Harilal, J This appeal is directed against the judgment and decree passed in O.S.No.179/05 on the files of the Family Court, Nedumangad. The appellant is not a party to the suit. She claims that she is the legally wedded wife of the first defendant in the above original suit and hence she is the legal representative who is entitled to challenge the judgment and decree passed against the deceased first defendant. The original suit was one for a declaration that the plaintiff is the legally wedded wife of the first defendant and also for a decree of permanent prohibitory injunction restraining the second defendant from sanctioning family pension in respect of the first defendant to anybody else except the plaintiff. The first defendant resisted the above suit contending that the plaintiff is not the legally wedded wife of him and thereby she is not entitled to get the reliefs as prayed for in the original suit. After considering the evidence on record the court below decreed the suit as prayed for. Feeling aggrieved, the appellant, who claims that she is the legally wedded wife of the deceased first defendant, filed this appeal challenging the findings of the court below, on various grounds.
2. The plaintiff's case, necessary for the disposal of this appeal, can be encapsulated as follows:
The first defendant Sri. Chellappan Pillai is the husband of the plaintiff as he married the plaintiff in accordance with Hindu customary rites on 8th Chingam 1133 M.E. and subsequently a Marriage Udampadi was registered on 21-8-1957 at S.R.O., Attingal. After the marriage, the plaintiff and the first defendant resided together as husband and wife and two children were born in the said wedlock. The first defendant was working as a Peon in the office of the K.S.E.B., Kilimanoor Major Section and he retired from the service on 31-12-1998. Since the relationship between the plaintiff and the first defendant was a strained one, he has neglected and refused to pay maintenance allowance to the plaintiff. So, she was constrained to file M.C.No.85/61 and that maintenance claim was allowed directing the first defendant to pay maintenance allowance to the plaintiff and her children.
Thereafter, she filed M.C.Nos.5/85 and 1073/92 for enhancing the quantum of maintenance allowance and that was also allowed. Now it is understood that the first defendant is keeping a concubine and she is not entitled to any pensionary benefits from the first defendant. The plaintiff is the one and only legally wedded wife who is entitled to get succeeded in the retirement benefits due to the first defendant from the second defendant's office. Now the first defendant is trying to grant such pensionary benefits, which the plaintiff is entitled to get as the legally wedded wife, to some other strangers. Though the plaintiff has made so many representations to the second defendant stating that she is the legally wedded wife of the first defendant, the second defendant has not taken the said representations into their consideration. Hence the suit was filed with the reliefs as referred above.
3. The first defendant filed a written statement as follows:- The plaintiff is not his legally wedded wife and he never married the plaintiff according to Hindu customary rites and ceremonies, as claimed by the plaintiff. The allegation that he married the plaintiff on 21-8-1957 is absolutely false. No marriage udampadi had been executed as alleged by the plaintiff. Whereas, the first defendant had married Sathyabhama, D/o. Parameswaran Pillai on 20th Edavam 1149 M.E. at her residence and that marriage was registered in the records of Malakkal N.S.S. Karayogam and at Kilimanoor Panchayath. He emphatically denied the plaint averment that two children by names Vijayakumar and Sheela were born to him in the wedlock with the plaintiff. The allegations that the first defendant was working as a Peon in K.S.E.B. and that he retired from service are admitted. In short, the plaintiff is not the legally wedded wife of the first defendant and as such she is not entitled to get any pensionary benefits in respect of the first defendant. He admitted the earlier Maintenance Case filed by the plaintiff against him and he had been paying maintenance allowance to the plaintiff as directed by the Court. According to him, Sathyabhama who is the legally wedded wife and the children born in that relationship are entitled to family pension. Thus, the plaintiff is not entitled to any relief as prayed for. Hence he prayed for dismissal of the suit with cost.
4. The plaintiff was examined as P.W.1 and another independent witness was examined for him as P.W.2. Exts.A1 to A8 were also marked on his side. The first defendant was examined as C.P.W.1 and the brother of Sathyabhama was examined as C.P.W.2. Exts.B1 to B4 were marked on the side of the first defendant. After considering the pleadings, the court below rightly framed three issues and both parties let in evidence on the issues. Going by the issues framed by the court below, we are of the opinion that the court below has rightly framed the issues in view of the pleadings set up by both parties.
5. The learned counsel for the appellant advanced arguments challenging the findings of the court below that the plaintiff is the legally wedded wife of the first defendant. According to the learned counsel, the court below failed to consider the facts and evidence in its correct perspective. The alleged marriage between the plaintiff and the first defendant has not been proved in evidence. On the other hand, the first defendant proved his marriage with the appellant by Exts.B1 and B2, though the court below has brushed aside these valid evidence without sufficient reasoning. The court below went wrong in relying on Exts.A2 to A6, which are dealt with the Maintenance Case, though the evidence in that case is not a relevant fact.
6. Per contra, the learned counsel for the respondent advanced arguments to justify the findings whereby the court below decreed the suit. According to the learned counsel, admissions of the first defendant itself in Exts.A2 to A6 would prove the legally valid marriage of the first defendant with the plaintiff and further this evidence is corroborated by the evidence of P.W.2.
7. The question to be considered in this appeal is, whether there is any illegality or impropriety in any of the findings whereby the court below decreed the suit or whether there is any perversity in the appreciation of evidence from which those findings have been arrived at?
8. To determine the above question, the point to be considered is, whether the plaintiff has succeeded in proving that she is the legally wedded wife of the first defendant. The evidence consists of the oral evidence adduced by both parties and also Exts.A1 to A8 produced by the plaintiff. It is the specific case of the plaintiff that the first defendant married her on 21-8-1957 in accordance with the Hindu customary rites and ceremonies and two children by names Vijayakumar and Sheela were born in that wedlock. We have gone through the oral evidence adduced by the plaintiff as regards the marriage said to have been solemnized in accordance with Hindu customary rites and ceremonies. Throughout the cross-examination she has maintained the sequence of events narrated by her in the chief examination.
Nothing brought out to discredit her testimony as regards the form of her customary marriage deposed in chief examination. Going by the form of marriage narrated by her, we are of the opinion that the marriage was solemnized in conformity with Hindu rites and ceremonies as provided under Section 7 of the Hindu Marriage Act. The oral evidence of the plaintiff is well corroborated by the evidence of P.W.2, the independent witness, who witnessed the marriage of the plaintiff with the first defendant. She has testified the form of marriage by which the plaintiff got married to the first defendant. No cross- examination had been effected challenging the form of marriage, which is said to have been witnessed by P.W.2. In our view, the oral evidence adduced by P.Ws.1 and 2 would prove the customary marriage claimed by the plaintiff in her pleadings and evidence.
9. Coming to the documentary evidence, Ext.A1 registered document (Kadapathram) is produced to show that the first defendant himself described the plaintiff as his wife in the said document, which was executed immediately after the marriage. Exts.A2 to A6 are the written statement and orders passed in M.C.Nos.5/85 and 1073/92. Coming to the oral evidence adduced by the first defendant, in the chief examination, he maintained his pleadings in the written statement that the plaintiff is not the legally wedded wife of him and the children were not born in the said wedlock. But, when he was confronted with Exts.A2 to A6, he acknowledged his own admissions in the counter statements filed in those Maintenance Cases and the findings in the orders passed thereon, directing him to pay maintenance allowance to the plaintiff as his legally wedded wife. At para-1 of Ext.A4 petition, the plaintiff claimed that she is the legally wedded wife of the first defendant and the marriage was solemnized in accordance with the customary rites and ceremonies under the Hindu Law. In Ext.A2 objection filed by him, the first defendant admitted the said claim as true and correct. That apart, in Ext.A2 written statement dated 19-3-1985 he has specifically admitted that he had married the plaintiff according to the customary rites and ceremonies of Hindu Law and she is his legally wedded wife. In Ext.A2, at para-6, he alleged that the plaintiff neglected him and left away from his company and thereafter he married another woman and in that wedlock he has three children. As rightly observed by the court below, his own admissions in Exts.A2 to A6 would prove the claim of the plaintiff that she is the legally wedded wife of the first defendant.
10. Going by the evidence adduced by the first defendant, it is seen that he has produced Exts.B1 and B2 to prove his marriage with one Sathyabhama, the appellant herein. Even if Ext.B2 certificate issued by N.S.S. Karayogam is taken at its face value in evidence, that does not prove that the first defendant's marriage with Sathyabhama is a legally valid marriage, particularly when Exts.A2 to A6 would prove otherwise. We are of the opinion that even if Exts.B1 and B2 are taken at their face value and admitted at their entirety, the second marriage, which is sought to be proved under Exts.B1 and B2, has no legal validity at all, so long as the first marriage with the plaintiff stands valid and subsisting. According to Section 5(1)(i) of the Hindu marriage Act, one of the essential conditions for a valid marriage is that neither party has a spouse living at the time of marriage. Ext.A2 shows that the first defendant himself described the plaintiff as his wife in Ext.A1 Kadappathram dt.21-8-1957 and the said admission gets assurance from Exts.A2 to A6. Where the marriage with the plaintiff stands valid and subsisting in accordance with the Hindu Law, there cannot be a second marriage with the appellant herein unless and until the first marriage with the plaintiff is dissolved in accordance with Section 13 of the Hindu Marriage Act. Neither the first defendant nor the present appellant has such a case of dissolution of the marriage with the plaintiff and subsequent marriage with the appellant herein.
11. On an overall appreciation of evidence, we find that the plaintiff has succeeded in proving that she is the legally wedded wife of the first defendant. So, even if the first defendant has married the appellant, that marriage has no legal validity at all. There is no illegality or impropriety in the finding by which the court below has decreed the suit as prayed for. There is no perversity also in the appreciation of evidence from which those findings are arrived at. Hence this appeal is devoid of merit and dismissed accordingly.
(V.K.MOHANAN, JUDGE)
(K.HARILAL, JUDGE)
okb.