G.K. Sumathy v. Elizabeth and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE & THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN FRIDAY, THE 18TH DAY OF AUGUST 2017/27TH SRAVANA, 1939 Mat.Appeal.No. 259 of 2007 ( ) ------------------------------- AGAINST THE ORDER/JUDGMENT IN OS 24/1998 of FAMILY COURT,THIRUVANANTHAPURAM DATED 09-01-2007 APPELLANT(S)/2ND DEFENDANT: -------------------------- G.K.SUMATHY, W/O LATE A. FRANCLIN, SREESADANAM, MALIKONAM, VELLANADU, THIRUVANANTHAPURAM. BY ADVS.SMT.BINDU GEORGE SRI.SUMAN CHAKRAVARTHY RESPONDENT(S)/PLAINTIFFS & DEFANDANTS 1,3 & 4: ---------------------------------------------- 1. ELIZABATH, W/O LATE FRANCLIN ABRAHAM, RESIDING AT T.C.9/166, JAWAHAR NAGAR,, THIRUVANANTHAPURAM. 2. A.GEORGEKUTTY, S/O FRANCLIN ABRAHAM, RESIDING AT DO. DO. 3. A.AMBILIKALA, D/O FRANCLIN, RESIDING AT DO. DO. 4. A.NESSI MOL, D/O FRANCLIN, RESIDING AT DO. DO. 5. A.LALITHA BAI, D/O FRANCLIN, RESIDING AT DO. DO. 6. A.SHAJI MOL, D/O FRANCLIN, RESIDING AT DO. DO. 7. SURESH KUMAR, S/O FRANCLIN, RESIDING AT DO. DO. 8. SUNIL KUMAR, S/O FRANCLIN, RESIDING AT DO. DO. 9. THE STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. MAT.APPEAL NO.259/2007 -2- 10. MINIMOL, D/O LATE FRANCLIN & SMT. - G.K.SUMATHY, RESIDING AT SREESADANAM, MALIKONAM, VELLANADU, THIRUVANANTHAPURAM. 11. PRAVEEN KUMAR, S/O FRANCLIN & SMT. G.K.SUMATHY, RESIDING AT DO. DO. R1-8 BY ADV. SRI.G.S.REGHUNATH THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 2706-2017, ALONG WITH MA. 544/2007, THE COURT ON 18/8/2017 DELIVERED THE FOLLOWING: ## **A.M. SHAFFIQUE & ANU SIVARAMAN, JJ.** =========================== Mat.Appeal Nos. 259 & 544 of 2007 ====================== Dated this, the 18[th] day of August, 2017 ## **J U D G M E N T** ## _**Shaffique, J.**_ Both these appeals arise out of judgment dated 9/1/2007 in OS No.24/1998 of the Family Court, Thiruvananthapuram. 2. Mat.Appeal No.544/2007 has been filed by the plaintiffs and Mat.Appeal No.259/2007 has been filed by the second defendant. 3. The short facts arising in OS No.24/1998 are as under and the parties are referred to as shown in the suit. The plaintiffs contended that first plaintiff married Franklin, S/o Abraham in 1960 and they were living together as husband and wife at Thiruvananthapuram. Plaintiffs 2 to 8 are the children born in their wedlock. Franklin died on 2/9/1995 following a heart attack. At the time of death, Franklin was working as a waiter in a Guest House under Kerala State Tourism Department. When the plaintiffs Mat.Appeal Nos.259 & 544/07 -:2:- attempted to claim the service benefits, they understood that claim has been raised by another person, the 2[nd] defendant. According to the plaintiffs, they are the only surviving legal heirs of deceased Franklin. 4. The 2[nd] defendant claimed that she married Franklin as per Hindu religious rites and custom on 3/3/1973. In 1977, Franklin reconverted to his original religion and 2[nd] defendant also got converted to Christianity. Again, a marriage was solemnized on 8/1/1978. In their marriage, defendants 3 and 4 were born. 5. Before the court below, evidence consisted of oral testimony of PW1 and PW2. They relied upon Exts.A1 to A22. Three witnesses, DW1 to DW3 including the 2[nd] defendant were examined on the side of defendants and they placed reliance upon Exts.B1 to B11(a). 6. Court below decreed the suit and the counter claim in part. Plaintiffs 2 to 8 were declared as children of Late Franklin and the first plaintiff. Defendants 3 and 4 were also declared children of late Franklin born to the 2[nd] defendant. First plaintiff and second defendant were denied the declaration of status as wife of Late Franklin. Mat.Appeal Nos.259 & 544/07 -:3:- 7. The contentions urged in these appeals by first plaintiff as well as second defendant are same as taken up before the Court below. 8. As far as the marriage of either of the contesting parties with Franklin is concerned, the case of PW1/first plaintiff is that the marriage was solemnized in 1960 at Salvation Army Church, Kuravankonam. According to her, the deceased was living with her and their children till his death. He was buried at Pattur Cemetery and the funeral rites were conducted in the 1[st] plaintiff's house. PW2 is the Divisional Commander of Salvation Army, Western Territory. He proved Ext.A19 certificate which indicates that Franklin and Elizabeth had become members of Salvation Army, Parambukonam church on 15/1/1960. The certificate also indicates that even before joining Salvation Army, Franklin and 1[st] plaintiff were living together without a valid marriage. In order to legalise the marriage, Captain M.J.George, Commanding Officer of Salvation Army had conducted their marriage on 25/1/1960 at Parambukonam Church. The witness had further stated that, at the time of marriage, they already had a child. He also explained that in cases where the parties were Mat.Appeal Nos.259 & 544/07 -:4:- living together for a long time as husband and wife, their relationship would be legalised by the Church and the said process had been conducted in regard to Franklin and Elizabeth. Exts.A2 and A2(a) would show that Franklin and first plaintiff had joined Salvation Army Church. Ext.A1 is a policy of Life Insurance Corporation in the name of late Franklin taken on 14/6/1965. Elizabeth is the nominee in the said policy. Exts.A3 and A4 certificates would show that father and mother of plaintiffs 6 and 7 are Franklin and Elizabeth. Exts.A8 and A9 are the birth certificates of plaintiffs 6 and 7, in which the name of the father is entered as Franklin. Exts.A13 to A17 are the relevant pages of SSLC books and the extract of admission register in respect of plaintiffs 3, 4, 6, 7 and 8. In all these documents, Franklin's name is shown as father and mother as Elizabeth. Ext.A5 is the ration card. Franklin's name is entered in the ration card along with all the plaintiffs as members of the family. The ration card was issued on 6/8/1981. Ext.A7 is the family register issued from St.Therese of Lisieux Church, Vellayambalam. The name of head of family is shown as Franklin and his wife as Elizabeth. The name of the children are also shown. Exts.A10 and A10(a) are the Mat.Appeal Nos.259 & 544/07 -:5:- electoral cards and in Ext.A10, name of Franklin is shown as husband and wife's name is shown as Elizabeth. Ext.A10(a) is with reference to the electoral card of George Kutty, S/o first plaintiff and name of father is shown as Franklin. Ext.A11 is the death certificate issued from the church at Vellayambalam and the first plaintiff is shown as wife of late Franklin. Ext.A10 is another ration card issued on 10/11/1991 which also shows Franklin as the head of the family and the first plaintiff as his wife. Ext.A21 is another electoral card issued in the name of first plaintiff which shows husband's name as Franklin. All these factual aspects would apparently show that first plaintiff was treating Franklin as her husband and plaintiffs 2 to 8 as their father and he was living with them all along and even at the time of his death. 9. The Court below did not accept that there was a solemnization of marriage only on the basis that PW2 in his evidence has stated that Franklin and 1[st] plaintiff were not married as per religious rites, whereas they have only legalised the marriage of the couple. There cannot be any dispute that if the marriage between first plaintiff and Franklin was valid, there cannot be a valid marriage between Franklin and second Mat.Appeal Nos.259 & 544/07 -:6:- defendant. The 2[nd] defendant was examined as DW1. According to her, when the Church authorities were not prepared to solemnize their marriage, Franklin embraced Hindu faith and their marriage was solemnized as per Hindu religious rites and ceremonies on 3/3/1973. In 1977, both of them converted to Christianity and they again got married as per Christian rites at I.R.C. Church, Panakkode on 8/1/1978. She also denied the fact that the first plaintiff was the wife of Franklin and other plaintiffs are their children. DW2, is the brother of deceased Franklin. According to him, the marriage between Franklin and 2[nd] defendant was solemnized as per Christian religious rites in 1978 at I.R.C. Church, Panakkode. He also referred to the marriage between the couple in 1973 as per Hindu religious rites. DW3 is a friend of Franklin. He supported the version of the 2[nd] defendant. According to him, their marriage was solemnized as per Hindu rites in 1973. The couple got converted into Christianity and again they married as per Christian rites at IRC Church in 1978. Ext.B1 is the marriage certificate between Franklin and 2[nd] defendant which is alleged to have solemnized at IRC Church, Panakkode in 1978. Ext.B5 is the extract of SSLC book relating to additional 3[rd] Mat.Appeal Nos.259 & 544/07 -:7:- defendant wherein Franklin is shown as the father. Ext.B2 is the certificate of death and Exts.B3 and B4 are the electoral cards which prove the relation between Franklin and the 2[nd] defendant. Exts.B10 and B10(a) are the photographs of Franklin and defendants 2 to 4. Exts.B11 and B11(a) are policies of Peerless General Finance and Investment Company Ltd., in the name of 2[nd] defendant wherein the husband's name is shown as Franklin. The Court below found that though the cohabitation between Franklin and 2[nd] defendant is proved and additional defendants 3 and 4 are their children, there is no evidence to prove a valid marriage between Franklin and 2[nd] defendant. Though Ext.B1 certificate of marriage is produced, DW2, who was examined to prove the Hindu customary marriage deposed that Franklin had bought a saree and given to the 2[nd] defendant, who received the same. Other than that, there was no function. 10. DW1 has not stated anything about the ceremonies of the marriage. DW3 in his cross examination admitted that he did not participate in the marriage. Court below therefore observed that there was no proof regarding the marriage between Franklin and 2[nd] defendant. The evidence on record clearly suggests that Mat.Appeal Nos.259 & 544/07 -:8:- Franklin had relationship with first plaintiff as well as 2[nd] defendant and the children were born to them. The only question is, who is the legally wedded wife, is it the first plaintiff or the 2[nd] defendant. The court below did not accept the marriage between 1[st] plaintiff and Franklin on a finding that there was no solemnization of marriage and also taking note of the deposition of PW2. But it is evident from the factual circumstances involved in the case that both Franklin and Elizabeth were belonging to Christian religion and they became members of Salvation Army as evident from Exts.A3 and A4. When it is deposed by PW2 that they have legalised the marriage between Franklin and Elizabeth, it has to be treated as a valid marriage between the said couple. They had one child at the time of marriage and later, six other children were born to them. Long cohabitation between the couple gives a presumption of marriage. The position of law in this regard is well settled by the following observation of Apex Court in _**Karedla Parthasaradhi v. Gangula Ramanamma**_ [2015 (1) KLT Suppl.82 (SC)]. _“19. The question arose before this Court in Thakur Gokal Chand v. Parvin Kumari @ Usha Rani, AIR 1952 SC 231, as to whether on facts/evidence, the_ Mat.Appeal Nos.259 & 544/07 -:9:- _Court could record a finding about the existence of lawful marriage between the parties and, if so, what should be the principle to be applied while deciding such question. Learned Judge - Fazal Ali J, speaking for the Bench examined this question in the context of Section 50 of the Indian Evidence Act, 1872 and other relevant provisions of law and laid down the following principle of law for determination of such question:_ _“It seems to us that the question as to how far the evidence of those particular witnesses is relevant under section 50 is academic, because it is wellsettled that continuous cohabitation for a number of years may raise the presumption of marriage. In the present case, it seems clear that the plaintiff and Ram Piari lived and were treated as husband and wife for a number of years, and, in the absence of any material pointing to the contrary conclusion, a presumption might have been drawn that they were lawfully married. But the presumption which may be drawn from long cohabitation is rebuttable, and if there are circumstances which weaken or destroy that presumption, the court cannot ignore them”_ _20. In recent time, this Court in Madan Mohan Singh & Ors. v. Rajni Kant & Anr., (2010) 9 SCC 209, relying upon the aforesaid principle of law, reiterated the same principle in following words:_ _“24. The courts have consistently held that the law presumes in favour of marriage and against_ Mat.Appeal Nos.259 & 544/07 ## -:10:- _concubinage, when a man and woman have cohabited continuously for a number of years. However, such presumption can be rebutted by leading unimpeachable evidence. (Vide Mohabbat Ali Khan v. Mohd. Ibrahim Khan, AIR 1929 PC 135, Gokal Chand v. Parvin Kumari, AIR 1952 SC 231, S.P.S. Balasubramanyam v. Suruttayan, (1994) 1 SCC 460, Ranganath Parmeshwar Panditrao Mali v. Eknath Gajanan Kulkarni, (1996) 7 SCC 681 and Sobha Hymavathi Devi v. Setti Gangadhara Swamy, (2005) 2 SCC 244)”._ 11. Evidence in the case also suggests that he was living with Elizabeth at the time of his death and he was buried in a church by the plaintiffs and their family members. He was also living along with the plaintiffs at the time of his death. When a presumption could be raised regarding the marriage, unless evidence is adduced to rebut the same, it was not open for the 2[nd] defendant to contend that there was another marriage between Franklin and 2[nd] defendant. Admittedly, Franklin was a person professing Christianity. According to 2[nd] defendant, they initially got married as per Hindu religious rites and ceremonies and for the purpose of marriage, Franklin embraced Hindu religion. Such a contention is not proved. DW2 who supports her version Mat.Appeal Nos.259 & 544/07 -:11:- himself was the Pastor of the church where they alleged to have married in 1978. In the evidence of DW2, he pleads absolute ignorance with regard to the relationship with the first plaintiff, which cannot be believed at all. All the records produced by the plaintiffs indicate that there was a relationship between first plaintiff with Franklin and they have seven children. When DW2 says that he was not aware of any such relationship, it is nothing but a lie and therefore his version cannot be accepted to assist the 2[nd] defendant to prove her case. 12. Taking into consideration the over all factual circumstances and the enormity of evidence adduced by the plaintiffs, we are of the view that plaintiffs have succeeded in proving their case and the version of defendants 2 to 4 cannot be accepted. In the result, we set aside the judgment of the Family Court and the decree shall stand modified as under:- (i) It is hereby declared that the 1[st] plaintiff is the legally wedded wife of Late Franklin, and plaintiffs 2 to 8 are the children of Late Franklin and the first plaintiff. (ii) It is declared that additional defendants 3 and 4 are Mat.Appeal Nos.259 & 544/07 ## -:12:- the children of late Franklin born to the 2[nd] defendant. (iii) It is declared that the first plaintiff shall be entitled for the service benefits, if any, due to deceased Franklin. (iv) The parties shall bear their own costs. Sd/- ## **A.M. SHAFFIQUE, JUDGE** Sd/- **ANU SIVARAMAN, JUDGE** Rp //TRUE COPY// PS TO JUDGE