PRASANNA v. THRESIAL LILLY & ORS.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE & THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **WEDNESDAY, THE 25TH DAY OF JANUARY 2017/5TH MAGHA, 1938** **Mat.Appeal.No. 563 of 2016 ()** **-----------------------------OP 1366/2012 of FAMILY COURT,THIRUVANANTHAPURAM =============** **APPELLANT/1ST RESPONDENT: ---------------------------------------------** **PRASANNA, AGED 40 YEARS ENTHIVILAKATHU VEEDU ALL SAINTS, BEACH.P.O. THIRUVANANTHAPURAM** **BY ADVS.SMT.K.P.SANTHI SMT.SINDHU MURALEEDHARAN SMT.E.U.DHANYA** ## **RESPONDENTS/PETITIONER AND RESPONDENTS 2 AND 3:** **------------------------------------------------------------------------------------** **1. THRESIAL LILLY, D/O.TRESIAL, G.L.SADANAM KERALADITHYAPURAM, POWDIKONAM.P.O. THIRUVANANTHAPURAM - 695587 (POTTAYI VEEDU, ULIYAZHTHURA VILLAGE MEL ULIYAZHTHURA DESOM)** ## **2. DIVISIONAL MANAGER** **SOUTHERN RAILWAY, THIRUVANANTHAPURAM-695 001.** **3. SENIOR PERSONAL MANAGER SOUTHERN RAILWAY, THIRUVANANTHAPURAM-695 001.** **R1 BY ADV. SRI.GRASHIOUS KURIAKOSE (SR.) R1 BY ADV. SRI.GEORGE MATHEWS R1 BY ADV. SRI.H.JOSH R2-R3 BY ADV. SRI.C.S.DIAS,SC, RAILWAYS** **THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION ON 25-01-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **SD** ## **A.M. SHAFFIQUE & K. RAMAKRISHNAN, JJ. --------------------------------------M.A. No.563 of 2016** **--------------------------------------Dated this the 25[th] day of January, 2017** ## **JUDGMENT** ## K. Ramakrishnan, J. The first respondent in O.P. No.1366 of 2012 on the file of the Family Court, Thiruvananthapuram is the appellant herein. The said original petition was filed for a declaration that she is the wedded wife of late Sri.Khaleb Titus and a further declaration that she is eligible for service benefits and family pension of the deceased husband and also for a mandatory injunction directing respondents 3 and 4 to disburse the service benefits and family pension to the petitioner and also a prohibitory injunction restraining respondents 2 & 3 from disbursing the amount to the 1[st] respondent. _M.A. No.563 of 2016_ **2** 2. According to the petitioner, the marriage between late Sri.Khaleb Titus and herself was solemnised on 08.09.1977 at CSI Church, Maruthoor and two children are born to their wedlock. Since the husband deserted her, she filed MC No.81 of 1989 before the Judicial First Class Magistrate's Court, Thiruvananthapuram, claiming maintenance and the same was allowed. Thereafter, she filed CMP No.346 of 1996 for enhancement of maintenance and that was also allowed. The deceased was working as Compound Gang Mate in the Southern Railway and he retired from service on 31.03.2006 and later he died on 13.05.2009. 3. When the petitioner approached respondents 2 & 3 for pensionary benefits, they said that the first respondent is the wife of the deceased. So they did not pay the amount, that prompted the petitioner to file the petition for declaration and injunction. 4. The first respondent filed written statement, contending that the petition is not maintainable. She denied _M.A. No.563 of 2016_ **3** the marriage between the petitioner and late Sri.Khaleb Titus. According to her, the deceased married her and the marriage between the petitioner and the deceased was dissolved in 1982 and thereafter, the deceased married her and the relationship continued and two children are born to the said wedlock. According to her, she is the legally wedded wife of the deceased and the petitioner is not entitled to any relief and prayed for dismissal of the petitions. 5. The 3[rd] respondent filed written statement on behalf of the 2[nd] respondent also, contending that the deceased was working as Gang Mate and Section Engineer, PW, Southern Railway, Alappuzha and he retired on 31.03.2006. They were not aware of the death of the deceased. He did not mention the name of the person, who is eligible for pension. So they are not in a position to sanction family pension, unless the status of the petitioner is declared by the Court, they cannot pay the amount to her as there is a dispute between the petitioner and respondent regarding the status of wife of the _M.A. No.563 of 2016_ **4** deceased and according to them they are unnecessary parties. 6. PWs 1 to 3 were examined and Exts.A1 to A6 were marked from the side of the petitioner. CPWs 1 to 3 were examined and Exts.B1 to B6 were marked from the side of the respondent. On behalf of respondents 2 & 3, CPW4 was examined. 7. After considering the evidence on record, the Court below come to the conclusion that the petitioner is the legally wedded wife of the deceased and she is entitled to the declaration as prayed for, and decreed the suit as prayed for. Aggrieved by the same, the present appeal is filed by the appellant/the first respondent before the Court below. 8. Heard Smt.K.P. Santhi, the learned counsel appearing for the appellant, Sri.Grashious Kuriakose, the learned Senior Counsel appearing for the 1[st] respondent and Sri.C.S. Dias, the learned Standing Counsel appearing for respondents 3 & 4. 9. The learned counsel for the appellant submitted that, _M.A. No.563 of 2016_ **5** the right of the child had to be left open and the marriage was solemnized with the appellant after separation of the marriage with the petitioner in the Court below. 10. On the other hand, the learned Senior counsel appearing for the 1[st] respondent submitted that there is no evidence of dissolution of marriage and the second marriage was conducted during subsistence of the first marriage, which is not valid in law. 11. The learned counsel for respondents 3 & 4 reiterated their stand in the Court below that there is a dispute as to who is the legally wedded wife o a deceased, they could not pay the amount and they will act according to the direction of the Court. 12. The fact that the marriage of the petitioner was solemnised on 08.09.1977 and two children were born to them in the wedlock is not in dispute. The case of the appellant herein was that, the marriage between the 1[st] respondent and the deceased was dissolved in 1982 and it is thereafter that _M.A. No.563 of 2016_ **6** the deceased married her. According to her, she is the legally wedded wife of the deceased. The documentary evidence as well as the oral evidence adduced on the side of the petitioner before the Court below will go to show till the death of Sri.Khaleb Titus, her marital relationship was subsisting and there was no dissolution of marriage, enabling the appellant to marry the appellant. 13. In the said circumstances, the Court below has justified in coming to the conclusion that the marriage between the deceased and the appellant herein was not legal and that will not give her the status of a wife, as the marriage was solemnised during subsistence of the first marriage. So the Court below rightly declared that, the 1[st] respondent is the legally wedded wife of the deceased and she is entitled to get the retirement benefits relyig on the decision reported in _**Rajkumari v. Krishna**_ **[2015 (3) KLT SN 82]** . There is no illegality committed by the Court below in arriving in that finding. We do not find any reason to interfere with the finding _M.A. No.563 of 2016_ **7** arrived by the Court below and the appeal lacks merits and the same is hereby dismissed. It is also made clear that the right, if any, of the children born to the appellant in the marriage with the deceased will be left open to be decided in appropriate proceedings, if any right is available to them in the estate of the deceased. Considering the circumstances, the parties are directed to bear their respective costs in the appeal. Sd/- **A.M.SHAFFIQUE, JUDGE.** sp/27/01/17 Sd/- **K. RAMAKRISHNAN, JUDGE.** //True Copy// P.A. to Judge