Vilasini v. Prasanna

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **&** **THE HONOURABLE MR. JUSTICE GOPINATH P.** **TUESDAY, THE 19TH DAY OF MAY 2020 / 29TH VAISAKHA, 1942** **Mat.Appeal.No.1167 OF 2014** **AGAINST THE JUDGMENT IN OP 116/2013 DATED 28-10-2013 OF FAMILY COURT, ATTINGAL** ## **APPELLANT/RESPONDENT:** **VILASINI AGED 59 YEARS W/O.LATE SUNDERASAN, PRINCY COTTAGE, NEDUMPUZHAYIL, CHUNGATHARA VILLAGE, MALAPPURAM DISTRICT.** **BY ADV. SRI.P.R.AJITHKUMAR** ## **RESPONDENT/PETITIONER:** **PRASANNA AGED 54 YEARS, W/O LATE SUNDERASAN, KALLARAVILAKOM HOUSE, NEDUMKONAM, VAMANAPURAM DESOM, PULIMATH VILLAGE.** **BY ADV. SRI.VISHNU BHUVANENDRAN1 BY ADV. SRI.BENOJ C AUGUSTIN BY ADV. SMT.J.KASTHURI BY ADV. SRI.NAGARAJ NARAYANAN BY ADV. SRI.PRATHAP PILLAI BY ADV. SRI.SAIJO HASSAN BY ADV. SRI.SEBIN THOMAS BY ADV. SRI.VIVEK V. KANNANKERI** **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 11-032020, THE COURT ON 19-05-2020 DELIVERED THE FOLLOWING:** Mat.Appeal No.1167/2014 -:2:- ## **J U D G M E N T** Dated this the 19[th] day of May, 2020 ## _**Shaffique, J.**_ Respondent in O.P. No. 116/2013 has preferred this appeal challenging the judgment dated 28/10/2013 of the Family Court, Attingal. By the impugned judgment, the Family Court granted a decree declaring that the petitioner is the legally wedded wife of late Sundaresan, who retired from Krishi Bhavan and died on 2/3/2007. 2. Petitioner contended that she was the legally wedded wife of Sundaresan. According to her, they got married as per religious rites and ceremonies prevailing among the community on 24/2/1974. The marriage took place at her house and they were living as husband-and-wife. A male child was born in the wedlock. Sundaresan got appointment as Agricultural Demonstrator at Malappuram. He shifted the residence to Malappuram and developed an illicit intimacy with the respondent. Thereafter, he neglected the petitioner and her child. Mat.Appeal No.1167/2014 ## -:3:- She filed MC No. 25/1990 before the Judicial Magistrate of 1[st] Class, Attingal. Maintenance was ordered and the money was being paid by her husband regularly. She also contended that during the last phase of her husband's life, he resumed the relationship with the petitioner. After the death of her husband, she approached the Department for family pension benefits. She was directed to produce a declaration from a competent court, since the respondent was shown as the nominee and legally wedded wife of the deceased in the service book. 3. The respondent in the objection denied the existence of a legal marriage between the petitioner and late Sundaresan. She contended that she married Sundaresan on 21/10/1978, as per the custom and ceremonies of the community in a temple. According to her, while he was employed at Malappuram, they were living together. She denied having any knowledge about a previous marriage with the petitioner. 4. As evidence in the case, two witnesses were examined on behalf of the petitioner and two on behalf of the respondent. Exts.A1 to A6 and Exts.B1 to B4 series were the documents relied upon. Mat.Appeal No.1167/2014 -:4:- 5. The Family Court, after considering the materials placed on record allowed the claim of the petitioner, which is impugned in this appeal. 6. We heard the learned counsel appearing on either side. Learned counsel for the appellant would argue that the main document relied upon by the petitioner to prove her marriage with Sundaresan cannot be relied upon as the veracity of the said document itself is doubtful. It is argued that merely for the reason that Sundaresan had paid maintenance to the petitioner and the minor child does not imply that there was a valid marriage between them. Existence of a valid marriage is a necessary concomitant for arriving at a conclusion as to whether the petitioner had any legal right to demand that she is the legally wedded wife of the deceased and that she is entitled for the family benefits which had accrued in favour of the respondent. It is argued that Ext.B1 is the marriage Certificate issued by Secretary of Dharmaraksha Samithi of Nedumpuzhayi Para Devatha Temple, Chunkathara, Malappuram, and the other documents clearly proves existence of a valid marriage between the respondent and Sundaresan and that 2 children were born in Mat.Appeal No.1167/2014 -:5:- the said wedlock. It is pointed out that the Marriage Certificate, which is produced in the case as Ext.A2, will not confer any right on the petitioner to make such a claim. The evidence adduced by the petitioner is self-contradictory, in so far as she was not even at the marriageable age when Ext.A2 was registered before the local Panchayat. Learned counsel argued that even going by the evidence, petitioner was only 14 at the time of marriage with Sundaresan and a witness, who had been examined on her behalf as PW2 was only 10 years of age. It is therefore argued that the Family Court committed serious error in placing reliance on Ext.A2, in order to grant a decree of declaration. 7. Learned counsel appearing on the side of the petitioner would however submit that existence of a valid marriage between the petitioner and the deceased was proved in the case by the oral testimony of PW1 and PW2. That apart, the marriage had been registered with the local authority immediately after the marriage ceremony and Ext.A2 is the Certificate issued by the Local Authority. When the existence of Ext.A2 cannot be disputed, existence of a valid marriage between the petitioner and Sundaresan is proved and there is no reason to Mat.Appeal No.1167/2014 -:6:- take a different view from what has already been decided by the Family Court. 8. The fact that Ext.A2 is a certificate evidencing the marriage between the petitioner and Sundaresan is not in dispute. There is no case for the appellant that the persons who were shown as husband and wife in the certificate of marriage prepared as per the Kerala State Marriage Rules are not the persons involved in the case on hand. The only contention urged is that the age of the petitioner is shown as 19 in Ext.A2, whereas she was only 14 at that time. Ext.A2 is the certified extract of a marriage certificate prepared by the Registrar of Marriages, Pulimath Grama Panchayat. It is a statutory register maintained by the Panchayat in accordance with the then prevailing Rules. The date of marriage in Ext.A2 is shown as 24/2/1974. When the genuineness of Ext.A2 is not in dispute. there is no difficulty in placing reliance on Ext.A2. The only question is regarding the age of the petitioner. In the original petition, which was filed in the year 2007, petitioner's age was shown as 47, in which event, her year of birth would be 1960. Therefore, at the time of marriage, she was only 14 years of age, whereas in the register Ext.A2, her Mat.Appeal No.1167/2014 -:7:- age was shown as 19. Petitioner has taken up a contention that she was aged 19 years at the time of marriage, which apparently is not correct. We have to proceed on the basis that the petitioner was only 14 years at the time of marriage. Even then, the question would be whether the said marriage is lawful or not. During 1974, as per the Hindu Marriage Act, 1955, the marriageable age of a girl was 15. Section 5(iii) of the Act as it then was reads as under:- _**“5 Conditions for a Hindu marriage** . - A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely:_ _xxxxx_ (iii) _the bridegroom has completed the age of eighteen years and the bride, the age of fifteen years at the time of the marriage.”_ 9. As per Section 11 of the Hindu Marriage Act, the marriages in contravention of condition numbers (i), (iv) and (v) of Section 5 are treated as void. As per Section 12, if there is contravention of Clause (ii) of Section 5, the marriage becomes voidable. In fact, nothing has been stated with reference to contravention of Clause (iii) of Section 5, which indicates the age stipulation of the bride. A learned single Judge of this Court has Mat.Appeal No.1167/2014 -:8:- held in _**Thambayi v. Kottan**_ (1964 K.L.T 88) that even if it is clear that the girl has not attained the age of 15 and it is in contravention of the conditions of a Hindu marriage, nevertheless it is a valid marriage. The Apex Court also had occasion to consider the very same issue in _**Lila Gupta v. Laxmi Narian**_ (1978 (3) SCC 258), wherein it was held at paragraph 8 as under:- _“8.xxx While enacting the legislation, the framers had in mind the question of treating certain marriages void and provided for the same. It would, therefore, be fair to infer as legislative exposition that a marriage in breach of other conditions the legislature did not intend to treat as void. While prescribing conditions for valid marriage in Section 5 each of the six conditions was not considered so sacrosanct as to render marriage in breach of each of it void. This becomes manifest from a combined reading of Sections 5 and 11 of the Act. If the provision in the proviso is interpreted to mean personal incapacity for marriage for a certain period and, therefore, the marriage during that period was by a person who had not the requisite capacity to contract the marriage and hence void, the same consequence must follow where there is breach of condition (iii) of Section 5 which also provides for personal incapacity to contract marriage for a certain period. When minimum age of the bride and the bridegroom for a valid marriage is prescribed in condition (iii) of Section 5 it would only mean personal incapacity for a period because every day the person grows and would acquire the necessary capacity on reaching the minimum age. Now, before attaining the minimum age if a marriage is contracted Section 11 does not render it void_ Mat.Appeal No.1167/2014 ## -:9:- _even though Section 18 makes it punishable. Therefore, even where a marriage in breach of a certain condition is made punishable yet the law does not treat it as void. xxx.”_ 10. Therefore, even assuming that the petitioner was only 14 at the time of marriage, still it is a valid marriage. Once it was found that Ext.A2 evidences a marriage which is not void, it has to be found that the petitioner was the wife of Sundaresan and he married her on 24/2/1974. Once the said fact is proved, the subsequent marriage with the respondent without there being a valid divorce in accordance with law, has no legal effect. In the light of the aforesaid discussion, we are of the view that the Family Court did not commit any error in granting a declaratory decree in favour of the petitioner. No grounds are made out to interfere with the impugned judgment. Appeal is hence dismissed. ## **Sd/-** ## **A.M.SHAFFIQUE** **JUDGE Sd/-** ## **GOPINATH P.** **JUDGE** Rp