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2002 DIGILAW 22 (AP)

Gettem Israil v. M. Siromani

2002-01-04

C.Y.SOMAYAJULU, R.M.BAPAT

body2002
C. Y. SOMAYAJULU, J. ( 1 ) SINCE both the C. M. As. arise out of the same Judgment and since the parties to both the C. M. As. are one and the same, they are being disposed of by a common judgment. ( 2 ) FOR the sake of convenience the parties would hereinafter be referred to as they are arrayed in the trial Court. ( 3 ) PLAINTIFF filed the suit for a declaration that she is the legally wedded wife of the 1st defendant and consequently to direct the 2nd defendant to incorporate her name as the wife of the 1st defendant in its records in place of g. Koteswaramma, whose name is recorded as his wife in their records. ( 4 ) THE case of the plaintiff in brief is that the marriage between her and the 1st defendant took place on 17-10-1966, and that out of the three children they begot, out of their wedlock, one daughter only is alive, and from a few years prior to the suit 1st defendant, by neglecting her, allegedly that he married one Koteswaramma as his second wife nominated her as his wife in the records of the 2nd defendant, the employer of the 1st defendant. The case of the 1st defendant is that he, who was married to Manoharam, a relative of plaintiff, only developed intimacy with but did not marry the plaintiff, and later divorced manoharam, and married Koteswaramma and begot four children through her, and as plaintiff is not his wife she is not entitled to any relief. The case of the 2nd defendant, who is the employer of the 1st defendant, is that since 1st defendant initially declared the plaintiff as his wife, and later gave a declaration that koteswaramma is his wife, disciplinary action was initiated against him. ( 5 ) BASING on the pleadings, two issues were settled for trial by the trial court. In support of her case, the plaintiff examined herself as PW. 1 and two other witnesses as PWs. 2 and 3 and marked Exs. A1 to A21. In support of his case, 1st defendant examined himself as DW. 1 and five other witnesses as D. Ws. 2 to 6 and marked Exs. B1 to B15. In support of the case of the 2nd defendant, one witness was examined as DW. 7 and Exs. B16 and B17 were marked. 2 and 3 and marked Exs. A1 to A21. In support of his case, 1st defendant examined himself as DW. 1 and five other witnesses as D. Ws. 2 to 6 and marked Exs. B1 to B15. In support of the case of the 2nd defendant, one witness was examined as DW. 7 and Exs. B16 and B17 were marked. The trial Court having held that the plaintiff is not entitled to the declaration sought, directed the 1st defendant to pay Rs. 10,000. 00 or the amount accrued to the g. P. F. account of the 1st defendant by the date of Judgment, whichever is high to the plaintiff. Aggrieved by the dismissal of the suit, plaintiff filed c. M. A. No. 1544 of 1998, and aggrieved by the decree directing him to pay rs. 10,000/- or the amount standing to the credit of his G. P. F. account by the date of Judgment, the 1st defendant filed C. M. A. No. 1026 of 1997. ( 6 ) THE point for consideration in these appeals is whether the plaintiff is entitled to the declaration that she is the legally wedded wife of the 1st defendant? ( 7 ) 1st defendant admitted his living with the plaintiff for some years, and gave a declaration that she is his wife to his employer-2nd defendant, as seen from ex. B12. Ex. A1 shows the plaintiff as the wife of 1st defendant. In view thereof and since the contention of the 1st defendant is that even prior to his having an affair with the plaintiff, he married Manoharam and so he could not have validly married the plaintiff, it has to be seen if the evidence adduced by the 1st defendant establishes the marriage between the 1st defendant and Manoharam. ( 8 ) THERE is no documentary evidence on record to show that Manoharam is the wife of 1st defendant, but Ex. A20 shows that Manoharam got issued that notice to the plaintiff and 1st defendant demanding an explanation from the 1st defendant as to why and how he claimed her as his wife, when no marriage ever took place between them. But Ex. A20 cannot be taken into consideration because it is dated 1-8-1996 i. e. , subsequent to the suit, and the person who issued the said notice is not examined. But Ex. A20 cannot be taken into consideration because it is dated 1-8-1996 i. e. , subsequent to the suit, and the person who issued the said notice is not examined. ( 9 ) WITH regard to oral evidence, except the interested evidence of the 1st defendant as DW. 1 and the evidence of his brother as DW. 2, the other oral evidence adduced by the 1st defendant does not disclose that there was a marriage between him and Manoharam. In fact DW. 2 is primarily examined to show that he acted as an elder at the time of the marriage between 1st defendant and koteswaramma, and incidentally he stated that Koteswaramma was the erstwhile wife of the 1st defendant . He did not state as to when the marriage between manoharam and 1st defendant took place. DW. 3 is examined to show that Jhansi, the daughter of the plaintiff, was married to DW. 6. D. W. 4 is examined to show that the 1st defendant married Koteswaramma in 1971 in accordance with the christian custom and that plaintiff married M. Radhakrishna Murthy. DW . 6 did not speak anything about the marriage between the 1st defendant and Manoharam. Thus, there is practically no evidence, either oral or documentary, except the IPSI dixit of the 1st defendant as DW. 1 and interested evidence of his brother DW. 5, to show that 1st defendant married Manoharam prior to his coming into contact with the plaintiff. The evidence of 1st defendant as DW. 1 that he married manoharam on 18-5-1961 in C. S. I. Church, Bhavanipuram, Vijayawada and lived with her for 15 years and took divorce in the presence of caste elders in 1977 from her cannot be believed or accepted, in the absence of any documentary or independent oral evidence to establish that he and Manoharam lived as man and wife for some time prior to his coming into contact with the plaintiff. The evidence of DW. 5, the brother of 1st defendant, is that his marriage and the marriage of the 1st defendant with Manoharam took place on one and the same day in 1961 in C. S. I. Church and that Manoharam and 1st defendant lived as man and wife for ten years and that subsequently Manoharam left the society of the 1st defendant and thereafter the 1st defendant married one Koteswaramma and begot children through her. During cross-examination he clearly stated that the Church authorities gave Certificate in proof of the marriages to him and the 1st defendant in 1961, and that he lost his Certificate and that there is no divorce from Court between the 1st defendant and Manoharam, and that they were separated through Panchayat elders and that no papers were written during that separation. ( 10 ) IF really the 1st defendant married Manoharam in 1961 and lived with her for ten years as stated DW. 5, or for 15 years as stated by DW. 1, as an ordinary prudent man, 1st defendant would have shown Manoharam as his wife in the Service register, because Ex. B13 shows that he was appointed in the 2nd defendant organisation on13-3-1963 i. e. , about 2 years after his alleged marriage with manoharam, and since she allegedly lived with him till about 1971 according to the evidence of DW. 5 and till 1976 according to the evidence of DW. 1. If really he married Manoharam, 1st defendant would not have shown the plaintiff as his wife on 28-8-1971, when he gave Ex. B12 declaration to his employer. The fact that the 1st defendant showed the plaintiff as his wife in Ex. B12 in 1971, even at the time when his alleged marriage with Manoharam was subsisting, ex facie shows that the contention of the 1st defendant that there was marriage between him and Manoharam is a myth. In the circumstances stated it cannot but be held that there was a marriage between 1st defendant and Manoharam. ( 11 ) SINCE in Ex. A1, the family identity card, issued by the 2nd defendant on 2-1 2-1970 shows the plaintiff as the wife of 1st defendant, and since in his Ex. B12 declaration dated 28-8-1971, 1st defendant declared the plaintiff as his wife, it is clear that there is an admission by the 1st defendant that plaintiff is his wife. As per the case of the plaintiff the marriage between her and 1st defendant took place some where in 1966. The suit was instituted in 1995 i. e. , about 30 years after the alleged marriage. Though no documentary evidence regarding the marriage of the plaintiff with 1st defendant is adduced by the plaintiff, in view of the admission made by the 1st defendant in Ex. B12, and since Ex. The suit was instituted in 1995 i. e. , about 30 years after the alleged marriage. Though no documentary evidence regarding the marriage of the plaintiff with 1st defendant is adduced by the plaintiff, in view of the admission made by the 1st defendant in Ex. B12, and since Ex. A1, family identity card, would not have been issued by the 2nd defendant without the knowledge and consent of the 1st defendant, it is prima facie clear that, apart from the 1st defendant treating the plaintiff as his wife, the employer of the 1st defendant also treated the plaintiff as his wife. In BISWANATH PRASAD vs. DWARAKA PRASAD1 the Supreme Court held that admission by a party is a substantive evidence, and that there is no necessity or requirement of the statement containing the admission being put to the party for its being used against him, because it is evidence pro prio vigore . 1st defendant in para 13 of his written statement admitted that he lived with the plaintiff for eight years. In Ex. A3 notice dated 3-8-1973, in spite of questioning the conduct and character of the plaintiff and the paternity of the son born to the plaintiff, he offered to maintain the son born to the plaintiff as his son. This shows that the plaintiff and 1st defendant lived together as man and wife for a considerable length of time and begot children. Ignoring the above, trial Court taking into consideration the discrepancies in the oral evidence adduced by the plaintiff, erred in holding that the evidence on record does not establish the marriage between plaintiff and the 1st defendant, when it is well settled that when a man and woman have been proved to have lived together as man and wife, the law will presume, until the contrary is clearly proved, that they were living together in consequence of valid marriage, and not in a state of concubinage. In NAGA RAJAMMA vs. STATE BANK OF INDIA2 a learned single Judge of this Court held that there is no such presumption if the man was already married. As stated above in this case there is no evidence on record to show that 1st defendant married Manoharam prior to his coming into contact with plaintiff, as contended by him, and 1st defendant himself admitted the plaintiff as his wife in Ex. As stated above in this case there is no evidence on record to show that 1st defendant married Manoharam prior to his coming into contact with plaintiff, as contended by him, and 1st defendant himself admitted the plaintiff as his wife in Ex. B12, and the employer of the 1st defendant recognizing the plaintiff as the wife of the 1st defendant, issued Ex. A1. ( 12 ) SINCE both the parties claim to be Christians and since customary divorce among Christians or Indian Christians is not recognized in India, and since admittedly there is no decree of divorce between the plaintiff and the 1st defendant, the marriage between the plaintiff and 1st defendant should be deemed to be subsisting. ( 13 ) LOT of oral and documentary evidence was adduced by the parties with regard to the marriage between the 1st defendant and Koteswaramma, and also the paternity of Jhansi, the daughter of the plaintiff and wife of DW. 6 and the plaintiff living with M. Radhakrishna Murthy. All that evidence is of little relevance for determining the status of the plaintiff vis--vis the 1st defendant. The fact that the plaintiff is shown as the wife of M. Radhakrishna murthy in the Service Register maintained by 2nd defendant and in the wedding card printed at the time of the marriage of Jhansi, the daughter of plaintiff with DW. 6, is also not relevant for deciding the question whether the plaintiff is the wife of 1st defendant or not. If the plaintiff and 1st defendant, during the subsistence of their marriage, think it fit to live with some other man and woman respectively, without obtaining a divorce from the Court as contemplated by law, their marriage would not get dissolved automatically. Even assuming that jhansi is not the daughter of the 1st defendant, then also the marriage between the plaintiff and 1st defendant would not automatically get dissolved. Plaintiff or 1st defendant have to approach a competent Court, and obtain a decree for dissolution of their marriage, and till such time as they get their marriage dissolved, it subsists, irrespective of the fact whether they are faithful to each other or not, or are living a life or their own, with some other man or woman respectively, and so it has to be held that plaintiff continues to the wife of 1st defendant. The point is answered accordingly. The point is answered accordingly. ( 14 ) SINCE plaintiff continues to be the wife of 1st defendant and since as per the Regulations of the 2nd defendant, family members can only be nominated to receive the death or retrial benefits, 1st defendant nominating Koteswaramma as his wife is not proper. The 1st defendant, after taking steps to get the marriage between him and the plaintiff dissolved, only can make such a nomination, but till such time as the marriage between him and the plaintiff is subsisting, he cannot nominate a woman who is not his wife or a family member to receive the death or retrial benefits. ( 15 ) IN the result, C. M. A. No. 1544 of 1998 filed by the plaintiff is allowed and c. M. A. No. 1026 of 1997 filed by the 1st defendant is dismissed, and the suit o. S. No. 34 of 1995 on the file of the Court of the Family Court-cum-IV Additional district and Sessions Judge, Krishna at Vijayawada is decreed as prayed for. The parties are directed to bear their own costs.