Kerala High Court
Baiju Joseph vs Bexy Elizabeth on 21 November, 2018
Bench: A.M.Shaffique, P.Somarajan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MR. JUSTICE P.SOMARAJAN
WEDNESDAY, THE 21ST DAY OF NOVEMBER 2018 / 30TH KARTHIKA, 1940
Mat.Appeal.No. 781 of 2010
AGAINST THE JUDGMENT DATED 19.6.2010 IN OP(DIV) 360/2009 of FAMILY
COURT, KOTTAYAM AT ETTUMANOOR
APPELLANT/PETITIONER IN THE OP:
BAIJU JOSEPH, S/O JOESPH, AGED 34,
VALAVUKUZHIKKAL HOUSE, PAMPADY P.O., KOTTAYAM.
BY ADVS.
SRI.C.S.MANILAL
SRI.S.NIDHEESH
RESPONDENT/RESPONDENT:
BEXY ELIZABETH, D/O BABU
VANIYAPURAKKAL MOOLAYIL HOUSE, VAKATHANAM, KOTTAYAM
DISTRICT.
BY ADVS.
SRI.P.N.ANOOP
SRI.SANTHOSH PETER (MAMALAYIL)
SMT.SARITHA.M.JOSE
SRI.V.VISAL AJAYAN
SMT.AMEERA SALMAN
THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 03.09.2018,
ALONG WITH Mat.Appeal.806/2010, THE COURT ON 21.11.2018DELIVERED
THE FOLLOWING:
2
Mat.A.Nos.781/2010 & 806/2010
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
&
THE HONOURABLE MR. JUSTICE P.SOMARAJAN
WEDNESDAY,THE 21ST DAY OF NOVEMBER 2018 / 30TH KARTHIKA, 1940
Mat.Appeal.No. 806 of 2010
AGAINST THE JUDGMENT IN OP 362/2009 of FAMILY COURT, KOTTAYAM, AT
ETTUMANOOR DATED 19-06-2010
APPELLANT/PETITIONER:
BAIJU JOSEPH, S/O JOSEPH
AGED 34, VALAVUKUZHIKKAL HOUSE, PAMPADY P.O.,
KOTTAYAM DISTRICT.
BY ADVS.
SRI.C.S.MANILAL
SRI.K.VIDYASAGAR
SRI.S.NIDHEESH
RESPONDENTS/RESPONDENTS:
1 BEXY ELIZABETH, D/O BABU,
AGED 30 YEARS, VANIYAPURAKKAL MOOLAYIL HOUSE,
VAKATHANAM P.O., CHANGANACHERRY, PIN-686 538,
KOTTAYAM DISTRICT.
2 ANNAMMA BABU AGED 53 YEARS
W/O.BABU THADATHIL NINAN, VANIYAPURAKKAL, MOOLAYIL
HOUSE, VAKATHANAM P.O., CHANGANACHERRY, KOTTAYAM
DISTRICT, PIN-686 538.
BY ADVS.
SRI.P.N.ANOOP
SRI.SANTHOSH PETER (MAMALAYIL)
THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 03.09.2018,
ALONG WITH Mat.Appeal.781/2010, THE COURT ON 21.11.2018 DELIVERED
THE FOLLOWING:
3
Mat.A.Nos.781/2010 & 806/2010
JUDGMENT
SHAFFIQUE, J Mat.A. Nos. 781 & 806 of 2010 have been filed by the very same petitioner challenging the judgment in O.P.(Divorce). No. 360 of 2009 and O.P.No.362/2009 respectively of the Family Court, Kottayam at Ettumanoor.
2. O.P. (Divorce).No.360/2009 has been filed for a declaration that the petitioner is not the husband of the respondent. The short facts as described in the petition are as under:
Petitioner and respondent executed and registered an agreement dated 11.10.2006 to live as husband and wife. The petitioner during the relevant time was a Mechanical Supervisor in Saudi Arabia and respondent was a nurse by profession. Respondent was a divorcee since 2002. They resided together as husband and wife for 20 days in the petitioner's house at Pampady and thereafter petitioner left to Saudi Arabia. Respondent proceeded to Mumbai where her mother was working as a nurse which according to him was against his instruction.
Petitioner used to send money to the respondent through ICICI Bank. While residing at Mumbai he used to call his wife, but her mother was attending the phone. He could not talk to her or even wish her birthday. Later in October, 2007 she expressed her intention to go for higher 4 Mat.A.Nos.781/2010 & 806/2010 studies. For that purpose the petitioner came back from Saudi Arabia on 06.10.2007 and they resided together till 25.10.2007 at Pampady. As requested by the respondent and her mother, Rs.3 lakhs was advanced as loan for remitting in the Irish University. But her plan to proceed to Ireland was later cancelled. The petitioner proceeded to Saudi Arabia on 25.10.2007. Though an amount of Rs.3 lakhs remitted to the University of Ireland was refunded, the respondent did not give back that amount to the petitioner.
3. She again demanded money for purchasing two acres of land near to her property and for that purpose the petitioner gave 150 gold coins which he brought from abroad. By selling the said gold coins she got Rs.12 lakhs. She agreed to execute a sale deed in April, 2008, but the copy of the agreement and documents were not sent to the petitioner. He also stated that he had paid substantial amounts to her as she expressed her intention to go for higher education in Australia. Though she proceeded to Australia on 15.03.2008, she returned back after 15 days on 16.04.2008.
4. The petitioner alleged that the intention of the respondent was to squeeze money from him. Later it was understood that the respondent had sexual relationship with various men and that she was leading the life of a prostitute. For the above reason, the petitioner 5 Mat.A.Nos.781/2010 & 806/2010 submitted that the marital relationship between them was irretrievably broken and they were living separately since 25.10.2007 onwards. There is no contact after 18.4.2008. No children is born to them and therefore the petitioner sought for a declaration that the respondent is not his wife.
5. O.P.No. 362 of 2009 was filed by petitioner for return of money and gold ornaments. He contended that he used to sent Rs.10,000/- per month for the period from November, 2006 to April, 2008 and the respondents are liable to return Rs.1,80,000/- (Rupees one lakh eighty thousand) towards that account. An amount of Rs.3,00,000/- (Rupees three lakhs) was given to the 1 st respondent on 08.10.2007. It was a loan which has not been returned. Rs.19,000/- (Rupees nineteen thousand) was given to the 1st respondent on 23.10.2007 which was not returned. The petitioner also gave Rs.3,00,000/- (Rupess three lakhs) on 08.01.2008, Rs.5,00,000/- (Rupees five lakhs) on 11.02.2008 and Rs.2,70,000/- on 12.02.2008 for the purpose of going for higher studies to Australia. He also claimed the value of dress and other articles worth Rs.77,200/- described in 'B' schedule. The petitioner contended that he also gave 168.5 sovereigns of gold ornaments to the respondent. Thus the petitioner alleges that he is entitled to get back a total amount of Rs.16,46,200/- (Rupees sixteen lakhs forty six thousand and two hundred) and 168.5 sovereigns of gold 6 Mat.A.Nos.781/2010 & 806/2010 ornaments or its present value with interest.
6. In O.P.(Div.) 360/2009 respondent did not file any objection. In O.P.NO. 362/2009 the respondents filed objection stating that at the time of marriage Rs.2,00,000/- (Rupees two lakhs only) and 95.25 sovereigns of gold ornaments had been entrusted with the petitioner and his family members. She denied having received Rs.10,000/- (Rupees ten thousand only) per month. She stated that marriage had been broken due to the cruelty and greedy behaviour of the petitioner. She denied having received Rs.3,00,000/- (Rupees three lakhs only) to remit to the Ireland University. She also denied having received Rs.19,000/- on 23.10.2007. According to her, an amount of Rs.10,70,000/- has been spent by the 2nd respondent for the purpose of journey to Australia. She denied the claim for Rs.77,200/- towards value of dress and other articles and also denied entrustment of 150 sovereigns of gold coins for purchasing land and 18.5 sovereigns of gold ornament allegedly given at the time of the marriage. According to her, the attempt of the petitioner was only to squeeze huge amounts from her and her mother. In fact, she filed O.P.No. 275/2010 seeking return of gold ornaments.
7. Common evidence was taken in the case. On the side of the petitioner, PW1 to PW3 were examined. The 1 st respondent examined herself as RW1. The petitioner relied on Exts. A1 to A13 documents. The Family Court dismissed all the three original petitions and the 7 Mat.A.Nos.781/2010 & 806/2010 petitioner alone has preferred appeal against dismissal of his petitions.
8. The parties are Christians and by Ext. A1 agreement dated 11.10.2006, they agreed to live together as husband and wife from the date of execution. The Family Court found that in the absence of any legal marital relationship between the petitioner and respondent, the petition was not maintainable. That apart, there is no evidence to come to a conclusion that the respondent willfully refused cohabitation. In so far as he had met the expenses of the respondent and as the petitioner is not seeking any dissolution of marriage, the declaration sought for cannot be granted. Learned counsel for the appellant submits that the Family Court alone have jurisdiction to grant a declaration as sought for.
9. Section 7 of the Family Courts Act, 1984 confers jurisdiction on the Family Court to decide matrimonial issues. Section 7(1)(a) indicates that the Family Court shall have jurisdiction which was exercisable by any District Court or Subordinate Civil Court in respect of suits and proceedings of the nature referred to in the explanation. Explanation (b) indicates that suits and proceedings for a declaration as to the validity of marriage or as to the matrimonial status of a person can also be adjudicated by the Family Court.
10. Apparently, the petitioner wants to get a declaration that Ext.A1 does not create a legal marriage. The relief sought for in the petition is for a declaration that the petitioner is not the husband of the 8 Mat.A.Nos.781/2010 & 806/2010 respondent. Whereas in the pleadings he had clearly stated that though they had resided together for some time based on the agreement, Ext.A1, the intention of the respondent was not to have a marital relationship but to squeeze money from him. He also stated that mere registration of Ext.A1 would not be a valid and legal marriage. The purpose of the agreement was only to enable public and relatives to believe that they were husband and wife. The declaration sought for virtually is to declare that there is no legal marriage between the petitioner and respondent based on Ext.A1 agreement.
11. The Apex Court in Rameshwari Devi v. State of Bihar and Others (2000) 2 SCC 431 has held that a presumption of marriage can be inferred from a long period of cohabitation. Same view had been expressed in Tulsa & Others v. Durghatiya & Others (2008) 4 SCC
520. It was held that if the parties were living together continuously and from evidence it is established so, the presumption is that they were living as husband and wife. But the said presumption is rebuttable and a heavy burden lies on the person who seeks to deprive the relationship of legal origin to prove that no marriage took place. It was further held that law leans in favour of legitimacy and frowns upon bastardy. In Challamma v. Tilaga & Others (2009) 9 SCC 299) also, it was held that though a presumption had been raised regarding a valid marriage, it is refutable, but heavy burden lies upon the person who seeks to prove 9 Mat.A.Nos.781/2010 & 806/2010 that no marriage has taken place. In Sobha Hymavathi Devi v. Setti Gangadhara Swamy & Others (2005) 2 SCC 244), the Apex Court held that the law presumes in favour of marriage and against concubinage, when a man and woman cohabited continuously for a number of days, but the presumption is rebuttable. In Indra Sarma v V.K.V. Sarma (2013) 15 SCC 755, the Apex Court was considering the legal rights involved under the live-in relationship in the light of the Protection of Women from Domestic Violence Act, 2005. It was held that all live-in relationships are not in the nature of marriage. It was held that it only means a relationship with some inherent or essential characteristics of a marriage though not a marriage legally recognised. Certain guidelines had been laid down for testing as to under what circumstance, it fall within the expression "relationship in the nature of marriage". However, these judgments may not have application to the facts of the present case, as we are to answer a question whether the relationship between the parties amounts to a legal marriage. Once it is found that there is no legal marriage and they were living together based on Ext.A1 agreement, it could only be treated as, at the most, a live-in relationship.
12. The learned counsel for the appellant submitted that of course in Ext.A1 agreement they decided to live together as husband and wife for all legal purposes. But when the parties are Christians, the question 10 Mat.A.Nos.781/2010 & 806/2010 is whether a marriage can be solemnized based on an agreement. In O.P.(Div.)No.360/2009, no objection is filed by the respondent. In George Sebastian v. Molly Joseph (1994 (2) KLT 387 (FB)), it was held that marriage among Christians is not a contract but a sacrament. The sacrament is based on the faith that it was instituted by Jesus Christ and entrusted to the church for the purpose of contributing to the manifestation of ecclesian communion with God. Acquisition of a legal status of a marriage should be according to custom or the provisions of an enactment. Only if such a marriage is over, the legal status will be acquired by the concerned person. Where there is a statute governing the area the statute will have primacy over any person involved in that regard.
13. Indian Christian Marriage Act, 1872 applies to whole of India except the territories which, immediately before the 1 st November, 1956, were comprised in the States of Travancore-Cochin, Manipur and Jammu and Kashmir. The marriage agreement is executed in the Sub Registry Office of Vazhoor, Kottayam district which was part of Travancore- Cochin. That apart, the parties belong to Kottayam Taluk and Changanassery Taluk and therefore, as far as they are concerned, marriage has to be conducted on the basis of Canon law.
14. In Kurian v. Alphonsa (1986 KLT 731), learned Single Judge of this Court held that for a valid marriage under the Canon law the 11 Mat.A.Nos.781/2010 & 806/2010 parties must express their matrimonial consent. The christian marriage being a sacrament administered by the contracting parties, it follows that the latter must manifest their consent in the presence of each other. Paragraph 7 of the judgment is relevant which reads as under:
"7. It is common case that parties are Christians following the Roman Catholic rites and that the marriage between them was solemnised by a Minister belonging to the Roman Catholic Church on 9-11-80 in the Sacred Heart Church, Erumapetty in accordance with the custom and law applicable to them. Under the Canon Law the Minister who conducts the marriage has to ascertain the will of the parties to the marriage and get their consent for solemnising the same. As in the case of any other marriage, for a valid marriage under the Canon Law also the parties must express matrimonial consent. They are not even allowed to use equivalent signs when they are able to speak. Christian marriage being a sacrament administered by the contracting parties, it follows that the latter must manifest their consent in the presence of each other in such a way and at such a distance that the act can be perceived by the senses (Canon 1088). Clause.2 of this Canon expressly requires the use of words because they are the usual means of human communication. Thus as per the Canon Law, before a marriage is solemnised by the Minister, he has to take the consent of the parties to the marriage. All these formalities and ceremonies were gone through for solemnising the marriage between the petitioner and respondent on 9-11-80."
15. Apparently, the arrangement covered by Ext.A1 was not a marriage in accordance with Canon Law. Therefore, we have no hesitation to hold in this case that Ext.A1 agreement does not create a valid marriage. Even under the 1872 Act, the marriage has to be solemnized by any person mentioned in Section 5 of 1872 Act i.e., by a person who has received episcopal ordination, by a minister of the religion licensed under the Act to solemnize marriages, in the presence of a Marriage Registrar appointed under the Act or by any person licensed under the Act to grant certificates of marriage between Indian 12 Mat.A.Nos.781/2010 & 806/2010 Christians.
16. In this case, the arrangement between the petitioner and respondent in terms of Ext.A1 is neither a marriage provided under Canon law nor is a marriage solemnized in terms of 1872 Act. Under such circumstances, though the relief sought for is not couched properly, taking into consideration the over all pleadings in the case, we are of the view that a decree can be passed declaring that Ext.A1 agreement does not amount to legal marriage between the petitioner and the respondent and the respondent cannot be treated as the legally wedded wife of the petitioner.
17. The next claim is for recovery of money. The Family Court had rejected the said claim on a finding of fact. In fact, when the Family Court proceeded on the basis that the marriage is not valid, it had no jurisdiction to entertain the claim. In such a case the remedy was to permit the parties to approach the Civil Court. However the Family Court had proceeded to consider the claim on merits and had rejected the same.
18. Apparently, when there is no legal relationship of marriage the question regarding a claim for recovery of money cannot be entertained by the Family Court. The Family Court was not justified in considering the claim on merits. We are of the view that it shall be open for the petitioner to approach the Civil Court for the said reliefs. Hence we hold 13 Mat.A.Nos.781/2010 & 806/2010 that O.P.No.362/2009 is not maintainable, as the Family Court had no jurisdiction to entertain the same.
19. In the result M.A.No.781/2010 is allowed. The judgment in O.P.(Div).No.360/2009 is set aside and the original petition is allowed declaring that Ext.A1 does not confer any marital relationship between petitioner and respondent and respondent is not the legally wedded wife of the petitioner.
Mat.A.No.806/2010 is allowed. The judgment and decree in O.P.No.362/2009 is set aside and the petitioner is at liberty to approach civil court seeking appropriate reliefs.
Sd/-
A.M.SHAFFIQUE Judge Sd/-
P.SOMARAJAN
True copy Judge
kp
P.A. To Judge.