As P.W. 2 and the seventh defendant were poor D.W. 1 considered the alliance of Narayanan Nair with the seventh defendant as not befitting the social status of himself and his tarwad and wanted at any cost to prevent that marriage. On their way to Ratnavilas D.W. 1 had a talk about that matter with P.W. 6 who fully supported him. When they reached Ratnavilas they found that their brother Kesavan Nair, had already reached there. Persons present there told D.W. 1 that Narayanan Nair had agreed to marry the seventh defendant. D.W. 1 called Narayanan Nair from the room in Ratnavilas where he was sitting, found fault with him for his conduct and tried to dissuade him from marrying the seventh defendant. But all that was of no avail. Narayanan Nair stood firm, told D.W. 1 that he had decided on the marriage and requested him to extend his co-operation for the marriage. When D.W. 1 attitude was found to be not helpful Narayanan Nair sternly told him that he need take part in the marriage only if it was convenient for him. D.W. 1 then said that if Narayanan Nair who was old and experienced had decided on that marriage he had nothing more to say. After all that Narayanan Nair made obeisance to his elders and others present there, sat in front of a lighted brass stard-lamp and in the presence of all present solemnly presented cloth in a plate to the seventh defendant. There was then full-throated shout, Kurava, by the women present there. After that Narayanan Nair and the seventh defendant retired to the room in Ratnavilas set apart for them. Raghavan Pillai wanted D.W. 1 to attest the marriage form to be signed by Narayanan Nair and the seventh defendant. But D.W. 1 was not agreeable to it as he disliked the alliance itself. He went back to his house with P.W. 6 as soon as the marriage ceremony was over. He told his mother about the event only after day-break. Narayanan Nair and the seventh defendant signed in the marriage form. P.W. 4 was then near them. But D.W. 1 was not agreeable to it as he disliked the alliance itself. He went back to his house with P.W. 6 as soon as the marriage ceremony was over. He told his mother about the event only after day-break. Narayanan Nair and the seventh defendant signed in the marriage form. P.W. 4 was then near them. Narayanan Nair and the seventh defendant lived as husband and wife after the marriage. Plaintiff was born to them in the fourteenth month after the marriage. Narayanan Nair made presents of money and paddy to the seventh defendant on the birth of the child. As Narayanan Nair insisted on the seventh defendant continuing her studies in the school even after she gave birth to plaintiff she continued her studies in the High school for a few months more and thereafter discontinued the studies. It was by then that Narayanan Nair turned his attention towards the first defendant. Finally he married her also. That marriage was also attended by D. W. 1 and P. Ws. 3 and 6. While Narayanan Nair first marriage was attended by about 40 persons his second marriage was attended by about 100 persons. Invitation letters were not sent for the second marriage also. D. W. 1 was told about the second marriage only two days before it actually look place. After, the second marriage the relationship of Narayanan Nair with the seventh defendant became strained. But he continued to pay money to the plaintiff for her education and other needs. 7. The circumstances relied upon to disbelieve the evidence of the witnesses who gave evidence in support of Narayanan Nair first marriage with the seventh defendant can now be considered. It is said that as the relationship between Raman Pillai, the father of the seventh defendant, and Narayanan Nair was strained on account of the litigation involving the western property where Ratnavilas was situated it was not likely that Narayanan Nair would have married the seventh defendant. Decrees in that suit was passed in favour of Narayanan Nair on October 16, 1950. On the 21st of next month Raman Pillai died. Delivery of possession of property pursuant to the decree was made only on January 22, 1951. Raman Pillai was a person who had several wives. When asked whether their number was more than 10 P. W. 2 said that it may be so. On the 21st of next month Raman Pillai died. Delivery of possession of property pursuant to the decree was made only on January 22, 1951. Raman Pillai was a person who had several wives. When asked whether their number was more than 10 P. W. 2 said that it may be so. P. W. 2 was only one of them. So the seventh defendant and P. W. 2 could not have had much attachment for Raman Pillai. Raman Pillai was not alive also when Narayanan Nair married the seventh defendant. Further it is not unusual to find a person getting an amoured of his enemy daughter. So the facts that there was a litigation between Narayanan Nair and Raman Pillai and that the former took delivery of possession of the western property do not improbabalise Narayanan Nair marriage with the seventh defendant. 8. It is true that the report regarding delivery of possession of the western property shows that as regards Ratnavilas it was vacant possession that was given. But there is nothing in it to show that P. W. 2 and her children were impleaded as Narayanan Nair heirs or that they were aware of the delivery on the property. On the other hand the evidence in the case shows that P. W. 2 and her children continued to reside there even after the alleged delivery D. W. 5 was the Advocate who appeared in that case for Narayanan Nair. When asked as to whether the statements in the delivery report that none was residing in Ratnavilas was true he said he could not say whether that statement was true or not. Assuming that the delivery was real even then Narayanan Nair may have allowed the girl he loved and her mother to continue residence there. In fact the evidence is like that. Further the marriage took place only several months after the alleged delivery. So the statement in the delivery report that none was residing in Ratnavilas on the date of the delivery also does not improbabalise the subsequent marriage by Narayanan Nair of the seventh defendant in Ratnavilas. 9. It is then said that if really Narayanan Nair had first married the seventh defendant it was not likely that P. W. 6 and D.W. 1 would have attended his second marriage with the first defendant. 9. It is then said that if really Narayanan Nair had first married the seventh defendant it was not likely that P. W. 6 and D.W. 1 would have attended his second marriage with the first defendant. There is nothing improbable in that because the relationship between Narayanan Nair and his brothers was very cordial. 10. D.Ws. 4 and 5 were examined by the first defendant to show that they also attended Narayanan Nair second marriage with the first defendant. The plaintiff does not dispute the fact that Narayanan Nair married the first defendant. Her only case is that that was after his first marriage with the seventh defendant. 11. The 9th defendant is Narayanan Nair sister. She attended his second marriage but not the first. It is on said that she being his only sister if the first marriage had actually taken place she would have attended it. She was living away and as the first marriage had to be conducted in a hurry she could not attend it. Even the mother knew of it only after the event. 12. It is said that if Narayanan Nair marriage with the seventh defendant was true it was not likely that after knowing about his second marriage the seventh defendant would have kept quite and not taken steps to get him prosecuted for bigamy and to get maintenance from him. D. W. 2 has given an explanation for that conduct on her part. She said that she had, more faith in winning her husband by love than by hatred. 13. It is then said that after Narayanan Nair death about C schedule item No. 4 there was a litigation between D. W. 1 on the one side and plaintiff and defendants 1 to 7 on the other, that in that suit plaintiff and the seventh defendant supported D. W. 1 and so D. W. 1 evidence about Narayanan Nair first marriage was to favour the plaintiff and spite defendants 1 to 6. Even according to defendants 1 to 6, seventh defendant and the plaintiff were not in possession of C schedule item No. 4 after Narayanan Nair death and so the position the plaintiff and the seventh defendant took up in that suit was not inconsistent with the real position that they were not in possession of C schedule item No. 4. Even according to defendants 1 to 6, seventh defendant and the plaintiff were not in possession of C schedule item No. 4 after Narayanan Nair death and so the position the plaintiff and the seventh defendant took up in that suit was not inconsistent with the real position that they were not in possession of C schedule item No. 4. As D.W. 1 was the eldest brother of Narayanan Nair whom everyone in the tarwad respected plaintiff and the seventh defendant had no reason to suspect that he would put forward a claim against Narayanan Nair heirs which was not true. Therefore from the mere fact that the position that plaintiff and seventh defendant took up in that suit was one favourable to D.W. 1 it cannot be taken that to show his gratitude for that D.W. 1 would have come and sworn in the manner he did in the present suit. Further as D.W. 1 was a person who felt indignant at Narayanan Nair marriage with the seventh defendant it is difficult to believe that he would have come later and sworn in public in support of that marriage and publicly accepted the seventh defendant as his sister-in-law and the plaintiff as his niece unless that marriage had actually taken place. 14. P.W. 6 is an advocate. The only suggestion made in his cross-examination to disbelieve him was that the first defendant had declined a request he had made to her for loan of some money after Narayanan Nair death. He denied that suggestion. There is no reliable evidence to show that he had actually asked the first defendant for a loan. 15. No doubt P.W. 3 was a friend of 7th defendant uncle, Raghavan Pillai. But that does not show that he is not a truthful witness. 16. P.W. 4 being a labour leader had after Narayanan Nair death interfered in the settlement of a dispute between the 1st defendant and one Gopala Pillai, an employee in Narayanan Nair bank, but that was at the instance of the 1st defendant. 17. The fact that even after the second marriage Narayanan Nair used to give money of and on to the plaintiff for her expenses has clearly come out in the case. Besides the plaintiff, her mother and grandmother, P.W. 5, a former employee in Narayanan Nair bank, also spoke about it. 18. 17. The fact that even after the second marriage Narayanan Nair used to give money of and on to the plaintiff for her expenses has clearly come out in the case. Besides the plaintiff, her mother and grandmother, P.W. 5, a former employee in Narayanan Nair bank, also spoke about it. 18. No doubt there are some discrepancies in the evidence of P.Ws. 2 and 3 regarding the actual cloth that Narayanan Nair presented to the 7th defendant at the time of marriage, whether it was a dhoti or a dhoti and a neriathu and the evidence of P.Ws. 2, 3, 4 and 6 and D.W. 2 regarding the shouting by persons present at the marriage, whether it was only kurava by women or whether there was Arpuvili by men also. But these are all very minor details about die marriage and the witnesses were speaking from memory about these matters which took place long before. These discrepancies are only discrepancies of truth. They cannot be characterised as badges falsehood. None of the circumstances relied upon on behalf of defendants 1 to 6 is sufficient to discredit the evidence of the witnesses who gave evidence in support of Narayanan Nair marriage with 7th defendant. 19. Certificate issued from the Government High School to plaintiff who was a student in the school has been produced in the case. It was proved through P.W. 1 but by some omission it was not marked. It shows that Narayanan Nair was plaintiff father and that she was born on October 16, 1952. 20. Ext. X-1 is the marriage register statutorily maintained in the Taluk Office. It contains the initials of the Tahsildar as early as on November 6, 1951. Serial No. 188 in that register, copy of which is Ext. A-3, contains the details regarding Narayanan Nair marriage with the 7th defendant. The marriage is mentioned as having taken place in Ratnavilas on August 21, 1951. Those entries were made prior to the earliest date on which the Tahsildar initialled in it. 21. D.W. 1 and D.W. 6 are completely dependable witnesses. The evidence of P.Ws. 2, 3, 4 and 6 and D.W. 2 about Narayanan Nair first marriage is also reliable. These witnesses corroborate each other on all material particulars regarding Narayanan Nair first marriage with the 7th defendant. Their evidence is also corroborated by the circumstances brought out in the case. D.W. 1 and D.W. 6 are completely dependable witnesses. The evidence of P.Ws. 2, 3, 4 and 6 and D.W. 2 about Narayanan Nair first marriage is also reliable. These witnesses corroborate each other on all material particulars regarding Narayanan Nair first marriage with the 7th defendant. Their evidence is also corroborated by the circumstances brought out in the case. The conclusion is irresistible that Narayanan Nair married the 7th defendant on August 21, 1951, that the plaintiff is their daughter and that she was born on October 16 1952. 22. That sends us at once to consideration of the validity of Narayanan Nair marriage with the 7th defendant. The trial judge held it to be invalid because for a valid Nair marriage besides presentation of cloth some other formalities had also to be complied with and it had not been proved that they were complied with in the case of Narayanan Nair marriage with the 7th defendant. Those formalities were consent of parties, delivery of horoscope, selection of an auspicious day, sending of a letter by the bridegroom party to the bride party of the fixation of the auspicious day, bridegroom procession to the bride's house, reading of portion of the Ramayana or other sacred book, placing of well-lit lamps and nirapara, distribution of presents to Brahmins, wife serving husband with sweet rice and giving feast to guests and poor. To them counsel here for defendants 1 to 6 added one more and that was performance of thalikettu. The question is whether anything more than open solemnisation by presentation of cloth was necessary to make the marriage valid. 23. Marriage as it existed among Nairs was called sambandham meaning binding or joining together. Mr. O. Chandu Menon in his memorandum, which forms enclosure C in the report of the Malabar Marriage Commission, said about sambandham as follows: "I think the Malayalam word Sambandham in its peculiar sense, as used throughout Malabar proper, Cochin, and parts of Travancore, conveys the same idea as the word marriage etymologically conveys in the English language, viz. the union of man and woman as husband and wife'. Sambandham is the principal Malayalam word for marriage as Vivaham is in Sanskrit. Whatever may be the basis of the Sambandhams of the Marumakkathayam Nairs there can be no doubt that the idea which the word conveys to a Malayali is the same as the word Vivaham. the union of man and woman as husband and wife'. Sambandham is the principal Malayalam word for marriage as Vivaham is in Sanskrit. Whatever may be the basis of the Sambandhams of the Marumakkathayam Nairs there can be no doubt that the idea which the word conveys to a Malayali is the same as the word Vivaham. * * * * The Podamuri, Vastradhanam, Uvamporuka, Vidaram Kyruka etc. are local expressions hardly understood beyond the localities in which they are used, but there would be hardly a Malayali who would not readily understand what is meant by Sambandham Todunguka. The meaning of this phrase which means to marry is understood throughout Keralam in the same way and there can be no ambiguity or mistake about it. It is thus found that Sambandham is the principal word denoting marriage among Marumakkathayam Nairs. It will also be found, on a close and careful examination of facts, that the principal features of this Sambandham ceremony all over Keralam, are in the main, the same. As there are different local names denoting marriage, so there may be found local variations in the performance of the ceremony. But the general features are more or less the same.� 24. Sambandham is distinct from Thalikettu Kalyanam, also known as Kettukalyanam. Thalikettu is the placing around the neck of the bride the string or thread called thali with the wedding jewel called minnu on it. In some places the piece of gold itself is called thali and Thalikettu is the tying of that gold piece around the girl neck. In some places the thread with thali on it is called mangalyasuthram, mangalyam meaning thali and suthram meaning string or thread. 25. Thalikettu created no relation of husband and wife. It was considered only as a ceremony capacitating the girl to marry or making her marriage-worthy. It had no religious or legal side. It was performed before the girl attained puberty, usually before the eleventh year. In some parts of Kerala the tying of thali used to be done by Brahmins. 26. The Travancore Marumakkathayam Committee had this to say about thalikettu in para 10 of its report. "The Talikettu ceremony has been referred to by a few witnesses as an essential rite in connection with Sambandham. This ceremony is described in pages 352 to 356 of Volume II of the Travancore State Manual. 26. The Travancore Marumakkathayam Committee had this to say about thalikettu in para 10 of its report. "The Talikettu ceremony has been referred to by a few witnesses as an essential rite in connection with Sambandham. This ceremony is described in pages 352 to 356 of Volume II of the Travancore State Manual. It is true that this is a ceremony which is usually performed on every Nair girl before Sambandham. But the fact that the rite is performed before the girl reaches puberty and that the relationship of the person who ties the Thali is severed at the close of the ceremony by the emblematic tearing of a piece of cloth (Kacha), and that he has no right to cohabitation with the girl, clearly show that the ceremony is not a marriage in any sense of the word.� 27. Para 32 of the Report of the Malabar Marriage Commission shows that the witnesses examined by it characterised Kettukalyanam as a "mock marriage", fictitious marriage, meaningless ceremony, an empty form�, ridiculous farce, an incongruous custom�, pretence� and a waste of money and a device for becoming involved in debt�. In the Travancore Census Report at page 266 it is stated that Kettukalyanam oftentimes exhausted the earnings of a life-long labour. 28. There was some controversy as to whether sambandham itself was a valid marriage. Unlike Hindus who belonged to the Aryan stock Nairs belonged to the Dravidian stock. Their customs and manners were entirely different. The law that was suitable for the Aryans was not suitable for the Dravidians. Although the Nairs were brought within the Hindu fold they did not follow the Hindu law. In their civil life they followed their own usages and customs, some of which like those relating to marriages were contrary to principles of Hindu law. 29. East coast Brahmins who followed Hindu law and who practised polygamy, and Nambudiries who followed Hindu law modified by certain customs freely entered into sambandham union with Nair ladies. As regards East coast Brahmins they could freely enter into such alliance with Nair ladies without fear of any obligation being attached to that alliance because there could be no marriage in the Hindu law sense between a Brahmin and a Nair. As regards East coast Brahmins they could freely enter into such alliance with Nair ladies without fear of any obligation being attached to that alliance because there could be no marriage in the Hindu law sense between a Brahmin and a Nair. After entering into marital alliance with Nair ladies when confronted with marital obligations, without any compunction and unabashed, they used to plead that the marriage was invalid citing verses of Manu who said: for him who drinks the foam of the lips of a sudra female or whose body feels her breath or who has a child by her, there is no expiation declared by law.� and of some other similar sages in support of their plea and that used to find favour with some courts also. Among Nambudiris, whether as a measure of economy or not, the eldest brother alone usually married and the others consorted with Nair ladies. For the origin of this rule the Nambudiris invoked the authority of Sankaracharya. But in the Anacharams propounded by him he was only recording observances he found in Kerala which were at variance with the practice in other parts of the country. Nambudiries also relied upon two books, Keralolpathi and Kerala Mahathmyam which gave some account of Nair institutions, for entering into sambandham union with Nair ladies with only rights and no obligations. About that Mr. K. P. Padmanabha Menon in his Memorandum, which forms Enclosure B in the Report of the Travancore Marumakkathayam Committee, says: 'Coming now to Nambudiries who claim a right to cohabit with Nair females, I can see no difference between them and the East Coast Brahmins or Pattars, except that they appeal to the Keralamahathmyam and long standing custom as authorising them to enjoy the privilege of debauching Nair women. The Keralamahathmyam, Chapters 49 and 50, no doubt, expressly sanctions the practice and attributes it to divine ordinance. It says that Parasurama, who is accepted by Hindus to be an incarnation of Vishnu, brought eighteen celestial maids from Indra heaven. Coming to Vrishabhadripura (Trichur), he saluted all the Brahmins assembled at the Mandapam of Sreemoolasthanam, and thus spoke to the learned Yogachariar (preceptor of the Nambudiris): I have brought from the celestial regions young and beautiful maidens for the constant sexual intercourse of all the Brahmins, O! superior Brahmins. Coming to Vrishabhadripura (Trichur), he saluted all the Brahmins assembled at the Mandapam of Sreemoolasthanam, and thus spoke to the learned Yogachariar (preceptor of the Nambudiris): I have brought from the celestial regions young and beautiful maidens for the constant sexual intercourse of all the Brahmins, O! superior Brahmins. Such of you as are not householders, may constantly have sexual intercourse with these beautiful women for the sake of your personal enjoyment as well as for the purpose of procreation"� (slokas 21 and 22). Rama settled the Deva woman with her six maids in the midst of the town of Vrishabhadri and gave them six houses to carry on their amorous alliances to the enjoyment of the Brahmins, saying May you all, O best of Brahmins! with the exception of eldest sons, constantly have sexual intercourse with Subhaga and her maids so that no wicked Sudra may be born in my land. The Brahmins may have their sexual cravings satisfied as freely as the Devas do in heaven, viz., one woman may be enjoyed by three or four persons in common; and the Brahmins shall not be amenable to the imputation of adultery; for are not the celestial beauties so enjoyable in heaven? Hence no Brahmin shall be guilty of adultery in my land, O superior Brahmins! and let the celestial women remain in my Keralam land cohabiting with Brahmins according to their pleasure "� (slokas 23-30). Rama is said to have proceeded towards the north and settled the woman of the Gandharva tribe with her six maids in the town of Lekshmipuri (Thali parambu), with similar injunctions as those proclaimed at Trichur (Chapter 50 slokas 2-7), He then settled the woman of the Rakshasa tribe with her six maids, who were in the prime of their youth, in Ambica town (Mukambi) for the daily enjoyment of the Brahmins (slokas 8-10). In Chapter 48, Parasurama is said to have ordained that among the folk of this land, in this my country, among all castes, among all Samanthas and among all other women likewise, let there be no chastity. But, as for the wives of Brahmins and of Dwijas (twice-born classes) let the rule of chastity stand in regard to them; with other residents let there be no rule of chastity. But, as for the wives of Brahmins and of Dwijas (twice-born classes) let the rule of chastity stand in regard to them; with other residents let there be no rule of chastity. The Keralamahathmyam was cited as an unerring authority on Malabar law and custom by many a learned witness before the Malabar Marriage Commission, without stopping for a moment to enquire into the authorship, or as to when it was written, much less to ascertain its authority over the land. Its authorship is uncertain."� 30. The validity of Sambandham as valid marriage directly arose for consideration in Narayanan Narayaroo v. Kunjikutty Kutty 20 T.L.R.65, a Full Bench decision of the Travancore High Court in a suit for maintenance by a lady belonging to a respectable Nair tarwad in Thiruvalla for herself and her children against her husband who was a Malabar Brahmin. The Malabar Brahmin admitted the Sambandham but denied the liability to maintain the wife and children. Maintenance to the children was granted by Govinda Pillai and Hunt, JJ. but refused by Padmanabha Iyer, J. in his dissenting judgment. While Govinda Pillai, J. said that such unions were looked upon by the community as sacred as marriage among other classes, that the union between a Nambudiri Brahmin and a Nair female was sanctified by the practice of a thousand years, that both parties to such a union considered it as legitimate and proper and that it was fit for legal recognition, Hunt, J. said that it was a matrimonial union recognised by custom and was a valid marriage in law. According to Padmanabha Iyer, J. it was not a valid marriage at all, 31. Mr. K. P. Padmanabha Menon in his memorandum, Enclosure B in the report of the Travancore Marumakkathayam Committee, has commented thus about that decision: Both Govinda Pillai and Padmanabha Iyer, JJ. tested the validity and legality of the union by the principles of Hindu law, forgetting for the moment that at least one of the parties to the union was not a follower of that law. The Nair wife was a follower of Marumakkathayam system which in no sense, forms part of sastric Hindu law. It is based wholly on immemorial usage and it was usage that was pleaded in justification of the validity and legality of the union. Mr. The Nair wife was a follower of Marumakkathayam system which in no sense, forms part of sastric Hindu law. It is based wholly on immemorial usage and it was usage that was pleaded in justification of the validity and legality of the union. Mr. Justice Hunt, who appears to have approached the question with a perfectly open mind, has pointed out in his judgment, rightly enough, that the chief difficulty Christian and Hindu writers have to contend with in discussing Malayalee marriages is the inherent prejudice or conservatism of men, to whom marriage is in the nature of a sacrament, approaching the subject on any other light but that and that alone. � 32. In his judgment Hunt,J. said: When a large and influential body of Christians and Hindus condemn the Marumakkathayam marriage system and declare that there is no such thing as marriage among Malayalis, it is but natural to find the leaders of thought among Malayalis concerting measures for legislative recognition of their customary marriages and to remove the slur cast upon their parentage. That the Malayalis challenge the opinion of those who condemn their marriage customs is evident from the fact that 245 Nair ladies signed petitions in favour of legislation and 387 against it whereas among the 4,800 other persons who signed petitions, there appears to be a small majority; in favour of legislation. Of these latter the bulk were men of education and were sensitive to the censure passed upon their marriage customs by their Christian and Hindu brethren. I must say that one position taken up in para 43 of the report by the Commissioners appears to me to bear out the observations I have already made namely the probable stand-point which the Commissioners took in approaching the validity of these marriages: The Brahmin has not the least objection to go through any formalities required by the scruples of the woman and her family, but he does not regard the connection as a marriage and no court of law would so regard it. If certain formalities do not constitute a legal marriage when the bridegroom is a Brahmin, how can precisely the same formalities constitute a legal marriage when the bridegroom is a Nair. If certain formalities do not constitute a legal marriage when the bridegroom is a Brahmin, how can precisely the same formalities constitute a legal marriage when the bridegroom is a Nair. I am not prepared to subscribe to this view; the Nairs stand on a different footing to the Brahmins and the validity of their customs does not depend upon the light in which the Brahmins regard them, whatever may have been the state of affairs when, during the twelfth century if tradition be true, the Brahmins first settled in Travancore. Mr. O. Chandu Menon whose opinion is cited at page 39 Wigram and Moore's Malabar Law and Custom says that the Pudamuri form of marriage is the highest and the most solemn and a full account of the ceremony is therein detailed. The ceremony is not a religious one nor is it contended that religion plays any part whatever in it. It is at best a civil contract though now-a-days every effort is being made to clothe it with a religious character.� 33. Mr. M. P. Joseph, who retired as Excise Commissioner in the former Travancore State, has in his book on Marumakkathayam Law said at pages 454 and 462: "In the pure Marumakkathayam system there was no recognition of husband and wife, father and child Marriage was not a recognized institution among Nairs." In saying so he was only echoing what Sir T. Muthuswamy Iyer who was President of the Malabar Marriage Commission and who was a Judge of the Madras High Court said in his memorandum and quoted in para 44 of the report of that commission; "The relation of husband and wife, or father and child, is not inherent in the conception of a Marumakkathayam family. The person that begot a child on a Marumakkathayam female was originally regarded as a casual visitor, and the sexual relation depended for its continuance on mutual consent."� That this view is not correct is clear from Mr. O. Chandu Menon memorandum, Enclosure C in the report of the Malabar Marriage Commission, and the report prepared by Dr. N. Kunjan Pillai, who was later Acting Dewan of Travancore, in the Census of India, 1931, Vol. XXVIII, Travancore, Part 1. Mr. O. Chandu Menon in his memorandum said: The Honourable Mr. O. Chandu Menon memorandum, Enclosure C in the report of the Malabar Marriage Commission, and the report prepared by Dr. N. Kunjan Pillai, who was later Acting Dewan of Travancore, in the Census of India, 1931, Vol. XXVIII, Travancore, Part 1. Mr. O. Chandu Menon in his memorandum said: The Honourable Mr. Sankaran Nair says in his speech that though the Nairs are Hindus by religion their marriages are performed without any religious rites. I must observe here that those who wish the change, including Mr. Sankaran Nair, do not wish it on account of a desire to infuse more religious elements in our marriages. The Bill has levelled down the sacred institution of marriage to a system of business-relation or ordinary contract, enforceable at law. It seems to me that the reason for stating at the outset of this speech that our marriages are performed without any religious rites was perhaps to make it appear that our present marriage system is more vulnerable in its constitution than it would have been if any religious basis was accorded to it. I do not, of course, mean to say that our marriage system is altogether a religious institution. We, Nairs of Malabar, have very little of Hindu religious rites in any of our ceremonies. All our ceremonies are devoid of Mantroms or Sacraments as we are prohibited from studying or repeating Vedas. But whatever may be the basis of our present marriage system or whether it has any religious recognition or sanction, I must state here my opinion that a vast majority of the people of Malabar remain perfectly satisfied with the present system and should feel very unhappy if any new law to regulate marriage is thrust upon them. It is always difficult to defend or justify the social and religious customs of Oriental nations according to the European notions of morality and theology. Many customs sanctioned by our law and usage and observed by us daily, appear to the Europeans extremely immoral and quite unjust according to their notions of morality. For instance, the Brahmins and Kshatrias who are said to have highly religious marriages have polygamy as an institution sanctioned by Hindu law, and from the Himalayas to Cape Comorin you could find no orthodox Hindu, who would disapprove of polygamy as an immoral institution. For instance, the Brahmins and Kshatrias who are said to have highly religious marriages have polygamy as an institution sanctioned by Hindu law, and from the Himalayas to Cape Comorin you could find no orthodox Hindu, who would disapprove of polygamy as an immoral institution. Now polygamy is looked upon as a very immoral and shameful custom by Europeans. The Hindus know this very well. Perhaps some of the English educated Hindus think of polygamy in the same way as the Europeans. Yet you will not find a single Hindu, whether English educated or not, who would agree to the view that because polygamy is permitted and practised, the Brahmin marriage system is an immoral or defective system. Likewise it will be difficult to find a Brahmin who would not feel horrified if he finds polyandry practised by a Brahmin woman. She and her paramour become out castes the moment they are found guilty of polyandry. They are condemned and put out of society and looked down upon by every Hindu with the greatest contempt and horror. Now to an European the polygamous husband appears as immoral and wicked a person as the polyandrous wife appears to a Brahmin. But the custom permits polygamy and therefore the Hindu practises it and does not feel at all ashamed at his conduct. Such is the force, the ancient customs and manners exercise over the minds of the oriental nations. I make these remarks simply to show that each nation values its own custom in respect of its marriage and other social and religious institutions independently of what other people think of them and to a certain extent each nation has got its own code of morality in respect of such institutions The general notion among the people who do not personally known Malabar customs and institutions, is founded upon the Nambudiri version of them and the Keralolpathi and the Kerala Mahathmyam. These two books that are supposed to give accounts of the Nair institutions are works of the Nambudiri Brahmins, who from interested motives, have always wished to make out that our women do not and need not practise chastity. These two books that are supposed to give accounts of the Nair institutions are works of the Nambudiri Brahmins, who from interested motives, have always wished to make out that our women do not and need not practise chastity. The evidence given by some of the Nambudiris themselves before us will, however, refute this doctrine and show that the practice was never been in accordance with it; but foreigners who wrote about Malabar in ancient times, had the Brahmin version only to depend upon and the two works above quoted, to consult. Hence, there is a general notion that we have no marriage system, but only concubinage accompanied with great laxity of morals. This notion must have, in the absence of evidence to the contrary, greatly influenced the High Court of 1869 (Madras High Court), in saying as they did, about our marriage system, but I am hopeful that if matters are put in their proper light, the High Court may change their view : From his speech, Mr. Sankaran Nair himself does not seem to be quite sure as to what was the binding character of the customary law of marriage among Nairs, before the High Court said in 1869 the relation to mere concubinage. There can however be hardly any doubt on the point, notwithstanding what the foreigners wrote about it on imperfect and absurd information they received from the great enemies of the Nairs the Nambudiri Brahmins and Nambudiri ridden Rajas and their people in the ancient days. To prove that the Nairs who were essentially a martial race and were highly sensitive about any breach of their marital rights, had a valid and binding form of marriage, innumerable instances may be quoted from the ancient writings of well-informed men, our old country ballads and many other sources available. But I will quote here only one instance at present. The British Commissioners of North Malabar once asked the Rajah of Chirakal to inform them what was the law on adultery among Nairs. In the reply, I understand from a credible source, will be found a statement from the Rajah to the effect that he who committed adultery with a Nair wife forfeited his life, that is that the husband had a right to kill the adulterer or the adulteress or both, on the spot, with impunity. In the reply, I understand from a credible source, will be found a statement from the Rajah to the effect that he who committed adultery with a Nair wife forfeited his life, that is that the husband had a right to kill the adulterer or the adulteress or both, on the spot, with impunity. To a martial race summary laws of this' nature suited better in those days than the elaborate hair-splitting Civil law. Our race has, I admit, degenerated since those days. The martial spirit is dead under a powerful foreign Government; but I think it was clearly the duty of British Courts to have examined and ascertained most carefully and thoroughly, the state of marital relations among Nairs, before deciding the question, whether we had a marriage system or not and even if they found that there was no uniformity in the custom of marriage etc., the Courts should have helped us by validating and upholding our present system, if they found it based on good moral principles and sanctioned by social usage Even, the great mass of evidence taken before us supports the view, that Nairs have a system of marriage recognised by custom.� 34. About Keralamahathmyam and Keralolpathi adversely commented upon by Mr. O. Chandu Menon, Mr. Justice Moore in his book on Malabar Law and Custom said at page 63: There are strong grounds for believing that they are forgeries dating from the closing of the eighteenth or the opening of the nineteenth century. , and at page 88 "As years passed, sometime about the opening of the nineteenth century, the Keralamahathmyam and Keralolpathi were concocted, probably by Nambudiris, and false and pernicious doctrines as to obligations laid on Nairs by divine law to administer to the lust of the Nambudiris, were disseminated abroad."� 35. In para 54 of his memorandum, Enclosure B in the Report of the Travancore Marumakathayam Committee, Mr. K.P. Padmanabha Menon said: It is unfortunate for us that the Keralamahathmyam does not touch us, or has to do anything regarding the Nairs of Travancore. For according to it, Parasurama, in settling his houris, stopped at Trichur and proceeded northwards, settling the Gandharva and Rakshasa maidens at Taliparambu and Moocambi and making a gift of them to the superior Brahmins of those localities to play with. For according to it, Parasurama, in settling his houris, stopped at Trichur and proceeded northwards, settling the Gandharva and Rakshasa maidens at Taliparambu and Moocambi and making a gift of them to the superior Brahmins of those localities to play with. We ought to be thankful to the god for not directing his attention to the south of Trichur and not giving us the benefit of the company of his celestial houris.� 36. Dr. N. Kunjan Pillai in the Census Report in paragraph 208 said: "Thalikettukalyanam and Sambandham are two forms of marriage which were prevalent till recently among all the marumakkathayam communities in Travancore. I say till recently, because under the influence of modern civilization and as a result of the work of social reformers, Nayars and Ilayas, the two most numerous and important marumakkathayam communities, have now practically given up the thalikettukalyanam or combined it with Sambandham. Other minor marumakkathayam communities are also showing a tendency to effect a similar reform so that before very long the institution of thalikettukalyanam may become extinct. The Travancore Census Report of 1901 contains a full description of these two forms of marriage. It is unnecessary, therefore, to describe them any further. The significance and relative importance of these two ceremonies require, however, elucidation. Fantastic interpretations have been put upon them in previous Census Reports and other publications. For example, Moore has propounded a theory in his Malabar Law and Custom, which is quoted at page 242 of the India Census Report of 1911. Moore thinks that the thalikettu ceremony bears a curious resemblance to the mock marriage to a god which is often performed when girls are dedicated to temple service and religious prostitution. The comparison of thalikettukalyanam to the dedication of girls to temple service is unfortunate. Girls dedicate to temple service are known to be professional prostitutes, but girls of marumakkathayam communities are not. There is as much fidelity among them as there is among the most orthodox makkathayam communities. The comparison of thalikettukalyanam to the dedication of girls to temple service is unfortunate. Girls dedicate to temple service are known to be professional prostitutes, but girls of marumakkathayam communities are not. There is as much fidelity among them as there is among the most orthodox makkathayam communities. The misconception about thalikettukalyanam and Sambandham has arisen from the opinions expressed by some learned Judges, mostly Brahmins, who, contrasting their own system of indissoluble marriage which does not admit of divorce under any circumstances, with the freedom which marumakkathayam men and women enjoy to dissolve marriage when they find that persons of incompatible temperaments have been united, a freedom now longed for by many women, and strongly advocated by some eminent men, in the most advanced countries like the United States of America, have declared on the strength of secondhand information, that thalikettukalyanam is a mock marriage and that Sambandham is only an alliance for concubinage. Thalikettu ceremony has no doubt degenerated into a mock marriage, but it is not a licence for prostitution; and Sambandham is true wedlock and not a hallmark of concubinage." One cannot say with any degree of accuracy when thalikettukalyanam was started and why it has been kept up so long in spite of its mockery. There are certain customs associated with it which go to show that it was once the real marriage and that circumstances compelled certain communities to resort to Sambandham and retain the other only as a relic of an earlier form. Among Nayars it is imperative that the boys who officiate as bridegrooms at thalikettukalyanam should belong to the same sub-caste as the girls. In recent times boys of higher castes, such as Thirumulpad and Brahmin, have also been permitted to perform this function, especially in North Travancore. But in South Travancore it has always been the practice that the boys and girls taking part in thalikettu ceremony should be of the same sub-caste. Strict endogamy was thus insisted upon in this form of marriage. The Nayars were formerly a military class. They formed the militia of the country. The loss of lives among their male population, caused by the warfare they were engaged in constantly, depleted their numbers, and consequently it must have become impossible for girls to get suitable husbands if the selection had been confined to the limited circle of their own sub-caste. They formed the militia of the country. The loss of lives among their male population, caused by the warfare they were engaged in constantly, depleted their numbers, and consequently it must have become impossible for girls to get suitable husbands if the selection had been confined to the limited circle of their own sub-caste. The necessity, therefore, arose for looking for suitors from among other sub-castes also. The community evidently sanctioned this custom, but insisted that though the men and women thus united may remain as husband and wife, they should not break the taboo on interdining, which was a corollary of strict endogamy. Restriction on endogamy, was relaxed, but restriction on interdining continued to be strictly enforced. As a result of this change one finds the curious circumstance, especially in North Travancore, of a man of a lower sub-caste and a woman of a higher sub-caste entering into marital relationship by Sambandham, but observing a strict taboo on interdining. That thalikettukalyanam was once the real form of marriage among Nayars is further corroborated by the fact that even in recent times, especially in South Travancore, when the man who officiated as the bridegroom to a girl at kettukalyanam ceremony dies, the latter is considered to be under pollution for three days. Such a custom would not have come into existence if kettukalyanam did not, at one time, confer the true relationship of husband and wife on the man and woman. Moore theory, that kettukalyanam was instituted under Brahmanical influence as an important sacrament anterior to polyandrous cohabitation is, therefore, unsustainable. Circumstantial evidence and existing customs, point to kettukalyanam having been the real marriage at one time; but when Sambandham had to be resorted to for widening the field for the selection of husbands, it degenerated into a mock marriage and became but a relic of an ancient custom.� 37. About the opinion of Sir T. Muthuswaray Iyer expressed in his memorandum annexed to the report of the Malabar Marriage Commission and the conduct of Brahmins in first entering into conjugal union with Nair ladies and then disclaiming responsibilities arising out of it Hunt, J. said in Narayanan Narayaroo v. Kunjikutty Kutty, 20 T.L.R. 65: "The Pudamuri form of marriage is the highest form of marriage known to Malayalis. To hold that it is no marriage would be to bastardise the whole of the Nair community in Travancore which according to the Census Report (1901) amounts to over half a million souls and I can never believe that the Nair members of the Malabar Marriage Commission ever meant to declare as their President did that Marumakkathayam was and still is destitute of the institution of marriage' but rather that the existing form of marriage should be strengthended by legislation and its present abuses removed. ... It is a notorious fact that there are a number of Brahmins in this country who enter into Sambandhoms with Nair women with the consent of the relatives of both parties accepting it as a lawful union and then when convenient deserting their Sudra wives and children screening themselves behind their caste barriers in order to repudiate their responsibilities. This is one of the crying evils of this land.� 38. Having discussed so much about the controversy regarding the validity of Sambandhom let us now revert to thalikettu to see how far it is a requirement of a Nair marriage. Thalikettukalyanam used to last four days and during those days there used to be gigantic feasts, sports, amusements and display of fireworks and illuminations. As this celebration was costly as a measure of economy advantage was taken of a single occasion in the course of 10 or 12 years to get thalikettu performed of all girls including infants in a tarwad. The conduct of Thalikettukalyanarn in grand form led to the ruin of many Nair tarwards and there was agitation to do away with it. In slow degrees Kettukalyanam lost its vitality, if it had any, and the Nair community successfully got rid of it. Instead the practice started of the bridegroom tying thali around the bride neck just before the actual marriage making the bride thereby marriage-worthy and then marrying her by presentation of cloth. In that sense thalikettu also is a common feature of a modern Nair marriage, but that does not mean that it has anything to do with the validity or legality of the marriage. 39. It was when Sambadham was prevalent among Nairs that attempts were made in the erstwhile Madras Province and Travancore and Cochin States at enactments regarding marriages for Marumakkathayees. 39. It was when Sambadham was prevalent among Nairs that attempts were made in the erstwhile Madras Province and Travancore and Cochin States at enactments regarding marriages for Marumakkathayees. In Madras the Malabar Marriage Act, 4 of 1896, was passed giving effect to the recommendations of the Malabar Marriage Commission. That Act sanctioned as a tentative measure a system of registration with the formal declaration by both the parties before the Registrar. It was only a permissive provision. It was a mode of marriage in addition to the previously existing customary mode of Sambandham. So parties could in order to get validly married either resort to the prevailing method of Sambandham or register the marriage under the provisions of the Malabar Marriage Act. This Act was not popular among the Nairs of Malabar because the advantages of registration were too few to compensate for the trouble involved in registering a marriage. 40. As observed by Mr. K. P. Padmanabha Menon in his Memorandum, Enclosure B to the report of the Travancore Marumakkathayam Committee, in Travancore there was only one form of marriage, the Pudamuri Sambandham, recognised by society as creating the relationship of husband and wife. In 1912 the Travancore Nair Act, 1 of 1088 M.E., was passed and in section 3 of that Act conjugal union openly solemnised by presentation of cloth was recognised as valid marriage. In enacting section 3 the Travancore legislature accepted wholesale the recommendation of Mr. K. P. Padmanabha Menon that instead of adopting registration of marriage as was done in the Madras Province presentation of cloth may be accepted as valid marriage. This was what he said in para 36 of his memorandum: "It is always desirable to have one form recognised as legal throughout the country. Society now recognises Pudavakoda (cloth giving) form almost universal. In some instance the witnesses mention the substitution of ornaments for cloths. There are also a few instances given of the couple garlanding each other or of making money presents by the bride, groom or his people to the bride or her people. But these are the idiosyncrasies of particular persons desirous of introducing innovation. In some instance the witnesses mention the substitution of ornaments for cloths. There are also a few instances given of the couple garlanding each other or of making money presents by the bride, groom or his people to the bride or her people. But these are the idiosyncrasies of particular persons desirous of introducing innovation. I would recommend that the legislature may recognise the cloth-giving ceremony now performed openly and publicly in the presence of villagers, friends and relatives as the only form of lawful wedlock among Nairs whether the bridegroom is a Nair or one belonging to a higher caste who is permitted by custom to marry a Nair woman.� 41. In section 3 of Travancore Nair Act, 2 of 1100 M.E., passed in 1925 the provision in the previous Act, 1 of 1088 M.E., regarding the requirements of a valid marriage was continued. That section so far as is relevant for the present purpose reads: 3. The conjugal union of a Nayar female, with (i) a Nayar male, or (ii) any male other than a Nair, openly solemnised by the presentation of cloth to the female by the male, ..shall be deemed to be a valid marriage for all legal purposes A plain reading of the section shows that a valid marriage can be taken as solemnised if it was openly done by presentation of cloth by the bridegroom to the bride. 42. A comparison of section 3 of the Travancore Nair Act with the corresponding sections in other similar enactments also brings out clearly that is intended by section 3 of the Travancore Nair Act. Section 4 of the Madras Marumakkathayam Act, 12 of 1933, reads: 4 (1)the conjugal union of a marumakkattayi female with (i) a male shall be deemed for all purposes to be a legal marriage if (b) the union (i) was openly solemnised in accordance with customary ceremonies, if any, prevailing in the community to which the parties belong Section 4 (1) of the Cochin Nair Act, 29 of 1113 passed in 1938 reads: 4. (1).. the conjugal union of a Nayar female with- (a) a Nayar male, or (b) any male, other than a Nayar openly solemnized by the presentation of cloth to the female by the male or in any other customary form shall be deemed to be a legal marriage.� Section 5 of the Travancore Ezhava Act. (1).. the conjugal union of a Nayar female with- (a) a Nayar male, or (b) any male, other than a Nayar openly solemnized by the presentation of cloth to the female by the male or in any other customary form shall be deemed to be a legal marriage.� Section 5 of the Travancore Ezhava Act. III of 1100 M.E., passed in 1925 reads: 5. The conjugal union of an Ezhava male, with an Ezhava female openly solemnised by the presentation of cloth to, or by tying Mangalyasuthram around the neck of the female by the male.. shall be deemed to be valid marriage for all legal purposes All these enactments insist on open solemnisation of a marriage for its validity. While the Madras Marumakkattayam Act insists on solemnisation being in accordance with the customary ceremonies, if any, the Cochin Nayar Act and the Travancore Ezhava Act give a choice to the parties. Under the Cochin Nayar Act it can be either by presentation of cloth or in any other customary form. The words in any other customary form in the Cochin Nayar Act shows that the Act recognises presentation of cloth by itself as a customary form of marriage. Under the Travancore Ezhava Act marriage can be either by presentation of cloth or by tying of mangalyasuthram. For parties governed by the Travancore Nayar Act no such choice is given. For purposes of section 3 of the Act open solemnisation by presentation of cloth is the only mode recognised for a valid marriage. 43. The word solemnised is modified by the subsequent words "by presentation of cloth"� occurring in section 3 of the Travancore Nair Act to mean that the only solemnisation contemplated there is presentation of cloth. The word 'openly'� also qualifies the word "solemnized"�. The result is that for a valid marriage under section 3 of the Travancore Nair Act it is sufficient if the parties intend to marry and there is open presentation of cloth by the bridegroom to the bride. Such a solemnisation is valid marriage under the Cochin Nair Act and the Travancore Ezhava Act also. Comparing the Madras and Travancore enactments in this respect Mr. P. R. Sundara Aiyar has said in his book on Malabar and Aliyasanthana law that the Travancore Government was bolder than the Madras Government. 44. Such a solemnisation is valid marriage under the Cochin Nair Act and the Travancore Ezhava Act also. Comparing the Madras and Travancore enactments in this respect Mr. P. R. Sundara Aiyar has said in his book on Malabar and Aliyasanthana law that the Travancore Government was bolder than the Madras Government. 44. The trial Judge has relied upon the decisions in Bhaurao Shankar Lokhande v. The State of Maharashtra, A.I.R. 1965 S.C. 1564 and Smt. Priya Bala Ghosh v. Suresh Chandra Ghosh, A.I.R, 1971 S.C. 1153 to show that solemnisation of a Hindu marriage is performance of it with proper ceremonies and in due form. There is no doubt about that proposition. But what is the proper ceremony and what is the due form for a marriage under section 3 of the Travancore Nair Act? They are only presentation of cloth and that being done openly. Neither thalikettu nor any other formality other than open presentation of cloth by the bridegroom to the bride is a necessary requirement of a valid marriage under section 3 of the Travancore Nair Act. 45. In the present case Narayanan Nair intended to marry the seventh defendant, their marriage was open and it was by presentation of cloth by Narayanan Nair to the seventh defendant. Hence that marriage is valid under section 3 of the Travancore Nair Act, II of 1100 M.E., the seventh defendant is Narayanan Nair legally wedded wife and plaintiff is his legitimate daughter. 46. In the light of the facts and circumstances brought out in the case it was fairly conceded in this court by plaintiff's counsel that this was a case to which section 44 (c) of the Nair Act, which reads thus: "44. Nothing in this Regulation shall (c) affect the status and rights of children born to parents where the female enters into marriage with the male without notice of and in ignorance of any prior subsisting marriage of the same male owing to mistake, misrepresentation or fraud practised on the said female or her guardians as the case may be."� applied Based on that we hold that defendants 2 to 6 are also the legitimate children of Narayanan Nair and that they are entitled to share Narayanan Nair properties equally with the plaintiff and the seventh defendant. The result is that the plaintiff and the seventh defendant are entitled only to 2/7 share in Narayanan Nair properties and defendants 2 to 6 are entitled to the remaining 5/7 share in those properties. 47. Counsel on both sides agreed in submitting that all the plaint schedule properties except A schedule 5 and one half of A schedule item 1 belonged to Narayanan Nair. Hence all the plant schedule properties except A schedule item 5 and one half of A schedule item 1 are available for partition. 48. In the result this appeal is allowed by setting aside the decree of the lower court and by passing a preliminary decree as follows: It is declared that plaintiff and the seventh defendant have 2/7 share in all the plaint schedule properties except A schedule item No. 5 and one half of A schedule item No. From the defendants in possession plaintiff is allowed to recover on behalf of herself and the seventh defendant possession of 2/7 share of those properties after partition by metes and bounds. Plaintiff is also allowed to recover from defendants 1 to 6. 2/7 share of the mesne profits of those properties from October 13, 1970, date on which Narayanan Nair died, until the date of recovery of possession of the 2/7 share of the properties or until three years from the date of the final decree whichever event first occurs. As regards fixation of the rate of mesne profits derivable from the plaint properties and settlement of the assets of the Bank included in the B schedule attached to the plaint the lower court is directed to decide the same in the final decree. If any of the defendants is found to have taken any portion of the assets of the Bank for himself or herself the lower court shall make provision in the final decree for the plaintiff recovering the share of herself and her mother in the same from the defendants liable for the same. Plaintiff is allowed to recover from defendants 1 to 6 the costs incurred by her hitherto in this court as well as in the lower court. As regards costs to be incurred hereafter that would be provided for in the final decree. Plaintiff is allowed to recover from defendants 1 to 6 the costs incurred by her hitherto in this court as well as in the lower court. As regards costs to be incurred hereafter that would be provided for in the final decree. As the suit and appeal were filed by the plaintiff as pauper court fee in the lower court and this court, which would have been paid by the plaintiff if she had not been permitted to sue as a pauper, is allowed to be recovered by the State Government from the plaintiff.