T. Janaki Amma v. Balamani C.T and Union of India

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE & THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN TUESDAY, THE 25TH DAY OF JULY 2017/3RD SRAVANA, 1939 Mat.Appeal.No. 322 of 2016 ---------------------------- AGAINST THE JUDGMENT IN OP 480/2014 of FAMILY COURT,KOZHIKODE DATED 18-02-2016 APPELLANT/RESPONDENT: -------------------- T.JANAKI AMMA AGED 78 YEARS, D/O LATE KRISHNAN NAIR, MANGATT HOUSE, G A COLLEGE PO, IRINGALLUR AMSOM PALAZHI DESOM, KOZHIKODE-673014. BY ADVS.SRI.M.PROMODH KUMAR SRI.K.B.SAJEESH SMT.MAYA CHANDRAN RESPONDENTS/PETITIONER AND 2ND RESPONDENT: -------------------------------------------- 1. BALAMANI C.T AGED 64 YEARS, W/O LATE MADHAVAN NAIR, MANJARI NIVAS MANNARKUZHIYIL, NELLIKODE PO, NELLIKODE AMSOM AND DESOM, KOZHIKODE-673016. 2. UNION OF INDIA REPRESENTED BY SECRETARY, MINISTRY OF DEFENCE, SOUTH BLOCK, NEW BLOCK, NEW DELHI-110011. R1 BY ADV. SRI.R.SUDHISH R1 BY ADV. SMT.M.MANJU R2 BY ADV. SRI. N. NAGARESH R2 BY ADV. SRI N.NAGARESH ASSISIANT SOLICITOR GENERAL OF INDIA R2 BY ADV. SRI.JAGATH. N., CGC THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 23.06.2017, THE COURT ON 25-07-2017 DELIVERED THE FOLLOWING: ## **A.M.SHAFFIQUE & ANU SIVARAMAN, JJ.** **= = = = = = = = = = = = = = = = = = = =** **Mat.Appeal No.322 of 2016 = = = = = = = = = = = = = = = = = = = = Dated this the 25[th] day of July, 2017** ## **JUDGMENT** ## **Anu Sivaraman, J.** - 1.This appeal is preferred against the judgment dated 18.02.2016 of the Family Court, Kozhikode in O.P.No.480/2014. The original petition was filed by the 1[st] respondent herein seeking a declaration that the petitioner is the legally wedded wife of late K.Madhavan Nair. The appellant herein was the 1[st] respondent in the suit. Parties are referred to as arrayed in the original petition for convenience. 2. The material averments in the original petition were as follows:- Petitioner is the legally wedded wife of late K.V.Madhavan Nair who was a Military Pensioner. The marriage between plaintiff and late Madhavan Nair was solemnised on 20.03.1965 as per Hindu rites and customs at the petitioner's tarawad house at Palazhi, Kozhikode District. Since then, M.A.No.322/16 2 petitioner and Madhavan Nair were living together as wife and husband till the death of Madhavan Nair on 28.8.2009. In the wedlock, a daughter named Manjusha was born. Madhavan Nair was drawing Military Pension till his death. After the death of Madhavan Nair, petitioner applied for family pension as his heir, producing legal heirship certificate. The claim was rejected stating that as per service records, one Janaki Amma is the next of kin of Madhavan Nair and family pension cannot be granted to the petitioner. The matter was taken up with the District Collector, Kozhikode who rejected the claim stating that the marriage of Madhavan Nair with petitioner is the 2[nd] marriage. Petitioner filed O.A.No.33/2012 before the Hon'ble Armed Forces Tribunal, Regional Bench, Kochi. She stated that Janaki Amma is not the legally wedded wife of late Madhavan Nair. The 1[st] respondent is the wife of late Ayyappankovil Narayanan Nair, S/o.Kuttan Nair, Iringallur, Kozhikode. The Armed Forces Tribunal disposed the OA by an order dated 30.5.2013 permitting petitioner to withdraw OA with liberty to file a suit before the competent court. Accordingly the OP is filed. M.A.No.322/16 3 - 3.The appellant/1[st] respondent had filed a counter statement, the material contents were as follows:- Madhavan Nair is the husband of first respondent and he never married the petitioner. The alleged marriage on 20.3.1965 is not true. The allegation that the petitioner and Madhavan Nair lived together till his death and that Manjusha was born in the said wedlock also are false. Madhavan Nair had served in the Indian Military and in the service records, 1[st] respondent was shown as his wife and accordingly she is receiving family pension and she alone is entitled to the same. Madhavan Nair has not married any person other than the first respondent. The allegation that the first respondent is the wife of Ayyappankovil Narayanan Nair etc. also are false. The documents produced along with the petition are fabricated documents. The legal heirship certificate obtained by petitioner was questioned by the 1[st] respondent and by order dated 15.12.2014 of Tahasildar, Kozhikode, the legal heirship certificate was cancelled. Madhavan Nair and first respondent had executed a marriage agreement before Chevayur SRO on M.A.No.322/16 4 - 27.5.1957. Madhavan Nair retired from Military prior to 20.3.1965. The alleged marriage of Madhavan Nair and petitioner on 20.3.1965 is not true. The petition is liable to be dismissed with cost to the 1[st] respondent. - 4.The 2[nd] respondent, who is the son of late Madhavan Nair, and the 1[st] respondent had also filed a counter statement disputing the marriage between the petitioner-Balamani C.T. and Madhavan Nair. It was the averment that the 1[st] respondent and Madhavan Nair were married on 25.07.1961 and any marriage with the petitioner solemnised during the subsistence of the first marriage was void in law. The claim of the daughter of the petitioner for any share in the family pension was also disputed by the 2[nd] respondent. It was further stated that the 1[st] respondent herein was the nominee of Sri.Madhavan Nair in all his service records. - 5.PW1 and PW2 were examined on behalf of the petitioner and A1 to A17 were marked. The respondent examined RW1 and RW2 and B1 to B9 were marked. Relying on the oral and M.A.No.322/16 5 documentary evidence, the Family Court came to the conclusion that Madhavan Nair had married the petitioner and the parties had lived together as man and wife for a long time. It was also found that Madhavan Nair had attempted to make a correction in service records to show the name of the petitioner as his wife and nominee, but he passed away before such steps could fructify. The Family Court therefore held that the petitioner is the legally wedded wife of K.V.Madhavan Nair and that she alone is entitled to get the family pension of Madhavan Nair. The appeal is preferred by the 1[st] respondent in the original petition aggrieved by the findings of the Family Court. - 6.Heard the learned counsel for the appellant and the learned counsel for the 1[st] respondent. - 7.In the original petition, the petitioner had claimed that she was the legally wedded wife of late Sri.Madhavan Nair. She claimed that the marriage was on 20.03.1965. The pleadings are that the petitioner Smt.C.T.Balamani and Madhavan Nair M.A.No.322/16 6 were married as per Hindu religious rites and customs at the plaintiff's temple at Palazhi, Kozhikode. The marriage between the parties was denied by Janaki Amma. Her contention was that she was married to Madhavan Nair and that the second marriage with Smt.Balamani, if at all such a marriage had been solemnised, would be invalid. The claim of the 1[st] respondent was that she was the legally wedded wife of Madhavan Nair. This fact is clear from his service records where she is shown as the wife and nominee. She had also stated that she was drawing family pension on account of the entry showing her name as the wife of Madhavan Nair. It is further stated in her written statement that a marriage agreement had been executed before the SRO Cheruvayur between the appellant herein and Madhavan Nair on 27.05.1957. The certified copy of the said document was marked as Exhibit B7. It is contended that the appellant, being the legally wedded wife of Sri.Madhavan Nair who had been shown as the wife and nominee in all his service records by him, any second marriage contracted during the subsistence of the first marriage would be void and the M.A.No.322/16 7 petitioner could not claim the status of a legally wedded wife on the basis of such a marriage, which is void in law. - 8.The learned counsel appearing for the respondents contended that the 1[st] respondent herein was the legally wedded wife of Madhavan Nair. The contention is that the appellant herein who claimed to be the first wife could produce only a document purporting to be a registered agreement to marry. It is contended that from the evidence adduced, it was clear that the appellant was married to one Narayanan Nair as per customary rites prevalent in the Nair community much before the date of Exhibit B7 marriage contract. - 9.We have considered the arguments advanced and perused the pleadings and the evidence adduced. Since the customary marriage between the parties as well as Exhibit B7 contract are to be alleged to have occurred after the enactment of the Hindu Marriage Act, 1955, it would be the provisions of the said Act that are relevant in deciding the issues raised. M.A.No.322/16 8 10.Section 5(1) of the Hindu Marriage Act reads as follows:- **“5. Conditions for a Hindu Marriage.** - A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely: - (i) neither party has a spouse living at the time of the marriage.” ...................... Section 7 of the Act reads as follows:- **“7. Ceremonies for a Hindu marriage.** -(1) A Hindu marriage may be solemnized in accordance with the customary rites and ceremonies of either party thereto. (2) Where such rites and ceremonies include the saptpadi (that is, the taking of seven steps by the bridegroom and the bride jointly before the sacred fire), the marriage becomes complete and binding when the seventh step is taken.” Section 11 of the Act reads as follows:- “ **11.Void marriages** .- Any marriage solemnized after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto, against the other party be so declared by a decree of nullity if it contravenes any one of the conditions specified in clauses (i), (iv) and (v), Section 5.” ## 11.It is clear that no valid marriage between Hindus governed by the provisions of the Hindu Marriage Act can be contracted while either one of the persons intending to M.A.No.322/16 9 marry has already contracted another marriage and the said marriage is subsisting. Therefore, the question to be decided first is the legal validity of the alleged first marriage, that is with Janaki Amma. - 12.It has been held by this Court in **Sreekumar v.Prema** [1976 KLT 416] that once evidence is let in as to the conduct of a customary marriage in accordance with the customs of the community to which the parties belonged, and when there is no rebuttal evidence, the specific ceremonies need not be spoken of or proved. 13.A Division Bench of this Court in **Mohandas Panicker v. Dakshayani** [2014 (1) KLT 397] has held, analysing the decisions of this Court as well as the Apex Court, that in civil cases preponderance of probabilities is the standard to be adopted to prove a case. Matrimonial cases are civil proceedings and the court can act on preponderance of probabilities, since it is difficult to get direct evidence. The Apex Court in **Surjit Kaur v. Garja Singh and others** M.A.No.322/16 10 [1994 (1) SCC 407] has clearly held that where no customary marriage is proved, long cohabitation between parties or the birth of children in the relationship cannot lead to any presumption as to the existence of a marriage. 14.PW2 was examined by the 1[st] respondent herein in the original petition. He states that he was a witness to both the customary marriages. He deposed in unequivocal terms that he had witnessed the customary marriages of Madhavan Nair to Balamani on 20.03.1965, as also the customary marriage of Janaki Amma to one Narayanan Nair, which according to him, was approximately ten years prior to the marriage of Balamani to Madhavan Nair. The essential elements of a customary marriage between Nairs of Malabar being the lighted lamp, the Nira Para, the handing over of the Pudava, the thali and the exchange of garlands in the presence of elders and members of the community are all spoken to by the witness. It is also stated that the marriage was a simple ceremony. Apart from minor discrepancies as to the existence of Pandhal and Mandapam at the marriage of Madhavan Nair and Balamani, M.A.No.322/16 11 the evidence adduced by PW1 and PW2 as to the venue, date and the essential ingredients of a marriage among members of Nair community in Malabar were quite consistent. On the other hand, the 1[st] respondent Janaki amma in her evidence could not discredit the suggestion that she was earlier married to one Narayanan Nair. She also could not adduce any evidence or produce any material to prove any customary marriage between her and Madhavan Nair. In the absence of any such evidence of a customary marriage between the appellant herein and Madhavan Nair as claimed by her, the marriage contract dated 27.05.1957, by itself can have no legal validity. The mere fact of living together without valid marriage between the parties cannot confer any claim for the status of a legally married wife on the appellant. The recitals in Exhibit B6 marriage contract would clearly indicate that the parties had some legal impediment to contract a customary marriage and it is in those circumstances that the marriage contract was entered into. Taken in conjunction with the evidence adduced by PW2 to the effect that the appellant had already married one Narayanan Nair, it is clear that second M.A.No.322/16 12 marriage to Madhavan Nair during the subsistence of her first marriage would be void and inoperative. As such, Exhibit B7 cannot be relied upon to hold that there was any legally valid marriage between the Janaki Amma and Madhavan Nair. 15.What remains to be seen is the claim raised by the petitioner as to her status of legally wedded wife of Madhavan Nair. The petitioner had clearly pleaded that she had been married to Madhavan Nair on 20.3.1965 according to customary rites. As PW1 she had given evidence consistent with her claim. She had also examined PW2, who claimed to have witnessed the said marriage. PW2 stated that there was a pandhal and mandapam at the wedding venue. Apart from this minor discrepancy, PW1 and PW2 have consistently stated that the ingredients necessary for a customary marriage among Nairs in Malabar were fully met at the marriage. It is stated that there was the ceremonial lighted lamp, thali was tied by the groom around the bride's neck, ceremonial pudava was handed over by the groom to bride and exchange of garlands took place. The minor discrepancies may not be relevant due M.A.No.322/16 13 to the fact that the marriage is said to have taken place on 20.03.1965 and the evidence was recorded on 16.01.2016. Moreover, the pandhal and mandapam are by no means essential for the conduct of a marriage and the evidence on the point of conduct of a customary marriage has not been discredited in cross-examination. Perfect clarity cannot be expected from a witness to a marriage which took place more than four decades before he was called upon to give evidence. There is no counter-evidence also. - 16.The nature of evidence required to prove a customary marriage clearly differs in accordance with the nature of the pleadings and the reliefs sought. In cases where legal status of a wife is claimed, what has to be established is the conduct of a customary marriage between parties. Though Exhibit A9 had been relied upon by the counsel for the appellant to contend that in a case filed by the 1[st] respondent seeking maintenance from Madhavan Nair, he had denied the marriage to the petitioner, we are of the opinion that in the light of the clear evidence adduced by PW1 and PW2, an apparently M.A.No.322/16 14 independent witness, it can be safely concluded that there was a legally valid customary marriage between Balamani and Madhavan Nair on 20.03.1965, as contended in the petition. The fact that Sekhara Kurup, who was examined as PW2, had given evidence in favour of the 1[st] respondent herein in the MC also before the Magistrate's court cannot be a circumstance to doubt the veracity of his testimony which could not be discredited in cross examination. Since we have already found that the marriage contract entered into between Madhavan Nair and the appellant herein in the year 1957 would not amount to a legally valid marriage, the customary marriage contracted between Madhavan Nair and Balamani, the 1[st] respondent herein, which evidently had all the ingredients of a customary marriage prevalent in the community at the time, would be a legal and valid marriage. The petitioner in the original petition had also pleaded and proved long cohabitation between the parties to the marriage by producing ration card, electoral rolls etc. to prove their joint residence. M.A.No.322/16 15 In the above circumstances, we are of the opinion that the findings of the Family Court that the 1[st] respondent herein had made out a case for a declaration that she is the legally wedded wife of Madhavan Nair is perfectly sustainable. We find no merit in the appeal. The appeal fails and is accordingly dismissed. There will be no order as to costs. sd/- **A.M.Shaffique, Judge** sd/- **Anu Sivaraman, Judge** sj /True Copy/ P.A.to Judge