Karnataka High Court
Smt. Nimbamma vs Smt. Rathnamma on 30 July, 1998
Equivalent citations: I(2000)DMC579, 1999(5)KARLJ19, AIR 1999 KARNATAKA 226, (2000) 2 HINDULR 537, (2000) 1 DMC 579, (2000) 1 MARRILJ 135, (1999) 4 CURCC 399, (1999) 5 KANT LJ 19
ORDER
1. This revision petition has been listed along with the application for stay. I have heard Sri Jayaprakash Reddy, holding brief for Sri Jai Kumar Patil, learned Counsel for the revision petitioner and Sri S.V. Prakash, learned Counsel for respondent 2, on the merits of revision and do dispose it off.
2. This revision petition under Section 115 of the Code of Civil Procedure arises from the judgment and order dated 11th December, 1997 delivered by C.Y. Brahmagoudar, Principal District Judge, Shimoga in Miscellaneous Appeal No. 17 of 1993 affirming the judgment and order of Sri C.S. Malagi, Civil Judge, Junior Division, Sagar in P and SC 4/91, dated 9-3-1993. The respondent in the revision filed a petition under Section 276 of the Indian Succession Act in the Court of Principal Civil Judge (Jr. Division) Sagar for grant of succession certificate claiming herself to be a legally wedded wife of deceased Shekaraiah, S/o Murugaiah who was working as Gangman in the Railway Department and was in service till the date of his death that is till 17-12-1989.
3. On notice of the petition, moved by the present respondent, it appears that the revision petitioner also moved a petition and she claimed herself to be the legally wedded wife of deceased Shekaraiah and alleged herself to be the first wife of Shekaraiah. She further alleged that the present respondent that the first respondent is the second wife. The Trial Court considered the evidence and after having held that the present respondent Smt. Rathnamma was the first wife legally wedded to the deceased Shekaraiah, it further found that the present revision petitioner after going to Arasalu, developed ill- treatment towards Rathnamma and thereafter started living with revision petitioner. It held that respondent 1 being a legally wedded wife, and the second marriage under law was not permissible and passed an order granting succession certificate in favour of Rathnamma the respondent, Feeling aggrieved from that order of the Trial Court, the revision petitioner filed this Miscellaneous Appeal No. 17 of 1993 and the Principal District Judge affirmed, the order of the Court below holding that Smt. Nimbamma-appellant before the First Appellate Court and now the petitioner in revision petition, even if she has lived with deceased Shekaraiah for 15 years and she might have lived with Shekaraiah treating him to be her husband and they were living as husband and wife, but it, observed, that the status of legally wedded wife could not be conferred in the eye of law to the revision petitioner, because under the provisions of Hindu Law as well as in view of the law as laid down by the Supreme Court in the case of Badri Prasad v Director of Consolidation and Others, that when the legally wedded wife of a person, like the deceased Shekaraiah has been alive and there has been no divorce, the second marriage performed by one spouse during the life time of his or her spouse was null and void and it held that as the first respondent-Rathnamma was alive who is the legally wedded wife of the deceased Shekaraiah, the second marriage of deceased Shekaraiah with Nimbamma was void. The Lower Appellate Court after having recorded this finding dismissed the first appeal and affirmed the order passed by the Court below. As mentioned earlier, I have heard the Counsel for the petitioner. It was contended before me by the learned Counsel for the petitioner that the order of the Court below and the finding of the Courts below to the effect that Rathnamma was legally wedded wife is based on non-consideration of material evidence and particularly Ex. P. 4 as well as failure to consider voters list in which the revision petitioner Nimbamma was mentioned as a wife and therefore the finding of the Court below and order passed by the Court below was result of illegal and material irrgularity in exercising its jurisdiction.
4. I have applied my mind to the contention of the learned Counsel for the petitioner. Even if in the Voters List under Ex. P. 4, Nimbamma is mentioned as the wife, but from the evidence it is proved that prior to his coming into company with Nimbamma either by marriage or by illicit relationship whatsoever it may be, that will not give the revision petitioner the status of wife when it is established that with Rathnamma he married 20 years ago or more than that and it is not established that deceased had divorced his wife Smt. Rathnamma who is his first wife according to law, when it is not proved that deceased has got decree for divorce in the legal proceeding, divorcing Rathnamma prior to the marital relationship with the petitioner even if the said marriage revision petitioner might have been performed. That when the same was performed in the life time of the first wife, i.e., when deceased Shekaraiah had Smt. Ratnamma, his first wife living, then the marriage if any, with Nimbamma was in violation of first condition as mentioned in Section 5 of the Hindu Marriage Act. One of the conditions is that neither the spouse has his or her spouse living at the time of second marriage. Section 11 declares that marriage performed in breach of Section 5(i) and (iv) and (v) of the Act shall be null and void. The effect of marriage being null and void is that it is non est and law does not recognise it and takes it that such a marriage has not been taken place. Such provisions as Sections 5(i) and 11 of the Hindu Marriage Act render position of lady married with a person who had his spouse living at the time of second marriage to be that of a kept mistress and not that of a married wife and such lady is not entitled to succeed to the properties of that person such as the present deceased Shekaraiah.
5. In view of the matter, the Court below did not commit any error either of fact or law in holding the respondent 1 to be the legally wedded wife of Shekaraiah, while petitioner's position as that of a keep or mistress not entitled to any share in the properties, estate or interest left by the deceased. Might be the lack of education among the women being the cause of such accident. Ladies do not know the position of law and enter into such relationship which does not confer any status to them particularly when such transaction of second marriage is contracted in the lifetime of a legally married wife of a person. Marying a married person definitely results in harassment of the first wife and harssment by one woman to other woman who does not gain any legal status.
6. Thus, considered my opinion, under law, the revision petitioner was not entitled to any succession certificate and succession certificate which was granted in favour of the respondent 1, was in accordance with law. No jurisdictional error can be said to have been made nor could be pointed out in the judgment of the Court below. In view of the above position, as mentioned earlier, if the succession certificate would have been issued to the revision petitioner, as mentioned earlier, the position would not have improved. Thus, considered in my opinion, the revision petition is without force as the order of the Court below cannot be said to suffer from any jurisdictional error within the framework either of the clauses (a), (b) or (c) of Section 115 of the CPC. As the basic and primary condition has not been established there is no ground to interfere with the order of the Courts below. Revision as such is hereby dismissed as being without merits.
Interim stay order dated 4-6-1998 as such will automatically stand vacated on final decision of the revision petition.