Smt. a B Baby Vs Sri K P Narasimha Murthy

SMT. A.B.BABY, W/O SRI.K.P.NARASIMHAMURTHY, R/O HOUSE NO.C/5, KPTCL COLONY, R/AT D.NO.85, 2ND MAIN, 2ND CROSS, MALLIGE THOTA, CHOUDARAYAPALYA MAGADI ROAD, BENGALURU-560 023.

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…APPELLANT

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(BY SRI.V.NARENDRA, ADVOCATE)

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Digitally signed by K G RENUKAMBA Location: HIGH COURT OF KARNATAKA

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AND:

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SRI K.P.NARASIMHA MURTHY, S/O LATE SRI PAPAIAH, KPTCL COLONY QUARTERS, JE (ELECTRICITY) KPTCL, SIRSI, UTTARA KANNADA DISTRICT-581 401.

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SMT BHAGYALAKSHMI , W/O SRI K.P.NARASIMHA MURTHY, AGED ABOUT 54 YEARS,

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HC-KAR

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SMT H.N.HEMAVATHI , D/O SRI SMT.BHAGYALAKSHMI, AGED ABOUT 33 YEARS,

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RESPONDENTS NO.1 TO 3 ARE R/AT D.NO.85, 2ND MAIN, 2ND CROSS, MALLIGE THOTA, CHOUDARAYAPALYA, MAGADI ROAD, BENGALURU-560 023.

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THE EXECUTIVE ENGINEER (EE), KPTCL, TL & S.S DIVISION, COURT ROAD , SIRSI, UTTARAKANNADA DISTRICT-581 401.

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THE CHIEF SECRETARY , TO THE GOVERNMENT OF KARNATAKA, VIDHANA SOUDHA

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BENGALURU-560 001.

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…RESPONDENTS

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(BY SRI.M.V.MAHESHWARAPPA, ADVOCATE FOR R1, SMT.ADITI GURJER, ADVOCATE FOR SRI.P.K.SHRIKARA, ADVOCATE FOR R2 AND R3, SRI.S.R.DODAWAD, ADVOCATE FOR R4, SMT.AZRA DUNDAGE, AGA FOR R5)

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THIS MFA IS FILED U/S.19(1) OF THE FAMILY COURTS ACT, AGAINST THE JUDGMENT AND DECREE DATED 12.03.2018 PASSED IN O.S.NO.61/2014 ON THE FILE OF THE I ADDITIONAL PRINCIPAL JUDGE, FAMILY COURT, BENGALURU, DISMISSING THE SUIT FILED U/O.7 RULE 1 AND SEC.26 OF CPC.

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HC-KAR

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THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE JAYANT BANERJI AND

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HON'BLE MR. JUSTICE K. V. ARAVIND

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ORAL JUDGMENT

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(PER: HON'BLE MR. JUSTICE JAYANT BANERJI)

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Heard the learned counsel for the appellant and learned

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counsel appearing for respondents No.1 to 5.

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This appeal has been filed seeking to set aside the impugned judgment and decree dated 12.03.2018 passed by the I Additional Principal Judge, Family Court, Bengaluru in O.S.No.61/2014.

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In the aforesaid suit, the plaintiff/appellant had sought declaration to the effect that she is legally wedded wife of first defendant and consequential relief to declare that the alleged marriage with defendants No.1 and 2 is null and void and eventually set aside the alleged compromise decree obtained by defendants No.2 and 3 in Crl.Misc.No.42/2012 dated 25.10.2013.

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HC-KAR

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For the sake of convenience, the parties are being

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referred to by their ranking in the original suit.

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The case of the plaintiff in the plaint is that she is

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from a respectful family and belongs to the Vokkaliga community and native of Ayanur, Shivamogga District and she is working in HESCOM. Sirsi and is married to defendant No.1 who is by cast Gangamathastha on 29.04.1977 at Subramanya Temple at Sirsi and therefore the inter-caste marriage was also registered in the marriage office, Sirsi, North Kannada on 25.09.1982.

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Defendant No.1 is stated to have retired as Junior

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Engineer from the office of the defendant No.4, that is the Executive Engineer, KPTCK, TL&SS Division, Court Road, Sirsi. From the wedlock of the plaintiff and defendant No.1, two children were born. First is a daughter by name M.N. Deepa born on 08.06.1981 and another son by name M.N. Pradeep born on 17.09.1982, both of them are married and living separately.

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HC-KAR

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It was stated that defendant No.1 due to emotional

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blackmail of his parents and despite protest from the plaintiff was forced to marry defendant No.2 who belongs to the same caste as defendant No.1, on 29.03.1978. The second defendant was well aware of the earlier subsisting marriage of the plaintiff and defendant No.1. Out of the second marriage, two female children were born. It was stated that defendants No.2 and 3 filed one Crl.Misc.No.42/2012 before the V Additional Principal Judge, Family Court Bengaluru for maintenance by suppressing the earlier marriage of plaintiff. The same ultimately came to be compromised between them on 25.10.2013 and was disposed of. As per the compromise petition, defendant No.1 was forced to agree to pay a sum of Rs.10,00,000/- from his retirement/DCRG benefit to defendant No.2 towards her maintenance and marriage expenses of her children. Defendant No.1 further agreed to pay a sum of Rs.3,00,000/- to defendant No.2 and also 40% of his monthly pension till her life. Further the aforesaid amounts of Rs.10,00,000/- and Rs.3,00,000/- were to be paid to the defendants No.2 and 3 directly from his retirement/DCRG benefits immediately on its release from the concerned KPTCL authority. It was further

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HC-KAR

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agreed that thereafter, defendants No.2 and 3 shall not have any claims regarding maintenance and marriage expenses against defendant No.1.

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It was stated that both the plaintiff and defendant No.1 are in financial distress as they are unable to own their own house and sites in all these years. Plaintiff recently suffered paralysis and other age related ailments and is under regular treatment resulting in huge medical expenses. It was stated that defendants No.2 and 3 had obtained the compromise decree fraudulently. Accordingly, the suit was filed for the aforesaid relief. In the written statement filed by defendant No.1, the fact of marriage with the plaintiff on 29.04.1977 was admitted. He stated that the plaintiff as his legally wedded wife and first wife and defendant No.2 is his second wife. He further stated that he ‘forcefully’ entered into the above fraudulent compromise due to wrong advice given by his counsel. The other defendants No.2 and 3 also filed their written statement. The marriage of the plaintiff with defendant No.1 at any point of time was denied. It was stated that the compromise entered into between defendants No.1, 2 and 3 on

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HC-KAR

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25.10.2013 was without suppression of any alleged fact and all averments to the contrary were denied as false, baseless and concocted.

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The plaintiff filed her evidence by way of an affidavit and she was cross-examined. She produced a certificate of marriage under Section 16 in the 5^th Schedule under the Special Marriage Act, 1954 which was proved. She also produced identity card issued by the Election Commission of India in which her date of birth was shown as 02.12.1956. The Ration Card was also produced in which the name of plaintiff was also shown. She also produced Form-A, which is the nomination for Karnataka Electricity Board Employee’s Family Benefit Fund which showed her name Baby, as wife (of defendant No.1) showing her date of birth 02.12.1956. Her name was also shown and recorded in the nomination form in the Death Cum Retirement Gratuity.

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It is pertinent to mention here that though the plaintiff entered into the witness box and filed her evidence affidavit as PW-1, got marked 16 documents as Ex.P.1 to Ex.P.16. Defendant No.1 chose not to adduce his evidence.

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HC-KAR

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However, defendant No.2 examined herself as DW-1 and got marked four documents as Ex.D.1 to Ex.D.4.

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In the written statement filed on behalf of defendants No.2 and 3 it was contended that the marriage of defendant No.2 was performed with defendant No.1 on 29.03.1978 and from the wedlock, two children were born. It was stated that the marriage of defendant No.2 with defendant No.1 was solemnized, before the marriage of the plaintiff with defendant No.1.

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Defendant No.2 had produced four documents which were, certified copy of the order issued in Crl.Misc.No.42/2012, certified copy of memorandum of settlement in Crl.Misc.No.42/2012, attested copy of the service book and attested copy of extracts of particulars of Government servant namely defendant No.1.

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It is pertinent to mention here that the trial Court in its findings has referred to the settlement arrived at in Crl.Misc. No.42/2012 between defendant No.1 and defendants No.2 and 3 and it was observed that it is on the plaintiff to prove that she

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is the legally wedded wife of defendant No.1 and that her marriage was performed prior to the marriage of defendants No.1 and 2. While referring to the marriage certificate Ex.P.1, it was noted that the marriage was registered on 25.09.1982 and having effect as on 29.04.1977, with a daughter by name M.N. Deepa born on 08.06.1981 and a male child M.N. Pradeep born on 17.09.1982. It was stated that the plaintiff had not examined any witness who had attended their marriage. The Family Court recorded that the marriage of defendant No.1 with defendant No.2 in the year 1978 was not disputed. He referred to the service record, which reveals that the name of defendant No.2 as wife was entered on 01.08.1979. He stated that subsequent entries cannot be believed. It was also held that the plaintiff had not placed sufficient evidence to establish that her marriage was solemnised before the marriage of defendants No.1 and 2.

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As regards the compromise decree, the Family Court referred to the provisions of Rule 3A of Order 23 of the Code of Civil Procedure, 1908¹ and observed that the plaintiff

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1 CPC

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HC-KAR

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had not initiated any action against defendants No.1, 2 and 3 on the ground of compromise decree being an outcome of fraud. Further, it was observed that the decree of compromise under Order 23 Rule 3 of CPC cannot be challenged by a separate suit. Accordingly, the suit was dismissed.

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PW-1 proved the certificate of marriage dated 25.09.1982 which was marked as Ex.P.1. The certificate of birth of her children naming defendant No.1 as the father were proved as Ex.P.2 and Ex.P.3. Identity card issued by the Election Commission of India was marked as Ex.P.4, which I.D. Card also reflected the name of husband of the plaintiff. The Ration Card was marked as Ex.P.5. Ex.P.6 was the nomination made by defendant No.1 in respect of the Employee’s Family Benefit Fund and Death Cum Retirement Gratuity. Copy of the Crl.Misc.No.42/2012 was proved as Ex.P.12 and the memorandum of settlement was also proved.

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Defendant No.2 appeared as witness DW-1 and filed her affidavit in lieu of examination-in-chief. She was also subjected to cross-examination. A suggestion was made that the plaintiff’s name was entered in the service record, which

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was denied. Another suggestion was denied that the plaintiff got married with defendant No.1 on 29.04.1977 and the same was registered with Sub Registrar office in the year 1982.

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In her cross-examination, PW-1 had deposed that except marriage certificate she had not produced any document before the Court to show that she has married defendant No.1 on 29.04.1977. It was further stated that in the year 1978 she had shown defendant No.1 as her husband in the office records.

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A perusal of the certificate of marriage reveals that it is issued in the Form appended at Schedule 5 of the Special Marriage Act, Section 16 of which provides for issuance of such certificate. This certificate bears the signature and stamp of the Marriage Officer Sirsi, North Kannada and the seal of the Marriage Registrar. The name of the Marriage Officer is Sri.

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A.D. Halawai. It certifies that

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Sri. K.P. Narasihma Murthy and A.B. Baby appeared before him on 25.09.1982 and each of them in his presence and in the presence of three witnesses, who signed the certificate, have declared that ceremony of marriage has been performed between them and that they have been living together as

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HC-KAR

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husband and wife since the time of their marriage and that in accordance with their desire to have their marriage registered under the Act, the marriage was registered on 25.09.1982 having effect from 29.04.1977, and a daughter by name M.N. Deepa born on 08.06.1981 and a male child born on 17.09.1982 by name M.N. Pradeep. The birth certificates of the children of the plaintiff and defendant No.1 have also been perused. It is pertinent to mention here that in the Service Book - Ex.P.6, the name of wife of defendant No.1 is shown as Baby having the age of 55 years with date of birth 02.12.1956. This date of birth of the plaintiff corresponds with the date of birth appearing in the identity card issued by the Election Commission of India. It is pertinent to mention here that in Form –A that is Ex.P.6, below the name of plaintiff Baby, the name of Bhagyalakshmi appears in brackets. Bhagyalakshmi is none other than defendant No.2. It is evident therefore that the name of the plaintiff is recorded above the name of defendant No.2 in the aforesaid Ex.P.6 but does not mention any other details of defendant No.2.

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HC-KAR

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It is noted from perusal of the plaint from the petition of Crl.Misc.No.42/2012 that defendants no.2 and 3 are the petitioners in that petition with defendant No.1 being arrayed as respondent. Though the name of Executive Engineer, KPTCL is shown as respondent No.2, however it is deleted pursuant to an order dated 24.07.2012. The plaintiff is not a party to this petition. Moreover, the memorandum of settlement reflects that the plaintiff is not a party to that perhaps due to the reason that it was filed in Crl.Misc.No.42/2012 in which the plaintiff was not a party. Therefore, the aforesaid compromise cannot be said to be binding on the plaintiff but only on the parties thereto.

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In view of the documents on record and the testimony of the parties, we conclude that the certificate of marriage Ex.P.1, is proof of the fact that it was issued on 25.09.1982 as certificate of marriage between the plaintiff and defendant No.1 and it had effect from 29.04.1977. The admitted case of defendant No.2 being that defendants No.2 and 1 were married in the year 1978, we have no hesitation in holding that the marriage of the plaintiff with defendant No.1

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preceded the marriage of defendant No.1 with defendant No.2. The plaintiff, defendants No.1, 2 and 3 are Hindus and the provisions of Hindu Marriage Act, 1955² are applicable. Therefore, the marriage between defendants No.1 and 2 cannot but be hit by the provision of Section 11 of the HM Act. Inasmuch as defendant No.1 had a spouse living at the time of his marriage with defendant No.2 and at the time of subsistence of marriage with the plaintiff.

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However, as far as the compromise is concerned, we note that the same has been entered into in mediation proceedings as directed by the Court in Crl.Misc.No.42/2012. The plaintiff has not filed any suit seeking to assail the compromise decree on the ground of fraud and neither has she filed any application in the proceedings that is Crl.Misc.No.42/2012 seeking to set aside the compromise. For that reason, no decree for cancellation of the compromise decree can be granted. However the declaration that the plaintiff is the legally wedded wife of defendant No.1 shall

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2 HM Act

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