Namitha S. Nair v. Ravikanth

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** **&** **THE HONOURABLE MR.JUSTICE N.NAGARESH** **TUESDAY, THE 20TH DAY OF AUGUST 2019 / 29TH SRAVANA, 1941** **Mat.Appeal.No.1132 OF 2017** **AGAINST THE JUDGMENT DATED 20-06-2017 IN OP.479/2016 OF FAMILY COURT, THIRUVANANTHAPURAM** ## **APPELLANT/PETITIONER:** **NAMITHA S. NAIR D/O.SASIDHARAN NAIR, NANDANAM, T.C. 9C-1825, SABARI NAGAR, VENCHAVODU, CHEMPAZHANTHY P.O., THIRUVANANTHAPURAM.** **BY ADVS. SRI.BASANT BALAJI SMT.N.P.SILPA** ## **RESPONDENT/COUNTER PETITIONER:** **V.RAVIKANTH D-4, HADI RESIDENCY, 50 HALLS ROAD, KILPAUK, CHENNAI, TAMILNADU-600010 WORKING AT FLAT NO.219, ALKHARBASH BUILDING, 21 B STEER, MANKHOOL, P.O.BOX-125129, DUBAI, UNITED ARAB EMIRATES.** **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 03.07.2019, THE COURT ON 20.08.2019 DELIVERED THE FOLLOWING:** **Mat. Appeal No.1132 of 2017** **2** ## **[CR]** ## **J U D G M E N T** ~ ~ ~ ~ ~ ~ ~ ~ ~ _Dated this the 20[th] day of August, 2019_ ## _**Nagaresh, J.**_ The appellant, who is the wife of the respondent, is aggrieved by the judgment in O.P. No.479/2016 of the Family Court, Thiruvananthapuram, whereby the Family Court has dismissed the O.P. filed by the appellant seeking for a declaration that she is not the legally wedded wife of the respondent. 2. In her Original Petition, the appellant averred that the marriage between the appellant and the respondent was solemnised on 03.02.2010 in accordance with the rituals and customs of their community. The appellant was married **Mat. Appeal No.1132 of 2017** **3** earlier and had two children in her first marriage. However, the appellant's first marriage was mutually dissolved. The respondent also had an earlier marriage and at the time of his marriage with the appellant, the appellant was made to believe that his earlier marriage was also dissolved. 3. After the marriage of the appellant with the respondent, they lived in Tamil Nadu. Their married life became difficult due to the irresponsible way of life of the respondent. He used to leave home for weeks together. The respondent used to say that his creditors are chasing him. Therefore, they shifted their residence to Thiruvananthapuram. On a desire to purchase a flat at Thiruvananthapuram, the appellant sold her gold ornaments and handed over ₹50 lakhs to the respondent. However, the respondent did not purchase flat. Instead, he left to Gulf in June, 2012, planning to start a business there. The appellant was also taken to Gulf in September, 2013. The respondent took trade licence in the name of the appellant and took huge amounts as loan from a number of persons, without the **Mat. Appeal No.1132 of 2017** **4** knowledge of the appellant. These amounts were spent for his personal needs. The appellant came to know of this only when creditors and banks initiated action. The appellant was therefore forced to sell her landed properties and gold ornaments to settle the liabilities and to release the respondent from jail. 4. The appellant stated that the two years of her life with the respondent in Gulf was harrowing. On 24.05.2014, the respondent deserted the appellant and switched off his phone. After about six months, the respondent returned to home. The appellant was not aware of the whereabouts of the respondent during this period. While so, she happened to see photocopies of his two Indian passports and she noticed that against the column of spouse, name of his first wife Uma was recorded. Then only the appellant came to know that the respondent married the appellant during the subsistence of his earlier marriage. The respondent entered into marriage with the appellant concealing the existence of his first marriage. The appellant was made to enter into **Mat. Appeal No.1132 of 2017** **5** marriage with the respondent deceitfully and fraudulently. It is raising such allegations that she filed O.P. No.479/2016. Therefore, the appellant prayed that a declaration be made that the appellant is not the legally wedded wife of the respondent and that there is no valid marriage in existence between them. 5. The respondent - husband remained _ex-parte_ . The appellant was examined as PW1 and marked Exts.A1 to A6 documents. 6. The Family Court noted that Ext.A1 marriage photograph would prove the marriage between the appellant and the respondent. Ext.A2 order in O.P.(HMA) No.1025/2008 would prove that the first marriage of the appellant was dissolved. The Family Court, however, found that the complaint of the appellant is that one Uma's name is entered in the bank account and passbook of the respondent and that it is not a ground to find that the respondent had a spouse living at the time of their marriage. The Family Court concluded that the marital relationship between the appellant **Mat. Appeal No.1132 of 2017** **6** and the respondent may not be happy but it is not a sufficient reason to declare the marriage between them as void. The Family Court held that no valid or legal grounds exist to declare the marriage between the appellant and the respondent as void. On these premises, O.P. No.479/2016 filed by the appellant was dismissed. 7. We have perused the pleadings in the O.P. and the Mat. Appeal and heard the arguments of Advocate Basant Balaji, learned counsel appearing for the appellant. Though notice was issued and served on the respondent in this proceedings, he has not chosen to appear and contest the matter. 8. In paragraph 10 of the O.P., the appellant had specifically averred that _the respondent - counter petitioner has entered into the marriage by concealing the existence of his previous marriage with his first wife named 'Uma'_ . Again, in paragraph 12 of the O.P., the appellant pleaded that _the subsistence of the first marriage, which is not dissolved, invalidates the second marriage and it is no marriage in the_ **Mat. Appeal No.1132 of 2017** **7** _eye of law_ . Though the appellant in her petition had made many allegations against the respondent, it is the basic legal ground of subsistence of an earlier marriage, which was urged by the appellant for declaration that there is no valid marriage existed between the appellant and the respondent. We must say that the Family Court has failed to apply its mind on this very issue. 9. Apart from the sworn affidavit of the appellant wherein the appellant had stated about the subsisting marriage of the respondent with Uma, the appellant had produced Ext.A5 series which are photocopies of passports issued to the respondent. The marriage of the appellant with the respondent was on 03.02.2010. In Ext.A5 passport issued by the Regional Passport Officer, Chennai to the respondent, name of the spouse of the respondent is shown as 'Ravikanth Uma'. In Ext.A5(a) passport issued by the Consulate General of India, Dubai (UAE) to the respondent also, the name of spouse is shown as 'Ravikanth Uma'. The validity of Ext.A5 passport is from 14.07.2010 to 13.07.2020 **Mat. Appeal No.1132 of 2017** **8** and that of Ext.A5(a) passport is from 09.09.2013 to 08.09.2023. Therefore, it is clear that these passports have been obtained by the respondent subsequent to his marriage with the appellant. 10. The question is whether entry in the passports alone are sufficient to hold that the first marriage of the respondent subsisted at the time of his marriage with the appellant. In exercise of the powers conferred by Section 24 of the Passports Act, 1967, the Central Government has made the Passports Rules, 1980. A reading of Clause A(2) (e) of Schedule III to the Passports Rules, 1980 as it stood then, would show that at the time when the respondent obtained/renewed his passports, production of marriage certificate or an affidavit in lieu thereof, was mandatory for issuance of Exts.A5 and A5(a) passports. Therefore, going by Section 114 of the Evidence Act, it must be presumed that passports were issued to the respondent following the due official procedure and on production of proof of existing marriage of the respondent with his first wife Uma. **Mat. Appeal No.1132 of 2017** ## **9** 11. The burden of proof to establish that there subsisted a marriage, is on the appellant. The appellant not being the holder of the document, she could only have produced photocopies of the passports. The rigor of the Indian Evidence Act, 1872 is not to be applied in a proceeding before the Family Court in view of Section 14 of the Family Courts Act, 1984. In the judgment in _**Sithara v. Harikrishnan Nair** [2011 (4) KLT 492]_ , a Division Bench of this Court held that when a wife filed petition for declaration of marriage as null and void and produces a photocopy of prior marriage certificate, propriety required that Family Court declare the marriage null and void based on undisputed averments in the affidavit. Under Section 14, the Family Court may receive as evidence any document, information or matter that may in its opinion assist it to deal with a dispute, whether or not the same would be otherwise admissible under the Indian Evidence Act, 1872. In the present case, the appellant has discharged her burden of proof by filing affidavit in proof and producing photocopies of the passports **Mat. Appeal No.1132 of 2017** **10** of the respondent. 12. The respondent has not cared to appear in the Family Court proceedings and to controvert the evidence adduced by the appellant. Section 10 of the Family Courts Act, 1984 requires Family Courts to follow the provisions of the Code of Civil Procedure, 1908 subject to the other provisions of the Act. Order VIII Rule 10 of CPC provides that where any party from whom a written statement is required fails to present the same, the court shall pronounce judgment against him or make such order in relation to the suit as it thinks fit. The counsel for the appellant relied on a Division Bench judgment of the Patna High Court in _**Arti Jaiswal v. Pawan Chaudhary and others** [AIR 2016 Pat. 200]_ wherein it was held that in a proceeding for declaration of nullity of marriage on ground of subsistence of earlier marriage, when evidence on record by way of affidavit and pleadings remain unchallenged, subsistence of earlier marriage can be presumed. 13. The respondent has not filed any written **Mat. Appeal No.1132 of 2017** **11** statement/counter affidavit/objection in the proceedings. Therefore, we have no hesitation to hold that the appellant has succeeded in proving the subsisting earlier marriage of the respondent. In view of the credible evidence adduced by the appellant by production of Exts.A5 and A5(a) documents, the Family Court should have allowed the O.P. filed by the appellant granting the declaratory relief sought for. In view of the above, the Mat. Appeal filed by the appellant is allowed. It is declared that the appellant/petitioner is not the legally wedded wife of the respondent/counter petitioner and that there is no valid marriage existed between the appellant and the respondent. Sd/- ## **C.T. RAVIKUMAR, JUDGE** Sd/- **N. NAGARESH, JUDGE** aks/04.07.2019