Dismissed

Smt. M. S. Manjula v. Smt. Chandramma

Karnataka HC7 Dec 2020MFA/3836/2017

Case brief

AI extract

What is this about?

The High Court dismissed an appeal against a Family Court decree declaring the respondents as the legally wedded wife and legitimate children of the deceased father, and declaring the appellant son as not his issue. The court held that the statutory presumption of legitimacy under Section 112 of the Evidence Act is rebutted when the father and mother had no access due to non-consummation of the fi

What did the court decide?

The appeal was dismissed with no costs.

Smt. M. S. Manjula Vs Smt. Chandramma — Succession and Inheritance | Karnataka HC (2020)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 7^TH DAY OF DECEMBER, 2020

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PRESENT

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THE HON’BLE MRS.JUSTICE B.V.NAGARATHNA

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AND

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THE HON’BLE MR.JUSTICE N.S.SANJAY GOWDA

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M.F.A.No. 3836/2017 (FC)

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BETWEEN:

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Smt. M.S.Manjula, D/o M.D.Somappa, Aged about 54 years, R/o No.894, Devikrupa, 5^th Main Road, Chowdeshwari Layout, Marathahalli, Bengaluru – 560 037.

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Mr. Sagar, S/o T.Ramalingaiah and M.S.Manjula, Aged about 25 years, R/o No.894, Devikrupa, 5^th Main Road, Chowdeshwari Layout, Marathahalli, Bengaluru – 560 037

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… Appellants

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(By Sri. Nishan Unni.P., Advocate)

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AND:

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Smt. Chandramma, W/o Late Sri. T.Ramalingaiah, Aged about 46 years,

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Kumari C.R.Bhargavi, D/o Late T.Ramalingaiah, Aged about 18 years,

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Master C.R.Samrudh, S/o Late T.Ramalingaiah, Aged about 15 years,

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Respondent No.3 being a minor Represented by his mother and natural Guardian Respondent No.1 Chandramma

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Respondents Nos. 1 to 3 are residing at No.91, 3^rd Main, 7^th Cross, Chamrajpet, Bengaluru – 560 018.

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… Respondents

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(By Sri. K.Abhinav Anand, Advocate for R-1 to R-3, R-3 is minor, represented by R-1)

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This appeal is filed under Section 19(1) of the Family Courts Act, against the Judgment and Decree dated:19.01.2017 passed in O.S.No.141/2012 on the file of the IV Addl. Principal Judge, Family Court, Bengaluru, partly decreeing suit for declaration.

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This appeal, having been heard and reserved for Judgment, coming on for pronouncement this day, SANJAY GOWDA, J., delivered the following:

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JUDGMENT

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The first respondent, Smt.G.Chandramma and her two minor children namely, C.R.Bhargavi and C.R.Samrudh, respondents herein, filed O.S.No.141/2012 seeking a declaration that Chandramma was the legally wedded wife of

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T.Ramalingaiah and Bhargavi and Samrudh were the children born out of their wedlock. They sought for a further declaration that Sagar, the 2^nd defendant/ 2^nd appellant herein was not the son of late T.Ramalingaiah. They also sought for a decree of injunction to restrain M.S.Manjula and Sagar (defendants) from claiming any monetary benefits arising from their relation as wife and son of T.Ramalingaiah.

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It was the case of the plaintiffs/respondents herein that T.Ramalingaiah had married Chandramma on 10.11.1997, after he got his earlier marriage on 24.04.1992 with M.S.Manjula dissolved by a decree of divorce which was granted in M.C.No.17/1993 and pursuant to their marriage, respondents 2 and 3 herein were born on 12.02.1999 and 21.12.2001. It was their case that on 08.11.2010, T.Ramalingaiah passed away and as a consequence, they raised a claim for service benefits accrued on account of his death. They stated that since there was a claim set up in a proceeding

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initiated for grant of Succession Certificate in P & SC No.184/2011, they were constrained to file the suit.

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It was their case that T.Ramalingaiah had earlier married the 1^st defendant/1^st appellant herein on 24.04.1992 and T.Ramalingaiah had initiated proceedings for dissolution of marriage in M.C.No.17/1993 and in those proceedings, he had categorically stated that he had never lived with the 1^st appellant and their marriage itself had not been consummated. It was stated that this evidence of T.Ramalingaiah in those proceedings had remained unchallenged and was accepted by the Family Court in M.C.No.17/1993 and a decree was granted. It was stated that since T.Ramalingaiah had himself categorically stated that his marriage with the 1^st appellant had not been consummated, the question of the 2^nd appellant being the son would not arise and it was, therefore, necessary that a decree be granted to that effect.

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The suit was contested by the defendants/appellants herein. The fact that

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T.Ramalingaiah died on 08.11.2010 was not disputed.

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It was contended by the defendants that T.Ramalingaiah had married the 1^st defendant/1^st appellant herein on 24.04.1992 and the 1^st appellant had lived with him for about nine months as husband and wife and the marriage had in fact been consummated and out of this consummation, she had become pregnant and they had thereafter moved to Bengaluru and were living as husband and wife at Doddanekundi when the 2^nd defendant/2^nd appellant born. It was stated by the 1^st defendant that she had not received any notice regarding initiation of proceedings for dissolution of marriage by a decree of divorce and she had not consented for the same in any manner. She stated that she was residing separately along with her son and she was not at all aware of the proceedings in

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M.C.No.17/1993. She further admitted that she attended the death ceremony of T.Ramalingaiah and only then, she noticed the 1^st plaintiff and she stated that she had never married anybody and was leading her life along with her son by doing tailoring work and an attempt was being made to demonise her character by filing a suit. She stated that the suit had been filed with the sole intention of denying their legitimate claim over the terminal benefits and therefore, the suit merited a dismissal.

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The Trial Court, on consideration of the pleadings, framed six issues.

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The 1^st plaintiff got examined herself as P.W.1 and also got examined two other witnesses as P.Ws.2 and 3 and exhibited 16 documents. The 1^st defendant got examined herself as D.W.1 and exhibited 7 documents.

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The Trial Court, on consideration of the evidence adduced and on consideration of the pleas put forth

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before it, recorded a finding that the 1^st plaintiff was the widow of T.Ramalingaiah and plaintiffs 2 and 3 were the children born out of the wedlock of the 1^st plaintiff and T.Ramalingaiah. The Trial Court also held that the 1^st defendant had married T.Ramalingaiah on 24.04.1992, but the 2^nd defendant was not born out of the said wedlock and T. Ramalingaiah had married the 1^st plaintiff only after the marriage with the 1^st defendant had been dissolved by a decree of divorce. The Trial Court ultimately held that the plaintiffs were entitled for the service benefits of late T.Ramalingaiah.

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It is this decree of the Trial Court, by which the 1^st plaintiff had been declared as the legally wedded wife of late T.Ramalingaiah and plaintiffs 2 and 3 had been declared as children of late T.Ramalingaiah and the further declaration that the 2^nd defendant was not the son of late T.Ramalingaiah, which is under challenge in this appeal.

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Learned counsel for the appellants contended that since it was admitted that T.Ramalingaiah had married the 1^st defendant on 24.04.1992 and the 2^nd defendant was born on 22.02.1993, the paternity of the 2^nd defendant could not be in doubt at all. He submitted in view of the above indisputable fact, Section 112 of the Indian Evidence Act conferred conclusive proof regarding the paternity of the 2^nd defendant and there could no doubt regarding the paternity of the 2^nd defendant and thus the conclusion of the Trial Court that the 2^nd defendant was not the son of T.Ramalingaiah was legally flawed and unsustainable.

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He submitted that even according to the plaintiffs, T.Ramalingaiah had initiated proceedings for dissolution of marriage in M.C.No.17/1993 only on 08.06.1993 i.e., four months after the 2^nd defendant was born and it would therefore have to be necessarily concluded that the 2^nd defendant had been born during the subsistence

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of a valid marriage and the paternity of the 2^nd defendant could never be in doubt.

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He submitted that the 1^st defendant was not aware

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of the proceedings of the dissolution of marriage and on the basis of an exparte decree, it could not be concluded that there was an admission regarding the paternity of the 2^nd defendant.

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He lastly contended that assuming that the decree passed in M.C.No.17/1993 was a valid decree, the said decree did not in any way bind the 2^nd defendant in view of Section 43 of the Indian Evidence Act. He submitted that under Section 43 of the Indian Evidence Act, the 2^nd defendant was entitled to plead and prove that he was indeed the son of T.Ramalingaiah and his paternity could not be decided on the basis of a divorce proceeding between his mother and father. He, therefore, prayed

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that the decree be reversed and defendant No.2 be declared as the son of T.Ramalingaiah and consequently,

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there be a decree declaring that he was also entitled to the monetary benefits arising out of the death of T.Ramalingaiah.

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Learned counsel for the respondents/plaintiffs, on the other hand, contended that the reasoning of the Trial Court was based on correct appreciation of the evidence and no fault, whatsoever, could be found with it. He submitted that late T.Ramalingaiah during his life time had instituted proceedings for dissolution of the marriage way back in the year 1993 i.e., within a year of the marriage and in those proceedings, he had clearly and categorically stated that his marriage had never been consummated. He submitted that T.Ramalingaiah, in fact, had contended that the 1^st defendant was living with somebody and had given birth to a child as a result of the said extra marital relationship and it was therefore impossible for him to continue in the marriage. He submitted that this plea of T.Ramalingaiah was examined by the Family Court and a determination was made by it

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and the plea of his was accepted. He submitted that a judicial finding recorded way back in the year 1993 could not be doubted at the instance of the defendants after the death of T.Ramalingaiah in the year 2010.

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He submitted that the dissolution of marriage in the year 1993 was brought to the notice of the 1^st defendant when she filed a suit in O.S.No.35/1994 seeking for an injunction to restrain T.Ramalingaiah for marrying for the second time. He contended that in the said suit, an exparte interim order was granted and T.Ramalingaiah sought for vacation of the said interim order and in support of his application, he had produced the decree of divorce, in which, it had not only been held that the marriage had been dissolved, but a finding had also been recorded that the marriage had not been consummated and M.S.Manjula had given birth to a child out of a relationship with another person. He submitted that on the basis of the said decree, the Trial Court vacated the exparte interim order granted in O.S.No.35/1994 and

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subsequently, the said suit was dismissed for nonprosecution. He submitted that since there was no challenge from 1994 till the death of T.Ramalingaiah in 2010, it will have to be held that the 1^st defendant/1^st appellant herein was trying to take advantage of the fact that she had been earlier married to T.Ramalingaiah and was some how trying to usurp the benefit that the plaintiffs were entitled to in law. He also submitted that in a suit filed for partition against T.Ramalingaiah by his coparceners in O.S.No.258/2004, the defendants had made an attempt to implead themselves and the same was rejected by the Trial Court and this was also not challenged by the defendants. He submitted that these facts conclusively had established that the 1^st defendant/1^st appellant herein had absolutely no right in respect of service benefits that had accrued on the death of T.Ramalingaiah. He submitted that since the Family Court in M.C.No.17/1993 had accepted the plea of T.Ramalingaiah that his marriage with the 1^st defendant

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had not been consummated, the 2^nd defendant could not claim to be his son and would not be entitled for any benefits.

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Having heard the learned counsel for the respective

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parties, we have also perused the materials on record.

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From the above narrated facts, it is not in dispute that T.Ramalingaiah married M.S.Manjula on 24.04.1992 and the 2^nd defendant – Sagar was born on 22.02.1993

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i.e., during the subsistence of the marriage.

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The record of the Trial Court indicates that on

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08.06.1993, T.Ramalingaiah instituted proceedings for dissolution of marriage and in those proceedings, he categorically asserted that his marriage with M.S.Manjula was not consummated and they never cohabited together. He also asserted that M.S.Manjula was moving around with somebody else and had given birth to a child through an extra marital relationship.

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In the said proceedings, M.S.Manjula was placed exparte and on consideration of the evidence adduced by T.Ramalingaiah, the Family Court granted a decree of divorce by accepting the plea that T.Ramalingaiah had not consummated his marriage with M.S.Manjula. The Family Court in fact recorded the following finding in M.C.No.17/1993:

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“The PW.1 petitioner in his evidence has stated that the respondent is his wife and their marriage took place on 24.4.92. Ex.P.1 is the marriage card. After the marriage, the respondent did not come with him. The bed ceremony was not arranged and the marriage did not consummate. He and his parents requested the respondent and her parents in this regard, but they did not arrange to send the respondent to live with the petitioner. He gave a notice Ex.P.2 Ex.P.3. is the postal acknowledgement, Ex.P.4 is a mutual deed of cancellation of the marriage signed by the respondent and deliver to him in a discussion and his signature was

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also taken by his wife on Ex.P.4. She has also addressed letter Ex.P.5. to him by post, mentioning that she is happy without him. Their marriage did not consummate. The petitioner has pleaded that the respondent is living in adultery and she has given birth to a child through somebody else. The petitioner in his evidence has stated that he has seen the respondent moving with somebody and she has given birth to a child. He has also explained that the marriage between he and the respondent did not consummate at all, but she is having a child by her illicit relations with somebody else. These evidences of the petitioner is not challenged. The unchallenged evidence of PW.1 proves that the respondent is living in adultery and she is residing separately by deserting the petitioner. As such, the petitioner is entitled for dissolution of the marriage. This point is answered in affirmative.

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In the result, I proceed to pass the following:-

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ORDER

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The petition is allowed, no costs.

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The marriage between the petitioner and respondent performed on 24.4.92 is dissolved.”

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The plaintiffs produced Ex.P.15 – a copy of the

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order passed on an application filed by M.S.Manjula in O.S.No.35/1994, which was a suit filed by her seeking for a decree of injunction to restrain T.Ramalingaiah from contracting a second marriage. In the said order dated 12.01.1996, the Trial Court has recorded a finding that T.Ramalingaiah had obtained a decree of divorce in M.C.No.17/1993 which had been produced before it and which indicated that notices were served on M.S.Manjula through paper publication and a decree had been passed on the basis of the evidence adduced by T.Ramalingaiah. The Trial Court, on consideration of the said decree, proceeded to vacate an exparte order of injunction and dismissed the application after noticing that T.Ramalingaiah was entitled to take a second wife

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in view of dissolution of his earlier marriage with M.S.Manjula.

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Admittedly, despite this order passed in the year 1996, in a suit filed by M.S.Manjula, it was brought to the notice of M.S.Manjula that her marriage with T. Ramalingaiah had been dissolved by way of a divorce decree and yet she had chosen not to challenge the decree passed in M.C.No.17/1993. This leads to the inescapable conclusion that M.S.Manjula accepted the fact that her marriage with T.Ramalingaiah stood dissolved by way of a decree of divorce. Further more, this leads to the further inference that she was also aware of the fact that T.Ramalingaiah had categorically asserted that he had not consummated his marriage with her and that she was living with somebody else and had borne a child as a result of the said relationship.

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In fact, Ex.P.16 – the order sheet of O.S.No.35/1994 produced by the plaintiffs indicate that

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the said suit filed by M.S.Manjula was dismissed for nonprosecution on 29.11.1997. It is, therefore, clear that M.S.Manjula accepted the fact that T.Ramalingaiah had married and more importantly did not dispute the assertion of T.Ramalingaiah that his marriage with her had not been consummated.

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In view of these incontrovertible facts, it is clear that though Sagar, the 2^nd defendant was born during the subsistence of the marriage, his paternity was never accepted by T.Ramalingaiah and as a matter of fact, T.Ramalingaiah himself asserted that his marriage with Sagar’s mother i.e., M.S.Manjula had never been consummated and she was in a relationship with another person.

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Reliance of the learned counsel for the appellants on Section 112 of the Indian Evidence Act to contend that paternity of the 2^nd defendant stood conclusively proved since he had been born during the continuance of

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a valid marriage can be of no avail because the very Section 112 states that the conclusive proof of the legitimacy of the child would be subject to the condition that it is shown to the satisfaction of the Court that the parties to the marriage had no access to each other at any time when the child could have been conceived. In the instant case, T.Ramalingaiah himself clearly stated that his marriage was never consummated and he never cohabitated with M.S.Manjula. This assertion was in fact accepted by the Court and T.Ramalingaiah was also granted decree of divorce. Further, the decree of divorce granted on the basis of the said finding was also accepted by M.S.Manjula. This thus leads to the inescapable conclusion that T.Ramalingaiah and M.S.Manjula had no access to each other when the 2^nd defendant Sagar was born and this position was not disputed both by T.Ramalingaiah and M.S.Manjula. If T.Ramalingaiah and M.S.Manjula did not the dispute the fact that they had no access to each other and their

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marriage itself had not been consummated, in our view, the 2^nd defendant, who could have no knowledge about the access between T.Ramalingaiah and M.S.Manjula, cannot contend that he was conceived as a result of their cohabitation.

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The further argument of the learned counsel that the judgment rendered in M.C.No.17/1993 would not in any way bind the 2^nd defendant by virtue of Section 43 of the Indian Evidence Act and his reliance on illustration (b) of Section 43 of the Indian Evidence Act would also be of no avail.

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Section 43 of the Indian Evidence Act would come into operation only if the existence of the judgments referred to in Sections 40, 41 and 42 is a fact in issue. In the instant case, the fact that a decree of divorce was granted in M.C.No.17/1993 was not in dispute. M.S.Manjula only contended that she was unaware of the

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said decree.

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The further reliance on illustration (b) of Section 43 of the Indian Evidence Act relied upon by the learned counsel for the appellants would also be of no avail. The said illustration deals with the situation where A prosecuted B for adultery with C contending that she is his wife and in the said proceedings B also denied that C was his wife, but nevertheless Court convicted B for adultery. Subsequently, C was prosecuted for bigamy by A and in that proceedings, she contended that she was never his wife and in such a situation, the judgment obtained by A against B could not bind C. This is obviously because a finding recorded regarding B’s marriage in a proceeding in which she was not involved cannot bind her.

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In the instant case, a decree of divorce was granted against M.S.Manjula by citing the reason of non-consummation and it is no one’s case that T.Ramalingaiah had obtained a decree against somebody

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else in relation to M.S.Manjula and was trying to bind M.S.Manjula with the said decree. We are, therefore, of the view that reliance placed by the learned counsel for the appellants on Sections 112 and 43 of the Indian Evidence Act to contend that the 2^nd defendant Sagar was the son of T.Ramalingaiah cannot be accepted.

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In the result, we find no reason to interfere with the judgment and decree of the Trial Court and the appeal is accordingly dismissed.

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Sd/JUDGE

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Sd/JUDGE

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PKS

Smt. M. S. Manjula v. Smt. Chandramma

Case brief

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Smt. M. S. Manjula v. Smt. Chandramma

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