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2012 DIGILAW 2460 (MAD)

Leelavathy v. A. Velayutham

2012-06-14

C.NAGAPPAN, R.KARUPPAIAH

body2012
Judgment :- R.Karuppaiah, J. 1. This appeal has been preferred against the judgment and decree, dated 05.01.2008, passed in O.S.No.11 of 2004 on the file of the Family Court, Salem. The defendant is the appellant herein. In this Judgment, for the sake of convenience, the parties are referred to as arrayed in the suit. 2. The respondent/plaintiff filed the suit in O.S.No.11 of 2004, seeking relief of declaration that the defendant is not his wife and also for permanent injunction against the defendant in any way interfering with the family affairs of the plaintiff. 3. Brief facts that are necessary to decide the appeal are stated as under: The plaintiff is employed as Manager, Primary Agricultural Co-operative Bank, Chinnaseeragapadi, Salem Taluk, Salem District and is a native of R.Pudhupalayam, Rasipuram Taluk, Namakkal District and before that, he served as Branch Manager, Primary Agricultural Co-operative Bank, Masakkalipatti during the period between 1975 to 1991 and when he was serving as Branch Manager, Masakkalipatti, he got married one Thilagam, and has got a daughter by name V. Ambika and a son by name V.Gopinath. 4. It is further stated in the plaint that when the plaintiff was serving as Manager of the bank at Masakkalipatti branch, the defendants elder brother Meignanamurthi was the president of the said Bank and her father used to come to the bank in connection with the loans borrowed by him and thus the family of the defendant was very much associated with the bank. It is further stated that the plaintiff used to attend the family functions of the defendant and the defendant used to visit the bank and during the said period, the defendant developed intimacy with him without any customary or legal marriage and though the intimacy was there for some time, both of them never resided under one roof. It is further stated that the plaintiff used to attend the family functions of the defendant and the defendant used to visit the bank and during the said period, the defendant developed intimacy with him without any customary or legal marriage and though the intimacy was there for some time, both of them never resided under one roof. The plaintiff has further stated that the defendant was living separately with her family away from the plaintiffs family and after the departure of the plaintiff from Masakkalipatti on transfer to Chinnaseeragapadi, there was no occasion for any meeting between them and the intimacy between them came to an end and the plaintiff came to understand that the defendant was doing kandhu business with the association of one Pandian and by August 2003, the defendant was subjected to cruelty and beaten up by the said Pandian, but the defendant foisted a false case to the Superintendent of Police against the plaintiff. It is further stated by the plaintiff that during the course of enquiry, the defendant admitted that the intimacy was about 24 years back without any valid marriage and tying of thali etc. and the complaint was given only to get back two gold chains from him and she executed a document, (TAMIL) (Viduthalai Vilagal Pathiram) in favour of the plaintiff on 29.8.2003. It is further stated by the plaintiff that in pursuance of the abovesaid document, she received 8 sovereigns of gold chains, a pass book and Rs.1,800/- from the plaintiff and undertook that she will not interfere in the family affairs of the plaintiff and not go to any court or police station. 5. It is further stated by the plaintiff that in pursuance of the abovesaid document, she received 8 sovereigns of gold chains, a pass book and Rs.1,800/- from the plaintiff and undertook that she will not interfere in the family affairs of the plaintiff and not go to any court or police station. 5. The plaintiff has further stated that on 1.11.2004, the plaintiff was informed by the Kondalampatti Police as if some petition was given by the defendant against him and for the above said enquiry, when he was nearing the police station, the defendant and her men made him to put his signatures in blank stamp papers and blank papers and then he sent a notice to the defendant, making copies to the Superintendent of Police, Salem and Inspector of Police, Kondalampatti for taking action against her and the defendant being a lady pretended before the police authorities as if she is his wife and neglected by him and hence he filed the suit for declaration declaring that she is not his wife and for permanent injunction against her in any way interfering with his family affairs. 6. Per contra, the defendant filed written statement denying several allegations in the plaint and contended that though the plaintiff did not marry the defendant by any of the customary way or registered marriage, they exchanged garlands and it is also considered to be a valid marriage as (TAMIL) (Suya Mariyadhai Thirumanam) and thereafter both of them settled in rented house at Masakkalipatti and lived happily and after that the plaintiff married one Thilagam and got two children but the defendant is issueless. It is further stated by the defendant that even after the marriage, the plaintiff used to live with the defendant and he maintained both the families with help of the defendant. 7. It is further stated that after the plaintiff was transferred to Chinnaseeragapadi as Branch Manager, both the plaintiff and defendant lived together at Rasipuram Housing Board house and the plaintiff treated her cruelly and demanded money and she gave ten sovereigns of jewels and all of her savings and sale of house hold articles etc. 7. It is further stated that after the plaintiff was transferred to Chinnaseeragapadi as Branch Manager, both the plaintiff and defendant lived together at Rasipuram Housing Board house and the plaintiff treated her cruelly and demanded money and she gave ten sovereigns of jewels and all of her savings and sale of house hold articles etc. and also mortgaged her land property and gave Rs.7500/-and the defendant borrowed money from neighbours and other money lenders and gave the same to the plaintiff and finally the plaintiff asked the defendant to give some more money to build house for his girl friend and threatened her and then the plaintiff drove away the defendant taking all the articles, jewels, ration card, voter identity card etc. and in the ration card the name of the husband is entered as Velayutham (i.e) plaintiff. 8. It is further stated that as the plaintiff refused to live with the defendant, she preferred a complaint before the Superintendent of Police against him and the same was forwarded to Mallur Police Station and in the inquiry, the defendant received her bank pass book and eight sovereigns of gold chains and further stated that no such document by name (TAMIL) (Viduthalai Vilagal Pathiram) was executed by her on 29.8.2003 and it is fabricated one and the plaintiff created the same. It is further stated by the defendant that since the plaintiff used to give troubles to the defendant, she gave a complaint before the Kondalampatti Police Station on 01.11.2004 and the allegations in the plaint that when the plaintiff was near the Police Station, the defendant and her men made him to put his signatures in blank papers are all false and no such incident was taken place and also stated that a document by name (TAMIL) (Manavazhkai Oppantha Pathiram) was executed by both the plaintiff and defendant and the plaintiff agreed to take back her within one month from the date of the said document. It is further stated by the defendant that she is the wife of the plaintiff, having all the rights to join with her husband and the alleged document (TAMIL) (Viduthalai Vilagal Pathiram) is a false and fabricated document and the plaintiff obtained her signature under coercion and threat and for the past 25 years, the plaintiff and defendant were living as husband and wife and for the past 1-1/2 years the plaintiff deserted her and living with 2nd wife and children and hence the plaintiff is not entitled to get any relief as prayed for in the plaint. 9. Considering the abovesaid pleadings on either side, the learned trial Judge has framed three issues and on the side of the plaintiff, he alone has deposed as P.W.1 and marked three documents as Exs.A1 to A3 and on the side of the defendant, she has deposed as R.W.1 and also examined one Senguttuvel as R.W.2 and no document was marked. 10. Considering the abovesaid oral and documentary evidence adduced on both sides, the learned Trial Judge has discussed in detail and finally held that the defendant is not a legally wedded wife of the plaintiff and therefore granted declaration and permanent injunction as prayed for in the abovesaid suit. Challenging the abovesaid judgment and decree, the defendant has preferred the present appeal. 11. In this appeal, though notice was served on the respondent/plaintiff, he did not appear and hence we heard the arguments of the learned counsel appearing for the appellant/defendant. 12. The points for determination in this appeal are: (i) Whether the alleged Suyamariyathai marriage pleaded by defendant is true and valid? ii) Whether the respondent/plaintiff is entitled to declaration and permanent injunction as prayed for in the plaint? 13. Mr. 12. The points for determination in this appeal are: (i) Whether the alleged Suyamariyathai marriage pleaded by defendant is true and valid? ii) Whether the respondent/plaintiff is entitled to declaration and permanent injunction as prayed for in the plaint? 13. Mr. V. Nicholas, learned counsel appearing for the appellant/defendant has stated in the appeal Memorandum that the trial Court failed to appreciate the evidence of the plaintiff himself that he had close intimacy with the defendant for a long time without any customary or legal marriage and as such, it should be presumed that they were living together as husband and wife and Ex.A1 dated 29.8.2003 said to have been executed by the defendant shows that the plaintiff and the defendant were living for twenty four years as husband and wife and therefore, it should be presumed that the defendant is the wife of the plaintiff and the trial Court failed to appreciate the evidence of the defendant that even though there is no customary or legal marriage, they exchanged garlands by way of suyamariyathai marriage, which is also considered to be a valid marriage. 14. Before the trial Court, the case of the respondent/plaintiff was that while he was working as Branch Manager, Primary Agricultural Cooperative Bank at Masakkalipatti, he got married to one Thilagam and they have two children viz. Ambika and Gopinath and the plaintiff is a native of R.Pudhupalayam, Namakkal District. It is further contended before the trial Court that while he was working as Branch Manager at Masakkalipatti, the defendants elder brother Meignanamurthi was the President of the Bank and her father Ramasamy Gounder used to come to bank in connection with loans and thus the family of the defendant was very much associated with the bank and the defendant as the sister of the President of the bank used to visit the bank and move closely with the plaintiff and during the said period, the defendant developed intimacy with the plaintiff without any customary or legal marriage and further contended that though the intimacy was there for some time, the plaintiff and defendant were never resident under one roof and the defendant was living away from the plaintiffs family. The plaintiff has further stated that after his departure from Masakkalipatti on transfer to Chinnaseeragapadi, there was no occasion for any meeting of them and there was an end to the intimacy of the defendant with the plaintiff, but the defendant has given false complaint before the Police and during the course of enquiry, the defendant has executed a document as Viduthalai Vilagal Pathiram after receiving 8 sovereigns of gold chains from the plaintiff and also informed that she will not interfere with the family affairs of the plaintiff. The plaintiff has further contended that again the defendant has given false complaint and near the Police Station the defendant and her men got the plaintiffs signature in blank papers and the plaintiff is a Government servant and the defendant is threatening him and for the above said reason, plaintiff filed the suit. 15. The appellant/defendant has clearly admitted that there was no customary or registered marriage between the plaintiff and defendant and only contended that both of them married as (TAMIL) (Suyamariyadhai marriage). On the side of the plaintiff, he has denied the abovesaid marriage and only contended that during the time of working as Manager at Masakkalipatti, the defendant had intimacy with the plaintiff and after transferred to Chinnaseeragapadi, there was no such relationship and the defendant legally married only Thilagam and got two children and since the defendant has given false complaint before the Police, the plaintiff has filed the suit for declaration that the defendant is not the wife of the plaintiff and permanent injunction against the defendant in any way interfering with the family affairs of the plaintiff. 16. The case of the appellant/defendant is that the plaintiff has married her under (TAMIL) (Suyamariyadhai Thirumanam) and therefore it is a valid marriage under law. The abovesaid fact was specifically denied by the respondent/plaintiff. 17. In the above circumstances, on the side of the appellant/defendant, she has not produced any document to prove the abovesaid (TAMIL) Suyamariyadhai Thirumanam”. The paternal uncle of the defendant viz. Senguttuvel was examined as RW.2 on the side of the appellant/defendant. A perusal of the oral evidence of RW.2 Senguttuvel reveals that he deposed the entire fact only on hearsay from others. The paternal uncle of the defendant viz. Senguttuvel was examined as RW.2 on the side of the appellant/defendant. A perusal of the oral evidence of RW.2 Senguttuvel reveals that he deposed the entire fact only on hearsay from others. R.W.2 Senguttuvel has clearly admitted that he was not present at the time of alleged marriage between the plaintiff and defendant and he does not know where the marriage was held. The entire facts stated in the proof affidavit were only on the basis of hearsay from the defendant and villagers as admitted by him and therefore the abovesaid oral evidence of RW.2 Senguttavel would not help the defendant in any way. 18. With regard to oral evidence of RW.1 defendant is concerned, she deposed before the trial Court in the cross-examination as under: (TAMIL) 19. A careful reading of the abovesaid oral evidence of the defendant reveals that at the time of alleged (TAMIL) (Suyamariyadhai Thirumanam), except the plaintiff and the defendant, nobody was there. Only the plaintiff and defendant alone exchanged garlands. In the written statement or the oral evidence, the defendant has not stated that at the time of alleged (TAMIL) (Suyamariyadhai Thirumanam), except the plaintiff and defendant anybody was present and further to prove the abovesaid marriage, except the defendant, no other witness was examined. Further, the defendant has not produced any document like ration card, voters list etc. to prove that after the alleged marriage, both the plaintiff and defendant were living together as husband and wife. 20. Defendant has stated in the written statement in para No.6 that during the enquiry in the criminal proceedings before the Sub-Inspector of Police, Kondalampatti Police Station on 4.11.2004, a document by name (TAMIL) (Manavazhkai oppandham) was executed by both the plaintiff and defendant and in the abovesaid document, both the plaintiff and defendant signed and both the plaintiff and defendant agreed to live together and the plaintiff agreed to take back the defendant within one month from the document (TAMIL) (Manavazhkai oppandham). The relevant portion in para No.6 of the written statement of the defendant is extracted hereunder: 6. …The said document was executed before the S.I. of Police, Kondalamaptty Police Station. On 4.11.2004, a document by name (TAMIL) was executed by both plaintiff and defendant. In the document three witnesses also signed. The relevant portion in para No.6 of the written statement of the defendant is extracted hereunder: 6. …The said document was executed before the S.I. of Police, Kondalamaptty Police Station. On 4.11.2004, a document by name (TAMIL) was executed by both plaintiff and defendant. In the document three witnesses also signed. Both plaintiff and defendant agreed to live together, the plaintiff agreed to take back his wife the defendant and the plaintiff agreed to take back within one month from the date of the document (TAMIL). The abovesaid document Manavazhkai oppandham” was not produced by the appellant/defendant and no reason has been stated for not producing the same. Therefore, the appellant/defendant has suppressed the material evidence. On the abovesaid reason also, the contention of the defendant cannot be accepted. 21. On the side of the respondent/plaintiff, he has marked Ex.A1 Viduthalai Pathiram dated 29.8.2003, in which it is clearly stated that no tying of Thali or registered marriage between them. The alleged Suyamariyathai Thirumanam was not stated in Ex.A1 document. That itself has clearly proved that there was no such Suyamariyathai Thirumanam as alleged by the defendant. 22. The further case of the appellant/defendant is that after the abovesaid alleged (TAMIL) (Suyamariyathai Thirumanam), the plaintiff and defendant settled in rented house at Masakkalipatti and then both the plaintiff and defendant lived at Housing Board at Rasipuram in rented house belonged to Mahalakshmi, Assistant Collector, Namakkal and after the plaintiff was transferred to Chinnaseeragappadi, both the plaintiff and defendant lived at Rasipuram Housing Board house. 23. In this case, the defendant has not examined anybody to prove that the plaintiff and defendant were lived together as husband and wife as alleged by the defendant. No reason has been stated for non-examination of the abovesaid relevant witnesses (i.e.) owner or neighbour of the abovesaid houses and therefore the abovesaid alleged (TAMIL) (Suyamariyathai Thirumanam) was not proved by the defendant by reliable oral and documentary evidence. 24. The appellant/defendant has admitted that between the plaintiff and defendant, there was no customary or registered marriage but only pleaded (TAMIL) (Suyamariyathai marriage). 24. The appellant/defendant has admitted that between the plaintiff and defendant, there was no customary or registered marriage but only pleaded (TAMIL) (Suyamariyathai marriage). With regard to Suyamariyathai marriage, the Tamil Nadu Government has inserted Section 7-A in the Hindu Marriage Act, 1955 and it reads as under: Tamil Nadu,-In its application to the State of Tamil Nadu, after Sec.7, the following shall be inserted: 7-A. Special provision regarding Suyamariyathi and Seerthiruththa marriages.- (1) This section shall apply to any marriages between any two Hindus, whether called suyamariyathai marriage or seerthiruththa marriage or by any other name, solemnized in the presence of relatives, friends or other persons- (a) by each party to the marriage declaring in any language understood by the parties that each takes the other to be his wife, or, as the case may be, her husband, or (b) by each party to the marriage garlanding the other or putting a ring upon any finger, of the other; or (c) by the tying of the thali.” 25. In the instant case, the appellant/defendant has not stated in the written statement or at the time of evidence that the alleged Suyamariyathai marriage was solemnized in the presence of relatives, friends or other persons. As already stated PW.2-Senguttuvel was not present at the time of marriage. Even according to the defendant, except the plaintiff and defendant viz. alleged husband and wife, no other person was present at the time of marriage. The defendant has not even stated in the plaint or evidence that at the time of marriage, the owner of the alleged rented house was present and therefore the abovesaid alleged Suyamariyathai marriage was not proved as true by adducing reliable oral and documentary evidence and also not valid in law since it is not solemnised in the presence of relatives, friends or other persons as per Section 7-A of the Hindu Marriage Act, 1955. 26. The learned counsel for the appellant/defendant has mainly contended that the plaintiff and defendant were living together for long time and the abovesaid fact was not denied by the plaintiff and therefore the abovesaid fact (i.e) joint living itself proved that there was suyamariyathai marriage between the plaintiff and defendant. The abovesaid contention cannot be accepted since the alleged suyamariyathai marriage was not proved as already discussed. 27. In this connection, the decision of the Honourable Supreme Court in Surjit Kaur Vs. The abovesaid contention cannot be accepted since the alleged suyamariyathai marriage was not proved as already discussed. 27. In this connection, the decision of the Honourable Supreme Court in Surjit Kaur Vs. Garja Singh and others ( AIR 1994 SC 135 = 1994-1-L.W.38) is relevant. The relevant portion in para No.13 of the above decision is extracted below: 13. ….As rightly contended by the respondent, mere living as husband and wife does not, at any rate, confer the status of wife and husband. In B.S.Lokhandes case (supra) it was laid down that the bare fact that the man and woman living as husband and wife does not, at any rate, normally give them the status of husband and wife even though they may hold themselves out before the society as husband and wife and the society treats them as such. The following extract is useful for this purpose. Prima facie, the expression whoever… marries must mean whoever… marries validly” or whoever… marries and whose marriage is a valid one. If the marriage is not a valid one, according to the law applicable to the parties, no question of its being void by reason of its taking place during the life of the husband or wife of the person marrying arises. If the marriage is not a valid marriage, it is no marriage in the eye of law. The bare fact of a man and a woman living as husband and wife does not, at any rate, normally give them the status of husband and wife even though they may hold themselves out before society as husband and wife and the society treats them as husband and wife.” 28. A reading of the above decision laid down by the Honourable Supreme Court reveals that a man and woman living as husband and wife does not give them the status of husband and wife even though they may hold themselves out before the society as husband and wife and the society treats them as such. In the instant case, except the oral testimony of the interested witnesses viz. the defendant and her paternal uncle, no other oral and documentary evidence is adduced to prove the alleged Suyamariyathai marriage and both the plaintiff and defendant were living together as husband and wife from the date of alleged marriage. 29. In the instant case, except the oral testimony of the interested witnesses viz. the defendant and her paternal uncle, no other oral and documentary evidence is adduced to prove the alleged Suyamariyathai marriage and both the plaintiff and defendant were living together as husband and wife from the date of alleged marriage. 29. As already stated, the factum of alleged Suyamariyathai Thirumanam was not proved and it was also not valid, since the abovesaid marriage was not solemnised before the relatives, friends or others. Therefore, the appellant/defendant has not proved the abovesaid alleged Suyamariyathai Thirumanam, as rightly held by the learned Trial Judge. 30. A perusal of oral and documentary evidence and considering the provisions of the Hindu Marriage Act and the law laid down by the Honourable Supreme Court, the factum of alleged Suyamariyathai Thirumanam between the plaintiff and defendant was not proved by the appellant and also not valid in view of the provisions of Section 7-A of the Tamil Nadu Amendment Act of the Hindu Marriage Act, 1955 and therefore the respondent/plaintiff is entitled to a Decree of declaration that the defendant is not the wife of the plaintiff and also entitled to permanent injunction against the defendant in any way interfering with the family affairs of the plaintiff, as rightly granted by the learned Trial Judge. 31. In the result, the judgment and Decree dated 5.1.2008 passed by the learned Trial Court in O.S.No.11 of 2004 is confirmed and the appeal is dismissed. No costs.