Unnikrishnan v. Parvathy

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE ANTONY DOMINIC & THE HONOURABLE MR. JUSTICE P.D.RAJAN WEDNESDAY, THE 31ST DAY OF JULY 2013/9TH SRAVANA, 1935 Mat.Appeal.No. 124 of 2005 ( ) ------------------------------AGAINST THE ORDER/JUDGMENT IN OP 1/2002 of SUB COURT, OTTAPPALAM DATED 29-09-2004 APPELLANT/RESPONDENT IN THE OP.: -------------------------------------------------------- UNNIKRISHNAN, S/O.THARAVATH APPU GUPTHAN KATTUKUALM AMSOM AND DESOM, OTTAPPALAM TALUK. BY ADVS.SRI.SANTHEEP ANKARATH SRI.P.P.SURESHKUMAR RESPONDENT(S)/PETITIONER IN THE OP.: ---------------------------------------------------- PARVATHY, D/O.POTILANGATTIL VENU GUPTHAN KODARMANNA DESOM, MANNEMPATTA AMSOM, OTTAPPALAM TALUK. R, BY ADV. SRI.R.SREEHARI THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 31-07-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **ANTONY DOMINIC & P.D.RAJAN, JJ.** ------------------------------------------- Mat.A.No.124 of 2005 ------------------------------------------Dated this the 31[st] day of July, 2013 ## **JUDGMENT** ## Antony Dominic, J. 1.This appeal arises from the judgment and decree of the Sub Court, Ottappalam in OP.No.1/02. The OP was filed by the respondent seeking maintenance from the appellant at the rate of Rs.1,000/- per month. By judgment dated 29.9.2004, the Sub Court allowed the respondent to realise maintenance from the appellant at the rate of Rs.300/- per month from the date of the petition and created a charge over the share of the properties of the appellant, scheduled in the petition. It is aggrieved by this judgment and decree, the appellant husband has filed this appeal. - 2.Briefly stated, the facts are that the marriage between the appellant and the respondent was solemnised on 26.1.1992. Pursuant to the judgment and decree in OP.No.102/95 of the Sub Court, Ottappalam, the marriage was divorced with effect from 23.8.1996. It was subsequently that in 2002, the MA.124/05 2 divorced wife, respondent herein, filed OP.1/02 before the Sub Court seeking maintenance invoking section 25 of the Hindu Marriage Act. Before the Sub Court, the appellant entered appearance and filed his objection on 22.9.2002 contending, inter alia, that the respondent remarried to one Karnan on 5.5.2000 and that they are living as husband and wife since then. Therefore, according to him, he need not have the obligation to pay maintenance to the respondent. He also contended that he did not have the means to pay maintenance to the respondent, as claimed. Before the Sub Court, the respondent was examined as PW1 and the appellant, as RW1. The appellant also produced Ext.B1, extract of the birth certificate of Aswathy, born to the respondent on 11.5.2003, in her relationship with Karnan. However, since the remarriage of the respondent with Karnan was not proved and since it was the definite case of the respondent that the pregnancy resulting in the birth of Aswathy happened due to a slip, the Sub Court rejected the contention of the appellant. It also relied on the judgments of this Court in **Valsarajan** v. MA.124/05 3 **Saraswathy** [2003(2) KLT 548] and in **Alavi** v. **Safia** [1992 (1) KLT 649] to hold that even a divorced wife living in adultery is entitled to maintenance. Proceeding further, the Sub Court decreed that the appellant shall pay maintenance to the respondent at the rate of Rs.300/- per month. - 3.We heard the learned counsel for the appellant and the counsel appearing for the respondent. - 4.Learned counsel for the appellant contended that the respondent having remarried to Karnan, which is proved from the evidence of the respondent herself and by Ext.B1, the Sub Court should not have decreed the OP. He also contended that even otherwise, the respondent being a woman, who, during the relevant time, was living in adultery, is ineligible to be paid maintenance. 5. On the other hand, counsel for the respondent contended that although it is a fact that Karnan is the biological father of MA.124/05 4 Aswathy, he has not married the respondent and that in the absence of a legal marriage between the two, the respondent does not lose her right to be maintained by her former husband. It was also contended that a divorced wife cannot be accused of living in adultery. In support of that contention, the counsel for the respondent relied on the Full Bench decision of this Court in **Mariyumma** v. **Mohammed Ibrahim** [AIR 1978 Ker 231]. 6.We have considered the rival submissions made. The first question is whether, in the facts of this case, it can be presumed that there was a marriage between the respondent and Karnan. The pleadings before the Sub Court would show that in the objection dated 22.9.2002 filed by the appellant, he has specifically pleaded that after the divorce pursuant to the judgment and decree in OP.102/95, on 5.5.2000, the respondent married Karnan, S/o.Gopala Tharakan, in a function held in her house in accordance with the religious customs and traditions. It was also stated that since then, the MA.124/05 5 couple are living as husband and wife. Admittedly, in the relationship that the respondent had with Karnan, she gave birth to Aswathy on 11.5.2003. This is evident from Ext.B1. In the cross examination, though she admitted that she gave birth to Aswathy as contended by the appellant, she denied the allegation of marriage between herself and Karnan. She also admitted that she lived with Karnan as wife and husband and that their relationship was known to everybody. However, when she was asked about the duration of their cohabitation, she stated that it was only for a period of one month and according to her, the cohabitation started only in May, 2003. Evidently therefore, the fact that she and Karnan lived together as wife and husband to the knowledge of her mother and the neighbours is admitted by the respondent herself. She has also admitted that in that relationship, she has given birth to Aswathy and nobody has a dispute about the paternity of the child. However, her case that she started her life with Karnan only in May, 2003 and that they lived together only for one month is a patently wrong statement because, in their MA.124/05 6 relationship, she gave birth to Aswathy on 11.5.2003. Further, on 10.8.2004, when she was examined in court, she also stated that Karnan was arrested by the police from her house 4 to 5 months prior to her examination. This, therefore, means that at least till May, 2004, Karnan had lived with her. The above evidence should be appreciated in the light of the contention raised by the appellant in the objection filed by him that since their marriage on 5.5.2000, Karnan and the respondent were living together as husband and wife. 7. On an overall consideration of the above evidence, it can be safely inferred that at least from 2002 till the middle of 2004, the couple lived together as husband and wife and in that relationship, Aswathy was born on 11.5.2003. It is true that there is no evidence available justifying a marriage in compliance with the customary rites but the question is whether the continued cohabitation of the two can give rise to an inference of marriage. To that question, to our mind, the answer has to be in the affirmative. We say so in view of the MA.124/05 7 law laid down by the Apex Court in **Reema Aggarwal** v. **Anupam and Others** [2004(3) SCC 199], where, it has been held in paragraph 9 thus: “So also where a man and woman have been proved to have lived together as husband and wife, the law will presume, until contrary be clearly proved, that they were living together in consequence of a valid marriage and not in a state of concubinage. (See Sastry Velaider v. Sembecutty following De Thoren v. Attorney General and Piers v. Piers.)”. - 8.If this be the situation, the respondent cannot claim the status of a divorced wife to claim maintenance from the appellant, her former husband. We are, therefore, of the view that for the aforesaid reason itself, the claim of the respondent should have been negatived by the Sub Court. 9. In view of the above finding, it is not necessary to consider the second contention raised by the learned counsel for the appellant that the respondent was living in adultery and therefore, she is ineligible for maintenance. MA.124/05 8 10.For the aforesaid reasons, the judgment and decree in OP.No.1/02 of the Sub Court, Ottappalam is set aside and the OP will stand dismissed. Appeal allowed accordingly. Sd/ANTONY DOMINIC, Judge. Sd/- P.D.RAJAN, Judge. kkb.