Huluvadi G. Ramesh, J
1. These appeals arise out of the judgment and decree passed by the Civil Judge (Sr.Dvn.), Koppal in RA 7/2009 and 16/2009 on 23rd July, 2010. Parties are referred as per their ranking before this Court.
2. Respondents 1-3 filed a suit before the Civil Judge (Jr.Dvn.), Koppal seeking to declare that they are the legal representatives of deceased Devendrapa Jirlbhavi and also have a right to claim the schedule A and B benefits.
3. It appears plaintiffs/respondents 1-3 are the wife and sons of late Devendrappa Jirlbhavi. The said Devendrappa was employed as a Principal in Junior College of Sunakalabidiri, Ranebeenur Taluk and there was pension and gratuity benefits given to him. It is stated, the 1st defendant began to create obstruction and also started troubling the plaintiff in one or the other way, she had led a immoral life with the 1st plaintiffs husband Devendrappa and began posing herself as the wife of Devendrappa and with an intention to knock of the terminal other benefits of deceased Devendrappa, a suit came to be filed contending that plaintiffs are entitled to the benefits arising out of the LIC policies in the name of Devendrappa and that the 1st defendant being a highly influential person was trying to derive all the benefits arising on the death of Devendrappa. The suit was contested denying the averments as false and stating that plaintiffs are not entitled for getting any benefit of Devendrappa and it is 1st defendant alone who is the legally wedded wife of the deceased. The 1st defendant had married Devendrappa on 10.5.1977 at Nandeeshwaramathy in the presence of parents and elders of the community; out of the wedlock she has given birth to six daughters; the deceased got entered the name of this defendant entered as his wife and nominee for receiving the service/monetary benefits and produced all the relevant documents in this regard. It is also stated, 1st plaintiff and her children are in no way concerned with the deceased Devendrappa. Based on the pleadings, as many as six issues were raised for consideration and after inquiry, before the Trial Court as many as six documents were produced and five witnesses were examined by the plaintiff. So also the defendants examined nearly 5 witnesses and thirty two documents were got marked. Thereafter, while decreeing the suit in part, Trial Court held that 1st plaintiff is the legally wedded wife and plaintiffs 2 and 3 are the children of deceased Devendrappa Jirlbhavi. The claim of the plaintiffs they are entitled to family pension benefit and other service benefits as shown in Schedule A and B has been dismissed. Further, it is made clear, plaintiffs are not entitled to claim any monetary benefits available to the legal representatives of deceased Devendrappa Jirlbhavi. As against this order, before the Civil Judge (Sr.Dvn), Koppal one appeal is filed by the plaintiffs against deprivation of other monetary benefits and the other appeal is filed by the 1st defendant against the order declaring the marriage of 1st plaintiff with deceased Devendrappa Jirlbhavi as legal and valid and according her family pension benefit. Both the appeals i.e., RA 7/2009 and 16/2009 were clubbed together and a common order has been passed. having raised as many as six points for consideration, while dismissing the appeal filed by the 1st defendant/appellant, allowed the appeal of the plaintiffs/respondents 1-3 in part, modifying the order of the Trial Court having reaffirmed the order of the Trial Court that 1st plaintiff/1st respondent is the legally wedded wife of deceased Devendrappa; plaintiffs 2 and 3 are the children born to them; 1st plaintiff is entitled for family pension for her life time and plaintiffs 1 to 3 are entitled for 1/3rd share in joint, in the gratuity, provident fund accumulated and other benefits payable to the deceased including the LIC policies payable on the death of the assured/deceased. Further, it is also held, plaintiffs are entitled to the policy amount in full in respect of policy No.631479191 towards their share. Even then the plaintiffs share in fourteen policies of the deceased received by the 1st defendant and her daughter Sangamma is not satisfied, the same shall be adjusted from the benefits payable to the six children of 1st defendant. Aggrieved by this order, these two second appeals are filed by the 1st defendant seeking to set-aside the declaration of marriage of the 1st plaintiff with the deceased Devendrappa Jirlbhavi and also to order of all monetary benefits in favour of her and her children.
4. Heard the Counsel representing the respective parties.
5. According to the appellants Counsel, there are no material evidence produced by the 1st plaintiff in support of her marriage with Devendrappa Jirlbhavi. Further, no cogent evidence is available on record. Even as on the date of the alleged marriage, she was a minor and both the Courts below have committed an error in declaring that 1st plaintiff/1st respondent is the legally wedded wife of deceased Devendrappa and also erred in extending the monetary benefits to the 1st plaintiff. According to the Counsel, it is a clear case of void marriage and plaintiffs are not entitled for benefits and before the Trial Court although they produced several documents to stand by their case that the marriage of 1st defendant was celebrated with Devendrappa Jirlbhavi, her entitlement and the nomination made in the name of 1st defendant Rathnamma in all the relevant documents and also service records, the approach of the Trial Court as also the Lower Appellate Court is without considering the material evidence on record. Accordingly, relying upon the decision in the case of RADHAMMA vs. UNION OF INDIA and ORS (ILR 1999 KAR 3239), it is contended the names entered in the service records as nominee and also other policies do depict 1st defendant is the legally wedded wife of the deceased. Further, though there is no prayer seeking for a declaration, both the Courts below proceeded to declare that the 1st plaintiff is the legally wedded wife of the deceased Devendrappa although she was a minor at that time and the marriage was void. Thus, he prays to set-aside the order passed by the Courts below and to dismiss the suit.
6. Per contra, Counsel representing the plaintiffs/respondents 1-3 submitted, there is abundant oral evidence and apart from that, there is also documentary evidence available and it has been vividly explained in the evidence as to the marriage of the deceased with the 1st plaintiff who is none other than sisters daughter of the deceased Devendrappa. PW2 being the mother of the deceased has deposed as to the marriage of Devendrappa with the 1st plaintiff. Referring the Hindu Marriage Act, 1955 as regards the amendment of marriageable age enhanced from 15 to 18 years, observed that at the time of marriage of 1st plaintiff she was aged more than 15 years and also observed that there may be little contradictions in the evidence that as of 1958, 1st plaintiff was a two years old child, marriage was celebrated during 1974 by which time she had already completed 15 years. In similar circumstances, this Court in the case of MALLIKARJUNAIAH vs. H.C. GOWRAMMA (AIR 1977 KAR.77), has held that marriage cannot be declared as void. Counsel has also relied upon the judgment in the case of RABINDRA PRASAD vs. SITA DEVI (AIR 1986 Patna 128), in support of his contention.
7. The substantial questions of law that arise for consideration are:
Whether both the Courts below are justified in declaring the marriage of the 151 plaintiff with that of deceased Devendrappa was valid and she is entitled for pensionary benefit and other monetary benefits;
Whether the marriage of the 1st plaintiff with Devendrappa has to be declared as void.
8. So far as declaration of marriage of the 1st plaintiff by both the Courts below that it is valid and prayer sought in the plaint is sufficient to extend the relief as she is already the legally wedded wife and that relief is sought for. Further more, in the prayer they have sought to declare any other relief that needs to be extended. The evidence of PW 2 who is a common relative of plaintiff and defendant 1 is in unequivocal terms, she being the grand mother of the plaintiff and mother of deceased Devendrappa. Her evidence cannot be belied. The deceased is none other her own son. Nothing worth is elicited in her evidence to contradict her version.
9. Counsel for the appellant, insisted upon certain entries made in the service register, as nominees and in other LIC policies to stand by the contention that there was no marriage solemnized with 1st plaintiff and rather there are marriage invitations in proof of her marriage with the deceased for which PW 2 was also a party and that itself depicts that 1st defendant is the legally wedded wife of the deceased and both the Courts below have noted, even though her name is mentioned in the documents as nominee or her name is mentioned in the service records, that itself will not be enough to come to the conclusion that she is the legally wedded wife unless such aspect is proved by the defendant. Accordingly, referring to Section 50 of the Evidence Act, it is opined the documents produced are not sufficient to prove that 1st defendant is the legally wedded wife of deceased Devendrappa.
10. The Trial Court as well as the lower Appellate Court regarding the age of the 1st plaintiff at the time of marriage and whether there is breach of condition of Section 5 of the Hindu Marriage Act, have held that the marriage has to be treated as valid. In this regard, it is noted, there may be some of the documents regarding age of the 1st plaintiff as born during 1963 but the evidence on record is, she was two years old as on 1958. Apart from that, her marriage was celebrated during 1974 much prior to the marriage of 1st defendant. There is also the vivid evidence of all the witnesses on behalf of the plaintiff. After thorough analysis of Section 5 and other provisions like Section 18 of the Hindu Marriage Act, also referring to Section 11 and 12 which deal with void and voidable marriages, this Court in MALLIKARJUNAIAHs case, cited supra has that though Legislature desired to discourage marriage between under aged persons, that it did not go to the extent of providing that such marriage would be void or voidable or that, that can be a ground for divorce. Rather, the Act has provided for penalties on the persons who encourage such child marriage. It is also observed, the only security that a girl or a woman in such a situation is entitled to is within the frame work of marriage and if that marriage can be loosely undone or if it is not recognised by law, it would result in disaster and social consequences.
11. In the judgment in the case of RABINDRA PRASADs case cited supra, referring to Section 5 of the Hindu Marriage Act i.e., with regard to age, it is observed that the marriage solemnized in violation of Section 5 (iii) remains unaffected. Neither the marriage is void or voidable. The above legal position speaks to the effect that the marriage cannot be void even though the marriage has taken place in violation of Section 5 (iii). Further, as per the evidence of PW1 and 2 coupled with the evidence of PW 3 â Ishwar Gouda who is none other than the childhood friend of deceased Devendrappa, it is evident as per the deposition, marriage was solemnized on 10.5.1974 of that of Gurudevi with Devendrappa. Even as is elicited in the cross-examination of PW 3, in the year 1958 Gurudevi was a 2 years old child. Taking that into consideration as on the date of marriage i.e., on 10.5.1974, she has attained the age of 15 years. By way of amendment to the Hindu Marriage Act, the age is enhanced from 15 to 18 which is subsequent to the marriage i.e., with effect from 1.10.1978. In that view of the matter, even this marriage of Gurudevi with deceased Devendrappa cannot be said to be a void marriage. What is being stated by PW 3 in his cross-examination as to the age of Gurudevi is concerned has not been got denied. Nothing worth is elicited in the cross-examination of PW.3. As such, the case of the plaintiff is probablized by the Courts below and both the Courts below have declared the marriage of Gurudevi with Devendrappa as valid and that she is his legally wedded wife.
12. As regards pensionary benefits are concerned, having noted the fact that out of 14 to 16 LIC policies, this appellant has encashed nearly about 14 LIC policies and got the benefit of more than 5 to 6 lakhs, the lower Appellate Court accorded pensionary benefits and other benefits to the 1st plaintiff.
13. The Lower Appellate Court has also taken into consideration the effect of Section 39 of the Insurance Act regarding nomination wherein in the case of SARBAATHI DEVI and ANR. vs. USHA DEVI (AIR 1984 SC 346) it has been held, the nomination only indicates the hand which is authorised to receive the amount. The amount however can be claimed by the heirs of the assured in accordance with the law of succession.
14. Referring to Section 8 and 16 of the Hindu Marriage Act the Lower Appellate Court awarded the share to the children of 1st plaintiff as well as the 1st defendant. Even in respect of right and entitlement of the 1st plaintiff, it has been legitimately ordered for pensionary and other benefits. The Lower Appellate Court has taken note of the fact that most of the LIC policies were encashed by 1st defendant. To mitigate the circumstances, full pensionary benefits was extended to 1st plaintiff declaring that she is the legally wedded wife of deceased Devendrappa. While answering the substantial questions of law accordingly, both the appeals are dismissed. However, it is made clear that the 1st defendant whose marriage was not challenged, her status has to be considered as second wife for other than pensionary and monetary benefits.