IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE ANTONY DOMINIC & THE HONOURABLE MR. JUSTICE P.D.RAJAN FRIDAY,THE27H DAY OF SEPTEMBER20135TH ASWINA, 1935 Mat.Appeal.No. 637 of 2012 (A) ------------------------------ AGAINST THE ORDER
/JUDGMENT
IN OP18872004 of FAMILY COURT,THIRUVANANTHAPURAM DATED0609-2012 APPELLANT/RESPONDENT: --------------------------------------- T.GEETHA D/O. THANKAMMA, CHARUVILA VEEDU, VILAYILMOOLA DESOM ATTINGAL VILLAGE, THIRUVANANTHAPURAM AND EMPLOYED AS MAZDOOR D APM, RESERVE BANK OF INDIA VIKAS BHAVAN (PO), THIRUVANANTHAPURAM. BY ADVS.SRI.G.P.SHINOD SRI.RAM MOHAN.G. SRI.MANU V. RESPONDENT/PETITIONER: ---------------------------------------- K.CHANDRAN S/O. KUNJAN, ASWATHY BHAVAN, KATTUVILAKOM EANIKKARA, KARAKULAM (PO), THIRUVANANTHAPURAM AND EMPLOYED AS MAZDOOR-CUM-WIREMAN, ESTATE DEPARTMENT RESERVE BANK OF INDIA, THIRUVANANTHAPURAM-695564. BY ADV. SRI.M.R.ANANDAKUTTAN BY ADV. SMT.M.A.ZOHRA BY ADV. SRI.R.S.MADHU BY ADV. SRI.MAHESH ANANDAKUTTAN THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON2709-2013, ALONG WITH MA. 667/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ANTONY DOMINIC & P.D.RAJAN, JJ.
======================== Mat. Appeal Nos. 637 & 667 OF2012========================== Dated this the 27th day of September, 2013
JUDGMENT
Antony Dominic, J.
These appeals are filed against the judgment of the Family Court, Thiruvananthapuram in OP Nos.1887/04 and 484/2007. Both the OPs were filed by the respondent against the appellant. OP No.1887/04 was filed by him seeking a declaration that the appellant is his legally wedded wife. He also prayed for restitution of his conjugal rights and recovery of `3,60,000/- with interest thereon. OP No.484/07 was filed by him seeking a prayer for a decree of divorce on the ground of desertion and cruelty.
2. Both the OPs were tried jointly and on behalf of the respondent/petitioner, himself and six witnesses were examined as PWs 1 to 7. On behalf of the appellant/respondent, herself and two other witnesses were examined as RWs 1 to 3. Exts.A1 to A12 and Exts.B1 to B6 were marked in evidence. By a common judgment rendered on 6/9/12, OP No.1887/04 was decreed in part declaring that the appellant is the legally wedded wife of the respondent and also allowing recovery of `3,60,000/- with future Mat. Appeal Nos. 637 & 667 OF2012:
2. : interest at the rate of 6%. The prayer for restitution was given up and therefore was not considered. OP No.484/2007 was allowed and divorce as prayed for was also granted. It is in these circumstances that these appeals are filed by the appellant.
3. Briefly stated, the case is that the respondent is a divorcee and the appellant is a widow. According to the respondent, he married the appellant in accordance with the customary rites applicable to the Hindus, on 7/4/2002, at the Aruvikkara Devi Temple. Thereafter, they constructed a house in the 7 cents of property owned by the appellant, which is situated at Karakulam. It was contended that for the construction of the house, he contributed `3,50,000/-. In that house, according to him, the couple lived with their respective children. Subsequently, the relationship got strained and as a culmination thereof, the OPs in question were filed. Although the appellant admitted that the respondent was closely known to her, she denied the allegation of marriage and the cohabitation pleaded by the respondent. She also denied the case that he had contributed `3,50,000/- for the construction of the house. She therefore pleaded for dismissal of both the OPs. Mat. Appeal Nos. 637 & 667 OF2012:
3. :
4. In the judgment in OP No.1887/04, the Family Court found that the appellant is the legally wedded wife of the respondent having solemnized their marriage in accordance with the customary rites on 7/4/2002. It also found that he was entitled to recover `3,60,000/- from the appellant.
5. We heard the learned counsel for the appellant and also the learned counsel for the respondent.
6. In MA No.637/2012, mainly two issues arise and the first one is whether the finding of the Family Court regarding the marital status of the parties is legally correct and the second question is whether the respondent is entitled to recover `3,60,000/- as claimed by him. In so far as the first question regarding the marital status, which alone can entitle him to the declaration that the appellant is the legally wedded wife of the respondent is concerned, as already stated, it is the case of the respondent that the marriage between them was solemnized in accordance with the customary rites at the Aruvikkara Devi Temple on 7/4/2002 and that they lived together at the house jointly constructed by them for 1= years. However, the case of Mat. Appeal Nos. 637 & 667 OF2012:
4. : the appellant was one of total denial. It is in this background, the respective contentions have to be appreciated by this Court.
7. The parties admittedly are Hindus and therefore they are governed by the provisions of the Hindu Marriage Act, 1955. Chapter II of the Hindu Marriage Act contains Sections 5 to 8, which provide for the conditions and ceremonies for a Hindu marriage. The requirements for a Hindu marriage are provided in these statutory provisions and unless the compliance of statutory provisions are established by cogent evidence, a person cannot claim a declaration that the other person is his legally wedded wife. Section 7 provides that a Hindu marriage may be solemnized in accordance with the customary rites and ceremonies of either party thereto. Sub Section 2 provides that where such rites and ceremonies include Saptapadi, the marriage becomes complete and binding when the seventh step is taken. In the judgment of the Apex Court in Bhaurao Shankar Lokhande and another v. State of Maharashtra and another (AIR1965SC1564, it has been held that the word 'solemnize' means, in connection with a marriage, to celebrate the marriage with proper ceremonies and in due form. It is also held that therefore unless Mat. Appeal Nos. 637 & 667 OF2012:
5. : the marriage is 'celebrated or performed with proper ceremonies and due form', it cannot be said to be 'solemnized' (vide para 5 thereof).
8. The ingredients of a valid marriage under the Hindu Marriage Act were indicated in the Division Bench judgment of this Court in Chakki v. Ayyappan (1988(1) KLT556 and in para 9 thereof, it has been held that the essential requirements of a Hindu marriage are (i) invocation before the sacred fire, and (ii) Saptapadi, that is taking seven steps by the groom and bride jointly before the sacred fire. Following the Apex Court judgment in Bhaurao Shankar Lokhande and another v. State of Maharashtra and another (AIR1965SC1564, in the judgment in Surjit Kaur v. Garja Singh {(1994) 1 SCC407, the Apex Court held that the fact that the man and woman living as husband and wife does not, at any rate, normally give them the status of husband and wife even though they may hold themselves out before the society as husband and wife and the society treats them as such. Again in S.P.S.Balasubramanyam v. Suruttayan {(1994) 1 SCC460, it was held by the Apex Court that if a man and woman live together for long years as husband and wife, then Mat. Appeal Nos. 637 & 667 OF2012:
6. : a rebuttable presumption arises in law of legality of marriage existing between the two. In the judgment in Anita Marginic v. Annadurai (1992 (2) KLT S.N.Case No.2), the learned Judge of Madras High Court held that, when the factum of marriage is disputed, evidence regarding performance of marriage according to Hindu rites must be brought on record to show that there had been a valid marriage and that registration is not the sole proof of marriage in order to become a valid marriage.
9. Kali v. Kamalakshi Amma (1967 KLT1063 was a case where in an agreement between two persons, they had described themselves as husband and wife and this Court considered whether whether such description would give rise to an inference of legal marriage. That issue was answered by the Division Bench by stating that such an admission would at best give rise to an admission of cohabitation and not a legal marriage in the absence of any proof to that effect. This issue came up again for consideration before this Court in Leelamma v. Radhakrishnan (2005(2) KLT212, and referring to the judgments in Jolly Das v. Tapan Ranjan Das (1995(1) KLT (SC) S.N.9) and Shaji v. Gopinath (AIR1995Madras 161) and Anita Marginie v. Annadurai (1992 II Mat. Appeal Nos. 637 & 667 OF2012:
7. : MLJ11, this Court held that when the factum of marriage is disputed, even registration of the marriage either under the Hindu Marriage Act or under the Special Marriage Act, cannot constitute proof of a valid marriage and that a valid marriage can be established only by proving the essentials of marriage according to the customary rites of the parties. It was also held that declaration in ration card and other documents showing the parties as husband and wife is of no consequence in the absence of the proof as indicated above.
10. The above being the legal principles which can be culled out from the precedents that were cited before us, we shall now proceed to examine whether the respondent succeeded in establishing that a valid marriage was solemnized between himself and the appellant. In support of his case of valid marriage, the documents that were relied on by the respondent are Exts.A1, A2, A5, A6, A12 and B4. Ext.A1 is an agreement dated 29/6/2002 which is executed between the appellant and the respondent and in that agreement, appellant and the respondent have been described as wife and husband. Ext.A2 is an agreement dated 01/04/2004 executed between the appellant and the buyer of her Mat. Appeal Nos. 637 & 667 OF2012:
8. : property and that agreement has been signed by the respondent as a witness and describing himself as the husband. Ext.A12 is an agreement dated 21/4/2004 executed by the appellant in favour of the Union Bank of India and in that agreement, respondent has been described as the husband. The relevance of Ext.B4 is that this document is attested by PWs 6 and 7, who are also witnesses to Ext.A1 agreement. Ext.A5 is the copy of OP No.345/2000 filed by the respondent before the Family Court seeking divorce against his wife, where he had pleaded that his wife raised allegation that he is having a relationship with the appellant. To this OP, the appellant was not a party and therefore any unilateral assertion made by him cannot bind the appellant. Ext.A6 is the thali pooja receipt issued by the Temple authority.
11. As far as the oral evidence that is available is concerned, it consists of that of the respondent himself and PWs 2 and 3. On the other hand, on behalf of the appellant, the evidence available is that of RWs 1 to 3. It is true that PWs 1 to 3 have spoken about the marriage and PWs 2 and 3 claim to have even witnessed the marriage. However, all these witnesses, apart from generally claiming that the marriage was performed in Mat. Appeal Nos. 637 & 667 OF2012:
9. : accordance with the Hindu customary rites, have not spoken about the actual customary rites, if any, that were performed on the occasion of the marriage. In other words, evidence of these witnesses did not bring on record performance of the ceremonies provided in Section 7 of the Hindu Marriage Act. In fact, pleading to that effect is also conspicuously absent in the petition itself.
12. In this context, it cannot also be lost sight of that even prior to the institution of the petition, on behalf of the respondent, Ext.A3 notice was issued and in that notice, he had claimed that the appellant is his legally wedded wife. To that notice, on behalf of the appellant, Ext.B5 reply was issued and in that reply the allegation of marriage was specifically denied. It is in spite of such denial that in the petition filed before the Family Court also, the ceremonies which are essential for a Hindu marriage were neither pleaded nor any evidence adduced.
13. As far as PW2 is concerned, even going by his own evidence, he was an employee of the Reserve Bank of India and he attended the marriage on a working day after reporting for duty and after obtaining permission from the Bank authorities. He also claimed that after the marriage, he reported back for duty Mat. Appeal Nos. 637 & 667 OF2012:
10. : within 1= hours. PW3, the brother-in-law of the respondent also claimed to have attended the marriage and he also testified that PW2 came from his office and attended the marriage. The marriage even according to the respondent was on 7/4/2002 and 7/4/2002 was a Sunday. If that be so, in the normal course, that day could not have been a working day for PW2. This testimony of PW2 and PW3 made their evidence unreliable and unworthy of any confidence.
14. On the other hand, DW1, the appellant, in clear terms denied the allegation of marriage. She had also examined DW3, Sub Group Officer of Aruvikkara Devi Temple. In so far as Ext.A6, the thali pooja receipt relied on by the respondent is concerned, DW3 explained that the fact that the thali pooja has been conducted does not mean that this was followed by a marriage. In fact, he also testified that even after marriage, thali pooja can be performed and a receipt in the nature of Ext.A6 can be obtained. Through him, Ext.X1 register of the temple was produced. This witness stated that going by the practice, if any marriage is solemnized in the temple as claimed, that would have been entered in the register. Admittedly, register did not contain any Mat. Appeal Nos. 637 & 667 OF2012:
11. : entry regarding the alleged marriage between the appellant and the respondent. Therefore, on the one side the evidence adduced by the respondent was unreliable and on the other side the evidence adduced by the appellant and her witness probablised the case pleaded by her that the marriage was in fact not performed at the temple.
15. Once it is accepted that the marriage in accordance with the customary rites is not proved, in the light of the precedents mentioned above, the case of the respondent could not have been improved either by Exts.A1, A2, A5, A6, A12 and B4 mentioned above or whatever is stated in these documents.
16. Now the question is whether there was a long cohabitation leading to the presumption of a legally valid marriage. In this context, it has to be borne in mind that even according to the respondent, after their marriage on 7/4/2002, their cohabitation was only till 18/12/2004. The evidence adduced by PWs 3 to 6, who are the brother-in-law of the respondent, the local Panchayat member, neighbour of the respondent and his brother also indicates that there was cohabitation. However, even if this evidence is accepted at its Mat. Appeal Nos. 637 & 667 OF2012:
12. : face value, cohabitation for the period up to 18/12/2004 cannot be accepted as sufficiently long cohabitation leading to a presumption of valid marriage between the two. Upshot of the above discussion of ours is that the respondent did not succeed in establishing a legally valid marriage between himself and the appellant entitling him for a declaration that she is his legally wedded wife.
17. The second issue that arises for consideration is whether the decree of the Family Court entitling the respondent for recovery of `3,60,000/- is legally tenable. Apart from the oral evidence adduced by the respondent, which indicates that he had paid `3,50,000/- for the construction of the house in the property owned by the appellant, the main documentary evidence that is relied on to prove payment is Ext.A1, the agreement between the respondent and the appellant executed on 29/6/2002. Although initially only a photocopy of this agreement was produced, subsequently under schedule of documents dated 8/11/2010, the original of this document was also produced before the Family Court. This agreement shows that the appellant had admitted that out of the amount spent for the construction of the house, Mat. Appeal Nos. 637 & 667 OF2012:
13. : `3,50,000/- was paid by the respondent and that the balance `4,50,000/- was spent by the appellant. It is also agreed between the parties that in the event the relationship strains and the parties separate, the appellant would pay an amount of `3,60,000/- to the respondent. The agreement contains the signature of the appellant and the respondent and it also carries the signatures of PWs 6 and 7.
18. It is true that the appellant had denied the execution of the agreement and according to the appellant, she had purchased two stamp papers, in which the agreement is drawn, for the purpose of obtaining electricity connection from the KSEB and that it was misusing those stamp papers the respondent had fabricated the agreement. However, the case of the respondent was that the document is a genuine one and that even prior to the purchase of the documents, the appellant had already obtained electricity connection. In fact, during hearing of these appeals, learned counsel for the respondent made available a document obtained from the Public Information Officer, KSEB, Electrical Section, Peroorkada, which shows that the appellant had obtained electricity connection on 18/11/2001. There is no reason to doubt Mat. Appeal Nos. 637 & 667 OF2012:
14. : the genuineness of this information and if that be so, the appellant could not have purchased stamp paper on 29/6/2002 and such a stamp paper could not have been misused by the respondent for fabricating the agreement as contended by her. Further, this agreement is a duly notarized one and the notary who has notarized appears to have notarized other documents which are also available on record. PWs 6 and 7 who are witnesses to this document are also witnesses to Ext.B4, which is a sale deed by which the appellant purchased the property where the house in question was constructed. Therefore, we have no reason to think that PWs 6 and 7 would have joined hands with the respondent for fabricating the document against the appellant.
19. In view of the above facts, we have no reason to doubt the genuineness of Ext.A1 agreement. If that be the situation, without any detailed reference to the other documents, we can safely conclude that the appellant had received `3,50,000/- from the respondent and that she has in fact acknowledged the same in Ext.A1 and admitted her liability to pay `3,60,000/- to the respondent. Consequently, the decree passed by the Family Court Mat. Appeal Nos. 637 & 667 OF2012:
15. : entitling the respondent to recover `3,60,000/- from the appellant does not suffer from any illegality.
20. In the result, MA No.637/12 is disposed of setting aside the judgment of the Family Court, Thiruvananthapuram in OP No.1887/2004 to the extent that it has declared that the appellant is the legally wedded wife of the respondent and the decree directing the appellant to return `3,60,000/- with 6% interest from the date of decree till realisation is confirmed.
21. MA No.667/12 arises from the judgment in OP No.484/2007. That OP was filed by the respondent seeking divorce against the appellant on the ground of desertion and cruelty. The Family Court allowed the OP as prayed for. It is aggrieved by this judgment, the appellant has filed this appeal. In our judgment in MA No.637/12, we have already concluded that the respondent failed to establish a legally valid marriage between himself and the appellant and on that basis reversed the declaration granted by the Family Court. As a consequence thereof, the appellant did not have the status of wife of the respondent dis entitling him to maintain a petition for divorce against him. Therefore, MA No.667/12 is allowed and the Mat. Appeal Nos. 637 & 667 OF2012:
16. : judgment of the Family Court, Thiruvananthapuram allowing OP4842007 is set aside. Appeals are disposed of as above. Sd/- ANTONY DOMINIC, Judge Sd/- P.D.RAJAN, Judge Rp //True Copy// PA TO JUDGE