Kandoth Veettil Nani v. Puthenpurayil @ Uthan Sarojini and The General Manager Bharat Sanchar Nigam Ltd., Kannur (Mat.Appeal No. 343 of 2011)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **&** **THE HONOURABLE MR. JUSTICE P.SOMARAJAN** **WEDNESDAY,THE 10TH DAY OF OCTOBER 2018 / 18TH ASWINA, 1940** **Mat.Appeal.No. 343 of 2011** **AGAINST THE JUDGMENT IN OP 181/2007 of FAMILY COURT, KANNUR DATED 10-03-2011** ## **APPELLANT/RESPONDENT NO.1:** **KANDOTH VEETTIL NANI, AGED 55 YEARS, W/O.LATE KOVVAMMAL DAMODARAN,, (DESCRIBED INCORRECTLY AS 'W/O.KANNAN' IN THE, JUDGMENT AND DECREE), KUNNANANGAD, P.O.CHERUKUNNU, KANNUR DISTRICT.** **BY ADVS. SRI.M.SASINDRAN SRI.A.ARUNKUMAR** ## **RESPONDENTS/PETITIONER, RESPONDENT NO.2:** **1 PUTHENPURAYIL @ UTHAN SAROJINI D/O.KUNHAMBU, KOVVAMMAL HOUSE, P.O.THAVAM,, KANNUR DISTRICT.** **2 THE GENERAL MANAGER BHARATH SANCHAR NIGAM LTD., TELECOM DISTRICT KANNUR.** **BY ADVS.SRI.P.NARAYANAN SRI.V.V.SURESH,SC,BSNL(BHARAT SANCHAR NIGAM LTD. SRI.M.C.RATNAKARAN SRI.P.C.IYPE,SC,BHARAT SANCHAR NIGAM LTD** **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 6.8.2018, THE COURT ON 10.10.2018 DELIVERED THE FOLLOWING:** -:2:- Mat.Appeal No.343/11 ## **J U D G M E N T** ## _**Shaffique, J.**_ The first respondent in OP No.181/2007 is the appellant. The OP is filed by the first respondent herein seeking for a decree to declare that she is the legally wedded wife of deceased Kovvammal Damodaran. 2. The short facts that have arisen in the matter are as under: The parties are described as shown in the OP unless otherwise stated. According to the petitioner, she married Kovammal Damodaran on 4/4/1976 as per the religious rites and custom which prevailed in the community at Cherukunnu Annapoorneswary Temple. Damodaran died on 21/1/2006 while working in the telecommunication department. Until his death, the matrimonial relationship existed. She is the only legal heir to inherit the assets of Damodaran. When she requested the 2[nd] respondent to release the service benefits of late Damodaran, they refused to do so and was informed that the first respondent was the nominee as per service records and she alone is entitled to receive the service benefits. Petitioner contended that first respondent is the legally wedded wife of one Kannan and a son Mat.Appeal No.343/11 -:3:- was born in the said wedlock. She has not married Damodaran and has no right or authority to receive the service benefits. 3. First respondent filed written statement contending that the marriage alleged between petitioner and Damodaran was absolutely false. According to her, Damodaran has married the first respondent and being the legal heir, she is entitled to inherit the assets of her husband. The service benefits of Damodaran had already been disbursed to her and the petitioner has no right to claim any such service benefits. She further alleged that petitioner is the wife of one Krishnan and they have a daughter named Priya in the said wedlock. 4. The 2[nd] respondent, the employer, filed objection stating that Damodaran was a line inspector attached to telephone exchange. He expired on 21/1/2006. As per the entries in the service records, Smt.K.V.Nani (1[st] respondent) is his wife and she is the nominee for all terminal benefits. On that basis, the service benefits were sanctioned to her. Petitioner had submitted a letter dated 7/3/2006 claiming to be the legally wedded wife of Damodaran. An enquiry was conducted in which it was revealed that both of them were the wives of Damodaran. Mat.Appeal No.343/11 -:4:- Petitioner remarried one Krishnan and she had a daughter. Being the nominee of Damodaran, 2[nd] respondent released all service benefits to the first respondent. 5. Before the Court below, AW1 to AW3 were examined on the side of the petitioner. They relied upon Exts.A1 to A5. The first respondent was examined as RW1 and she placed reliance on Ext.B1. The Family Court found that from Ext.A1 marriage certificate and the oral testimony of AW1 to 3, the marriage between the petitioner and Damodaran stands proved. But, there is no evidence regarding the marriage of 1[st] respondent with Damodaran and though she claimed to have a legal marriage based on Ext.B1 agreement, the same will not be enough to provide her a legal status of wife. It was found that when a legal marriage was in existence, without dissolving the said marriage by a decree of competent Court, Damodaran could not have contracted another marriage. It was therefore found that the marriage alleged by the first respondent based on Ext.B1 can only be treated as void and she cannot be conferred the status of a legally wedded wife. Suit was therefore decreed as prayed for and it was declared that petitioner was entitled to Mat.Appeal No.343/11 -:5:- receive all the service benefits of her deceased husband. 6. During the pendency of the appeal, the 2[nd] respondent submitted that an amount of `3,59,486/- was paid by way of Demand Draft to the appellant and the family pension of `3,650/per month w.e.f. 22.1.2006 to 21.1.2013 and `2,190/- from 22/1/2013 has been sanctioned. Further, an amount of 1,00,532/as per D.D. dated 18/9/2006 issued by LIC of India has also been given. Learned counsel for the appellant submitted that there is absolutely no evidence to prove that there was a valid legal marriage between the petitioner and Damodaran. That apart, even assuming that there was a marriage, they had divorced and Damodaran married 1[st] respondent. The petitioner had remarried and they have a girl child. The parties are governed by Hindu Marriage Act,1955. S.5(1) treats a valid marriage only if a marriage is solemnized between two Hindus and if neither party has a spouse living at the time of marriage.Under S.11 of the Hindu Marriage Act, any marriage can be declared to be a nullity if it contravenes any of the conditions specified in clauses (i), (iv) and (v) of S.5. 7. As far as the marriage between petitioner and Mat.Appeal No.343/11 -:6:- Damodaran is concerned, evidence consists of Ext.A1, the marriage certificate and the oral testimony of AW1 to AW3. There cannot be any dispute regarding the aforesaid fact. In the written statement, first respondent denied about the said marriage whereas she claimed to be the legally wedded wife of Damodaran. According to the first respondent, petitioner is the wife of one Sri.Krishnan and they had a daughter by name Priya born in the said wedlock and there is no bonafides in the claim. But, it is relevant to note that in the objection filed by the first respondent, nothing has been stated about a legal marriage between the first respondent and Damodaran. She has only stated that she is the legally wedded wife. Of course, the service records indicate that she is the nominee and wife of Damodaran. 8. Learned counsel for the appellant placed reliance upon the judgment in _**Karedla Parthasaradhi v. Gangula Ramaynamma**_ [(2014) 15 SCC 787]. That was a case in which the dispute related to a house. The plaintiff claimed the property as a legal heir of his brother along with one of his sisters. The property was in possession of the first defendant and therefore plaintiff could not get possession. First defendant asserted Mat.Appeal No.343/11 -:7:- ownership rights over the property. A suit was therefore filed claiming absolute right and interest over the property. First defendant claimed that she was the legally wedded wife of the deceased and she has been living in the property for decades in the said house. While considering their respective claims, the Apex Court approved the finding of the High Court that the first defendant was the legally married wife of the deceased. Further, the presumption of legality of marriage was also considered in the said judgment and after referring to the judgment in _**Madan Mohan Singh. v. Rajni Kant**_ [(2010) 9 SCC 209], it was observed that the courts have consistently held that law presumes in favour of marriage and against concubinage, when a man and woman have cohabited continuously for a number of years. However, such presumption can be rebutted by leading unimpeachable evidence. 9. RW1 in her affidavit had placed reliance on Ext.B1 to prove the marriage. Ext.B1 is an agreement dated 12/9/1978. It was an agreement between Damodaran, who was aged 31 years and the first respondent, who was aged 27 years. The agreement was produced to indicate that they were living as husband and Mat.Appeal No.343/11 -:8:- wife and that they got married on 10/9/1978. In her evidence as RW1, she has stated that they have married and the agreement is produced as Ext.B1. In cross examination, she deposed that she has a son by name Vijayan. His father is one Kannan. There was no marriage between Kannan and the first respondent. The marriage with Damodaran had taken place at her house. But she had not stated that in her pleading or in the affidavit filed in lieu of chief examination. The contention of the petitioner is that Ext.B1 was a created document. 10. Learned counsel for the first respondent placed reliance upon a judgment in _**Shipra Sengupta v. Mridul Sengupta and Others**_ [(2009) 10 SCC 680]. The proposition is that nomination made by the deceased employee only indicates the hand which is to receive the benefits. But the benefits have to be distributed according to the law of succession. _**Subramani and Others v. M.Chandralekha**_ [(2005) 9 SCC 407] had been cited to emphasise the point that in the absence of any pleadings or evidence to prove that there was a custom that a valid marriage could be dissolved as per the custom among the community, the marriage cannot be treated as dissolved. Mat.Appeal No.343/11 -:9:- 11. Having regard to the controversy involved in this matter, the following facts are clear:- (i) That there was a valid marriage between petitioner and Damodaran. (ii) There is no evidence to prove that the said marriage was dissolved. (iii) There is no evidence to prove that there is a valid customary marriage between the first respondent and Damodaran. Ext.B1, of course, is a confirmation of a marriage between them effective from 10/9/1978. (iv) In the evidence, RW1 admits that her son's father is one Kannan. 12. But in so far as there is no dissolution of the first marriage with the petitioner, even assuming that there was a valid marriage between Damodaran and first respondent, the same cannot have legal validity. 13. As far as the service benefits are concerned, already certain amounts have been paid to the appellant/first respondent, which is evident from the statement. As rightly pointed out, a nominee is only a hand to receive the amount, but cannot have Mat.Appeal No.343/11 -:10:- the status of a legal heir. Taking into consideration the aforesaid facts, we do not think that any error had been committed by the Family Court in passing the decree. No grounds are made out for interference. Mat. Appeal is dismissed. **Sd/-** Rp **A.M.SHAFFIQUE Judge Sd/P.SOMARAJAN Judge** Mat.Appeal No.343/11 -:11:- ## **APPENDIX** **APPELLANT'S EXHIBITS: Nil** ## **RESPONDENT'S EXHIBITS** **ANNEXURE R2(a): COPY OF THE DETAILS OF FAMILY.** **ANNEXURE R2(b): COPY OF NOMINATION FOR THE BENEFIT OF UNDER THE CENTRAL GOVERNMENT EMPLOYEES GROUP INSURANCE SCHEME.** **ANNEXURE R2(c): COPY OF NOMINATION FOR DEATH CUM RETIREMENT GRATUITY.** **ANNEXURE R2(d): COPY OF LETTER FROM SRI.K.V.NANI, (APPELLANT) TO THE GENERAL MANAGER, TELECOM DISTRICT, BSNL, KANNRU.** **ANNEXURE R2(e): PHOTOCOPY OF THE DEPOSITION BY THE PETITIONER BEFORE THE SDOT, CHERUKUNNU.** **ANNEXURE R2(f): COPY OF LETTER FORWARDING OF DD ANNEXURE R2(g): COPY OF CONCERNED EXTRACT.** Rp //True Copy// PS to Judge