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2019 DIGILAW 127 (MAD)

S. Subramanian v. S. Ulagammal

2019-01-09

T.RAVINDRAN

body2019
JUDGMENT : 1. The civil miscellaneous second appeal is directed against the Judgment and decree, dated 22.06.2007, passed in C.M.A.No.26 of 2002, on the file of the Additional District and Sessions Court/Fast Track Court No. II, Tuticorin, reversing the fair and decreetal orders, dated 30.10.2001, passed in H.M.O.P.No.84 of 1994, on the file of the Additional Subordinate Court, Tuticorin. 2. The parties are referred to as per their rankings in the Trial Court. 3. The petitioner has laid the petition, against the respondent, seeking for declaration of the marriage between him and the respondent as null and void ab initio and consequently, also sought for the cancellation of the order, dated 25.02.1994, passed in M.C.No.19 of 1993, on the file of the Judicial Magistrate Court No.I, Tuticorin. 4. 3. The petitioner has laid the petition, against the respondent, seeking for declaration of the marriage between him and the respondent as null and void ab initio and consequently, also sought for the cancellation of the order, dated 25.02.1994, passed in M.C.No.19 of 1993, on the file of the Judicial Magistrate Court No.I, Tuticorin. 4. Briefly stated, according to the petitioner, the respondent first married his brother Ramakrishnan and Ramakrishnan having died in the year 1970, it is stated that the respondent was later married to the petitioner on 12.02.1971 at Sivasailam, Ambasamudram Taluk, according to the Hindu rites and ceremonies and thereby, the petitioner and the respondent had been living together and out of the wedlock, one son and one daughter were born to them and according to the petitioner, there is no custom permitting such a marriage and even if there is such a custom, it is repugnant to the provisions of the Hindu Marriage Act, 1955 (hereinafter, referred to as “the Act”) and therefore, according to him, the marriage between them is void ab initio and the same had been conducted between the parties, who are within the degrees of prohibited relationship and therefore, the respondent is not the legally wedded wife and also stated that the respondent claiming maintenance for herself and on behalf of her children, levied M.C.No.19 of 1993, on the file of the Judicial Magistrate Court No.I, Tuticorin, and though the petitioner had put forth the defence that the marriage held between him and the respondent is void ab initio, the same had not been taken into consideration by the learned Judicial Magistrate in the right perspective and proceeded to award maintenance in favour of the respondent and the children and the respondent is also taking efforts to execute the said order and therefore, left with no other alternative, inasmuch as there has been no marriage legally conducted between the petitioner and the respondent, according to the petitioner, he has been necessitated to lay the case against the respondent for appropriate reliefs. 5. 5. The respondent resisted the petitioner's case contending that after the demise of the petitioner's brother Ramakrishnan with whom she had been married earlier, the marriage between her and the petitioner took place on 12.02.1971 at Sivasailam Temple, as per the Hindu rites and ceremonies and thereafter, they had been living together as husband and wife till 1992 and out of the wedlock, three children were born and the claim of the petitioner that the marriage between him and the respondent is void ab initio is false and the petitioner is not entitled to take the above said plea, after carrying on the marital life for more than 25 years with the respondent and only with a view to avoid the payment of maintenance to the respondent and the children, as ordered by the Court, the petition has been laid by the petitioner with false allegations and inasmuch as the petitioner had discarded and neglected the respondent and the children, the respondent and the children were forced to seek the maintenance from him in M.C.No.19 of 1993 and in the said proceeding, the Court had ordered the petitioner to pay maintenance to them and the said order is binding upon the petitioner and furthermore, the petitioner had also levied H.M.O.P.No.7 of 1994 for restitution of conjugal rights against the respondent and even in the said proceeding as well as in the maintenance case, the petitioner has accepted that the marriage between him and the respondent had been conducted as per the Hindu rites and ceremonies and as per the custom of the community and therefore, he is not entitled to take a contradictory stand in the present proceeding as if the custom does not permit the marriage between him and the respondent being the wife of his deceased brother and the above said allegations are made falsely and the marriage between the petitioner and the respondent had been conducted at the behest of the elders of the family and as per the custom and only with a view to avoid the payment of maintenance, the petitioner has laid the false case and hence, the petition is liable to be dismissed. 6. In support of the petitioner's case, P.W.1 was examined and Exs.A1 and A2 were marked and on the side of the respondent, R.W.1 was examined and Exs.R1 to R3 were marked. 7. 6. In support of the petitioner's case, P.W.1 was examined and Exs.A1 and A2 were marked and on the side of the respondent, R.W.1 was examined and Exs.R1 to R3 were marked. 7. The Trial Court, on a consideration of the rival contentions put-forth by the respective parties and the materials placed on record, both oral and documentary, was pleased to declare the marriage between the petitioner and the respondent as null and void as prayed for, however, refused to grant the other reliefs prayed for by the petitioner. Aggrieved over the same, the respondent preferred the civil miscellaneous appeal and the First Appellate Court, on a consideration of the materials placed on record and the submissions made, was pleased to set aside the fair and decreetal orders of the Trial Court and thereby, dismissed the petition preferred by the petitioner. Aggrieved over the same, the present civil miscellaneous second appeal has been levied by the petitioner. 8. It is not in dispute that the respondent was earlier married to the petitioner's brother Ramakrishnan and it is also not in dispute that after the demise of Ramakrishnan in the year 1970, the petitioner and the respondent got married on 12.02.1971, at Sivasailam, Ambasamudram Taluk, as per the Hindu rites and ceremonies at the behest of the elders. Further, it is also noted that thereafter, the petitioner and the respondent had lived together as husband and wife and out of the wedlock, it is seen that three children were born to them. Materials placed on record would go to show that the parties had been living together till 1992 without any hitch or problem. Thereafter, the problems had erupted between the parties one way or the other and it is found that inasmuch the petitioner had failed to maintain the respondent and the children and neglected them, the respondent and the children preferred the maintenance claim, against the petitioner, in M.C.No.19 of 1993, on the file of the Judicial Magistrate Court No.I, Tuticorin and after contest, it is found that the Court concerned had directed the petitioner to pay the maintenance in favour of the respondent and the children. It is also noted that the petitioner has preferred H.M.O.P.No.7 of 1994, against the respondent, for restitution of conjugal rights and later, did not press the said case. It is also noted that the petitioner has preferred H.M.O.P.No.7 of 1994, against the respondent, for restitution of conjugal rights and later, did not press the said case. In the above said background, now according to the petitioner, inasmuch as the respondent is the wife of his deceased brother and as their custom does not permit the marriage with the brother's wife, according to the petitioner, the marriage conducted between him and the respondent is null and void as the same had been performed between the parties, who are within the degrees of the prohibited relationship and such a marriage being a void marriage ipso jure as per Section 11 of the Act, according to the petitioner, on coming to know the above said position of law, he has been necessitated to lay the case for appropriate reliefs. 9. 9. Per contra, it is put-forth by the respondent that the marriage between the petitioner and her had been celebrated in accordance with the Hindu rites and ceremonies at the behest of the elders of the family, after the demise of the petitioner's brother and according to her, such a marriage is not prohibited by the custom of the parties concerned and the petitioner and the respondent are not within the degrees of the prohibited relationship as sought to be made out by the petitioner and inasmuch as their custom permits such a marriage between the parties concerned and accordingly, their marriage had also been celebrated at the behest of the elders of the family, it is stated that the ground, now projected by the petitioner for seeking the declaration of their marriage as null and void, is unfounded and untenable and further, according to her, in the maintenance proceeding levied by her, the petitioner had not resisted the same on the footing that the marriage between him and the respondent is null and void on the ground that the same falls within the degrees of the prohibitory relationship and even in the H.M.O.P. preferred by him for restitution of conjugal rights, he had not taken such a stand and on the other hand, has admitted that the marriage had been celebrated between him and the respondent as per the custom of the parties in accordance with the Hindu rites and ceremonies and therefore, contended that only with a view to avoid the payment of maintenance to her and the children, as ordered by the Court, the petitioner has come forward with the false case and hence, the petition is liable to be dismissed. 10. After considering the submissions put-forth by the respective parties and the materials placed on record, it is found that the petitioner himself has admitted in the petition that he had married the respondent on 12.02.1971 at Sivasailam as per the Hindu rites and ceremonies and also admitted that after the marriage, they had been living together as husband and wife and out of the wedlock, two children were born to them, however, according to the respondent, three children had been born to them out of the wedlock. Be that as it may, the materials placed on record would go to show that the parties had been living together amicably one way or the other till 1992, without any serious problem as such. Thereafter, when the problems had been crept in between the parties one way or the other, it is found that the respondent and the children had been neglected by the petitioner and the same had forced them to levy a maintenance case against the petitioner before the Criminal Court. It is further noted that after contest, the Criminal Court had ordered the petitioner to pay maintenance to the respondent and the children. The counter preferred by the petitioner in the maintenance case has been marked as Ex.R1. Furthermore, the petitioner has also preferred H.M.O.P.No.7 of 1994, against the respondent, for restitution of conjugal rights, on the file of the Subordinate Court, Tuticorin, however, later did not press the same and the petition and the order copy of the above said proceeding have been marked as Ex.R2. On a perusal of Exs.R1 and R2, as rightly determined by the First Appellate Court, the petitioner has not put-forth any case that the marriage that had been conducted between him and the respondent is a prohibited marriage falling under Section 5(iv) of the Act. Now, according to the petitioner, the custom of the parties does not permit the marriage between the petitioner and the respondent, as they are within the degrees of the prohibited relationship i.e. the respondent being the wife of his deceased brother and hence, has come forward with the petition seeking for declaration of the marriage as null and void. The above said case has been stoutly resisted by the respondent. If really the petitioner and the respondent fall within the degrees of prohibited relationship, as now sought to be made out by the petitioner, the petitioner would have taken the said stand in the counter preferred by him in the maintenance case of the respondent as well as in the H.M.O.P. preferred by him for restitution of conjugal rights. However, as rightly determined by the First Appellate Court, quite inconsistent to the present case now projected by the petitioner, he has accepted that the marriage between him and the respondent has been validly performed in the above said proceedings and not claimed the marriage to be null and void in any manner. However, as rightly determined by the First Appellate Court, quite inconsistent to the present case now projected by the petitioner, he has accepted that the marriage between him and the respondent has been validly performed in the above said proceedings and not claimed the marriage to be null and void in any manner. In such view of the matter, as rightly found by the First Appellate Court, the plea, now taken by the petitioner that the custom of the parties does not permit such a marriage between them, is found to be made only for the purpose of the case without any basis or foundation. 11. As above noted, the marriage between the parties had been performed at the behest of the elders. If really any such a custom has been prevailing in the community of the parties, as now sought to be projected by the petitioner, he would have endeavoured to examine the elders of the family or the senior citizens of his community to establish that such a custom has been prevailing in their community and thereby, his marriage with the respondent is null and void. However, no such endeavour has been made by the petitioner to sustain his above said case by examining any independent person. That apart, no record worth acceptance has also been projected by the petitioner to substantiate his above-said case. When according to the respondent, their custom permits such a marriage and when the said fact derives support on the factum that the marriage between them had been celebrated at the behest of the elders, it is evident that inasmuch as the custom prevailing in the community of the parties permits such a marriage, without any demur, the petitioner and the respondent had given their consent for the marriage and not only that, after the marriage, they had been living together as husband and wife for several years and accordingly, also found to have given birth to three children. In all, it is found that inasmuch as there had been a valid marriage between the petitioner and the respondent and as they do not come within the degrees of the prohibited relationship, as now projected by the petitioner, it is found that the parties had been smoothly running the marital life for several years and later, on the difference of opinion erupting between them one way or the other and when the petitioner had been directed to pay the maintenance to the respondent and the children, it is found that with a view to avoid the payment of maintenance, the petitioner has come forward with the present case seeking for the declaration of the marriage as null and void. However, when with reference to the above said case, there is absolutely no material put-forth on his part and on the other hand, when his earlier stand in the other allied matters, as above discussed, is found to be otherwise, and had admitted the validity of the marriage between him and the respondent, as determined by the First Appellate Court and as contended by the respondent, the petitioner has come forward with a false case only with the aim of avoiding the payment of maintenance to the respondent and the children one way or the other and in such view of the matter, the First Appellate Court is fully justified in rejecting the case of the petitioner. 12. In the light of the above discussions, the First Appellate Court is found to have analyzed the materials placed on record, both oral and documentary, in the right perspective and applying the principles of law governing the issues involved between the parties correctly, rightly declined the reliefs prayed for by the petitioner by setting aside the erroneous order of the Trial Court. No substantial question of law is found to be involved in this civil miscellaneous second appeal. No interference is called for in the impugned Judgment and Decree of the First Appellate Court. 13. Resultantly, the civil miscellaneous second appeal is dismissed. No costs. Consequently, connected miscellaneous petition is closed.