Manipur High Court
A. Athisa Aged About 58 Years vs L. Asha Aged About 50 Years on 21 March, 2025
Digitally signed by
KHOIROM KHOIROM
BIPINCHANDR BIPINCHANDRA SINGH
A SINGH
Date: 2025.03.21
14:30:11 +05'30'
IN THE HIGH COURT OF MANIPUR
AT IMPHAL
RFA No. 8 of 2018
A. Athisa aged about 58 years, w/o late S. Akha, resident
of Song Song village, P.O & P.S. Senapati, District
Senapati.
.... Appellant
-Versus-
L. Asha aged about 50 years, d/o late Lokho, resident of
Song Song village, P.O. Mao and P.S. Mao, District
Senapati, Pin No. 795150.
.... Respondent
BEFORE HON'BLE THE CHIEF JUSTICE MR. D. KRISHNAKUMAR HON'BLE MRS. JUSTICE GOLMEI GAIPHULSHILLU KABUI For the appellant : Mr. Ng. Premkumar, Advocate For the respondent : Mr. D. Julius Riamei, Advocate Date of hearing : 18.02.2025 Date of order : 21.03.2025 JUDGMENT & ORDER (CAV) (Golmei Gaiphullshillu, J) [1] Heard Mr. Ng. Premkumar, learned counsel appearing on behalf of the appellant and Mr. D. Julius Riamei, learned counsel appearing on behalf of the respondent.
[2] The present appeal has been filed against the impugned Judgment and Order dated 05.05.2018 passed in Mat (Declaratory) Suit No. 42/09/4/10/75(A)/13/05/14/3/2015 by the Ld. Family Court, Senapati, Manipur with the following prayer:
RFA No. 8 of 2018 Page 1
(i) to allow this Family Court first appeal;
(ii) to issue notice to the respondent;
(iii) to call for lower court record being No. Mat. (Decl.) Suit No. 42/09/4/10/75(A)/13/05/14/3/2015 from the Ld. Family Court, Senapati;
(iv) to stay the impugned order dated 05.05.2018 during the pendency of the appeal passed in the said Mat. (Decl) suit.
(v) After hearing to set aside the impugned order dated 05.05.2018 in the interest of justice.
[3] The case of the appellant is that the respondent has filed a Matrimonial (Declaratory) Suit No. 42/09/4/75(A)/13/05/14/3/2015 against the present appellant u/s 7(a)(e) the Family Court Act, 1984 praying for passing a decree of declaration that the respondent is the legitimate wife of the deceased S. Akha Mao and the counter claim filed by the appellant/defendant with the facts that the respondent is a Christian (Catholic) by religion and the appellant is also a Christian. The respondent married to late S. Akha being No. 4347183K, T.S. -NK of Assam Regiment on 29-08-1989. The marriage ceremony was ministered by Rev. Fr. Sebastian Manianchira SDB at St. Mary's Parish Punanamei, and an undated marriage certificate was issued by Rev. Fr. T.T. Josheph, the Parish Priest, St. Mary's Parish Punanamei. While they were living together three daughters and one son were born to them. They are (i) Miss Leshine (ii) Miss Adazia and (iii) Miss A. Kreyini and
(iv) Master Kayio. The respondent's husband S. Akha has died on 18- 10-2006.
The allegation of the respondent is that prior to her marriage with her husband (late S. Akha), her husband eloped with the RFA No. 8 of 2018 Page 2 appellant Smt. A. Athisa. They lived/resided under one roof but they were never married in any form. During that time her husband recorded the name of Smt. A. Athisa in his service book maintained by the Record Office, the Assam Regiment, Shillong as a nominee and the date of marriage was entered by deceased S. Akha as 15.02.1982. Out of their consummation, two daughters were born namely (i) Smt. A. Nelia and (ii) Smt. A. Hriiyia. It was also alleged that without any information, the appellant left the deceased husband's house in his absence in the year 1982 while he was away for his service. All the properties were also taken away by the appellant and never came back. The deceased S. Akha Mao was discharged from service on 01.05.1989. After his discharged from service S. Akha Mao married the respondent on 29.08.1989. And thereafter, the deceased died on 10.06.2006 at their matrimonial home and left behind 3(three) daughter and 1(one) one. After the death of her deceased husband, the respondent went to withdraw the family pension in the Treasury Office, Senapati but, the respondent was informed that the appellant's name was recorded in the service book as a nominee. Hence, the Mat. (Declaratory) Suit was filed by the respondent before the Ld. Family Court. [4] Learned counsel for the appellant submits that the appellant has filed her written statement cum-counter claim to the Mat. (Declaratory) Suit filed by the respondent. It was stated that the respondent is not entitled to the relief's claimed in the plant as the appellant is the legal wife of the deceased S. Akha who served in the RFA No. 8 of 2018 Page 3 Assam Regiment under Service No. 4347183K, TS, NK. The appellant married with the deceased S. Akha on 15-02-1975 according to the customary rites and practice of Mao Nagas as the appellant and the deceased S. Akha were non-Christian at the time of their marriage, and they were from the same village i.e. Song Song village. As a result of their marriage, they got two daughters viz: (i) A. Nelia and (ii) A. Hriiyia and they lived together happily under the headship of the said deceased S. Akha Mao at their matrimonial home at Song Song Village. During the service leave time, the deceased S. Akha proposed/advised the appellant for conversion into the Christian religion, the appellant also agreed to the proposal/advice of her husband. Accordingly, the appellant and her late husband went to Nartis Church at their Song Song Village for conversion into the Christian religion. The Pastor agreed to convert them into Christian religion, and as such Christian conversion Ceremony was performed. Thereafter the two became Christian. It is also submitted that during the lifetime of deceased S. Akha the name of the appellant was given to record in his service book as nominee for the welfare of maintenance of her family including the daughters born by them. It is also stated that the deceased S. Akha Mao never married the respondent/plaintiff. The respondent L. Asha was the wife of one D. Nikhini of Song Song Village. While they were living together one daughter Mrs. Nikhini Athisa (at present aged about 41 years) was born to them and she is at present married with Kaikho Nipuni of Song Song Village. Further, it was also stated that the RFA No. 8 of 2018 Page 4 respondent ran a local liquor vendor and thereby her late husband went to have liquor at her vendor and through their illicit relationship they got three daughters and one son but they did not marry at any point of time under any religion and there was no divorce between the respondent L. Asha and her husband D. Nikhini of Song Song village. Further it was also stated that during the life of first wife a man could not marry 2nd wife and similarly during the life of the husband a women could not marry with a man as both the marriage are punishable under the provisions of Indian Penal Code and further stated that the respondent and late S. Akha did not get married at any point of time according to customs or under the special marriage Act. Further stated that the second wife/respondent is at the status of concubine as Christian religion does not allow to keep second wife. [5] Thereafter, the respondent also filed and an undated written statement to the counter claim of the appellant by denying all the statement of the appellant/defendant.
[6] After hearing both the parties, the Ld. Family Court, Senapati, Manipur framed the following issues on 18.05.2015:
(1) Whether the respondent/petitioner married late S. Akha at Smt. Mary's Parish Punanamei on 29-08-
1989 according to Christian Marriage and Law or not?
RFA No. 8 of 2018 Page 5 (2) Whether the appellant/respondent married late S. Akha on 15-02-1975 according to the customary rites and practice of Mao Naga and Law?
(3) Whether the respondent/petitioner and one D. Nikhini of Song Song Village had illicit relationship and a daughter viz. Nikhini Athisa was born to them?
(4) Whether the appellant/respondent left their shared home in the year 1992 when he was away at his service?
[7] Learned counsel for the appellant submits that it is an admitted fact in the suit that in the year 1975 the appellant/respondent started living together with late S. Akha as husband and wife and thereafter two daughters were born to them. On 30-04-1989 late husband S. Akha discharged/retired from his service. On or about 29- 08-1989 the respondent/petitioner started living with late S. Akha, and three daughters and one son were born to them. Before 29-08-1989 the respondent/petitioner had relation with one Mr. D. Nikhini, and one daughter viz. Mrs. Nikhini Athia (aged about 41 years at present) was born to them.
[8] Learned counsel for the appellant submits that both the appellant and late S. Akha were non- Christian at the time (1975) of their marriage. Therefore they are governed by the customary law of marriage of Mao Nagas. And the respondent and late S. Akha were Christian at the time of their alleged marriage between the two. Therefore the alleged marriage will be governed by either Special RFA No. 8 of 2018 Page 6 Marriage Act, 1954 or Mao marriage customs. The appellant did not plead that the alleged marriage was governed by the Mao customs. It is further submitted that Christian marriage Act, 1872 is not yet extended to Manipur.
[9] Learned counsel for the appellant further submits that at the time of argument on 05-05-2018 the appellant submitted a written argument with case laws i.e. 1999(3) GLT 481, AIR 1959 SC 1041, AIR 1973 SC. 1134 and 1996 III GLT 62. The appellant has given important points of argument in her favour succinctly, but the Trial Court did not discuss anything of the written argument in the impugned judgment and decree by neglecting those important points of argument intentionally with a mala- fide motive for favouring the respondent. [10] It is further submitted that at the time of filing the certificate of marriage dated 24-04-2013 issued by Parish Priest St. Mary's Priest before the Ld. Court, Senapati, an original copy of a certificate was supplied to the appellant. In that certificate it was shown that the marriage between the respondent and late S. Akha was performed on 24-12-2002. In another words, the date of marriage of the two is quite different in the certificate supplied by the respondent to the appellant.
[11] It is also submitted that, the respondent has admitted in her petition that the marriage between the appellant and late S. Akha with the following words "Out of their consummation two daughters RFA No. 8 of 2018 Page 7 were born namely, Smt. A. Nelia and A. Hriiyia, both married". The appellant also submitted that she did not pray that the respondent was the legal wife of late S. Akha, and she prayed in the following words "A decree for declaration as to the legitimacy of the petitioner may be passed by this Hon'ble Court". However, the Ld. Family Court passed the impugned judgment and decree dated 05-05-2018 by declaring that the respondent Smt. L. Asha is the legally wedded wife of late S. Akha Mao by neglecting all the important points of argument and cases of the present appellant.
[12] Being aggrieved by the impugned judgment and decree dated 05-05-2018, the appeal is filed on the following grounds:
(i) The respondent never prayed in the prayer portion of her petition that she is the legally wedded wife of late S. Akha. The Ld. Family Court, Senapati gave a relief which is not prayed by the respondent.
(ii) The respondent admitted in paragraph No. 4 of her petition that after consummation of the relation between the appellant and late S. Akha, and two daughters were born. So the Ld. Family Court, Senapati fails to conclude that the appellant is the legally married wife of late S. Akha.
(iii) The Ld. Family Court, Senapati fails to consider, with a mala fide intention to the appellant, the favourable points and law points in the written argument dated 05-05-2018 which was given by the appellant to the Ld. Court at the time of final argument of the suit.
RFA No. 8 of 2018 Page 8
(iv) The appellant stated that their marriage was
performed in accordance with the customary rites and practice of Mao Nagas in paragraph No. 13 of her written statement cum counter claim dated 27th Oct., 2014 whereas the respondent did not say and use any word custom in her pleading.
Using and insertion of the word "custom" in the pleading, in case the party desire to prove in the case, is quite mandatory according to the law of land.
(v) The Ld. Family Court Senapati fails to consider the statement of D.Ws. No. 1 to 3 thereby giving details of customary practice of the performance of marriage amongst the members of Mao Naga tribe.
(vi) The respondent says that their marriage was on 24- 12-2002 in the cross examination, not on 29-08- 1989. She also does not know the father or priest of her alleged marriage. And she also did not know the distance between the Church and her home.
And Church is not a registered institution which may be recognized by law. The Ld. Family Court, Senapati has wrongly relied upon the act of the Church illegally.
(vii) The Ld. Family Court, Senapati fails to appreciate that the respondent is not yet divorced from her first and former husband D. Nikhini of Song Song village.
(viii) The Ld. Family Court has misinterpreted the provision of law u/s 13, 101 and 102 of the Indian Evidence Act.
RFA No. 8 of 2018 Page 9
(ix) The petition and the written statement filed by the
respondent to the counter claim are not dated, and the relief claimed by her does not state what she wanted. So the petition is hit by provision under Order VII Rule 8 and Order VI Rule 2 (3) and Rule 3 of the Code of Civil Procedure, 1908.
(x) While deciding issue Nos. 1 and 2, whole evidence of both parties are not discussed thoroughly.
(xi) The trial court does not apply preponderance of evidence in appreciating evidence in disposing the suit.
(xii) The impugned order suffers from arbitrariness, illegality and error in law and fact.
(xiii) The petition of the respondent does not show whether the cause fee is paid or not. It suffers from prescribed by law.
Operative portion of order dated 05.05.2018 reads as follows:
"17. Issue No. 1. Whether the petitioner married Late S. Akha Mao at St. Mary's Parish Punanamei on 29.08.1989 according to Christian marriage and law or not?
The petitioner submits that the she was married with the deceased S. Akha Mao on 29.08.1989 in accordance with the Mao Catholic Church custom and practice. Marriage certificate issued by the Parish Priest in accordance with the custom was exhibited as Ext. A/10. Further the P.W. No. 2 and 3 in their statement states that the petitioner and the deceased were married on 29.08.1989.
Hence, the issue is decided in favour of the petitioner.
18. Issue No. 2. Whether the respondent married late S. Akha Mao on 15/02/1975 according to the customary rites and practice of Mao Naga and law?
RFA No. 8 of 2018 Page 10 The respondent files counter claim and states that she married with the deceased S. Akha Mao on 15/02/1975 and the respondent further states that she is the nominee in the service record of the deceased Whereas she admits the date of marriage entered by deceased in his service records maintained by the Records Office, the Assam Regiment, C/o 99 APO the date of marriage is recorded/entered as 15/02/1982. The respondent states that she married to deceased in accordance with the Non-Christian Mao Customary Marriage Form. But nowhere in the written statement cum Counter Claim, the respondent pleaded any existing facts of customary form of marriage between the respondent and the deceased as required by law. The only statement is that respondent is the legally wife of the deceased S. Akha who served in the Assam Regiment under Service No. 4347183K, TS, NK. The respondent fails to prove when and how the respondent married with the deceased. No connected evidence is adduced.
19. Section 13 of the Evidence Act, 1872 states that Facts relevant when right or custom is in question- Where the question is as to the existence of any right or custom, the following facts are relevant:-
a) any transaction by which the right or custom in question was created, claimed, modified, recognized, asserted, or denied, or which was inconsistent with its existence;
b) particular instances in which the right or custom was claimed, recognized, or exercised or in which its exercise was disputed, asserted or departed from.
Illustration the question is, whether A has a right to a fishery. A deed conferring the fishery on A's ancestors, a mortgage of the fishery by A's father, a subsequent grnat of the fishery by A's father, irreconcilable with the mortgage, particular instances in which A's father exercised the right, or in which the exercise of the right was stopped by A's neighbours, are relevant facts.
20. As per the Evidence Act, 1872, Section 101 states that whoever desires any Court to give judgment us to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist.
When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.
21. Further Section 102 of Evidence Act, 1872 mentions that the burden of proof in a rait or proceeding lies on that person who would fall if ne evidence at all were given on either side.
Hence, the issue is decided in negative.
RFA No. 8 of 2018 Page 11
22. Issue No. 3. Whether the petitioner and one D. Nekhini of Song Song village had illicit relationship and a daughter Nikhini Athisa was bom to them?
The respondent pleads in her counter claim that the petitioner was the wife of one D. Nikhini of Song Song Village and has a daughter namely, Nekhini Athisa. The petitioner denied the allegation of being married to D. Nikhini in her counter claim written statement. The question to be determined is whether the petitioner at the time of her marriage with the deceased S. Akha Mao on 29/08/1989 is the married wife of D. Nikhini? It is not proved that petitioner is the married wife of Me. D. Nikhini of Song Song Village at the time of her marriage with deceased S. Akha Mao. Having a daughter cannot be taken as a proof of marriage.
Hence, the issue is decided accordingly
23. Issue No. 4. Whether the respondent left their shared home in the year 1982 when he was away at his service?
The petitioner submitted that the respondent left the deceased S. Akha in the year 1982 when the deceased S. Akha was away at his service place. P.W. No. 2 and 3 also states that the respondent left the house of deceased S. Akha Mao. The respondent also admitted in her cross-examination that she used to stay as her parental home for some years.
24. Wadded through all the materials on record available before me, I am satisfied and come to the conclusion that preponderance of evidence goes in favour of the plaintiff petitioner, L. Asha that she got married with S. Akha Mao on 29-08-1989 by performing marriage as per Customary Mao practice. On the other hand, the defendant/respondent as claimed in her counter claims cannot prove her case.
Hence, it is ordered and declared tout the plaintiff/ petitioner Sant. L. Asha is the legally wedded wife of Lane S. Akha Mao being No. 4347183K TS-NK of Assam Regiment.
Accordingly, the salt is decreed with cost in favour of the plaintiff/petitioner, L. Asha and common claim fled by the defendant/respondent, A. Athisa is dismissed." [13] Learned counsel for the appellant further submits that the respondent is going to draw the arrear of family pension payable to the appellant within a short time. In case the impugned order is not stayed that may cause prejudice and multiplicity of suit in case the appeal is RFA No. 8 of 2018 Page 12 decided in favour of the appellant. The learned counsel appearing for the appellant relied upon the following decisions of the Hon'ble Supreme Court.
Kochan Kani Kunjuraman Kani Vs. Mathevan Kani Sankaran Kani [(1971) AIR(SC) 1398 : (1971) 2 CivAppJ(SC) 46 : (1971) KLT 458 : (1971) 2 SCC 345:
(1971) SCD 793: (1971) Sup SCR 786 : (1971) 1 SCWR 732] -
'6. He also averred in that plaint that in several decisions, the courts have declared that Kanikkars follow Marumakkathayam system. The custom pleaded by the respondent was a tribal custom and not a family custom pertaining to the family of Kochan Kani. In O.S. 78 of 1959, the averments relating to the customs in question are vague. At any rate even in that suit, the respondent did not put forward any family custom. Therefore, the only question that the courts had to decide was whether the respondent had proved the custom pleaded by him. It is well established that in the matter of custom a party has to plead in specific terms as to what is the custom that he is relying on and he must prove the custom pleaded by him. He cannot be permitted to prove a custom not pleaded by him. In Abdul Hussain Khan v. Bibi Sona Dero 45, I.A. 10..., the Judicial Committee observed 'It is therefore incumbent upon the plaintiff to allege and prove the custom on which he relies.' That was also the view taken by this Court in Thakur Gokalachand vs. Parvin Kumari, the reason for this rule is obvious. Anybody who puts forward a custom must prove by satisfactory evidence the existence of the custom pleaded, its continuity and the consistence with which it was observed. A party against whom a custom is pleaded must have notice as to what case he has to meet. The opposite party apart from rebutting the evidence adduced by the plaintiff may be able to prove that the custom in question was not invariably followed. He cannot get ready with that evidence without knowing the nature of the custom relied upon by the plaintiff. Therefore, all that we have to see in the present case is whether the respondent has established the custom pleaded by him viz. the custom of the clan to which the deceased belonged. The learned trial Judge in O.S. 74 of 1956, after carefully examining the evidence in the case came to the conclusion that the respondent had not proved the custom pleaded by him. He referred not merely to the evidence in the case but also to various reports and books which came into existence at undisputed point of time. On the other hand, the learned trial judge in O.S. 78 of 1959 mainly relying on certain alleged admissions on the deceased Kochan Kan came to the conclusion that he was governed by RFA No. 8 of 2018 Page 13 Marumakkathayam law. Similar was the view taken by the court in the proceedings arising out of O.S. 436 of 1124.
8. In our opinion, the High Court misdirected itself in determining the question before it. It overlooked the fact that the only plea of the respondent was that Kanikkars tribe was governed by Marumakkathayam law. He did not plead any family custom. Before he could succeed in his suits, he had to establish the custom pleaded by him. Proof of any other custom could not help him.' Om Prabha Jain vs. Abnash Chand & Anr. [(1968) AIR(SC) 1083 : (1968) CurLJ 711: (1968) DEC 82:
(1968) 36 ELR 101: (1968) 2 SCA 349: (1968) 2 SCJ 807: (1968) 3 SCR 111 -
'12. Mr. Metha, who argued the cause on behalf of the answering respondent stated that it was not necessary at all to give the facts ab out the conferences and that the charge of bribery could be proved even without the details of how the bribe came to be given. He relied upon the judgment of the Madras High Court inKandaswami v. S.B., Adityan 19 E.L.R. 260, for the proposition that a bribe is a bribe although the date on which it is given may not be capable of being specified if it could be established otherwise that the money was in fact paid; and he further relied on a judgment of this Court in Bhagwan Datta Shastri Vs. Ram Ratanji Gupta and Others, that even if the full particulars be not given evidence might still be led to determine whether a corrupt practice had in fact taken place or not. We need not decide in this case what the pleadings and the proof should be. The ordinary rule of law is that evidence is to be given only on a plea properly raised and not in contradiction of the plea. Here the pleas where made on two different occasions and contradicted each other. The evidence which was tendered contradicted both the pleas. The source of the information was not attempted to be proved and the witnesses who were brought were found to be thoroughly unreliable. In these circumstances we do not propose to refer to the evidence in this judgment any more.' Balraj Taneja & Anr. V. Sunil Madan & Anr. [(1999) AIR(SC) 3381) -
'42. There is yet another infirmity in the case which relates to the 'judgment' passed by the Single Judge and upheld by the Division Bench.
'Judgment' as defined in Section 2(9) of the CPC means the statement given by the Judge of the grounds for a decree or order. What a judgment should contain is indicated in Order 20, Rule 4(2) which says that a judgment:
RFA No. 8 of 2018 Page 14 'shall contain a concise statement of the case, the points for determination, the decision thereon and the reasons for such decision.'
43. It should be a self-contained document from which it should appear as to what were the facts of the case and what was the controversy which was tried to be settled by the Court and in what manner. The process of reasoning by which the Court came to the ultimate conclusion and decreed the suit should be reflected clearly in the judgment.' [14] Affidavit-in-opposition on behalf of the respondent/petitioner is filed by denying all the allegations which are contrary to and inconsistent with the averments made in the reply. It is also stated that nothing stated RFA (First Appeal) may be deemed to be admitted by the respondent unless and until expressly admitted in her reply supported by records.
[15] Learned counsel for the respondent submitted that the respondent had filed the MAT (Declaratory) Suit No. 42/09/4/10/75(A)/13/05/14/3/2015 before the Ld. Family Court, Senapati for declaring her as the legitimate wife of deceased S. Akha Mao. The Ld. Family Court, Senapati after finding all the materials evidence on records and witnesses adduced by the appellant and me passed the impugned Judgment and Order and Decreed dated 05/05/2018 declaring that the respondent/petitioner Smt. L. Asha as legally wedded wife of Late S. Akha Mao being No. 4347183K TS NK of Assam Regiment.
RFA No. 8 of 2018 Page 15 [16] As per the story narrated by the respondent, the
respondent's deceased husband namely S. Akha Mao during his life time served as sepoy in Assam Regiment bearing No. 4347183K. He was enrolled as sepoy on 21/03/1974, and after serving for 15 years two months, he was discharged from service on 01/05/1989 with service retirement benefit including monthly pension. The appellant and the respondent's deceased husband were in love and live together for some years but the appellant left the respondent deceased husband in the year 1982. However, out of their living together two daughters were born without actual marriage between the appellant and the respondent's deceased husband. At the time of his discharge, the respondent's deceased husband published in Part II Order the name of the appellant, and the two daughters of the appellant. The particulars as per the service record of the deceased employee late S. Akha Mao is mentioned herein below;
Sl. Relationship Date of
Name Date of Birth
No. with employee marriage
i) A Athisa Mao wife 10/02/1964 15/02/1982
ii) A. Nelia daughter 13/06/1977
iii) Ashein Mao daughter 11/09/1984
It is also submitted that the respondent was married by deceased S. Akha Mao on 29/08/1989 in accordance with the practice of Roman Catholic Church, a Christian denomination. As per the practice of the Church, the respondent and deceased S. Akha Mao marriage was solemnized by Rev. Father Sebastian Manianchira, SDB, at St. Mary's Parish, Punanamei. The marriage certificate was filed and RFA No. 8 of 2018 Page 16 exhibited as Ext. A/10 and no objection were raised by the appellant at the time of exhibit.
[17] Learned counsel for the respondent further submits that the respondent never knew that the appellant and her daughters' names were recorded or published in Part II Order. Since the date of marriage the respondent and the appellant resided and lived together as husband and wife after their holy marriage till the respondent deceased husband death. The following children were born out of their wedlock:
Sl. Relationship Date of
Name Remarked
No. with employee Birth
i) Miss Leshini daughter 27/05/1992 Unmarried
ii) Miss Adazila daughter 19/06/1994 Unmarried
Permanently
iii) Master Kayio son 20/07/1997
disabled
iv) Miss Kriyilni daughter 03/01/2000 Unmarried
It is also submitted that they have lived together for about 17 years. After prolonged illness, the respondent's deceased husband died at the matrimonial home on 18/10/2006. The death certificate of the deceased was filed and exhibited as Exhibit-A/8. After the death of her deceased husband, the respondent came to know that the names of the appellant and her two daughters were published in Part-II Order of the deceased service record. Hence, the present suit and the impugned Judgment & Order and Decreed dated 05/05/2018.
RFA No. 8 of 2018 Page 17 [18] Further, the learned counsel for the respondent submitted
that the respondent did not admit at all anywhere the appellant is the wife of her deceased husband or her deceased husband as the husband of the appellant. Before the respondent's deceased husband was discharged from his service, the appellant and the respondent's deceased husband were in love and they eloped but, there was no any actual marriage in any form of marriage. Living in relationship and marriage are not the same. Living in relationship cannot be treated as marriage. It is further admitted that the appellant and her deceased husband were non-Christian. But, there was no marriage at all between the respondent's deceased husband and the appellant. The respondent's husband after his discharge from service he was converted into Roman Catholic Church denomination and the said denomination is a Christian religion. The church has its own norm and practice. The Roman Catholic Church treats marriage as a sacrament. It is a must for Roman Catholic Church to perform marriage before an ordained priest of the Parish. The Special Marriage Act, 1954 and the Christian Marriage Act, 1872 has nothing to do in the case. [19] It is also submitted that the respondent did not file at any stage of the suit any certificate of marriage dated 24-04-2013 issued by Parish Priest, St. Mary's Priest before the Ld. Family Court, Senapati. It is a concocted story of the appellant to mislead this Hon'ble High Court. There is nowhere in any of the plaint or counter claim written statement of the appellant stating that respondent marriage was RFA No. 8 of 2018 Page 18 performed on 24/12/2002. It is further submitted that the respondent did not admit anywhere in her petition about the marriage of the appellant with any person including the respondent's deceased husband. The sentence means that the appellant and the respondent's deceased husband living in relationship with cohabitation led to birth of two daughters namely, A. Nelia and A. Hriiyi and both the said daughters are married.
[20] Learned counsel for the respondent submitted that the appellant filed counter claim with a prayer to declare the appellant as the legally wedded wife of deceased S. Akha Mao and states that the appellant married with deceased S. Akha Mao on 15/02/1975. The appellant produced three witnesses including the appellant and filed some pension documents which were not exhibited. P.W. No. 2's statement has no connection with the claim of the appellant because he was not present at the time of appellant's marriage. D.W. No. 3's examination-in-chief statement could not be taken into account because the statement was not taken before the concerned Oath Commissioner and the same is not evidential. Therefore, there is no evidence to show in the appellant case that there was customary marriage. When the existence of marital relationship is denied, then it is for the person who asserts the solemnization of marriage to prove that there was valid marriage solemnized as per the custom prevailing in the community. Further, the appellant has no consistent case regarding the date of solemnization of marriage. Further, the appellant only resided for few RFA No. 8 of 2018 Page 19 years with deceased S. Akha Mao and deserted him in the year 1982 when deceased S. Akha Mao was in the unit with her two daughters and never came back. There is no other evidence to show that apart from that any form of marriage was conducted. The custom regarding marriage was also not proved. Further, the ingredients of the alleged custom and the essential ceremonies of the marriage were neither set out nor pleaded. Assuming but not admitting that there exists a marriage between appellant and the respondent's deceased husband, the date of marriage claimed by the appellant is 15/02/1975 and in the service record it is 15/02/1982. And the appellant admitted during cross examination that the date mentioned in the service record is correct. After the respondent was married with the deceased S. Akha Mao i.e. from 29/08/1989 till his death i.e. 18/10/2006, the appellant did not claim that she is the wife of the deceased nor any complaint was lodged for any maintenance against the deceased. The respondent and the respondent's deceased husband after their marriage were blessed with four children live together for more than 17 years. It was only after the death of respondent's deceased husband. The appellant began to claim the family pension that she is the wife of the deceased. [21] Learned counsel for the respondent further submitted that the question "whether the impugned judgment & Order and Decree dated 05.05.2018 was decided in accordance with the law". In support of his case, respondent counsel relied upon Thakur Gokalchand vs. Parvin Kumari (1952) AIR(SC) 231 in which, the Apex Court held that RFA No. 8 of 2018 Page 20 a party who is alleged to be governed by Customary law must prove that he is so governed and must also prove the existence of the custom set up by him. Further, the same decision has also held that long cohabitation will give raise to a presumption of valid marriage, but it is a rebuttable presumption.
[22] Respondent counsel relied upon the following decisions:
In Thakur Gokalchand vs. Parvin Kumari (AIR 1952 SC
231) the Apex Court held that a party who is alleged to be governed by Customary law must prove that he is so governed and must also prove the existence of the custom set up by him. Further, it has also held that long cohabitation will give raise to a presumption of valid marriage, but it is a rebuttable presumption. Further in the same decision it has been held that:
"It seems to us that the question as to how far the evidence of those particular witnesses is relevant under Section 50 is academic, because it is well-settled that continuous cohabitation for a number of years may raise the presumption of marriage. In the present case, it seems clear that the plaintiff and Ram Piari lived and they were treated as husband and wife for a number of years, and, in the absence of any material pointing to the contrary conclusion, a presumption might have been drawn that they were lawfully married. But the presumption which may be drawn from a long cohabitation is rebuttable, and, if there are circumstances which weaken or destroy that presumption, the court cannot ignore them".
In Bhaurao Shankar Lokhande and Another vs. State of Maharashtra 1965 (AIR 1564), the Hon'ble Supreme Court (Full Bench) held that the word 'solemnize' means, in connection with a marriage, 'to celebrate the marriage with proper ceremonies and in due RFA No. 8 of 2018 Page 21 form', according to the Shorter Oxford Dictionary. It follows, therefore, that unless the marriage is 'celebrated or performed with proper ceremonies and due form it cannot be said to be 'solemnized'.
In Surjit Kaur vs. Garja Singh and Others (1994) AIR (SC) 135 the Division Bench of Hon'ble Supreme Court held, 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 to 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".
In Leelamma vs. Radhakrishnan (2005) 30 AIC 422 the Hon'ble Kerela High Court held the essentials of a valid marriage applicable to the parties according to their customary rites has to be pleaded and proved. Further it was held that it is a well-settled proposition of law that a valid marriage can be established only by proving the essentials of marriage according to the customary rites of the parties.
RFA No. 8 of 2018 Page 22 In Tulsa vs. Durghatiya (2008 (4) SCC 520) the Hon'ble Supreme Court held that:
"At this juncture reference may be made to Section 114 of the Evidence Act 1872. The provision refers to common course of natural events, human conduct and private business. The court may presume the existence of any fact which things likely to have occurred. Reading the provisions of Sections 50 and 114 of the Evidence Act together, it is clear that the act of marriage can be presumed from the common course of natural events and the conduct of parties as they are borne out by the facts of a particular case".
In Indra Sarma Vs. VKV Sarma (2014) 6 SCC (Cril) 593 the Hon'ble Supreme Court held that Marriage is often described as one of the basic civil rights of man/woman, which is voluntarily undertaken by the parties in public in a formal way, and once concluded, recognizes the parties as husband and wife. Three elements of common law marriage are (1) agreement to be married (2) living together as husband and wife, (3) holding out to the public that they are married. Sharing a common household out to the public that they are married. Sharing a common household and duty to live together from part of the 'Consortium Omnis Vitae" which obliges spouses to live together, afford each other reasonable marital privileges and rights and be honest and faithful to each other. One of the most important invariable consequences of marriage is the reciprocal support and the responsibility of maintenance of the common household, jointly and severally. Marriage as an institution has great legal significance and various obligations and duties flow out of marital relationship, as per law, in the matter of inheritance of property, successionship, etc. Marriage, therefore, involves legal requirements of formality, publicity, RFA No. 8 of 2018 Page 23 exclusivity and all the legal consequences flow out of that relationship. Marriages in India take place either following the personal law of the religion to which a party is belonged or following the provisions of the Special Marriage Act. Marriage, as per the Common Law, constitutes a contract between a man and a woman, in which the parties undertake to live together and support each other. Marriage, as a concept, is also nationally and internationally recognized. [23] Vide order dated 08.05.2024, the case was referred before the Manipur State Legal Services Authority (MASLSA) for mediation as desired/requested by the parties as they are desirous to explore the possibility of arriving at an amicable settlement of the underlying dispute with the assistance of a mediator. However, the mediation was failed as the respondent (defendant) failed to turn up before the MASLSA, Lamphelpat.
[24] Considered the facts and submissions made above by the learned counsels for the parties and also perused the impugned order dated 05.05.2018 passed by the Ld. Family Court, Senapati. The Ld. Family Court, Senapati after going through the pleadings of the parties framed the following issues:
(1) Whether the respondent/petitioner married late S. Akha at Smt. Mary's Parish Punanamei on 29-08-
1989 according to Christian Marriage and Law or not?
RFA No. 8 of 2018 Page 24
(2) Whether the appellant/respondent married late S.
Akha on 15-02-1975 according to the customary rites and practice of Mao Naga and Law?
(3) Whether the respondent/petitioner and one D. Nikhini of Song Song Village had illicit relationship and a daughter viz. Nikhini Athisa was born to them?
(4) Whether the appellant/respondent left their shared home in the year 1992 when he was away at his service?
[25] The Ld. Family Court, after going through the pleadings and statements of the PW, decided the issue No. 1 i.e. whether the petitioner married with late Akha Mao at St. Parish Punanamei on 29.08.1989 according to Christian Marriage and Law or not and the operative portion of the decision taken on issue No. 1 is reproduced herein below:
'The petitioner submits that she was married with the deceased S. Akha Mao on 29/08/1989 in accordance with the Mao Catholic Church custom and practice. Marriage certificate issued by the Parish Priest in accordance with the custom was exhibited as Ext. A/10. Further, the P.W. No. 2 and 3 in their statement states that the petitioner and the deceased were married on 29/08/1989.
Hence, the issue is decided in favour of the petitioner.' [26] Further, the Ld. Family Court after going through the pleadings of the parties and after going through the statements of the witnesses on issue No. 2 i.e. whether the respondent married late S. Akha Mao on 15.02.1975 according to the customary rights and practice of Mao Naga and law and decided against the defendants.
RFA No. 8 of 2018 Page 25 [27] The Ld. Family Court after going through the pleadings of
the parties and the statements of the witnesses decided in connection with issue No. 3 i.e. whether the petitioner and one D. Nekhini of Song Song Village had illicit relationship and daughter Nekhini Athisa was born to them. The Ld. Family Court decided the issue in the following manner and the same is reproduced herein below:
'The respondent pleads in her counter claim that the petitioner was the wife of one D. Nikhini of Song Song Village and has a daughter namely, Nekhini Athisa. The petitioner denied the allegation of being married to D. Nikhini in her counter claim written statement. The question to be determined is whether the petitioner at the time of her marriage with the deceased S. Akha Mao on 29/08/1989 is the married wife of D. Nikhini? It is not proved that petitioner is the married wife of Mr. D. Nikhini of Song Song Village at the time of her marriage with deceased S. Akha Mao. Having a daughter cannot be taken as a proof of marriage.' [28] On issue No. 4 i.e. whether the respondent left their shared home in the year 1982 when he was away at his service, the Ld. Family Court decided in the following :
'The petitioner submitted that the respondent left the deceased S. Akha in the year 1982 when the deceased S. Akha was away at his service place. P.W. No. 2 and 3 also states that the respondent left the house of deceased S. Akha Mao. The respondent also admitted in her cross-examination that she used to stay at her parental home for some years.' Thereafter, disposed of the Mat. Suit in the following:
'24. Wadded through all the materials on record available before me. I am satisfied and come to the conclusion that preponderance of evidence goes in favour of the plaintiff/petitioner, L. Asha that she got married with S. Akha Mao on 29-08-1989 by performing marriage as per Customary Mao practice. On the other hand, the defendant/respondent as claimed in her counter claim cannot prove her case.
Hence, it is ordered and declared that the plaintiff/petitioner Smt. L. Asha is the legally wedded wife of Late S. Akha Mao being No. 4347183K TS-NK of Assam Regiment.
RFA No. 8 of 2018 Page 26 Accordingly, the suit is decreed with cost in favour of the plaintiff/petitioner, L. Asha and counter claim filed by the defendant/respondent A. Athisa is dismissed.
Accordingly, the suit is decreed with cost in favour of the plaintiff/petitioner, L. Asha and counter claim filed by the defendant/respondent, A. Athisa is dismissed.' [29] The issues involved to be decided in the present matrimonial appeal are that -
(i) whether the first wife i.e. the appellant can claim the pensionary benefits of the deceased Late S. Akha Mao only on the ground that she is the nominee of her husband without proving that she was the wife and have children while living together with the deceased husband and whether leaving the house of the deceased husband can presume that she was divorced by her husband.
(ii) Assuming but not admitting that the marriage of both appellant as well as the respondent are not proved the children born out of living together with the late husband can be regarded as legitimate child which can claim and entitled to the properties including the pensionary benefits of late husband or not.
(iii) Whether if the marriage of the appellant under customary law failed to prove in the case, the living together under the same roof as husband and wife RFA No. 8 of 2018 Page 27 for many years can be regarded as legally married wife or if the wife left the matrimonial home for a long time can be regarded as divorced wife.
[30] Apart from the narration and discussion made above by the Ld. Family Court regarding the statements of the witnesses, we also additionally considered the contents of the statements of the PWs and DWs and some of the important statements stumbled upon by us of the statements of PWs and DWs are discussed and narrated herein below for reference and for deciding the issues.
The respondent as plaintiff produced 3 (three) PWs including herself before the Ld. Family Court. [31] The respondent as PW No. 1 in her examination in-chief stated that prior to her marriage with deceased husband, her husband eloped with Smt. A. Athisa (the appellant/respondent); further, averred that they were resided under one roof but, denied that they were married and also admitted that out of their consummation, two daughters were born and left her husband in the year 1982 and never came back. However, it is submitted that out of their wedlock i.e. late S. Akha and herself, they have four children. But, in the cross- examination, the respondent/plaintiff stated that the appellant/respondent and Mr. S. Akha converted to Roman Catholic after their marriage.
(emphasis given)
RFA No. 8 of 2018 Page 28
[32] It is also stated that the plaintiff/respondent and
appellant/respondent were from the same village i.e. Song Song Village. Further, it is stated that she does not know if the appellant and late A. Akha were married according to Mao Customary practices.
Further, it is stated that one, Mrs. Nikhini Athisa is her daughter and said daughter is about 33 years old and the father of her daughter Nikhini Athisa was D. Nikhini and further stated that the said daughter was born at her parental home. Further, it is stated that she does not know whether a married woman can take second marriage according to Mao Custom. Further, it is stated that in her marriage certificate, i.e. Exhibit - A/10 the date of marriage was mentioned as 24.12.2002. But, in her application, the date of her marriage with her husband was mentioned as 29.08.1989. (But, the witness did not clarify of the two which date is the actual date of her marriage with her late husband).
On examination of the above statement of PW No. 1 (the petitioner), the petitioner admits that the respondent and her late husband eloped before her marriage to late husband and resided under one roof and because of consummation they have two children and also admitted that the respondent and late husband converted to Roman Catholic after their marriage. She also admits that she has a daughter and who is about 33 years old and father of her said daughter was D. Nikhini. But, she failed to elaborately explain that she married D. Nikhini RFA No. 8 of 2018 Page 29 or not. She also mentioned that the date of marriage issued by the Church was 24.12.2002 whereas the date mentioned in the present plaint/petition was 29.08.1989, but failed to clarify whether of the two dates which one is correct or not. It is also seen and evident that the name of the appellant was entered in the service book of the late husband not only as a nominee but, as a wife. The late husband did not take any step to change the name of the nominee till his death i.e. 2006 which implies that the appellant is the wife of the late husband.
From the foregoing statement, it is ascertained and confirmed that the appellant/respondent and her late husband are living together under one roof and converted to Christianity after the marriage implying that the respondent married late husband before the marriage of the respondent/petitioner and late husband, and considering the inconsistency of the statement of petitioner/respondent, we are not inclined to believe the statement of the PW No. 1. [33] The PW No. 2, Smt. Asiisa is the younger sister of late S. Akha Mao in her statement. It is stated that her elder brother is S. Akha Mao married the plaintiff/respondent on 29.08.1989 at St. Mary's Parish, Punanamai. She further avers that her late brother and the appellant S. Athisa has got two daughters which were born after their marriage. She further avers that she was not present at the time of the marriage of late S. Akha and I. Asha. She further avers that a man having a living wife and a woman having husband cannot marry before RFA No. 8 of 2018 Page 30 the church. She further stated that she does not know whether S. Akha married A. Athisa after performing Mao customary practices and uses in the year 1975.
From the statement of the PW No. 2, it is ascertained that the respondent and her late husband got two daughters born after their marriage, thereby supporting and confirming that the respondent and her late husband were married in spite of supporting the claim that the petitioner and her late brother got married on 29.08.1989 at St. Mary's Parish, Punanamei. She was not present at the time of the marriage. From her statement, it is also ascertained that having a living wife and a woman having husband cannot marry before the church as such as the petitioner herself admits that she has a daughter prior to her marriage with late husband and she identified the father of her daughter was D. Nikhini and as the petitioner failed to explain whether the said daughter was born out of a wedlock or not. There creates a doubt that her marriage with her late husband was legally acceptable or not. As the witness did not deny whether her late brother married the respondent. The respondent after performing Mao customary practices and usage in the year 1975, the factum of marriage between the two still remained to believe that they were married as per customary law.
RFA No. 8 of 2018 Page 31 [34] The PW No. 3 in his statement before Ld. Family Court,
the witness denied that the practice of marriage after elopement among non-christian Mao is not followed. Some portion of his statement before the Court is extracted herein below for reference:
'I deny the suggestion that the practice of marriage after elopement among the non-christian Mao is not followed. We non-Christian Mao community follow marriage after engagement. The Mao Christian also follows the practice of marriage only after engagement between the parents of the bride and the bridegroom. Amongst our Mao community there is no any elicit relation between a man and a woman from the time of our forefather. Amongst our Mao Community sons and daughters are begotten only after a valid marriage. The witness volunteers that there may be exceptions.' [35] The respondent A. Athisa as DW No.1 deposed that she was the legally married wife of late S. Akha and the petitioner was a concubine of her late husband. She further stated that after knowing the love affairs of herself and her late husband their parents managed their marriage according to Mao non-Christian customary practices and usage and the marriage was performed in the year 1975 thereafter living together as husband and wife and they have two daughters. She further narrated about the practice and usage of Mao customary marriage she further stated herself and her late husband were staying together at his residence and maintained and looked after her and her two daughters. She further stated that the petitioner is from her village and married to one D. Nikhini of Song Song village and they have one daughter namely Nikhini Athia now married to Kaikho Nepuni of the same village and stated that the petitioner and her late husband never married further she stated that her late husband died on 18-10-2006 RFA No. 8 of 2018 Page 32 and burial ceremony were performed according to Christian Mao custom and in the service book her name was mentioned as nominee (wife) she further stated that according to Mao custom and Christian practice neither a man nor a woman having spouse can take marriage during the lifetime of their spouse. And further avers that she never left the matrimonial home but due to frequent disturbance caused by the petitioner she use to stay at her parental home for some years.
The statement made above by the respondent (DW No. 1) cannot be shaken in cross-examination and also not contradicted by the other witnesses' the statement which is believed to be true. [36] The fact of existence of Mao customary law and practice regarding marriage before conversion of Christianity were well explained in the statement of Puni Losii as DW No.2 thereby supporting the statement PW No.1.
[37] Ms. Pfokkrehrii Onia as DW no.3 stated that she knows both petitioner and respondent as they are from same village. She further stated that the petitioner L. Asha was living together with Nikhini of Song Song village without any marriage and they got a daughter she further states that the respondent A. Athisa and late S Akha were living together as husband and wife at the residence of late S. Akha from 1975, there marriage was performed according to Mao custom. She further avers that both Late S. Akha and A. Athisa were non-Christian before their marriage but converted to Christian religion RFA No. 8 of 2018 Page 33 after some years. She further avers that due to frequent quarrel between the petitioner and respondent, the respondent use to stay at her parental home. She further avers that according to Mao custom and Christian religion a man cannot marry another woman as second wife during the lifetime of the first wife.
This witness supported the stand taken by the appellant/respondent that she married her late husband according to Mao custom, they live together as husband and wife and they have two daughters and also supported the stand that according to Mao custom and Christian religion that a man cannot married another woman as second wife during the lifetime of the first wife.
[38] Mr. Pfokrelo as DW No. 5 deposed that the respondent/petitioner was the second wife of D. Nikhini of Song Song village without any marriage and they got a daughter who is now married further the witness stated that the appellant/respondent and late S. Akha were living together as husband and wife at the residence of late S. Akha till his death and their marriage was performed under Mao custom. At the time of their marriage they were non-Christian but converted after some years and they have two daughters and the respondent/petitioner was kept as concubine of late S. Akha. Due to frequent quarrel between the respondent/petitioner and the appellant/respondent used to stay at her parental home. He furthers avers that according to Mao custom or Christian religion a man cannot RFA No. 8 of 2018 Page 34 marry another woman as his second wife during the lifetime of the first wife.
[39] After going through the pleadings and submissions made by both parties and after giving due consideration to the statements of the PWs and DWs and also basing on the narration and observation made, we are relying on the following Hon'ble Supreme Court's observations made in the following judgments:
Babi W/o Jayant Jagtap vs. Jayant Mahadeo Jagtap & Ors. [1981 SCC OnLine Bom 15] at para 23 -
'23. The Supreme Court in several cases, that is, Bhaurao Lokhande v. State of Maharashtra [supra], Kanvalram v. Himachal Pradesh Administration (Supra), Priya Bala Ghosh v. S.C. Ghosh, emphasized the need of strict proof that the marriage has been solemnized in accordance with the customary rites and ceremonies of the parties in order to constitute a valid legal marriage.' Rathnamma & Ors. Vs. Sujathamma & Ors. [(2019) 19 SCC 714] at para 7 -
'7. Admittedly, Hanumanthappa died on 15-10-1986 i.e. within eight month of the alleged marriage. The plaintiff, apart from the oral evidence, relies upon a photograph (Ext. P-28) wherein the plaintiff and Hanumanthappa are seen together. PW 2 to PW 5 have deposed that the photograph (Est. P-28) was taken in Malur after performing marriage in the Sub- Registrar's Office. The learned trial court found that Hanumanthappa was 19 years 9 month old at the time of marriage and the plaintiff, as admitted by her in cross- examination, was 15 years of age at the time of marriage. It was, thus, held that the plaintiff and the deceased have not attained the qualifying age at the time of registration in the Office of Sub-Registrar and, thus, marriage was void ab initio. It is also held that there is no evidence of performance of necessary marriage ceremonies in term of Section 7 of the Hindu Marriage Act, 1995 (for short 'the Act') therefore, mere registration of an agreement of marriage is not sufficient to prove marriage. The trial court also took into consideration the statement of the plaintiff admitting that the deceased was suffering from some diseases earlier to the marriage and her father performed marriage in a hurry with an intention to get the property. The plaintiff deposed that she belongs to RFA No. 8 of 2018 Page 35 Vokkaliga community and marriages were performed in the house and no marriage in the family was performed in the Sub- Registrar's Office. The learned trial court held that the marriage of the plaintiff with the deceased is said to be proved but marriage is void ab initio in terms of Section 24 of the Special Marriage Act, 1954 as both have not attained the suit and held that Defendants 2 to 5 are entitled to 1/3rd share of the total scheduled property.' Rameshwari Devi Vs. State of Bihar & Ors. [(2000) 2 SCC 431] -
'14. It cannot be disputed that the marriage between Narain Lal and Yogmaya Devi was in contravention of clause (i) of Section 5 of the Hindu Marriage Act and was a void marriage. Under Section 5 of the Hindu children of a void marriage are legitimate. Under the Hindu Succession Act, 1956, property of a male Hindu dying intestate devolves firstly on heirs in clause (1) which include the widow and son. Among the widow and son, they all get shares (see Sections 8, 10 and the Schedule to the Hindu Succession Act, 1956). Yogmaya Devi cannot be described as a widow of Raain Lal, her marriage with Narain Lal being void. The sons of the marriage between Narain Lal and Yogmaya Deve being the legitimate sons of Narain Lal would be entitled to the property of Narain Lal in equal shares along with that of Rameshwari Dvei and the son born from the marriage of Rameshwari Devi with Narain Lal. That is, however, the legal position when a Hindu male dies intestate. Here, however, we are concerned with the family pension and death-cum- retirement gratuity payments which are governed by the relevant rules. It is not disputed before us that if the legal position as aforesaid is correct, there is no error with the directions issued by the learned Single Judge in the judgment which is upheld by the Division Bench in LPA by the impugned judgment.' Smt. Sarbati Devi & Anr. Vs. Smt. Usha Devi [(1984) 1 SSC 424] -
'12. ...................................................The nomination only indicates the hand which is authorized to receive the amount, on the payment of which the insurer gets a valid discharge of its liability under the policy. The amount, however, can be claimed by the heirs of the assured in accordance with the law of succession governing them.
RFA No. 8 of 2018 Page 36 Revanasiddappa & Anr. Vs. Mallikarjun & Ors. [(2011) 11 SSC 1] para No. 36, 37, 38, 39, 40 - '36. With the amendment of Section 16 (3), the common law view that the offspring of marriage which is void and voidable are illegitimate 'ipso jure' has to change completely. We must recognize the status of such children which has been legislatively declared legitimate and simultaneously law recognizes the rights of such children in the property of their parents. This is a law to advance the socially beneficial purpose of removing the stigma of illegitimacy on such children who are as innocent as any other children.
37. However, one thing must be made clear that benefit given under the amended Section 16 is available only in cases where there is a marriage but such marriage is void or voidable in view of the provision of the Act.
38. In our view, in the case of joint family property such children will be entitled only to a share in their parents' property but they cannot claim it on their own right. Logically, on the portion of an ancestral property, the property falling in the share of the parents of such children is regarded as their self-acquired and absolute property. In view of the amendment, we see no reason why such children will have no share in such property. Since such children are equated under the amended law with legitimate offspring of valid marriage. The only limitation even after the amendment seems to be that during the lifetime of their parents such children cannot ask for partition but they can exercise this right only after the death of their parents.
39. We are constrained to differ from the interpretation of Section 16 (3) rendered by this Court in Jinia Keotin and, thereafter, in Neelamma9 and Bharatha Matha in view of the constitutional values enshrined in the Preamble of our Constitution which focuses on the concept of equality of status and opportunity and also on individual dignity. The Court has to remember that relationship between the parents may not be sanctioned by law but the birth of a child in such relationship has to be viewed independently of the relationship of the parents. A child born in such relationship is innocent and is entitled to all the rights which are given to other children born in valid marriage. This is the crux of the amendment in Section 16 (3). However, some limitation on the property rights of such children is still there in the sense their right is confined to the property of their parents. Such right cannot be further restricted in view of the pre-existing common law view discussed above.
RFA No. 8 of 2018 Page 37
40. It is well known that this Court cannot interpret a socially beneficial legislation on the basis as if the words therein are cast in stone. Such legislation must be given a purposive interpretation to further and not to frustrate the eminently desirable social purpose of removing the stigma on such children. In doing so, the Court must have regard to the equity of the statute and the principles voiced under Part IV of the Constitution, namely, the directive principles of State policy. In our view this flows from the mandate of Article 37 which provides that it is the duty of the State to apply the principles enshrined in Chapter IV in making laws. It is no longer in dispute that today the State would include the higher judiciary in this country.' Union of India & Anr. Vs. V.R. Tripathi [(2019) 14 SCC 646] Para No. 20 -
'20. The High court has proceeded on the basis that the recognition of legitimacy in Section 16 is restricted only to the property of the deceased and for no other purpose. The High Court has missed the principle that Section 16 (1) treats a child born from a marriage which is null and void as legitimate. Section 16 (3), however, restricts the right of the child in respect of property only to the property of the parents. Section 16 (3), however, does not in any manner affect the principle declared in sub-section (1) of Section 16 in regard to the legitimacy of the child. Our attention has also been drawn to a judgment of a learned Single Judge of the Madras High Court in M. Muthraj v. State adopting the same position. In the view which we have taken, we have arrive at the conclusion that the exclusion of a child born from a second marriage from seeking compassionate appointment under the terms of the circular of the Railway Board is ultra vires. A Division Bench of the Madras High Court followed the view of the Calcutta High Court in Namita Goldar in Union of India v M. Karumbayee11. A special leave petition filed against the judgement of the Division Bench was dismissed by this Court on 18-09-2017.' Shipra Sengupta Vs. Mridul Sengupta & Ors. [(2009) 10 SCC 680] para 14 & 18 -
'14. In Sarbati Devi1 this court has laid down that a mere nomination does not have the effect of conferring to the nominee any beneficial interest in the amount payable under the life insurance policy, on death of the insurer. The nomination only indicates the hand which is authorized to received the amount on payment of which the insurer gets a valid discharge of its liability under the policy. The amount, however, can be claimed by the heirs of the assured in accordance with the law of succession.
RFA No. 8 of 2018 Page 38
18. In view of the clear legal position, it is made abundantly clear that the amount under any head can be received by the nominee, but the amount can be claimed by the heirs of the deceased in accordance with the law of succession governing them. In other words, nomination does not confer any beneficial interest on the nominee. In the instant case the amounts so received are to be distributed on the nominee. In the instant case the amounts so received are to be distributed according to the Hindu Succession Act, 1956.' [40] We are of the considered view that even though the respondent/petitioner has taken the plea that she married with her late husband in the church and exhibited marriage certificate issued by the church authority, she could not negate the fact that she did not marry with the said D. Nikhini, the father of her daughter prior to the marriage with late husband and also that the respondent/petitioner failed to prove that the appellant/respondent did not marry with late husband under the customary law and at the time of her marriage with her late husband, the said marriage of her late husband and appellant/respondent was still existing or not, in the circumstances, the marriage of the petitioner/respondent and her late husband cannot be taken legally.
Apart from claims of the appellant/respondent that she married with her late husband according to customary law and keeping in view to the fact that the witnesses directly or indirectly supported her claim and also that all the witnesses including the petitioner/respondent supported to the fact that the appellant/respondent were living together as husband and wife under RFA No. 8 of 2018 Page 39 the same roof for many years and out of the co-habitation, they have two daughters, considering this fact, the appellant/respondent is to be regarded as the first wife of late husband.
[41] Relying on the observations made above by the Hon'ble Supreme Court, the four children of the petitioner/respondent are entitled to the family pension of late husband. [42] In the facts and circumstances and discussion made above and with our opinion and reasoning made above, we are of the considered view that the Ld. Family Court decided the case in favour of the respondent/petitioner without application of mind, accordingly, we set aside the judgment and order dated 05.05.2018 passed by the Ld. Family Court, Senapati and the present appeal is allowed with the following observation and direction:
(i) The appellant is declared to be the legal wife of late husband and can claim pensionary benefit of her late husband S. Akha Mao.
(ii) The four children of the respondent/petitioner are legitimate children of late S. Akha Mao and can claim the pensionary benefits.
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(iii) The appellant/respondent and the four children of the respondent/petitioner are jointly entitled to the pensionary benefits of late S. Akha Mao.
Accordingly, it is ordered that 50% of the pensionary benefits should go to the appellant/respondent and 50% to the four children of the respondent/petitioner.
[43] With the above observation and direction, the present appeal stands allowed and disposed of. No costs.
JUDGE CHIEF JUSTICE FR/NFR Lucy/Bipin RFA No. 8 of 2018 Page 41