Karnataka High Court
Smt. Radhamma vs Union Of India And Others on 17 April, 1998
Equivalent citations: AIR1998KANT364, I(2000)DMC51, ILR1999KAR3239, 1998(4)KARLJ238, AIR 1998 KARNATAKA 364, (1999) ILR (KANT) 3239, (2000) 1 HINDULR 296, (2000) 1 DMC 51, (1998) 3 CIVILCOURTC 263, (1998) 4 KANT LJ 238, (1998) 3 ICC 697, (2000) 1 CIVLJ 757
Author: M.P. Chinnappa
Bench: M.P. Chinnappa
JUDGMENT
1. The brief facts leading to this appeal are B.K. Sridhara Murthy was an employee in the Controllerate of Inspection Electronics, Ministry of Defence, Bangalore as chargeman, Grade I. He died due to cardiac arrest on 3-9-1989 at Bangalore. The appellant is class I heir to the deceased B.K. Sridhara Murthy to claim the terminal benefits/assets left by her son B.K. Sridhara Murthy. She filed P & S.C. 3 of 1990 on the file of the 6th Additional City Civil and Sessions Judge, Metropolitan area, Bangalore City. She also arrayed Smt. S. Shylaja as 4th respondent as she claimed that she is the wife of the deceased and she is entitled for the share in terminal benefits and other assets of the deceased. Thereafter, the respondents 1 to 3 who are employers of the deceased have not seriously contested the petition. However, the 4th respondent filed objections and she also claimed that she is entitled for share in the assets of the deceased. The learned Judge after assessing the evidence adduced by both the parties, has come to the conclusion that the 4th respondent is the legally wedded wife of the deceased and therefore, she is also entitled to the family pension as the wife of the deceased and accordingly, he passed the following order:
"The petition is allowed in part and it is, ordered that the petitioner be granted Succession Certificate in respect of half of the assets left by the deceased except in respect of the family pension, as wife only is entitled to the family pension. Certificate be issued after requisite Court fee is furnished by the petitioner.
The Succession Certificate to the extent of half share of the petition schedule items be issued to the respondent 4 on production of requisite Court fee according to law. She is also entitled to the pension benefits which has accrued to the estate of her husband".
The appellant has questioned the order in so far as it relates to the granting relief in favour of the 4th respondent in this appeal.
2. Heard the learned Counsel for the respective parties.
3. The learned Counsel for the appellants has vehemently argued that the finding of the Court below is contrary to the well-settled principle of law. While emphasising the argument, he contended that it is incumbent on the respondent 4 to establish valid marriage by producing cogent and convincing evidence to the ceremonies which are prevailing in their community. He also further argued that the contention of the respondent that she married the deceased on 15-10-1984 having not been proved, she is not entitled for any benefit. He also further submitted that even they were living together itself is not sufficient to prove the valid marriage. Therefore, the appeal deserves to be allowed setting aside the order passed by the Court below.
4. Repelling this argument, the learned Counsel for the respondent 4, contended that the deceased was living with respondent 4 for quite a long time along with his parents. He also expressed his desire to marry her in the year 1983 itself. The deceased has declared respondent 4 as his wife in a declaration filed as required under the rules. He has also informed the banks and other institutions that respondent 4 is the nominee. The voter's list also discloses that she is his wife and living along with his family members. Everyone treated her as his wife and even condolence messages were sent to her on his death. That being the strong circumstances in favour of the respondent, merely because the witnesses are not examined to prove the ceremonies performed in the temple in regard to their marriage itself is not sufficient to dispel the finding of the Court below. Therefore, the appeal is liable to be dismissed.
5. It is an undisputed fact that the appellant is the mother and the deceased Shridhar Murthy is her eldest son and he was working in the Department as mentioned above. The respondent 4 was working in the same office for over 13 years. He had not married any other lady and he had not left behind any will or codicil bequeathing the property. The only dispute in this case is that the respondent 4 is the wife of the deceased. P.W. 1 the mother has stated that her son Shridhar Murthy had not married the 4th respondent. Further, she has clearly admitted the signature of her son in agreement Ex. P-1 and Ex. P-3 the letter written by her son to the Manager, Telephones for shifting the telephone No. 352391 to the new premises. She has further admitted that respondents l(a), 2(a) and 4(a) are the signatures of her son Shridhar Murthy. Ex. R-1 is the family details furnished by late B.K. Shridhara Murthy in the office where he was working. In that document, Shridhar Murthy had declared the 4th respondent as his wife. This declaration was given on 21-1-1985. Ex. R-2 is another declaration regarding the marital status given by him to the effect that the 4th respondent is his wife. Ex. R-3 is Form E nomination for family pension. Under this document, he had nominated Shylaja being his wife as the person entitled to family pension. Ex. R-4 is Form A which is the nomination for death-cum-retirement. This document also shows that he had nominated his wife Shylaja as the person entitled to his benefits. These documents are undisputedly signed by Shridhar Murthy on the date mentioned therein. In all these documents, respondent 4 was treated as his wife.
6. The learned Counsel for the appellant further contended very strenuously that respondent 4 was also working in the same office but she did not give any declaration as required under the rules declaring that the deceased Shridhar Murthy was her husband and she is entitled for all the benefits of herself. In response to this argument, the learned Counsel for the respondent argued that she had left the job immediately after her marriage. Therefore, there was no need for her to declare him as her husband. This argument is further strengthened if a reference is made to Ex. R-11, the letter written by the deceased Shridhar Murthy. The signature found therein also is not denied by the appellant. In that letter dated 26-5-1983, he has expressed his strongest desire to marry the 4th respondent. He has written this letter to the mother of the respondent 4 wherein admired her qualities, informed her that she has trusted him and she had also expressed her desire that she would marry him alone and none else, has gone to the extent of saying that barring his parents, there is none other person whom he trusts and offered his love. He has also stated that his only ambition is to marry her and live with her as his wife which would give him solace and also happiness all through his life, also taken the responsibility of convincing his parents to marry her, that he would marry her in Kote Venkataramana Swamy temple, that the relationship between himself and Shylaja was not known to his family members and he has also addressed himself as her son-in-law. From this letter, it is abundantly clear that somehow he wanted to marry her. In the cross-examination the appellant who was examined as P.W. 1 bas stated which reads:
"I do not know if my son Sridharamurthy gave declaration to bis Department that 4th respondent is bis wife. I do not know if my son nominated the 4th respondent to receive family pension in the event of his death describing her as his wife. I do not know if my son nominated 4th respondent to receive death-cum-retirement gratuity and in the event of her death to pay the same to Radhamma. I do not know if he has described the 4th respondent as his wife. I do not know if my son showed 4th respondent before his department as the only family member. I can identify the signature of my son. ..... I do not know if the controller also wrote condolence letter to the 4th respondent at that address. B.L. Krishnamurthy is my husband. I do not know if voter list shows myself, my husband, my son and 4th respondent residing together in the premises No. 3, Srirampuram, in the voters list of 1988. I do not know if my son had opened PF account in Malleswaram Co-operative Bank. I do not know if he has shown the 4th respondent as his wife and nominated her. My son did not deposit in Janatha Co-operative Bank".
From this it is clear that she does not specifically deny the relationship of the deceased and the 4th respondent. On the other hand, she tried to evade by saying that she does not know anything about their relationship. As stated above, the signature of the deceased was admitted by the appellant. Therefore, it is clear that there are documents to show that the deceased treated the 4th respondent as his wife.
7. With this background, it is now necessary to refer to certain decisions referred to by the learned Counsel for the respondents. In S.P.S. Balasubramanyam v Suruttayan alias Andali Padayachi and Others, it is held that man and woman living under same roof and cohabiting for a number of years the presumption arises that they lived as husband and wife, It is further held that the presumption held is not destroyed by the circumstance and evidence proved in the instant case. In Ashok Kumar v Smt. Usha Kumari and Others, wherein it is held that if the parties are recognised as husband and wife, there is a strong presumption in favour of the validity of marriage, form and ceremony of the marriage and the legitimacy of its offspring.
8. The Division Bench of this Court in Lalithamma S.N. v T.S. Ramaswamy (deceased) by son Subramanyam and Others, has held:
"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 a valid marriage and not in a State of concubinage.
Under such circumstances the burden of showing that a marriage did not exist is on those so asserting.
Where the woman B. whose status as the wife of one R. was disputed in the suit had declared that she was his wife in some documents and where there was an admission by the party, who disputed that the said B was the wife of R, that R and B, were living under the same roof; Held that there is the strongest presumption that they were husband and wife".
He also further placed reliance on a decision in Rajagopal Pillai and Others v Pakkiam Animal and Others, wherein the Division Bench of the Madras High Court has held that presumption of marriage and cohabitation between man and woman for long time conclusively leads to the presumption regarding performance of requisite ceremonies. The presumption of law is the strongest of legal presumptions and is not lightly to be repelled by a mere balance of probabilities and the evidence repelling that presumption must be strong, distinct and satisfactory.
9. Their Lordships of the Supreme Court in Badri Prasad v Deputy Director of Consolidation and Others, have held that a strong presumption arises in favour of wedlock where the partners live together for a long spell as husband and wife. Although the presumption is rebuttable, a heavy burden lies on him who seeks to deprive the relationship of legal origin.
10. The Division Bench of this Court in Smt. Pararneshwari Bai v Muthojirao Scindia, held that where a man and a woman tied together by wedlock form the least unit of our complex society and whenever a man and woman lived as husband and wife for a fairly long time and were so reputed, law presumes that they are living as husband and wife and not in a state of concubinage. Presumption is both with regard to factum of marriage and legality of it. It is a strong presumption as it goes to the root of the structure of society and the persons who challenge it will have to rebut it by clear, cogent and satisfactory evidence. This burden is heavy on them.
11. In yet another judgment of this Court in Smt. Nirmala v Rukminibai, the Division Bench of this Court has also held following the above decisions that the cohabitation of a man and a woman as husband and wife raises a presumption of legal and valid marriage. Though the presumption is rebuttable, the evidence should be of such nature as not of mere probabilities but it should be an evidence to prove conclusively that the possibility of such valid marriage is completely ruled out. A perpetual union of a man and a woman goes in favour of legality and not a crime. When there is a presumption that there is a legal and valid marriage, there is also equally a presumption that all the formalities and customs have been duly performed at the time of the said marriage. From this it is abundantly clear that the burden is on the appellant to prove that the respondent 4 is not the wife of the deceased.
12. To substantiate this contention the learned Counsel for the appellant has vehemently argued that the case of the respondent is very definite. That her marriage with Sridhar Murthy was performed on 15-10-1984 in Varadarajaswamy Temple in Tirupati and she has also stated that all the ceremonies were required to perform the marriage were done by a priest and that the deceased belonged to Brahmin Community and respondent 4 belonged to higher sub-sect in Brahmins in Smarthas. Sridhar Murthy belonged to upper sub-sect and in their marriage, homa and sparta was performed and mangalsutra was tied by Sridhar Murthy. After their marriage, they continued to reside together. When she had admitted that these ceremonies are required for performing marriage, it was her duty to examine either the priest who officiated the marriage or some other person who had attended the marriage. Non-examination of any one of these witnesses is a slip on her part and therefore, the learned Trial Court ought to have rejected her evidence and held that she is not the wife of Sridhar Murthy.
13. In support of this argument, he placed reliance on certain decisions. In Mrs. Sudershan Karir and Others v The State and Others, two applications were filed by two ladies claiming to be the wives of the deceased. There were bald submissions made by one that her marriage took place in a temple. No direct evidence about the performance of marriage. No witnesses were examined. She relied only on the authorisation letter for obtaining her pay. The applicant had described the deceased as her husband. Under those circumstances, the Court held the applicant therein was not legally wedded wife of the deceased. It is also held that in a dispute regarding the valid marriage, statement of deceased given on affidavit subsequent to the dates is not relevant. Therefore, this is not a case between two ladies claiming to be the wife of the deceased. Under those circumstances, it was necessary that the marriage should be proved. Similarly, he has placed reliance on a decision in Deivanai Achi and Another v R.M. Al. Ct. Chidambaram Chettiar and Others, that was a case in which the Division Bench of that Court has held:
"The doctrine of 'factum valet' enables to cure the violation of a directory provision or a mere matter of form but does not cure the violation of the fundamental principles or the essence of the transaction. If there are certain essential ceremonies, which are necessary for a marriage, the non-observance of those ceremonies or religious rites cannot be overlooked by applying the doctrine of 'factum valet'. The doctrine applies only where there is no initial want of authority or where there is no positive interdiction. If, according to Manu's text, certain essential rites are necessary for a valid marriage, unless it is shown by custom that those ceremonies have been modified, it is imperative upon the parties concerned to observe the formalities laid down by law. Non-observance of those rites cannot be cured by applying the doctrine of 'factum valet'. There are very many ceremonies connected with the marriage, which are more or less non-obligatory or directory. If those ceremonies are not performed at the marriage, the omission may be cured by the doctrine of 'factum valet'".
He also placed reliance on a decision in Kanwal Ram and Others v Himachal Pradesh Administration. Even in that case also the Court held that in a bigamy case, the second marriage has to be proved as a fact. The necessary ceremonies must be proved to have been performed. Admission of marriage by the accused is not evidence of it for the purpose of proving an offence of bigamy or adultery.
He also relied on a decision rendered by the Apex Court in Bhaurao Shankar Lokhande v State of Maharashtra. That was a case in which a complaint was filed for the offence punishable under Section 494 of the IPC. In the circumstances, their Lordships have held that for application of Section 494 of the IPC, marriage must come within solemnised marriage. Ceremonies are meant to celebrate the marriage with proper ceremonies. Mere going through certain ceremonies with intention of marriage will not make the ceremonies prescribed by law are approved by custom.
14. From the decisions cited by the learned Counsel for the appellant, it is clear that all these cases are pertaining to the criminal offence of adultry or bigamy. In a criminal case it is necessary that the prosecution will have to establish beyond all reasonable doubt that during the subsistence of the first marriage, the husband had celebrated the second marriage. Therefore, it is absolutely necessary that both the first and second marriages were solemnised according to the custom and without there being a proof of the marriage the Court cannot hold the accused guilty of the offences. Such things are not essential in any civil case. This factor itself is sufficient to hold that the man and lady were living as husband and wife. If the essential ceremonies are proved, that can be taken into consideration. In the decisions cited above, it is clear that if long cohabitation as man and wife living under a common roof and recognised by the relatives, friends and colleagues as husband and wife would be sufficient to hold the marital status. Non-proof of the ceremonies itself is not sufficient to dispel the relationship. When once that is established, the burden shifts on the other side to prove that such relationship did not exist. As this presumption is available to the 4th respondent, the Court had correctly discussed the evidence of the appellant and also the various witnesses to hold that the appellant had failed to prove that there was no relationship of husband and wife between Shridhar Murthy and the 4th respondent. As indicated above, the superior officers where Shridhar Murthy was working had sent condolences wherein the 4th respondent was addressed as his wife. The colleagues of Shridhar Murthy also sent condolence messages where she was treated as his wife. That means to say that his colleagues and superiors treated them as husband and wife. The voters list discloses that they were living under the common roof along with his parents. It is an admitted fact that the respondent 4 was not related to them before marriage to claim that she was living with them as a relative. On the other hand, before marriage, she was living with her mother but Shridhar Murthy treated her as his mother-in-law even before marriage. Therefore, there was a clear intention on the part of the deceased to marry her and that relationship culminated into marriage.
15. The learned Counsel for the appellant however contended that there is no temple called Varadaraj Swamy temple in Tirupathi. On the other hand, that temple is in Kanchi and in support of it, he has also produced Ex. P-13. But there is a temple called Govindaraju Swamy Temple in Tirupati. One cannot say whether she has stated by mistake but even if such temple is not in existence at Tirupati, and her evidence cannot be believed, it only shows that there was no ceremonies performed. If ceremonies are not performed, still because they were living under a common roof as husband and wife for a long time, itself is sufficient to hold their relationship. Under those circumstances, the arguments of the learned Counsel for the appellant that non-proof of the ceremonies itself is sufficient to dispel the presumption is liable to be rejected.
16. This is a case where a person claims a lady as his wife. He acknowledged, treated and lived with her as his wife. There is a long cohabitation between the deceased and also the 4th respondent. The society treated them as such. Ladies normally would not venture to say at the cost of their future life that a deceased person is their husband just for the sake of some money, more so Indian ladies. In this case, the 4th respondent is an educated lady and was working in the same office and she has sacrificed her job probably at the instance of the deceased Sridhar Murthy after the marriage. But a third person i.e., the mother of the deceased in this case disputes the marital status of her son with the 4th respondent. No allegations are made that the documents produced in this case are either concocted or forged by the 4th respondent. On the other hand, the signatures of the deceased have been admitted and in regard to the contents of those documents, when they were brought to the notice of the appellant, she merely stated that she does not know. Such being the case, the burden is very heavy on the appellant to disprove the factum of marriage. Needless to say that the 4th respondent had sacrificed her job and she claims that the deceased is her husband. Such being the case, if the Court were to hold that there is no relationship of husband and wife it will be a hard blow on a young and educated lady. With this background I have gone through the entire judgment, the evidence both oral and documentary and I am fully convinced for the reasons stated above that there is sufficient material to hold that the deceased and respondent 4 lived as husband and wife and it was within the knowledge of the appellant and her family members. Even one can go to the extent of saying that the family members also accepted them as husband and wife, lest they would not have lived with them in their house. Further, it is also supported by the voters list. There is nothing to indicate that the voters list was concocted where all the appellant her husband, deceased and respondent 4 were living. However, the learned District Judge also has considered all the evidence in its proper perspective. Such being the case, I do not find any merit in this appeal. Accordingly, the appeal is dismissed and the judgment passed by the Court below is confirmed.