K. Usha v. G. Vilasini & Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** ## **&** **THE HONOURABLE MR.JUSTICE N.ANIL KUMAR** **WEDNESDAY, THE 03RD DAY OF JULY, 2019 / 12TH ASHADHA, 1941** **Mat.Appeal.No.2 of 2012** **[AGAINST THE JUDGMENT dtd.31.10.2011 IN OP 1304/2007 of FAMILY COURT, NEDUMANGAD]** ## **APPELLANT/FIRST RESPONDENT:** **K.USHA, AGED 48 YEARS, USHAS, NADAKKAVU THODIYIL , ERAVIPURAM, KOLLAM DISTRICT.** **BY ADVS. DR.K.P.SATHEESAN SRI.ANOOP.V.NAIR SRI.M.R.JAYAPRASAD SRI.P.MOHANDAS (ERNAKULAM)** ## **RESPONDENTS/PETITIONERS & RESPONDENTS 2 & 3:-** **1 G.VILASINI, VILAYIL VEEDU,ALAMKUZHY,MANICKAL VILLAGE,VENJARAMOODU, NEDUMANGAD TALUK,THIRUVANANTHAPURAM,PIN 695 607. 2 SINDHU, VILAYIL VEEDU,ALAMKUZHY,MANICKAL VILLAGE,VENJARAMOODU, NEDUMANGAD TALUK,THIRUVANANTHAPURAM,PIN 695 607.** **3 BINDHU, VILAYIL VEEDU,ALAMKUZHY,MANICKAL VILLAGE,VENJARAMOODU, NEDUMANGAD TALUK,THIRUVANANTHAPURAM,PIN 695 607. 4 KERALA STATE ELECTRICITY BOARD REPRESENTED BY ITS SECRETARY,VYDYUTHI BHAVAN, PATTOM PALACE PO, THIRUVANANTHAPURAM 695 004.** MAT.APPEAL NO.2 OF 2012 :-2-: **5 THE CHIEF ENGINEER (H.R.M.). KERALA STATE ELECTRICITY BOARD, VYDYUTHI BHAVAN, PATTOM PALACE PO, THIRUVANANTHAPURAM 695 004.** **BY ADVS. SMT.T.S.MAYA (THIYADIL) SRI.K.S.ANIL, SC, KSEB SMT.C.VIJAYAKUMARI SMT.SEENA VASU (KODANAD)** **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON** **21.06.2019, THE COURT ON 03.07.2019 DELIVERED THE FOLLOWING:** MAT.APPEAL NO.2 OF 2012 :-3-: ## **J U D G M E N T** ## **N.ANIL KUMAR,J:** The appellant is the first respondent in OP.No.1304/2007 on the file of the Family Court, Nedumangad. Respondents 1 to 3 are the petitioners in the above O.P. Respondents 4 and 5 are the Office bearers of the Electricity Board. Parties are hereinafter referred to as 'the petitioners' and 'the respondents' as stated in the court below unless otherwise stated. 2. The original petition was filed seeking for a decree granting a declaration that the first petitioner is the legally wedded wife of deceased L.Surendran and petitioners 2 and 3 are the children born out of the wedlock between the first petitioner and the deceased L.Surendran and that they are entitled to get all service benefits of the deceased from the Kerala State Electricity Board- respondents 4 and 5 herein. Late Surendran retired from Kerala State Electricity Board Venjaramood Electrical Section as Overseer on 31.1.2005 and he was drawing pension. The said Surendran passed away on 13.2.2007. The contention of the petitioners is that the late Surendran married the first petitioner on 26.6.1970 as per the custom prevailing among Ezhava Community at Sree Krishnaswamy Temple, Pirappancode and petitioners 2 and 3 were born in the said wedlock. 3. Per contra, the first respondent contended that late Surendran had married her on 1.7.1979 at her house in Mundakkal Village in MAT.APPEAL NO.2 OF 2012 :-4-: accordance with the custom prevailing among the Ezhava community. Thereafter, the first respondent and Surendran lived as man and wife. According to the first respondent, she is the only legally wedded wife of late Surendran. She asserted that the marriage with the first respondent was the first marriage of late surendran and there had never taken place any marriage before or after it. She also admitted that during the subsistence of marriage, there developed some differences of opinion between the first respondent and Surendran and he abandoned the first respondent for some time. Consequently, she filed a maintenance case before the Magistrate court and secured an order for payment of maintenance to herself and her child. Thereupon, mediation was conducted and the first respondent and her husband united again and began to reside at Kollam in the house of the first respondent. 4. Heard the learned counsel for the appellant and the learned counsel for the respondents. 5. On the rival contentions, both parties adduced evidence which consists of oral testimony of Pws. 1 to 6 and DWs.1 to 3 and Exts. A1 to A35 and B1 to B11 were marked. Exts.X1 and X2 were marked as court exhibits. After taking evidence, the Family Court declared that the first petitioner is the legally wedded wife of late L.Surendran retired from the Kerala State Electricity Board and second and third petitioners are the children born in the said wedlock with PW1 and they are the legitimate children of late Surendran. Learned counsel for the appellant/first MAT.APPEAL NO.2 OF 2012 :-5-: respondent contended that respondents 1 to 3/petitioners did not adduce any documentary evidence to prove the marriage. According to the learned counsel, as per the Hindu Marriage Act,1955 (hereinafter referred to as 'the Act'), registration of marriage is compulsory and the respondents 1 to 3 herein have not produced any oral or documentary evidence to prove marriage except the interested testimony of the younger sister of the first respondent. The learned counsel further submitted that none of the other documents produced by the respondents 1 to 3/petitioners would show that there was valid marriage between the first respondent/first petitioner and late Surendran. Hence it is contended that respondents 2 and 3/petitioners 2 and 3 cannot be declared as children of late Surendran. The sum and substance of the contention advanced by the learned counsel for the appellant is that the Family Court went wrong in finding that the appellant/first respondent failed to plead and prove the customary marriage of the first respondent with deceased L.Surendran. 6. On the other hand,the learned counsel for the respondents submitted that there is no pleadings or evidence to prove that the marriage between the first respondent and deceased L.Surendran was solemnised in accordance with law. According to the learned counsel, deceased L.Surendran married the first petitioner way back in 1970 and petitioners 2 and 3 were born out of the wedlock. Hence it is contended that unless and until the first marriage is dissolved in accordance with MAT.APPEAL NO.2 OF 2012 :-6-: ## law, the alleged second marriage is illegal. 7. PW1 adduced evidence to show that the deceased L.Surendran married her on 26.6.1970 and they lived together as man and wife till his death. According to her, the marriage was solemnised at Sreekrishna Swami Temple, Pirappancode in accordance with the custom prevailing in the community and in the wedlock, petitioners 2 and 3 were born. Her husband was working as Overseer in the KSEB and he retired on 31.01.2005. Subsequent to his death, PW1 applied for legal heirship certificate. The certificate was not issued stating that the first respondent had raised objection to the certificate claiming the status of the wife of the deceased. When the certificate was not issued, PW1 has approached the High Court by filing WP(C) NO.16659/2007 in which the High Court directed the petitioners to approach the civil court to ger her status declared. 8. In the court below, petitioners produced as much as 35 documents in support of her claim. Ext.A9 and A10 SSLC Book would show that the second petitioner was born in the year 1972 even prior to the alleged marriage with the respondent. Ext.A5 and A6 settlement deeds in favour of the second and third petitioners would show that deceased Surendran recognized PW1's children as his children. Exts.A3 and A4 ration cards would show that deceased Surendran and petitioners had been residing together from 1996 onwards. She had also produced photographs of the marriage of the second and third petitioners MAT.APPEAL NO.2 OF 2012 :-7-: wherein the deceased Surendran was shown as the father of the second and third petitioners along with the first petitioner. She also relied on the pension book and the photo taken. Various documents relating to the earlier employment of late Surendran in the Railway, ID card of KSEB ,death intimation card, letters from LIC, admission extract of petitioner's daughter, OP tickets and discharge certificate regarding the treatment underwent by the deceased from 1998 onwards, pan card, voters list, death anniversary photo published in the Kerala Kaumudi daily, building tax receipt, pension book and other communications of the deceased Surendran would inter alia indicate the deceased Surendran had been living with PW1 and he was the father of the first petitioner's children. PW2 is the sister of late Surendran. She stated that the first petitioner married her brother L.Surendran and petitioners 2 and 3 are the children born out of the wedlock. PW3 is the brother of PW1. Both PWs.1 to 3 adduced evidence to show that late Surendran married PW1 in accordance with the custom prevailing among the community way back in 1970. 9. PW5 is the Sub Group Officer of Travancore Devaswom Board, who is in charge of Sree Krishna Swamy Temple, where the marriage took place. He stated that no records are available in respect of marriages conducted prior to 1985 in the Devaswom Office at present. However, PW6 the photographer, who took Exts.A32 to A35 photographs, would testify that they were taken at the time of marriage of MAT.APPEAL NO.2 OF 2012 :-8-: the second petitioner in the year 1991. 10. PW4 is the Executive Engineer of Kerala State Electricity Board,Electrical Division,Nedumangad. On summons, PW4 produced Exts.C1,C2 and C2(a)pension papers of late Surendran. His evidence is material to decide the real dispute between the parties. He stated that when the service book was opened, petitioners were the nominees of late Surendran. 11. The first respondent as DW1 would swear that she is the legally wedded wife of late Surendran and her marriage with Surendran took place on 1.7.1979 in accordance with religious rites. She also produced Ext.X1 and X2 documents to substantiate her claim that customary marriage has taken place in accordance with law. DW2, the present Secretary of SNDP Branch, DW3 and independent witness were examined to support her marriage. The main contention of the respondent is that she married L.Surendran on 1.7.1979 as evidenced by Exts.X1 and X2 documents and she is the legally wedded wife of L.Surendran. In support of her contention, she also produced Ext.B2 settlement deed executed by the father of late Surendran in her name acknowledging the relationship. Ext.B2 is dated 9.4.1979 and it was much prior to the alleged marriage dated 1.7.1979 claimed by DW1. If Ext.B2 is accepted, the alleged marriage dated 1.7.1979 is an impossibility. 12. In the case on hand, the claim of the first petitioner is that she MAT.APPEAL NO.2 OF 2012 :-9-: is the legally wedded wife of deceased Surendran and she alone is entitled to get the pensionary benefits from the KSEB. The cause of action to file the case has arisen on her apprehension that the first respondent is trying to get the family pension on the pretext that she is the legally wedded wife of deceased L.Surendran. The trial court granted declaration that the first petitioner is the legally wedded wife of late Surendran and second and third petitioners are the legitimate children born in the said wedlock. 13. Going by the evidence, it is clear that deceased L.Surendran himself had admitted that first petitioner is his wife. Exts.C1 ,C2 and C2(a) pension papers are eloquent in this regard. It has come out in evidence that the first petitioner was aged 56 years, second petitioner, 34 years and third petitioner, 31 years respectively as on the date of filing the original petition in 2007 whereas the first respondent was only 48 years old. Evidently, deceased L.Surendran married the first petitioner long back in the year 1970 and the parties had been living together as man and wife for a considerable long period of time. Evidence tendered by PWs.1 to 6 would indicate that the deceased L.Surendran married the first petitioner on 26.6.1970 at Sree Krishna Swamy Temple, Pirappancode in accordance with the custom prevailing in the community. Further, late Surendran accepted the status of the first petitioner as his wife and second and third petitioners as his children in his pension book. In view of the above circumstances, no further MAT.APPEAL NO.2 OF 2012 :-10-: evidence is required to prove that the first petitioner is the legally wedded wife of the deceased Surendran and petitioners 2 and 3 are the children born out of the wedlock. 14. In the counter filed before the court below, the first respondent had stated that she had a child born out of the wedlock with late Surendran. Admittedly, the child is not in the party array. The first respondent has not sought for any relief touching the status of the child. Hence, Section 16(1) of the Act does not arise for consideration in this case. 15. In the case at hand, it is proved that the first petitioner married late Surendran in accordance with customary rites way back in 1970. Assuming for argument sake that the first respondent married deceased Surendran as contended by her in 1979, the alleged marriage is invalid for the reason that the parties being Hindus are precluded from conducting a second marriage during the subsistence of an earlier valid marriage. Unless and until the first marriage is dissolved in accordance with law, the second marriage is null and void. The question as to whether the child born out of the second marriage is entitled to get the benefit under Section 16(1) of the Act does not arise for consideration in this proceedings. No relief is sought in this respect. Hence, the decisions cited by the learned counsel for the petitioner in **Mini and Others** v. **Suseela and Others** [2018(3)KHC 277] and **Rugmini** v. **Pushpavathy and others** [2018(3) KHC 335] are apparently not MAT.APPEAL NO.2 OF 2012 :-11-: applicable in this case. Even if solemnization of marriage as pleaded by the first respondent is true, her alleged marriage cannot be recognised in view of the first marriage proved by the first petitioner. In view of the above, we find that there is no illegality or impropriety in the findings that the first petitioner is the legally wedded wife of late L.Surendran and second and third petitioners are the children born in the said wedlock. Hence the Mat.Appeal is dismissed. sd/- **A.M.SHAFFIQUE, JUDGE** sd/- **N.ANIL KUMAR, JUDGE** MBS/ - MAT.APPEAL NO.2 OF 2012 :-12-: