Dismissed

Ummayumma v. Kizhakkinyakath Thittachutty Umma

Kerala HC11 Jan 2017RSA/1187/2015

Case brief

AI extract

What is this about?

In a regular second appeal concerning property partition, the Kerala High Court rejected the appellant's attempt to use Rule 93 of the Government Servants Conduct Rules to presume the deceased husband had only one wife. The court held that no such presumption exists under Indian Muslim personal law and reaffirmed the lower appellate court's finding that the deceased maintained two wives. The appea

What did the court decide?

Second appeal dismissed; interlocutory applications closed.

Ummayumma Vs Kizhakkinyakath Thittachutty Umma — Matrimonial and Divorce | Kerala HC (2017)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE K.HARILAL

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WEDNESDAY, THE 11TH DAY OF JANUARY 2017/21ST POUSHA, 1938

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RSA.No. 1187 of 2015 (G)

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AGAINST THE JUDGMENT & DECREE DATED 30-03-2015 IN AS.83/2008 of SUB COURT, TIRUR

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AGAINST THE JUDGMENT & DECREE DATED 15-09-2008 IN OS.81/2003 of MUNSIFF COURT,PARAPPANANGADI

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APPELLANT/1ST RESPONDENT/1ST DEFENDANT:

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UMMAYUMMA, AGED 60 YEARS, W/O.LATE T.P ABOOBACKER KUTTY & D/O.LATE KUNHAMUTTY, 2/730, PARAPPANANGADI P.O., MALAPPURAM DISTRICT, PIN- 676 303.

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BY ADVS.SRI.K.P.SUDHEER SRI.ARUN MATHEW VADAKKAN

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RESPONDENTS/APPELLANT AND RESPONDENTS 2 TO 8/PLAINTIFF AND DEFENDANTS 2 TO 8:

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1. KIZHAKKINIYAKATH THITHACHUTTY UMMA, AGED 70 YEARS, W/O.LATE THOMMIL PADINHARE NALAKATH ABOOBACKER KUTTY, THEKKEPATTU, PARAPPANANGADI AMSOM, DESOM, TIRURANGADI TALUK, MALAPPURAM DISTRICT, PIN-676 303.

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2. KIZHAKKINIYAKATH HAMZA NAHA, AGED 48 YEARS S/O. T.P ABOOBACKER KUTTY, PARAPPANANGADI AMSOM, DESOM TIRURANGADI TALUK, MALAPPURAM DISTRICT, PIN-676 303.

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3. KIZHAKKINIYAKATH SIDHIQUE, AGED 48 YEARS S/O. T.P ABOOBACKER KUTTY, PARAPPANANGADI AMSOM, DESOM TIRURANGADI TALUK, MALAPPURAM DISTRICT,PIN-676 303.

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4. KIZHAKKINIYAKATH IMBICHI (INSANE), AGED 45 YEARS S/O. T.P ABOOBACKER KUTTY, PARAPPANANGADI AMSOM, DESOM TIRURANGADI TALUK, MALAPPURAM DISTRICT, PIN-676 303, REPRESENTED BY HIS GUARDIAN BROTHER(R2) KIZHAKKINIYAKATH HAMZA NAHA , PARAPPANANGADI AMSOM, DESOM, TIRURANGADI TALUK, MALAPPURAM DISTRICT, PIN-676 303.

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...2

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RSA.No. 1187 of 2015 (G) :2 :

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5. KONGANTEPURAKKAL ALI, AGED 45 YEARS S/O.KOYATHEENKUTTY, PARAPPANANGADI AMSOM, DESOM, TIRURANGADI TALUK, MALAPPURAM DISTRICT, PIN-676 303.

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6. MECHERI NAJEEB, AGED 31 YEARS S/O. ABDUL KHADER, PARAPPANANGADI AMSOM, DESOM, TIRURANGADI TALUK,MALAPPURAM DISTRICT, PIN-676 303.

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7. BUSHARA NAJEEB, AGED 28 YEARS W/O.MECHERI NAJEEB, PARAPPANANGADI AMSOM, DESOM, TIRURANGADI TALUK,MALAPPURAM DISTRICT, PIN-676 303.

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8. PATTARUKADAVAN SAFIYA, AGED 33 YEARS D/O. KOMUKUTTY, KATTILETHODI PARAMBU PARAPPANANGADI AMSOM, DESOM, TIRURANGADI TALUK MALAPPURAM DISTRICT, PIN-676 303.

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THIS REGULAR SECOND APPEAL HAVING COME UP FOR

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ADMISSION ON 11-01-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

OKB

“C.R.”

K.HARILAL, J.

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _

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R.S.A. No.1187 of 2015

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_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _

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Dated this the 11^th day of January, 2017

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JUDGMENT

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~ ~ ~ ~ ~ ~ ~

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The appellant is the first defendant in O.S.No.81/2003 on the files of the Munsiff's Court, Parappanangadi. The aforesaid suit was filed by the 1^st respondent herein for a declaration and also for consequential injunction. According to the plaintiff, she is the legally wedded wife of one Aboobackerkutty and defendant Nos. 2 to 4 are the children born in that wedlock. The marital relationship between the plaintiff and Aboobackerkutty was subsisting till the death of Aboobackerkutty on 26.9.2002. It is further averred that Aboobackerkutty has not married any other lady. He was a Government servant and he retired from service in the year 1986. While so, he started an illicit relationship with the first defendant and used to visit her house. It was also

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R.S.A.1187/15-G :2:

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averred that Aboobackerkutty was suffering from mental illness and he was under treatment for insanity till his death. According to the plaintiff, he was not in a sound disposing state of mind and the first defendant and her brothers got executed several documents by Aboobackerkutty making use of his unsound mind. Thus, Exts.A1 to A3 documents were executed without his free will and the plaintiff came to know about the said documents during April 2002 only. The entire property acquired by Aboobackerkutty as per partition deed No.522/92 was described as 'A' schedule property and the property sold away to the first defendant and others are shown as 'B to D' schedules. Hence the plaintiff has filed the above suit for declaration that the documents executed by the first defendant in favour of defendant Nos.6 to 8 are not binding on the plaintiff and defendant Nos.2 to 4. The plaintiff sought for recovery of possession of plaint B, C and D schedule properties from the first defendant.

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The first defendant in the written statement

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R.S.A.1187/15-G :3:

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admitted that the plaintiff was the first wife of Aboobackerkutty and defendant Nos.2 to 4 are children born to the plaintiff through Aboobackerkutty. According to the first defendant, Aboobackerkutty divorced the plaintiff in the year 1965 and thereafter, there was no marital relationship between the plaintiff and Aboobackerkutty and subsequently, Aboobackerkutty married the first defendant on 9.1.1997 and from that day till his death the first defendant was his legally wedded wife. Aboobackerkutty accepted the first defendant as his wife and he expressly stated so in his several documents.

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The defendant Nos.2 and 3, who are the children of Aboobackerkutty, also admitted that the first defendant is the wife of Aboobackerkutty. According to her, Exts.A1 to A3 are valid documents, as those documents were executed by Aboobackerkutty with his free will and sound disposing mind. She denied the allegation that Aboobackerkutty was suffering from mental unsoundness. In short, according to the first defendant, the plaintiff was not the wife of

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R.S.A.1187/15-G :4:

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Aboobackerkutty since 1965. Therefore, the suit is liable to be dismissed. Besides, she filed a counter claim for partition of 'E' schedule property.

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On the rival pleadings, both parties adduced evidence, in abundance, consisting of the oral testimonies of P.Ws.1 to 3 and D.W.1 and Exts.A1 to A23, B1 to B57 and X1 to X4 were marked as third party exhibits and Exts.C1 and C2 were marked as court exhibits. After considering the aforesaid evidence, on record, the trial court dismissed the suit and decreed the counter claim and ordered partition of the counter claim schedule property among the legal heirs shown as defendant Nos.1 to 4.

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Aggrieved by the judgment and decree passed by the trial court, the plaintiff preferred A.S.No.83/2008 before the Sub Court, Tirur, and after reappreciating the evidence, on record, the lower appellate court reversed the findings, in part, by holding that Aboobackerkutty maintained both the plaintiff and the first defendant as wives and modified the judgment and decree accordingly.

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R.S.A.1187/15-G :5:

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This Regular Second Appeal is filed assailing the legality and correctness of the modification made by the lower appellate court in the judgment and decree by allowing the appeal in part.

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The learned counsel for the appellant advanced arguments based on Rule 93 of the Government Servants Conduct Rules, 1960. The learned counsel submits that Rule 93 of the said Rule specifically prescribes that no Government servant, who has a wife living, shall contract another marriage without first obtaining permission of the Government, notwithstanding that such subsequent marriage is permissible under the personal law. Applying the above Rule to the instant case, it could be seen that in Ext.A1 Service Book the name of the first defendant is shown as “wife” and he has not obtained permission as contemplated under the said Rule. So, according to the learned counsel, it could be reasonably presumed that the first defendant alone was the wife of the deceased Aboobackerkutty, who was a Government servant, at the

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R.S.A.1187/15-G :6:

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time of his death and it further fortifies the case of the first defendant that even though Aboobackerkutty married the plaintiff, he subsequently divorced her in the year 1965. There, the lower appellate court ought not have found that the plaintiff also was the wife of Aboobackerkutty and he had maintained two wives at a time.

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Going by the impugned judgment passed by the lower appellate court, it could be seen that the lower appellate court had relied on Exts.A1 to A23 to arrive at a finding that Aboobackerkutty maintained both the plaintiff and the first defendant as his wives during his lifetime, particularly when his personal law permits him to do so. Being a Second Appeal, this Court is not inclined to reappreciate the evidence from which the lower appellate court arrived at a finding that there are sufficient evidence to show that Aboobackerkutty was maintaining the plaintiff also as his wife along with the first defendant. The trial court denied the share to the plaintiff in counter claim 'B' schedule property on a finding that she was a divorced

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R.S.A.1187/15-G :7:

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wife of Aboobackerkutty. But, going by the judgment passed by the trial court, it could be seen that absolutely there is no evidence to show that the plaintiff was a divorced wife. It is pertinent to note that the first defendant herself had admitted that Aboobackerkutty firstly married the plaintiff, though she further contended that subsequently he divorced her. In view of the above contention, the burden is heavy on the first defendant to prove that Aboobackerkutty had divorced the plaintiff subsequently and the burden of proof, to establish that contention, has not been discharged by the first defendant. In the absence of evidence to prove divorce, in view of her own admission that Aboobackerkutty firstly married the plaintiff, the lower appellate court is justified in finding that the plaintiff is the legally wedded wife of Aboobackerkutty till his death and she is also entitled to share as the first wife of Aboobackerkutty. Thus, the modification made by the lower appellate court in the judgment and decree is just and proper. I do not find any

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R.S.A.1187/15-G :8:

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reason to interfere with the said findings.

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The substantial question of law that arises for consideration in this Regular Second Appeal is, whether a legal or reasonable presumption can be drawn to the effect that a Muhammedan Government Servant had no wife other than the wife whose name is shown in the Service Book maintained under Rule 93 of the Government Servants Conduct Rules, 1960.

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Coming to Rule 93 of the Government Servants Conduct Rules, it is apposite to extract the same for a proper understanding and better appreciation. Rule 93 reads as follows:

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“Bigamous Marriages.--(i) No Government servant who has a wife living shall contract another marriage without first obtaining the permission of the Government, notwithstanding that such subsequent marriage is permissible under the personal law for the time being applicable to him.”

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The conduct of a Government servant is governed by the Government Servant Conduct Rules. The statutory mandate under Rule 93 is that the Government servant,

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R.S.A.1187/15-G :9:

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who has a wife living, shall not contract another wife without first obtaining the permission of the Government, though his personal law permits him subsequent marriages. It is true that the Conduct Rules are issued under Article 309 of the Constitution of India and therefore they have the same force as that of a statute, and any infraction would amount to violation of law. But, in view of Rule 93, it can never be presumed that a Muhammedan Government Servant has no wife other than the wife whose name is shown in the service book or pension book, particularly when his personal law permits him to marry more than one wife, upto four. Such a presumption is far fetched and stretched and it goes beyond the intention of the said Rule.

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Coming to the instant case, it is true that Aboobackerkutty had not obtained permission to marry the first defendant under Rule 93 of the said Rules. Certainly, the said disobedience or violation of that Rule would warrant disciplinary action against him for misconduct

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R.S.A.1187/15-G :10:

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under the Rule. But, it cannot be presumed that he has no wife other than the first defendant in view of Rule 93, particularly when his personal law permits him to marry and maintain more than one wife, upto four. Therefore, this Court is not inclined to countenance the arguments advanced by the the learned counsel for the appellant on the basis of Rule 93 and it stands rejected. I do not find any kind of illegality or perversity in the findings, whereby the lower appellate court modified the judgment and decree passed by the trial court. No other question of law arises for consideration in this Appeal.

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This Regular Second Appeal will stand dismissed. All pending Interlocutory Applications will stand closed.

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Sd/K.HARILAL, Judge.

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Okb

Ummayumma v. Kizhakkinyakath Thittachutty Umma

Case brief

What is this about?

What did the court decide?

Ummayumma v. Kizhakkinyakath Thittachutty Umma

Case brief

What is this about?

What did the court decide?

What the court decided

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Statutes considered

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