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2024 DIGILAW 198 (CHH)

Kamla Bai v. Rajkumari

2024-02-29

GOUTAM BHADURI, RADHAKISHAN AGRAWAL

body2024
JUDGMENT : (Radhakishan Agrawal, J.) Appellant preferred this appeal under section 19 (1) of the Family Courts Act, 1984 challenging the judgment and decree dated 01.02.2020 passed by the learned Principal Judge, Family Court, Bilaspur, C.G. in Civil Suit No.508-A/2018, whereby the application filed by the appellant seeking maintenance under section 22 of Hindu Adoptions and Maintenance Act, 1956 (for short, 'the Act, 1956) was dismissed. 2. Facts relevant for disposal of this appeal are that appellant married Kedarnath Suryavanshi (hereinafter called as 'deceased'), who was working as Line Attendant Grade-III in the Chhattisgarh State Electricity Board and died on 16.01.1999. According to the appellant, after her death of first wife-Smt. Kirtan Bai, her husband-deceased performed marriage with her (appellant herein) and out of their wedlock, one child was born. During their married life, her husband-deceased again performed marriage with respondent No.1 Rajkumari by way of 'Chudi' custom and respondent No.2-Ram Gopal was born from their wedlock. It is averred by the appellant that after the death of deceased, appellant herein and respondent No.1 settled their disputes amicably with regard to the claim of property including post-death dues and executed a mutual agreement. As per their settlement, appellant was entitled for ¼ share of the entire property of deceased. It is further averred by her that on the basis of mutual agreement, she did not raise any objection for obtaining succession certificate, but the respondents gave only Rs. 30, 000/- to her and grabbed the remaining property of deceased. It was also pleaded that respondents have given Rs. 1, 500/- per month as maintenance allowance for a limited period to her, but after few months, they refused to pay the amount, therefore, she filed a civil suit, but in absence of any original mutual agreement or any written documents filed before the Court below, the suit filed by her was dismissed. It is also pleaded by her that the entire property of deceased both movable and immovable were grabbed by the respondents and she has not been given any title or right over the property held by the deceased whereas respondents are enjoying the entire property owned by the deceased, over which the appellant's right also accrues. It is also pleaded by her that being widow of deceased, she has also right over the property, income and pensionary benefits of deceased. It is also pleaded by her that being widow of deceased, she has also right over the property, income and pensionary benefits of deceased. Therefore, she has prayed for a direction to be issued to the respondents to give monthly maintenance allowance of Rs. 25, 000/- to her. 3. In reply, respondents have denied the fact that the appellant is the wife of the deceased and AW-2 Lalita Bai was not born from their relationship. They have stated that appellant has forcefully recovered an amount of Rs. 50, 000/- from them. It is further submitted that nowhere the name of appellant is mentioned in succession certificate and the appellant had filed the suit which has already been dismissed. It is also submitted that respondent No.1 is receiving the pension from the said department after the death of deceased and also having one acre land, which is not sufficient for her livelihood and there is no other source of income, therefore, the application filed by the appellant seeking maintenance is liable to be rejected. 4. Before the Family Court, parties led evidence and brought on material documents. The Family Court, on the basis of evidence and material available on record, dismissed the application filed by the appellant for maintenance under Section 22 of the Act, 1956. Aggrieved by the said judgment, the appellant is before this Court. 5. Learned counsel for the appellant submits that the judgment impugned passed by the learned Family Court in favour of respondents is contrary to law. He further submits that the Family Court has erred in not holding the appellant as the wife of deceased and in fact, the appellant, being the wife of the deceased, is entitled to receive the equal share over the property of deceased. He also submits that the Family Court has failed to appreciate that the marriage of appellant was solemnized with deceased and during their married life, deceased performed another marriage by way of 'Chudi' custom with respondent No.1, which is not a valid marriage and respondent No.1 has no right or title over the property of deceased and the finding of Family Court in this regard is contrary to the pleadings and evidence available on record. He also submits that the Family Court has erred in not holding that the respondents have grabbed the entire property of deceased by way of fraudulent means, therefore, appellant is entitled to a decree of maintenance from the respondents as the wife of deceased. Thus, the impugned judgment and decree is liable to be set aside and the right of the appellant may be protected. 6. Per contra, learned counsel for the respondents submits that the impugned judgment and decree passed by the Court below is well merited which do not call for any interference. 7. We have heard learned counsel for the parties and perused the material available on record. 8. Appellant/Smt. Kamla Bai was examined as AW-1, who has stated on oath under Order 18, Rule 4 of CPC that her marriage was solemnized with deceased-Kedarnath Suryavanshi, who has died on 16.01.1999 and respondent No.1 Rajkumari is also a widow of deceased whereas respondent No.2 Ram Gopal is the son of respondent No.1. She has further deposed that mutual agreement has been arrived at between her and respondent No.1, according to which whatever the amount and property, they are entitled to get ¼ share over the property left by the deceased. It has been deposed that the respondents have paid only Rs. 30, 000/- to her and grabbed the remaining property of deceased. She has been subjected to cross-examination wherein she has stated that by way of 'Chudi' custom, she had married the deceased, but not performed any marriage with deceased according to Hindu Custom and late. Kirtan Bai was the legally wedded wife of deceased. She has admitted that the respondent No.1 is also not the legally wedded wife of deceased, but performed marriage with the deceased by way of 'Chudi' custom. After her (PW-1) marriage by way of 'Chudi' custom, the deceased was alive for a period of 20 years. She has also admitted that since respondent No.1 has been assaulting her, therefore, she does not go to the house of deceased. Supporting the evidence of AW-1 Smt. Kamla Bai, AW-2 Lalita Bai, daughter of AW-1, admitted in her statement that deceased was her father. Likewise, AW-3 Sotilal Sahu in his cross-examination has admitted that deceased was having three wives, of which, one was legally wedded wife, who has died and the other two are 'Chudi' wives, who are alive. 9. Supporting the evidence of AW-1 Smt. Kamla Bai, AW-2 Lalita Bai, daughter of AW-1, admitted in her statement that deceased was her father. Likewise, AW-3 Sotilal Sahu in his cross-examination has admitted that deceased was having three wives, of which, one was legally wedded wife, who has died and the other two are 'Chudi' wives, who are alive. 9. Respondent No.1 Rajkumari was examined as NAW-1. She has stated that deceased was her husband, who has died on 16.01.1999. It has been further deposed by her that one late Kirtan Bai and herself are the wives of her husband, out of which, Kirtan Bai died. She has further stated that whatever the amounts and retrial dues deposited in the department of deceased were already settled and paid and the succession certificate has also been issued in her favour and she is also drawing the pension. It has also been deposed by her that appellant, by threatening her, has forcefully recovered the amount of Rs. 50, 000/- from her. In para 8, it has been deposed by her that appellant, after threatening and pressurizing the deceased, has become the wife of deceased. NAW-3 Gokul is the brother of the deceased, who has stated that deceased has performed two marriages one with Rajkumari i.e. respondent No.1 and another with late Kirtan Bai. He has been subjected to cross-examination wherein he has stated in para 10 that appellant is not the wife of deceased and he has not seen the appellant in the village for the last 20 years. He has also admitted in para 12 that after the death of deceased, there was a dispute between the appellant and respondent No.1 with regard to obtain the property and deposited amount and for that a case was filed. It is also admitted by him that appellant and respondent No.1 amicably settled the dispute on stamp paper, according to said compromise, the agreed amount was decided to give daughter of appellant-AW-2 and paid Rs. 50, 000/- to daughter of appellant (AW-2) and remaining amount was received by respondent No.1. 10. What is reflected from the above evidence is that both appellant and respondent No.1 are claiming that they are the wives of deceased. The genesis of the dispute between the parties is with regard to property including movable and immovable left by the deceased during his lifetime. 10. What is reflected from the above evidence is that both appellant and respondent No.1 are claiming that they are the wives of deceased. The genesis of the dispute between the parties is with regard to property including movable and immovable left by the deceased during his lifetime. According to pleadings of appellant made in the application under Section 22 of the Act, 1956 coupled with her evidence, both the appellant and respondent No.1 claimed to have been the wives of deceased, but on which date they (appellant and respondent No.1) performed marriage with the deceased was not mentioned, however, in her cross-examination at para 10, appellant has admitted that deceased performed marriage with herself and respondent No.1 by way of 'Chudi' custom, but marriage was not performed according to Hindu custom. Although both the appellant and respondent No.1 put forth their pleadings and led evidence, but in support of their pleadings and evidence no cogent and reliable evidence has been brought on record to substantiate the said facts and that not a single witness has been examined by them (appellant and respondent No.1) to show that on which date, their marriage was performed with the deceased by way of 'Chudi' custom, whereas they claimed to have been residing with the deceased as wives. It was also not specifically pleaded by them as to 'Chudi' custom prevailed in their community and further not pleaded with respect to authenticity of marriage by 'Chudi' custom in their community. In absence of pleading and evidence with regard to marriage by 'Chudi' custom in their community, it is difficult to arrive at a conclusion merely based on pleadings and evidence on record. Therefore, considering the every aspect of the matter including the pleadings of the parties and the dispute between them, in our opinion, the matter needs remand for decision afresh at the end of the Court below. 11. For the reasons mentioned herein above, the appeal is allowed, the impugned judgment and decree passed by the Family Court is set aside and the matter is remitted back to the concerned Family Court to decide the case afresh on its own merits, after affording full opportunity of hearing to the parties, as expeditiously as possible preferably within a period of 6 months from the date of first appearance of the parties. Parties are directed to appear before the concerned Family Court on 20.03.2024. 12. Parties are directed to appear before the concerned Family Court on 20.03.2024. 12. Needless to mention the Family Court shall provide proper and sufficient opportunity to the parties to amend the pleadings and to file additional documents, if any. Learned Family Court shall also provide opportunity of examination and cross-examination of the witnesses of both the parties along with additional evidence, if any. 13. Record of the Court below be sent back forthwith. 14. No order as to costs.