Allowed

Smt. Rathnamma v. Sri. Krishnamurthy @ Mariyappa

Karnataka HC16 Jan 2023MFA/8553/2015

Case brief

AI extract

What is this about?

The Division Bench allowed this first appeal, holding that the Family Court erred in refusing maintenance and legitimacy to a second wife and her child where the first marriage was not disclosed. The court invoked maintenance and legitimacy provisions despite the bigamous nature of the union, partially decreeing the suit.

What did the court decide?

Appeal allowed; impugned judgment set aside; maintenance of Rs.3,000/month to appellant No.1 and Rs.2,000/month to appellant No.2; charge created on respondent's properties.

Smt. Rathnamma Vs Sri. Krishnamurthy @ Mariyappa — Maintenance and Alimony | Karnataka HC (2023)

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1 - MFA No. 8553 of 2015

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 16^TH DAY OF JANUARY, 2023

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PRESENT

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THE HON'BLE MR JUSTICE ALOK ARADHE

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AND

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THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR MISCELLANEOUS FIRST APPEAL NO. 8553 OF 2015 (FC)

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BETWEEN:

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SMT. RATHNAMMA W/O KRISHNAMURTHY @ MARIYAPPA, AGED ABOUT 49 YEARS, R/AT KANTEERAVA STADIUM MAIN ROAD, NO.C 66, PARIMALA NAGARA, YESWANTHAPURA, BANGALORE-560 022.

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CHANNAKESHAVA, S/O KRISHNAMURTHY @ MARIYAPPA, AGED ABOUT 5^1/2 YEARS, R/AT KANTEERAVA STADIUM MAIN ROAD, NO.C 66, PARIMALA NAGARA, YESWANTHAPURA, BANGLAORE-560 022. REP. BY HIS NATURAL GUARDIAN MOTHER RATHNAMMA- 1^ST APPELLANT.

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…APPELLANTS

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Digitally signed (BY SRI. V B SIDDARAMAIAH, ADVOCATE) by SANDHYA S Location: HIGH AND: COURT OF KARNATAKA

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SRI. KRISHNAMURTHY @ MARIYAPPA S/O CHANNAPPA, AGED ABOUT 64 YEARS,

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MFA No. 8553 of 2015

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R/AT NARAYANAKERE, HEBBUR HOBLI, TUMKUR TALUK – 572 120. TUMKUR DISTRICT.

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…RESPONDENT

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(BY SRI. VIGNESHWAR S. SHASTRI, SR. COUNSEL A/W SRI YADIMAMDAN N, FOR SRI GURURAJ. R, ADVOCATE)

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THIS MFA IS FILED U/S 19(1) OF FAMILY COURT ACT, AGAINST THE JUDGMENT AND DECREE DATED:29.09.2015 PASSED IN O.S NO.17/2013 (OLD O.S NO.434/2011) ON THE FILE OF THE PRINCIPAL JUDGE, FAMILY COURT, TUMKUR, DISMISSING THE SUIT WITH COST OF RS.1000/-.

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THIS APPEAL, COMING ON FOR HEARING THIS DAY, SHIVASHANKAR AMARANNAVAR J.,, DELIVERED THE FOLLOWING:

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JUDGMENT

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This is an appeal filed by the appellants/plaintiff

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Nos. 1 and 2 seeking setting aside of the judgment and decree dated 29.09.2015 passed by the Principal Judge, Family Court, Tumkur, dismissing O.S. No. 17/2013 filed by the appellants/plaintiffs seeking maintenance and to create charge over schedule properties.

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MFA No. 8553 of 2015

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Facts leading to this appeal are that, appellant

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No. 1 claims that she is the legally wedded wife of the respondent having married him in Shani Mahatma temple, Narayanakere village, Hebbur hobli, Tumakuru, about 25 years ago. After the marriage, appellant No. 1 came to know that respondent is already having wife and children and he had not disclosed the said fact to appellant No. 1 at the time of marriage. Appellant No. 1 was residing with the respondent at Narayanakere village and she became pregnant and the respondent started to harass her both physically and mentally and also made an attempt to kill her by pouring kerosene. Thereafter, appellant No. 1 started residing with her parents and gave birth to appellant No. 2. The respondent has totally neglected the appellants by not providing basic necessities. The respondent is having land and property at Narayanakere village which are described in the schedule wherein areca-nut and

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MFA No. 8553 of 2015

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coconut gardens are there and he is getting income of more than Rs.20,000/- per month. The respondent is also working as an archak in Shani Mahatma temple at Narayanakere village and earning Rs.10,000/- per

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month. It is stated that appellant No. 1 and son of respondent by name Muniraju purchased land in survey No. 103 measuring 2 acres 1 gunta situate at

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Narayanakere and at the time of purchase the respondent has played fraud by mentioning the name of his first wife Smt. Muniyamma @ Sarojamma even though she was not present at the time of registration. Appellant No. 1 was present and paid the consideration amount and affixed her photograph and the photograph of Muniraju in the registered sale deed dated 28.02.2003 and in the register maintained by the SubRegistrar. The respondent is a witness to the said sale deed. Appellant No. 1 has to provide education to appellant No. 2 and she requires Rs.5,000/- per month

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for herself and Rs.2,500/- per month for appellant No.

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Hence, the appellants made a claim for maintenance and to create charge over the schedule properties belonging to the respondent.

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The respondent in the written statement has

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denied the relationship of the appellants with him. He contended that name of his wife is Smt. Muniyamma @ Smt. Sarojamma and he is having two sons namely Mahadeva and Muniraju through Smt. Sarojamnma and one of his sons namely Venkatesh is dead. He contended that the suit schedule item No.1 is his self acquired property and he has gifted the same to his wife Smt. Sarojamma through a registered gift deed dated 30.06.2009. Second item of the properties belong to his second brother namely Sri. Mahadevaiah and in the said property Shani Mahatma temple was constructed and he is the archak in the said temple. Third item of

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the schedule property was divided in the year 1990 and as per the division said property had fallen to the share of his brothers Sri. Narayanappa, Venkataravanappa and Ramanna and they are in possession of the same. Item No. 4 of the schedule property was given to his sister Smt. Thimmamma in the year 2004 and she is in possession of the same. Item No. 5 was given to his elder sister Smt. Honnamma and younger sister Smt. Lakshmamma in the year 2004 and they are in possession of the same. It is contended that land in survey No. 126-A measuring 1 acre 4 guntas had fallen to the share of the respondent as per the panchayath parikath. Since he was not feeling well he had given the said property to his son and received Rs.50,000/- from him as his share.

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In order to prove the case, appellant No. 1

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examined herself as P.W.1 and examined two witnesses

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as P.W.2 and P.W.3 and got marked Ex.P.1 to Ex.P.13.

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The respondent has been examined as D.W.1 and one witness as D.W.2 and got marked Ex.D.1 and Ex.D.9. The family Court after having heard the arguments formulated the points for consideration and dismissed the suit of the appellants by judgment 29.09.2015 holding that the appellants have failed to prove the relationship with the respondent.

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We have heard the learned counsel for the

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parties and perused the records.

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Learned counsel for the appellant would

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contend that the trial Court has not placed reliance on Ex.P.1 – birth certificate of appellant No. 2, Ex.P.8 – voter I.D. card of appellant No. 1, Ex.P.9 – ESI card, Ex.P.10 – gas refilling receipt which are of undisputed point of time. The said documents establish the

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relationship of the appellants with the respondent. The appellants filed I.A. No. V for DNA test and it was opposed by the respondent and it came to be rejected by order dated 27.07.2015. The trail Court has not drawn any adverse inference of the opposition made by the respondent for the DNA test. The trial Court has ignored the admission of D.W.1 that he is not residing with his first wife. The family Court did not compare the signature of the respondent on Ex.P.12 – sale deed with his admitted signatures on affidavit filed in lieu of examination in chief and partition deed – Ex.D.5. The trial Court erred in not placing reliance on the evidence of P.W.2 only on the ground that he is working in Bengaluru.

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Learned counsel for the respondent would

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contend that the suit is not maintainable as appellant No.1 is the second wife married to respondent during

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the life time of his first wife. The appellants have not mentioned the date of marriage which is alleged to have taken place 25 years ago. The appellants have not placed any documents to show that appellant No. 1 has resided with the respondent in Narayanakere village or at Bengaluru with the respondent. The birth certificate and voter ID card can be obtained by giving declaration and no reliance can be placed on them for proving the relationship. Appellant No.1 has failed to establish that she is the wife of respondent. He further argues that even now the respondent is ready for DNA test. Appellant No. 2 has filed a suit for partition against the respondent claiming his share in the properties. He has placed reliance on the following decisions.

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i. Yamunabai Anatrao Adhav Vs. Anantrao Shivram Adhav and another, 1988 (1) SCC

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530

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ii. Deoki Panjhiyara Vs. Shashi Bhushan

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Narayan Azad and another, 2013 (2) SCC 137

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iii. Chandamma and others Vs. Smt. Muktabai and others, ILR 2009 KAR 3527.

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Having heard the learned counsel for the

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parties and on perusal of the grounds raised and records, the following point arises for our consideration.

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“Whether the family Court has erred in

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rejecting the claim of the appellants (plaintiffs) for maintenance?”

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The answer to the above point is in the affirmative for the following reasons:

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It is appellants’ case that appellant No. 1 married the respondent about 25 years back in the Shani Mahatma Temple at Narayanakere and after the marriage she

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came to know that the respondent was already married and the respondent had suppressed the said fact. The appellant No.1, who was examined as P.W.1, has deposed that after the marriage she and the respondent resided in Bengaluru and Narayanakere. The respondent was an archak in Shani Mahatma Temple situate at Narayanakere. P.W.1 deposed that she became pregnant and gave birth to a male child who is the second appellant. The respondent has denied his relationship with the appellants. Appellant No. 2 was born on 19.06.2009 and his birth certificate is at Ex.P.1 wherein appellant No. 1 is shown as his mother and the respondent is shown as his father. The said birth certificate is issued on 27.07.2009 and it is registered on 30.06.2009. The respondent has disputed that appellant No.1 is his wife and appellant No. 2 is his son. When the appellants moved an application for DNA test before the family Court the respondent contested the

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same and it came to be rejected. The said application which is filed in I.A. No. V for DNA test of appellant No. 2 and the respondent came to be rejected by order dated 27.07.2015. If really the respondent is not the father of appellant No. 2, he could have conceded for the DNA test which would have established the status of appellant No. 2. The very fact that the respondent opposed the said application for DNA test gives room for creating doubt of the contentions raised by the respondent disputing the relationship of the appellants with him. Ex.P.1 – the birth certificate of appellant No. 1 is a document maintained by the Registrar of Births and Deaths in discharge of his official duties. Ex.P.1 came into existence at an undisputed point of time, i.e., on

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30.06.2009.

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Ex.P.8 is the identity card issued by the Election Commission of India of appellant No.1 – Smt.

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Rathnamma wherein her husband’s name is shown as Sri. Krishna Murthy who is the respondent herein and it is issued during the year 2002, at an undisputed point of time. The address mentioned in the said Ex.P.8 is Vijayananda Nagara, Bengaluru. Ex.P.10 is the gas refilling receipt and it is in the name of Sri. Krishnamurthy who is the respondent herein and it is dated 03.11.2009 wherein the address mentioned is Vijayananda Nagara, Mahalakshmi Layout, Bengaluru. In the ESI card of appellant No.1 - Smt. Rathnamma which is at Ex.P.9 the name of her husband is mentioned as Sri. Krishnamurthy and address is shown as Mahalakshmi Layout, Bengaluru and name of appellant No. 2 – Channakeshava is shown as son. Said documents, Ex.P.1 coupled with Ex.P.8 to Ex.P.10 reveal that appellant No. 1 is the wife of respondent and they resided under one roof and appellant No. 2 is their son. The evidence of P.W.2 supports the said aspect that

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appellant No.1 is the wife and appellant No.2 is the son of respondent. D.W.2 is the brother of respondent and he is interested in the respondent, in view of the evidence of P.W.1, Ex.P.1 and Ex.P.8 to Ex.P.10 his evidence cannot be relied on.

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The respondent executed a gift deed dated 30.06.2009 – Ex.D.6 gifting his property to his first wife Smt. Muniamma @ Sarojamma. The said gift deed is executed within a short span of birth of appellant No.2 on 19.06.2009. It appears that the said gift deed is executed by the respondent at the instance of his first wife and children to deprive the appellants’ claim in the property standing in the name of the respondent.

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The first wife of the respondent, namely, Smt. Muniamma @ Sarojamma and their son Sri. Muniraju jointly purchased the property vide sale deed dated

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11.02.2003 wherein this respondent has affixed his signature as a witness. At the time of registration of the said sale deed in the register maintained by the SubRegistrar the photograph of appellant No. 1 is affixed. The evidence of P.W.3 who is one of the officials in the Sub-Registrar’s office disproves the contention of the respondent that the photograph of appellant No. 1 is subsequently affixed in the said register. Even the respondent has denied his signature as a witness in the said sale deed – Ex.P.12. But, if it is compared with other documents on record, i.e, affidavit filed in lieu of examination-in-chief of P.W.1, Ex.D.5 – Partition deed, his signature on them tallies with the signature in Ex.P.12. Without properly appreciating all the above evidence on record the trial Court has erred in holding that the appellants have failed to establish their relationship with the respondent. Therefore, the family Court has erred in holding that the appellants have

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failed to establish their relationship with the

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respondent.

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Appellant No. 2 is born to appellant No.1 and the respondent. It is contended that the alleged marriage of appellant No. 1 with respondent is void as per Section 11 of the Hindu Marriage Act, 1955 (for short hereinafter referred to as `the Act, 1955’) and it is in violation of Section 5(i) of the Act, 1955 and appellant No.2 who is born to appellant No. 1 is illegitimate and he is not entitled for maintenance. Section 16 of the Act, 1955 provides regarding legitimacy of children of void and voidable marriages. As per sub-section (1) of Section 16 of the Act, 1955 even though the marriage is void under Section 11 of the Act, 1955 any child of such marriage who would have been legitimate if the marriage had been valid, shall be legitimate. Therefore, appellant No. 2 even though born out of second marriage of the

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respondent with appellant No.1 is entitled for maintenance till he attains the age of majority.

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It is contended that as the marriage of

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appellant No. 1 with the respondent is in violation of clause (i) of Section 5 of the Act, 1955, is void under Section 11 of the Act, 1955 and therefore she is not entitled for maintenance. It is the case of the appellants that appellant No. 1 was not aware that respondent was already married at the time of her marriage with him and he had suppressed the same. Learned counsel for the appellant placing reliance on the decision of the Apex Court rendered in the case of Yamunabai

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Anantrao Adhav Vs. Anantrao Shivram Adhav and

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others reported in (1988) 1 SCC 530 contended that a Hindu woman married after coming in to force of Hindu Marriage Act, 1955 in accordance with Hindu rites with a Hindu male having a wife living is not entitled to

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maintenance under Section 125 of Cr.P.C. as such marriage is void under Section 11 of the Act, 1955. He further placed reliance on the decision of the Apex Court in the case of Deoki Panjhiyara Vs. Shashi Bhushan

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Narayan Azad and another reported in (2013) 2 SCC 137 wherein it is held as under:

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“23. We would also like to emphasise that any determination of the validity of the marriage between the parties could have been made only by a competent court in an appropriate proceeding by and between the parties and in compliance with all other requirements of law. Mere production of a marriage certificate issued under Section 13 of the Special Marriage Act, 1954 in support of the claimed first marriage of the appellant with Rohit Kumar Mishra was not sufficient for any of the courts, including the High Court, to render a complete and effective decision with regard to the marital status of the parties and that too in a collateral proceedings for maintenance. Consequently, we hold that in the present case until the

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invalidation of the marriage between the appellant and the respondent is made by a competent court it would be only proceeded on the basis that the appellant continues to be the wife of the respondent so as to entitle her to claim all benefits and protection available under the DV Act, 2005.”

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The said decision is not applicable to the case on hand as in the said case the claim of maintenance is made by a woman who is having husband, who has married the respondent and her claim is against her second husband.

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The Division Bench of this Court in the case

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of Chandamma and others Vs. Smt. Muktabai and another, reported in ILR 2009 Kar. 3527 held that if the second marriage is consciously held to the knowledge of both the spouses that the first wife/husband is living at the time of second marriage,

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Section 25 of the Hindu Marriage Act cannot be invoked to seek maintenance by either of the spouse of such bigamous marriage. In the said decision this Court has placed reliance on the decision of Rameshchandra

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Rampratapji Daga Vs. Rameshwari Rameshchandra Daga reported in (2005) SCCR 107 wherein at paragraph 22 it is observed thus:

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The facts of the present case fully justify grant of maintenance both to the wife and the daughter. The evidence of the wife has been believed by the Courts below and according to us rightly so. From the circumstances, preceding and attending the marriage, it can safely be inferred that the present husband must have made reasonable enquiries about the previous marriage of the present wife. The wife's version is natural and inspires belief that the document of choor chithhy was shown and given to the husband, it is proved from the photo copy of the foil of registration, placed on record. According to the wife, the husband did not receive the document of

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Choor Chithhy. But has not produced it before the Family Court. It is argued that it is open to the wife if the documents was registered, to get a copy from the registration office. Even if that was possible we find no ground to disbelieve her version that the fact of her previous marriage was not concealed from the present husband. The husband is an advocate. His falsehood went to the extent of denying the 2nd marriage and calling his wife only to be a governess of his children from the first wife. He unsuccessfully denied the parentage of daughter Pooja born through him. He failed to lead any evidence on the illegitimacy of the child. After the 2nd marriage the parties lived as husband and wife and they had a considerably long married life of about 9 years from 1981 to 1990. In such a situation, the family Court and High Court were fully justified in holding that the wife deserves to be granted maintenance u/S. 25 of the Act.

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If the second marriage is consciously held to the knowledge of both the spouses that the first

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wife/husband is living at the time of second marriage, Section 25 of the Hindu Marriage Act cannot be invoked to seek maintenance by either of the spouse of such bigamous marriage. In the case on hand appellant No. 1 was not aware of the earlier marriage of the respondent and the respondent had suppressed his first marriage. Appellant No. 1 came to know after her marriage with the respondent that he is having wife and children.

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In the case of Badshah Vs. Urmila Badshah

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Godse reported in (2014) 1 SCC 188 the Apex Court observed that the husband who did not reveal that he was already married and secondly they both were living as husband and wife, the husband is bound to maintain the second wife and the women is to be treated as a legally wedded wife for the purpose of maintenance.

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18. In the case of Rameshchandra Rampratapji

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Daga (supra) the Apex Court observed that as per the Hindu Marriage Act, 1955 second marriage is void and such marriages are illegal as per the provisions of the Act but still they are not immoral and hence, a financially dependant woman cannot be denied maintenance on that ground. In view of the above, appellant No. 1 is entitled for maintenance from the respondent.

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The appellants claim maintenance in a sum of

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Rs.5,000/- per month for appellant No.1 and a sum of Rs.2,500/per month to appellant No.2. The respondent is working as an archak in Shani Mahatma temple at Narayanakere village and it is stated that he is having income and he is also owning 10 guntas of land in survey No.104 (Ex.P.2) of Narayanakere in his name. The respondent and his brothers are jointly owning land

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bearing survey No. 74 measuring 1 acre 16 guntas in Narayanakere (Ex.P.3); so also, land measuring 28 guntas in survey No. 126/1B of Narayanakere (Ex.P.4) standing in the name of respondent and his brothers; he is also owning land measuring 3 acres 12 guntas in survey No. 112/5 as per Ex.P.5 situate at Narayanakere and he is also owning land measuring 1 acre 01 guntas in survey No. 127 in Narayanakere in the joint name of respondent and his brothers. Therefore, in view of the avocation of the respondent and his holding of agricultural lands, maintenance in a sum of Rs.3,000/per month to appellant No.1 and Rs.2,000/- per month to appellant No.2 appears to be reasonable.

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The appellants have also prayed for creating a charge against the suit schedule properties with regard to their claim for maintenance. The said charge can be

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