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2001 DIGILAW 1556 (AP)

K. Suramma v. K. Ramayyamma

2001-11-28

C.Y.SOMAYAJULU, RAMESH MADHAV BAPAT

body2001
JUDGMENT : C.Y. Somayajulu, J. Appellant filed the suit in OS. No. 44/1996 on the file of the Family Court, Visakhapatnam, for declaration of her status as the wife of Ramulu (the deceased) and for a consequential injunction restraining 1st respondent from receiving amounts from the office of 4th respondent, payable consequent on the death of the deceased and mandatory injunction directing 4th respondent to pay 1/3rd amount from the terminal benefits payable on the death of the deceased, alleging that though she is the legally wedded wife of the deceased and begot respondents 2 and 3 out of the wedlock, 1st respondent claiming to be the wife of the deceased, who was an employee in the office of 4th respondent is making efforts to withdraw the amounts due and payable consequent on the death of the deceased. 1st respondent filed her written statement alleging that the deceased, after divorcing the appellant married and nominated her as the recipient of his death benefits and so she, but not the appellant, is entitled to receive all the amount due consequent on the death of the deceased. 2nd respondent filed a written statement supporting the appellant while 3rd respondent adopted the written statement of the 1st respondent, 4th respondent filed a written statement alleging that after the death of the deceased as 1st respondent produced a legal heir certificate issued by the Mandal Revenue Officer showing her as the wife and legal heir of the deceased and since the deceased nominated the 1st respondent as the recipient of the amount under Andhra Pradesh Group Life Insurance, (APGLI) all the amounts due consequent on his death were paid to the 1st respondent. 2. On the basis of the pleadings, the Court below framed six issues and one additional issue for trial. In support of her case, appellant examined herself as P.W. 1 and two others as P.Ws. 2 and 3 and got marked Exs. A-l to A-3. 1st respondent examined herself as D.W. 1,3rd respondent examined himself as D.W. 2. The mother of the deceased was examined as D.W. 3. D.W. 4 is examined to speak out the divorce between the appellant and the deceased. D.W. 5 is the vendor of his house to respondents 1 and 2, with the amount received from APGLI. Exs. B-l to B-5 were marked on behalf of respondents 1 and 3.2nd respondent examined himself as D.W. 6. D.W. 4 is examined to speak out the divorce between the appellant and the deceased. D.W. 5 is the vendor of his house to respondents 1 and 2, with the amount received from APGLI. Exs. B-l to B-5 were marked on behalf of respondents 1 and 3.2nd respondent examined himself as D.W. 6. This is all the oral and documentary evidence on record. 3. The learned Trial Judge, after considering the evidence on record, held on additional issue that he has jurisdiction to try the suit and on issue No. 3 that marriage between the deceased and 1st respondent is not valid as it is hit by Section 5(i) of the Hindu Marriage Act because husband of 1st respondent is still alive and since there is no divorce between him and 1st respondent. On issues 1 and 2 it held that as appellant was divorced by the deceased, appellant is not entitled to the declaration sought and on issues 4 and 5 that appellant is not entitled to perpetual and mandatory injunctions sought, and on the basis of finding on those issues on issue No. 6, dismissed the suit with costs. Hence this appeal. 4. The contention of the learned Counsel for appellant is that the observation of the Trial Court for holding that there was a divorce between the appellant and the deceased, reading "Not scrap of paper is filed to show that there is no scope of customary divorce. It may be true that D-l has no clinching evidence to establish divorce but by this stage of 20 years of desertion from the family house one cannot expect much evidence in case of lapse of so many years. So it is held that the plaintiff is divorced by her husband Ramulu" is wholly contrary to the cannons of appreciation of evidence and burden of proof. It is his contention that since there is no evidence on record to show that customary divorce is permissible in the community of the deceased and since that alleged custom also is not proved or established, appellant is entitled to a decree in her favour. The contention of the learned Counsel for 1st respondent is that the evidence of D.W. 3, the mother of the deceased and D.W. 4, an independent witness, clearly establishes that there was divorce between appellant and the deceased and since the deceased himself, in his reply Ex. The contention of the learned Counsel for 1st respondent is that the evidence of D.W. 3, the mother of the deceased and D.W. 4, an independent witness, clearly establishes that there was divorce between appellant and the deceased and since the deceased himself, in his reply Ex. A-2, also alleged, that he divorced the deceased (sic. appellant), the finding of the Court below on the issue relating to divorce between appellant and the deceased needs no interference. 5. The point for consideration is whether the appellant is entitled to the declaration of her status as the wife of Ramulu ? 6. At the outset, we must state that in this appeal we are not concerned with the status of 1st respondent, because the finding of the Court below that the marriage between the appellant (sic. 1st respondent) and the deceased is hit by Section 5(i) of the Hindu Marriage Act as there is no evidence on record to show that there is a divorce between her (1st respondent) and her earlier husband became final and 1st respondent did not prefer cross-objection on that finding. Hence 1st respondent cannot be said to be the wife of the deceased and consequently is not a member of the family of the deceased as per the Revised Pension Rules. Therefore, question of 1st respondent being entitled to pensionary benefits consequent on the death of deceased does not arise in view of Rule 49(i) of the Revised Pension Rules, which lays down that nomination in favour of a person who is not a member of the family is not permissible. 7. That the appellant was married to the deceased and they begot respondents 2 and 3 out of their wedlock is an admitted fact. Since it is the contention of 1st respondent that the marriage between appellant and the deceased was dissolved by customary divorce, it is for the 1st respondent to establish the said fact, because appellant denied customary divorce. Section 29(2) of the Hindu Marriage Act, saves the validity of customary divorce. 'Custom' is a rule, which in particular a family, or a particular class, or community, or in a particular district has from long usage, obtained the force of law. It must be ancient, certain and reasonable. Custom being in derogation of general rule of law should be construed strictly, and should be established by evidence. 'Custom' is a rule, which in particular a family, or a particular class, or community, or in a particular district has from long usage, obtained the force of law. It must be ancient, certain and reasonable. Custom being in derogation of general rule of law should be construed strictly, and should be established by evidence. It is also well known and well settled that party relying on custom must allege and prove the custom on which he relies. Therefore, 1st respondent has to establish that custom of dissolving the marriage in the community to which appellant and the deceased belong has been in existence and adduce evidence to the satisfaction of the Court about such custom and the factum of such divorce between appellant and the deceased. 8. In this case there is no evidence on record to show that customary divorce is prevalent in the community to which appellant and the deceased belong in their district or area, and that such custom is ancient and continuous. In the absence of such plea and evidence, the fact that the deceased in his reply notice, Ex. A-2, alleged that he divorced the appellant can have no value. It is a self-serving statement by the deceased for his own benefit. The oral evidence of D.Ws. 4 and 5 that there was a caste Panchayat in connection with the illicit intimacy between the appellant and Durga Rao and that Panchayat dissolved the marriage between appellant and the deceased cannot be accepted because none of the panchayatdars are examined. This apart D.W. 4, who is said to be present at the time of Panchayat, clearly stated during cross-examination that whenever matters are settled in the Sangham, a copy of the settlement would be kept in the Sangham, and admitted that he did not produce any document to show that there was divorce between the appellant and the deceased. Since 1st respondent did not take steps to summon documents from Sangham an adverse inference has to be drawn against the 1st respondent. The evidence of D.W. 5, mother of the deceased, that 2nd respondent had taken away divorce papers from her stealthily, appears to be a self-serving statement. She did not explain as to how she came into custody of the said papers. The evidence of D.W. 5, mother of the deceased, that 2nd respondent had taken away divorce papers from her stealthily, appears to be a self-serving statement. She did not explain as to how she came into custody of the said papers. As stated above even if the papers were removed by the 2nd respondent, still papers would be available in the Sangham, if really there was a Panchayat, during which the marriage between the appellant and the deceased was allegedly dissolved. D.W. 2, being a child at the time of the alleged divorce cannot have personal knowledge about the divorce. Similarly D.W. 1, i.e., 1st respondent also can have no personal knowledge about the divorce. D.W. 3 does not claim, and cannot also be said to have knowledge of the alleged divorce. D.W. 6 is supporting the appellant. Thus except the evidence of D.Ws. 4 and 5 there is no other evidence with respect to divorce between appellant and the deceased. Even assuming that such a document, as stated by D.Ws. 4 and 5 is in existence, since there is no evidence on record to show that customary divorce is prevalent and permissible in the community to which the appellant and the deceased belong, that document also does not help the 1st respondent in establishing that the said dissolution is valid, because a single instance does not establish 'custom'. 9. The fact that the husband and wife have been living separately for a long time, due to desertion or otherwise, or the fact that the spouses have illicit intimacy with others are only grounds for divorce, but by themselves they do not establish that there was divorce between the spouses. Therefore, we are unable to agree with the finding and also the reasons for the finding of the Court below that there was dissolution of marriage between the appellant and the deceased. When evidence regarding custom and customary divorce is lacking, appellant and deceased living separately per se, does not establish dissolution of their marriage. So appellant continued to be the wife and widow of the deceased. The point is answered accordingly. 10. When evidence regarding custom and customary divorce is lacking, appellant and deceased living separately per se, does not establish dissolution of their marriage. So appellant continued to be the wife and widow of the deceased. The point is answered accordingly. 10. Coming to the nomination made by the deceased of the 1st respondent as the person entitled to receive amounts under A.P.G.L.I. policy, nomination by itself does not create a right in favour of the 1st respondent to have the benefit of the entire amount received by her under that policy. It is well settled that the nominee receives the amount from the insurer for and on behalf of all the heirs of the insured, and the amount received by the nominee is liable to be distributed among all the heirs of the deceased insured as per their share entitlement. Since amount due under the A.P.G.L.I. being contributed by the deceased, was paid to the 1st respondent as per the nomination, it is open to the appellant to recover her share of the amount therefrom as per law, if so advised. 11. Record of the Trial Court shows that the Service Registered the deceased was called for from the Office of the 4th respondent. Docket of the suit maintained by the Trial Court dated 21.4.1998 shows that the Service Register was produced and that it does not contain any nomination. Therefore, the other amounts due consequent on the death of the deceased have to be paid to his heirs as per the relevant rules. Action of the 4th respondent paying the death benefits to the 1st respondent on the basis of a legal heir certificate issued by the Mandal Revenue Officer does not bind the appellant. 1st respondent not being the legally wedded wife of the deceased is not entitled to any share in the pension etc., payable consequent of the death of the deceased. Therefore, appellant and the children of Ramulu, but not respondent 1, would be entitled to pension as per the Pension Rules. Therefore, 4th respondent is directed to pay pension and other death benefits to the appellant and the children of the deceased Ramulu as per the relevant Service Rules. 12. The appeal is allowed to the extent indicated above. Parties are directed to bear their own costs.