Gurubasawwa Vs. Irawwa W/O Chinnappa Barashetti and Others - Court Judgment

Excerpt:
- industrial disputes act, 1947. [c.a. no. 14/1947]. section 33-c (2): [subhash b. adi, j] application under removal of workman from service- award for reinstatement in service with 85% of back wages and consequential benefits challenge to award modification of back wages from 85% to 50% - claim of the workman for shoe allowance, uniform allowance, stitching allowance, washing allowance etc., - held, the uniform is given to the employee to use the same while he is on duty. uniform is not given for regular or casual wear of the employee. if the employee is not admittedly on duty or was not worked during the said period, he cannot claim the uniform allowance just because that he has been directed to be reinstated with consequential benefits with continuity of service. continuity of service does not mean that, a person who has not worked and who was not wearing the uniform, is still entitled for uniform allowance for the said period. similarly, when uniform allowance cannot be granted, the granting of washing and stitching allowance does not arise. further, as per the rules and regulations of the corporation, the employee is entitled for the reimbursement of the medical bill. reimbursement of the medical bill presupposes that, the employee has suffered illness and for which he has spent money. what is awarded is so far as medical allowance is concerned, is in terms of the agreement. tribunal has not committed any error in granting the medical allowance. in respect of shoe allowance, uniform allowance, stitching allowance, washing allowance, the award is modified. - siddagan-gamma wherein it is held that it is very clearthat the marriage solemnized between two hindus when one of the parties has a spouse living at the time of the marriage is concerned, section 11 of the act clearly renders the marriage as void. so in view of the decisions it is clear that if the petitioner failed to establish that her marriage with malkajappa was dissolved and that the marriage between the appellant herein and chinnappa was validly dissolved, she would not be the legally wedded wife of the deceasedchinnappa. at thesame time the court cannot ignore the well-established principle that before a custom canbe held as having been proved merely on thebasis of earlier decisions, those should havebeen based on evidence adduced in respect ofthe cases. aramma that in a case of this type a long period of co-habitation between the parties is a very strong circumstance and that in the absence of any other cogent and absolutely convincing material that it could also raise the presumption before a court of a valid marriage. one needs to take cognizance of the fact that this presumption is acceptable in cases dehors other better material.1. the appellant has filed this appeal under section 299 and 384 of the indian succession act, being aggrieved by the judgment and order dated 17-1-92 passed in p & s.c. 6/89 on the file of the addl. munsiff, bijapur.2. the brief fact leading to this appeal are one chinnappa basettappa borashetti was working as a lineman in the telecommunication department. he married the respondent no. 1 in the year 1970 at sitimani and the marriage was solemnized according to hindu lingayath custom. from the said legal wedlock respondents 2 to 4 born to them. it is also stated that chinnappa had married appellants nos. i and 2 issues were born (including r-5 and a son) from the said legal wedlock. however, the whereabouts of the son are not known for the last 12 years. it is further stated that during the year 1969 the marriage between the appellant and chinnappa was dissolved under mutual consent and entered into a registered agreement dated 10-3-69. thereafter, respondent no. 1 ceased to be the wife of chinnappa. respondent no. 2 is married. in the year 1982 chinnappa nominated the petitioners as per rule 53 of the central civil service pension rules, 1972 which is recorded in his service book. he died on 29-6-1985 at hanamasagar in raichur district while he was in service. respondents 1 to 4 claim that they are entitled for death-cum-retirement gratuity and pensionary benefits as per rule 50(b) and 51(1) of the central civil service pension rules, 1972. the appellant also claimed such benefits by making representations. in view of rival claims, the department insisted the respondent no. 1 to produce the succession certificate. therefore, she filed an application in the court of the addl. munsiff at bijapur for a succession certificate which was registered as p & s.c. 6/1989. this petition was resisted by the respondents inter alia contending that she continued to be the wifeof deceased chinnappa as no divorce had taken place. in view of that, she also contended that the applicant was not the wife of the deceased chinnappa. further, it is contended that the respondent no. 1 had already married another man malkajappa during the subsistence of that marriage, she claimed to have married chinnappa without a valid divorce. on that ground also she is not the wife of chinnappa. among other things she has claimed that the respondent is not entitled for succession certificate.3. in support of her case, the respondent has examined witnesses and got marked documents on her behalf. similarly, the appellant also examined witnesses and documents were marked. after considering both oral and documentary evidence the court has held as follows : the operative portion of the order reads:'the petition is allowed in part.the petitioners are entitled to succession certificate in respect of 2/3 shares in the schedule amount along with interest accrued thereon and respondent nos. 1 and 2 are entitled to succession certificate in respect of 1/6th share each in schedule amount along with interest accrued thereon.issue succession certificate in the name of petitioner no. 1 for self and on behalf of petitioners 2 to 4 to the extent of 2/ 3 shares as declared above;issue succession certificate in favour of respondents 1 and 2 to the extent of i/6th share each as declared above on their paying requisite court-fee in this behalf.the parties shall bear their own costs'this judgment has been assailed by the appellant.4. heard the learned counsel for the appellant and the learned counsel for the respondents.5. the learned counsel for the appellant reiterated his earlier argument before the trial court to the effect that the marriage between chinnappa and the appellant still subsists.the divorce alleged to have taken place by means of registered document is not recognized under law and therefore, the marriage has not been dissolved either according to custom or by operation of law. similarly, the respondent no. 1 married malkajjappa and his marriage also still subsists as their marriage was not dissolved by means of divorce. the alleged 'uduki' form of marriage is not recognized and not a customary form of marriage in lingayath custom. the ceremonies and the customs have not been pleaded and proved by the respondent no. 1. therefore, the 1st respondent is not the wife of the deceased chinnappa. on the other hand, only the appellant is the legally wedded wife and therefore, she is entitled for succession certificate. on that ground he submitted that the appeal may be allowed.6. the learned counsel for the respondents submitted that in lingayath community 'uduki' form of marriage is recognized and it is according to the customs. it is unnecessary to plead and prove the customs to show the dissolution of marriage. the parties have accepted that form of marriage and also divorce and acted on it. it is now not open to the appellant to contend that she continues to be the wife of chinnappa and that respondent no. 1 is not the wife of the deceased chinnappa. therefore, he submitted that the order passed by the learned trial, court does not call for interference.7. the admitted facts are : the 1st petitioner had married one malkajappa and she had no issues. subsequently she married the deceased chinnappa and petitioners 2 to 4 are their children. similarly deceased chinnappa had married the 1st respondent prior to his marriage with the 1st petitioner and two children were begotten. the 2nd respondent is their daughter and a son was born but his whereabouts are not known. chinnappa was serving in telecommunication department and he died intestate. the parties to these proceedings belong to sanara lingayath community and they are governed by hindu marriage act (for short 'the act'). it is also an admitted fact that as far as the 1st petitioner is concerned, it is a second marriage to her.similarly, the deceased chinnappa alsomarried the 1st petitioner as his 2nd wife. thecontention of the petitioner is that chinnappahad divorced the 1st respondent. similarlymalkajappa also divorced and these two divorce deeds were registered before the sub-registrar's office. however, the appellant,has denied the execution of this agreement.the 1st petitioner has contended that theparties are governed by a custom known as'uduki' custom which is prevailing, in .theircommunity and the 1st petr. married thedeceased chinnappa in the form of 'uduki'marriage and the 1st respondent was no morethe wife of chinnappa. on that ground sheclaimed that she is entitled for successioncertificate. if the 1st petitioner fails toestablish that she had divorced her previoushusband, similarly chinnappa had divorcedthe 1st petitioner in the form of 'uduki', themarriage between the 1st petitioner andchinnappa would become void ab initiounder section 11 of the act. section 11 readsas follows:'any marriage solemnized after the commencement of this act shall be null & 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) of section 5.'section 5(i) reads as follows:'5. conditions for a hindu marriage. -a marriage may be solemnized between any two hindu, if the following conditions are fulfilled, namely:--(i) neither party has a spouse living at the time of the marriage;'(other sub-clauses are not necessary for the purpose of this case.) from a bare reading of this section, it is clear that if any of the party has a spouse living at the time of the marriage, the subsequent marriage becomes void and it is void and illegal and in support of this argument, the learned counsel for the applt. also placed reliance on a decision reported inilr 1992 kant 1798, basappa v. siddagan-gamma wherein it is held that it is very clearthat the marriage solemnized between two hindus when one of the parties has a spouse living at the time of the marriage is concerned, section 11 of the act clearly renders the marriage as void. there can be no doubt that such a marriage is void. it has further held that where a marriage is a nullity as envisaged under clauses (iv) & (v) of section j of the act, the question of claiming maintenance under section 18 of the hindu adoption and maintenance act, 1956 would not arise. it is no doubt true that this case the wife had claimed maintenance, but the court held that as she is the second wife, the marriage solemnized during the subsistence of the earlier marriage was not legal and she is not the legally wedded wife and hence she is not entitled for maintenance.8. it is further held by their lordships of the supreme court in the case of yamunabai ananlrao adhav v. anantrao shirvam adkav, : 1988crilj793 that necessary condition for a lawful marriage as laid down under section 5(1)(i) of the hindu marriage act is that neither party should have a spouse living at the timeof the marriage. a marriage in contravention of this condition is, therefore, void ipso jure i.e. void from the very inception by virtue of section 11 of the act. such a marriage has tobe ignored as not existing in law at all if and when such a question arises. the fact that such a marriage was earlier recognised in hindu raw & custom is of no avail by reason of the overriding effect of the act as provided in section 4. section 12 of the act which is regarding voidable marriages is also not applicable to marriage solemnised in violation of section 5(1)(i) as section 12 is confined to other categories of marriages. so in view of the decisions it is clear that if the petitioner failed to establish that her marriage with malkajappa was dissolved and that the marriage between the appellant herein and chinnappa was validly dissolved, she would not be the legally wedded wife of the deceasedchinnappa. with this prelude in mind, it is now necessary to find out as to whether the petitioner/respt. herein was able to establish that there was dissolution of marriage between herself and her previous husbandmalkajappa and between the appellant and . deceased chinnappa.9. though the 1st respondent has disputed the marriage between the deceased chinnappa and the 1st petitioner, it is established by cogent and convincing evidence that the deceased chinnappa and 1st petitioner were living together as husband and wife and the petitioners 2 to 4 are their children born from that wedlock. to substantiate that these petitioners no. 2 to 4 are their children, sufficient evidence is produced by the petitioner. the petitioner contends that the parties belong to lingayath community and they have been practicing the custom in regard to 2nd marriage and also for dissolution of marriage which is otherwise popularly known as 'uduki' form of marriage. on that ground she claims that the marriage between chinnappa and appellant herein was not in exsistence. similarly, the marriage between herself and malkajappa also was not in existence. therefore, the 2nd marriage between herself and chinnappa was valid, legal and she is the legally wedded wife of the chinnappa. it may be mentioned here that the trial court also accepted this contention and held that the appellant herein was no more the wife of the deceased chinnappa. a similar question arose before the supreme court in a decision reported in : [1989]2scr70 , shakuntala bai v. l.v. kulkarni. the facts before their lordships are : one mallappa kulkarni had two sons veerappa and gurappa. veerappa is survived by his son lingappa. gurappa, a railway employee, married channawa (first wife) on 16-2-1928 but finding her issueless sent her to her parent's village and married in 1935 his second wife chinnavva who bore him two daughters shakuntalabai and anna-poornavva. channawa (first wife) however, used to pay occasional visits to gurappa. chinnavva (second wife) died in 1943 whereafter gurappa is said to have married nilavva. gurappa retired in 1961 and settled permanently at hubli constructing the suit house and himself occupied a part and let out the other part on rent. after the death of gurappa on 29-11-1976 his issueless first wife channawa demanded 1 / 3 share in his moveable and immoveable properties, but findingit difficult to acquire her share sold her right of 1/3 share to lingappa s/o late veerappa on 29-3-1967 for rs.5000/-. the other heirs having rejected lingappa's request for partition he instituted o.s. no. 387/1968 in the court of additional munsiff, hubli impleading channawa, shakuntalabai, annappornavva and nilavva (describing her as having illegal connection with deceased gurappa) as first, second, third and fourth defendants respectively for partition of 1/3 share in the suit house and the moveable properties and for possession thereof. the 1st defendant supported the case of the plaintiff, the other. defendants contested the suit and averred that the 4th defendant was the lawfully married wife of gurappa. 4 issues are framed in that case. on 13-1-1971, the trial court passed a prly. decree for partition of defendants of 1/3 share of gurappa's properties in the hands of defendants 2 to 4 by metes and bounds. the 2nd. 3rd and 4th defendants appealed to the civil judge at hubli impleading the plaintiff and 1st defendant as respondents in r. a. no. 31/71 and the learned civil judge by his judgment dated 21-2-1973 confirmed the decree only modifying it to the extent of 1/6 share instead of 1/3 share holding the 4th defendant to be legally married wife of gurappa. the 2nd, 3rd and 4th defendants appealed therefrom in r.s.a. 591/1973 and the plaintiff appealed in r.s.a. 522/1973. this high court by the impugned judgment dated 24-1-1979 allowed the plaintiff's appeal r.s.a. no. 522 restoring the decree of the trial court for 1/3 share and dismissed r.s.a. 591/1973 holding that the 4th defendant was not legally married wife of gurappa. hence appeal was preferred to the supreme court. it was contended before their lordships that the high court's order holding that the 4th defendant was not legally married wife of gurappa overlooked vital evidence on record in proof of her customary udiki marriage with gurappa who himself declared her as his wife wherefore she earned family pension after her husband's (gurappa's) death. respondents however contended that there was no sufficient evidence to establish the custom of 'udiki' marriage and at any rate, no dissolution of marriage of the 4th defendant with her previous husbandgurulingappa was pleaded or proved. repelling that argument, the appellant therein contended that the custom of 'udiki' marriage itself implied the dissolution of the earlier marriage, and there was sufficient evidence in support of the custom of dissolution of the previous marriage and thereafter the 'udiki' marriage of the 4th defendant with gurappa. in view of this contention, the question raised by their lordships in that case was: whether sufficient proof of custom of 'udiki1 marriage was adduced by the 4th defendant and whether 'udiki' marriage itself implied the dissolution of the earlier marriage, and if not, whether separate custom of dissolution of her earlier marriage was pleaded and proved. these were the questions in issue no. 4.10. in answer to these questions, their lordships while examining the principles relating to the custom in general and customs of udiki marriage among lingayats and as to whether such marriage implied dissolution of earlier marriage, coming up for consideration: reviewing, re-stating and reiterating the law, held that custom to be recognised by the court must be valid. though hindu law did not contemplate divorce, still in those districts where it was recognised as an established custom, it had the force of law ..... there isno doubt that the principle that once a marriage always a marriage was a subsequent development. it is further held: from the evidence on record appreciated in the light of the case of law on the subject and the authoritative texts relating to the custom of dissolution and udiki form of marriage prevalent among the -lingayats who are a religious sect following teachings of basava, there is no doubt that there has been ancient and unbroken customs of dissolution of marriage and of serai uduki marriage among the panchamasale lingayats which was already judicially noticed by the courts.11. their lordships have also relied on a decision reported in : air1959sc1041 uzagar singh v. mst. jeo wherein it is held that the ordinary rule is that a custom, general or otherwise, has to be proved under section 57 of the evidence act. however, nothing need to be proved of which the courts can take judicial notice. when a customs has beenjudicially recognised by the court then it passes into the law of the land as proof of it becomes unnecessary under section 57(1) of the evidence act.12. under section 57 of the evidence act also it is abundantly clear that the circumstances in which the courts can take judicial notice of a custom are, when a custom or usuage, whether in regard to a tenure or a contract or a family rights, is repeatedly brought to the notice of the courts of a country, the court may hold that custom or usage to be introduced into the law without necessity of proof in each individual case. when a custom has been so recognised by the country, it passes into the law of the land and the proof of it then becomes unnecessary under section 57(1).13. a custom which has been recognisedand affirmed in a series of decisions each ofthem based on evidence adduced in a particular case may become incorporated in thegeneral law and without the necessity of proofin each case. this principle will be equallyapplicable even where the community is verysmall and limited within a small area. at thesame time the court cannot ignore the well-established principle that before a custom canbe held as having been proved merely on thebasis of earlier decisions, those should havebeen based on evidence adduced in respect ofthe cases.14. in the decisions cited above, their lordships of the supreme court have elaborately discussed not only the evidence adduced before the trial court which was made available to their lordship, they have further discussed about the text books and other materials to hold that such a custom was prevalent in that community. in view of the definite finding of the apex court, it has become a law of the country and it can always be relied on by the courts without much evidence. under those circumstances, the contention of the learned counsel for the appellant that there is no custom of udiki form of marriage in lingayath community is therefore, liable to be rejected.15. even in this case also, there aresufficient materials to hold that the marriage between chinnappa and the appellant was dissolved by a deed of divorce, ex. p-2 is dated 12-6-1969. the said document was regd. in the office of the sub-registrar, bagalkot. in support of it. pw. 1, has stated that this document was available in the house and it is quite natural because chinnappa was the custodian of the original document. therefore, it can be inferred that it has come from proper custody. besides that, pw. 4 thippanna has admitted in his evidence that he has signed ex. p-2 but he changed his version only to the effect that chinnappa had obtained his signature in a bazar and on that ground he was cross-examined. immediately he has changed his version to the effect that ex. p-2 (b) is not his signature. the learned trial court has considered his evidence in detail and he relied on his evidence that he signed as attestor to this document and as far as the other part of the evidence is concerned, the trial court has come to the conclusion that with a view to help the appellant, he has resiled from the earlier evidence. it was a fact appreciated by the trial court which need not be considered at this stage in view of the fact that the trial court has taken note of the fact that he was brought under nbw as he refused to come to the court after receipt of court summons. most probably this witness was humiliated as the r-1 had taken coercive steps to secure his presence before court. having admitted his signature and besides the document was registered in the office of the sub-registrar and further, the appellant has not denied the execution of ex. p-2 either in her pleadings or in the objection filed by her. the trial court has correctly held that ex. p2 has been proved. for the first time in the witness box she has denied that the marriage of herself and deceased chinnappa was not dissolved. if we consider this evidence in the fight of the ruling of the supreme court referred to above to the effect that the proof of udiki marriage impliedly proves the dissolution of earlier marriage, is established.in this case, pws. 1, 2 and 3 have categorically stated that pw 1 has married chinnappa after the marriage between chinnappa and the appellant came to be dissolved.16. the conduct of this appellant also is a relevant factor to be considered in this case. though the marriage was dissolved under ex.p-2, dated 12-6-1969, she has not raised her little finger even after she came to know of the marriage between chinnappa and the 1st respondent. there is nothing to indicate that she has claimed any maintenance nor has she filed any complaint against chinnappa for having married the 1st respondent. it is not her case that she did not know about the marriage between chinnappa and the 1st respondent. in other words, she has come forward with an objection only after the death of chinnappa and for claiming the pensionary benefits payable to the legal representatives of the deceased chinnappa. prior to that she had also purchased properties in her maiden name. even prior to 1985 in the voter's list also, her name appears and it is not mentioned that she was the wife of chinnappa. subsequently, in the voter's list of 1988, she has given her name as wife of chinnappa. in the meantime, these proceedings were pending before the court. the appellant in the witness box was trying to suppress the facts with a view to suggest falsehood. therefore, her evidence was not, rightly accepted by the trial court.17. coming to the marriage between malkajappa and the 1st respondent, p.ws. 1 to 3 have categorically stated that ex. p-1 the agreement to dissolve the marriage was entered into between malkajappa and the 1st respondent on 10-3-1969. here also it is quite clear that malkajappa has never questioned the veracity of this document. he also did not come forward to say that the marriage still subsists. it is only the appellant who contended that the marriage between malkajappa and the 1st respondent subsists. the trial court has come to the conclusion that the ex. p-l agreement was proved. under those circusmtances, it can be inferred that the marriage between malkajappa and respondent no. 1 was dissolved. this is further supported by the fact that r-l had also purchased property in her maiden name after the execution of ex. p-1, and thereafter marriage was celebrated. the celebration of the marriage has been spoken to byp.ws. 1 to 3. p.w. 3 is the person who has arranged this marriage. by then the marriage of respondent no. 1/and malkajappa was dissolved. they also verified that the marriage between the deceased chinnappa and appellant also had been dissolved. under those circumstances, these two divorcees celebrated their marriage and the same could be only under 'udiki' form of marriage which was prevailing in their community. the marriage was held in the year 1970 and respondents 3 and 4 were born from the said legal wedlock. this is established by producing the school records and that has not been challenged. such being the position, it is clear that chinnappa and the 1st respondent were living 'as husband and wife for a considerable long time. she was also accepted by the society as the wife of deceased chinnappa. under those circumstances, in a case reported in : air1992sc756 , s.p.s. balasubramanyam v. suruttayan alias andali padayachi it is held that presumption is available if a man and woman are living under the same roof and co-habit for a number of years. such presumption is not destroyed by the circumstance and evidence proved by the appellant in this case.18. this court also has held in ilr 1995 kant 2069, mariyamma v. aramma that in a case of this type a long period of co-habitation between the parties is a very strong circumstance and that in the absence of any other cogent and absolutely convincing material that it could also raise the presumption before a court of a valid marriage. one needs to take cognizance of the fact that this presumption is acceptable in cases dehors other better material..... the presumption is a rebuttableone. in this case, there is no rebuttable evidence adduced by the appellant.19. for the foregoing reasons, i hold that the learned trial court has come to the conclusion correctly holding that the marriage between the deceased chinnappa and the 1st respondent: was celebrated in the form of udiki marriage and therefore, she is also entitled for the succession certificate. as the marriage between deceased chinnappa and irawwa was dissolved, arid the same is notsubsisting she is not entitled for a succession certificate, for herself as the wife of deceased chinnappa. hence the order of the trial court deserves to be confirmed.20. in the result therefore, i proceed to pass the following:order1. the appeal is liable to be dismissed andaccordingly it is dismissed. no order as to costs.2. appeal dismissed.