Mini, D/o Sumangala Arappuraveedu, et al. v. Suseela Saraswathy Vilasom, Athira Prasad, The Secretary, Kerala State Electricity Board, and The Executive Engineer, Kerala State Electricity Board

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE K.HARILAL** **&** **THE HONOURABLE MR. JUSTICE A.M.BABU** **FRIDAY, THE 6TH DAY OF APRIL 2018 / 16TH CHAITHRA, 1940** **Mat.Appeal.No. 64 of 2009** **AGAINST THE ORDER/JUDGMENT IN OP 1557/2003 of FAMILY COURT,TRIVANDRUM DATED 29-08-2008** ## **APPELLANT(S)/PETITIONERS** - **1 MINI, D/O.SUMANGALA ARAPPURAVEEDU, KUTHAKODE,, KEEZHMAGAM, CHENKAL PO., CHENKAL VILLAGE, NEYYATTINKARA, THIRUVANANTHAPURAM.** **2 M.P.NEETHU, 16 YEARS, DO.DO.** **3 P.NIKIL PRASAD,** **AGED 14 YEARS, DO.DO. (IT IS RECORDED THAT 2ND AND 3RD APPELLANTS ATTAINED MAJORITY AS PER ORDER DATED 16.11.2017 IN IA 3167/2017 AND 4091/2017)** ## **BY ADV.SRI.BIJU BALAKRISHNAN** ## **RESPONDENT(S):** **1. SUSEELA , SARASWATHY VILASOM KIDANGIL, KAYIKKARA PO.,, NEDUNKANDOM, KADAKKAVOOR, KOLLAM.** **2. ATHIRA PRASAD,** - **RESIDING AT --- DO----DO---** **3. THE SECRETARY, KERALA STATE ELECTRICITY BOARD, VYDYUTHI BHAVAN PATTOM, THIRUVANANTHAPURAM.** **4. EXECUTIVE ENGINEER,** **KERALA STATE ELECTRICITY BOARD, GENERATOR DIVISION,, CHITHIRAPURAM , IDUKKI, IDUKKI DISTRICT.** **R,R1 BY ADV. SRI.M.R.ANANDAKUTTAN R,R2 BY ADV. SRI.M.BALAGOVINDAN R,R1 BY ADV. SMT.M.HEMALATHA R,R1 BY ADV. SRI.R.S.MADHU R,R1 BY ADV. SRI.MAHESH ANANDAKUTTAN R,R3 & 4 BY ADV. SRI.C.K.KARUNAKARAN, SC FOR KSEB R3,R4 BY ADV. SRI.P.SANTHALINGAM (SR.)** **R3,R4 BY ADV. SRI.S.SHARAN,SC,K.S.E.BOARD** **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 06-04-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **K.HARILAL & A.M.BABU, JJ. “CR” --------------------------MAT.APPEAL No. 64 of 2009 --------------------------Dated this the 6[th] day of April, 2018** ## **JUDGMENT** ## **K.Harilal, J.** The appellants are the petitioners in OP No.1557/2003 on the file of the family court, Thiruvananthapuram. The aforesaid original petition was filed seeking a decree granting a declaration that the first appellant is the legally wedded wife of the late D.Prasad and appellants 2 and 3 are the children born out of the wedlock between the said Prasad and the first appellant and that they are entitled to get all the service benefits of the said Prasad. The first respondent is the mother of the deceased Prasad and the second respondent is his daughter born to the deceased first wife of the said Prasad. The third respondent is the Secretary, Kerala State Electricity Board and the fourth respondent is the Executive Engineer, Kerala State Electricity Board and they are impleaded in the original petition to represent the employer under whom the said Prasad was working at the time of his death. The respondents 1 and 2 opposed the said original petition disputing the status of the appellants 1, 2 and 3 as wife and children respectively of the deceased Prasad. 2 ## **Mat.Appeal No.64 of 2009** 2. Heard the learned counsel for the appellants and the learned counsel for the first respondent. 3. On the rival pleas, both parties adduced evidence which consists of oral testimony of PW1 and DW1 and Exts A1 to A11 and B1 to B5 were marked. After considering the aforesaid evidence, the family court dismissed the original petition on a finding that the appellants failed to prove that the first appellant is the legally wedded wife of the deceased Prasad and the appellants 2 and 3 are the legitimate children born out of the wedlock between the first appellant and the deceased Prasad. The aforesaid finding, whereby the family court dismissed the original petition is assailed in this appeal on various grounds. 4. The sum and substance of the arguments advanced by the learned counsel for the appellants is that the family court went wrong by finding that the appellants failed to plead and prove the customary marriage of the first appellant with the deceased Prasad. According to the learned counsel, Ext A1 to A11 coupled with the oral testimony of PW1 would prove that the marriage between the first appellant and deceased Prasad was solemnised in accordance with the customary rites and they have lived together as husband and wife till the death of Prasad and 3 ## **Mat.Appeal No.64 of 2009** appellants 2 and 3 are the children born out of the said wedlock. But the family court miserably failed to appreciate the aforesaid evidence in its correct perspective. It is also contended that long cohabitation between the first appellant and the deceased Prasad can be inferred from Exts A9, A10 and A11 and it gives rise to the presumption of a valid marriage. Similarly, Exts A2 and A3 admission registers would prove that the appellants 2 and 3 are the children of the deceased Prasad. Therefore the court below ought to have found that the first appellant was the legally wedded wife of the deceased Prasad and the 2[nd] and 3[rd] appellants are the legitimate children born out of the wedlock between the first appellant and the deceased Prasad. 5. Per contra the learned counsel for the first respondent advanced arguments to justify the findings whereby the family court dismissed the original petition. According to the learned counsel for the first respondent, absolutely there is no pleadings or evidence to prove that the marriage between the first appellant and the deceased Prasad was solemnised in accordance with the customary rites of Hindu Ezhava community to which they belong. Unless and until the customary marriage was proved it cannot be held that the marriage was a legally valid marriage and the 4 ## **Mat.Appeal No.64 of 2009** children are legitimate children born out of the said wedlock. 6. In view of the arguments, the point to be considered is whether the appellants have succeeded to plead and prove legally valid marriage between the first appellant and the deceased Prasad and the legitimacy of the children. It is the specific case of the appellants that the marriage between the first appellant and the deceased Prasad was solemnised as per religious rites and customary ceremonies on 12.12.1991 at the family house of the first appellant and thereafter they have entered into a registered agreement between them at the subregistrar office, Poovar. The second and third appellants are the children born out of the said wedlock. According to them, the deceased Prasad was working as a Senior Assistant in Kerala State Electricity Board and he died on 8.8.2003. As the legally wedded wife and legitimate children born out of the wedlock the appellants are entitled to get all the pensionary benefits of the deceased Prasad. It is also admitted that the first respondent is the mother of the deceased Prasad and the second respondent is the daughter of the deceased Prasad who was born out in his first marriage with deceased Anitha. The respondents 1 and 2 disputed status of the appellants as legally wedded wife and 5 ## **Mat.Appeal No.64 of 2009** legitimate children of the deceased Prasad and they further contended that the deceased Prasad had earlier married one Anitha and she is no more. The second respondent is the daughter born out of that wedlock. Thus, now the respondents 1 and 2 alone are the legal heirs who are entitled to get the pensionary benefits of the deceased Prasad. 7. Going by the averments in the original petition, it could be seen that the appellants have simply stated that the marriage between the first appellant and the deceased Prasad was solemnised in accordance with the religious rites and customary ceremonies. They have not disclosed the details of the custom or the manner in which the marriage was performed, in the pleadings. Coming to evidence the only available evidence is the oral evidence of the first appellant and she has sworn proof affidavit in tune with the aforesaid averments in the petition. The details of the customary ceremonies or the manner in which the ceremony was performed have not been spoken to by her, in chief-examination. There is nothing more than the verbatim reproduction of the statements in the original petition. 8. In the above context, the legal position settled by the Supreme Court as well as this Court in various decisions assumes 6 ## **Mat.Appeal No.64 of 2009** relevancy and significance. This court in **2005 (2) KLT 212 (Leelamma vs Radhakrishnan)** held that “essentials of a valid marriage applicable to the parties according to their customary rites has to be pleaded and proved and when the factum of marriage is disputed. It is obligatory on the part of the claimant spouse to plead and prove the essentials of valid customary marriage”. We also subscribe the aforesaid view and prima facie we find that the appellants failed to plead and prove the essentials of a valid customary marriage. 9. The learned counsel for the appellants vehemently contended that evidence is in abundance to prove long cohabitation of the first appellant with the deceased Prasad and Exts A2 and A3 admission registers would prove that the appellants 2 and 3 are the children born out of the said long cohabitation and it gives rise to the inference of a valid marriage. It is true that Exts A2 and A3 admission registers show that the deceased Prasad is the father of the appellants 2 and 3. But, in the aforesaid decision, it is also held that mere long cohabitation and entry in the ration card and other documents executed in her favour without proving the performance of marriage conducted after customary rites of parties, execution of a valid marriage 7 ## **Mat.Appeal No.64 of 2009** cannot be presumed. Further in **AIR 1994 SC 135 (Surjit Kaur vs Garja Singh & Ors)** it has been held that “without pleading any custom prevalent in the area and performance of ceremonies, mere statement that gur was distributed after marriage and the couple lived as husband and wife for long time are not sufficient to establish a legally valid marriage”. In **AIR 1965 SC 1564** **(Bhaurao Shankar Lokhande vs The State of Maharashtra)** the Supreme Court further held that “solemnise marriage means to celebrate the marriage with proper ceremonies and in due form. Mere going through certain ceremonies with an intention of marriage will not make the ceremonies prescribed by law or approved by custom”. Therefore in the light of the above decision it can be safely concluded that the appellants miserably failed to prove the customary marriage claimed by them with the standard of proof required as laid down by the Supreme Court as well as this Court in the aforesaid decisions. 10. Next, the question is whether the children born out of a long cohabitation of the spouses publicly, as husband and wife would get benefit under Sec.16 (1) of the Hindu Marriage Act or presumption under Sec.112 of the Indian Evidence Act. We have 8 ## **Mat.Appeal No.64 of 2009** meticulously read the aforesaid provision and examined the statutory requirements which would entail the benefit under Sec.16 (1) of the Hindu Marriage Act and presumption under Sec.112 of the Indian Evidence Act. We find that the benefit under Sec.16 (1) of the Hindu Marriage Act or the presumption under Sec.112 of the Indian Evidence Act cannot be claimed or drawn to the instant case as there was no solemnization of marriage, as rightly held by the family court. The benefit of Sec.16 (1) of the Hindu Marriage Act is available only to the children born out of a marriage which is null and void under Sec.11 of the Hindu Marriage Act. According to Sec.11 of the Hindu Marriage Act, a marriage is void, if it was solemnised in contravention to any one of the conditions specified in clause (i) (iv) and (v) of Sec.5 of the said Act. So solemnization is an essential component to constitute a void marriage also. Similarly benefit under Sec.16(2) of the Hindu Marriage Act is available to the children begotten or conceived before decree of nullity is granted in respect of voidable marriage under Sec.12 of the said Act. According to Sec.12 any marriage solemnised whether before or after the commencement of the Act shall be voidable and may be annulled by a decree of nullity on any of the grounds 9 ## **Mat.Appeal No.64 of 2009** mentioned in clause (a) to (d). The benefit under Sec.16(1) and (2) is available to void and voidable marriages and there cannot be a void marriage without solemnization of marriage; In other words, the benefit of deemed legitimacy under Sec.16 (1) and (2) of the Hindu Marriage Act is available to the children born out of a marriage, which was solemnised, but was null and void or voidable. The solemnization of the marriage of the parents is sine quo non for claiming benefit of deemed legitimacy under Sec.16(1) and (2) of Hindu Marriage Act. In the instant case there is no evidence to prove solemnization of marriage between the first appellant and Prasad. Therefore, the appellants 2 and 3 are not entitled to get benefit under Sec.16 (1) or (2) of the Hindu Marriage Act. 11. Similarly, presumption under Sec.112 of the Indian Evidence Act is also available to the children born out of a valid marriage only. Unless and until, valid marriage is proved, the children also cannot claim that they are legitimate children born out of the wedlock. If the children are not born out of a valid marriage, there cannot be a presumption under Sec.112 of the Evidence Act also. In the instant case, the petitioners failed to prove a valid marriage. Therefore, the appellants 2 and 3 are not 10 ## **Mat.Appeal No.64 of 2009** entitled to get a presumption under Sec.112 of the Evidence Act also. 12. In the above analysis, we find that there is no illegality or impropriety in the findings that the appellants miserably failed to prove a legally valid marriage between the first appellant and the deceased Prasad and therefore the appellants are not entitled to get the pensionary benefits of the deceased Prasad. Hence this Mat.Appeal is dismissed. sd/- **K.HARILAL Judge** sd/- **A.M.BABU Judge** sks/6.4.2018