IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE THURSDAY, THE 22ND JULY 2008 / 31ST JYAISHTA 1930 AS.No. 435 of 1995() -------------------- OS.96/1992 of SUB COURT, HOSDRUG .................... APPELLANT: ----------- PUTHIYA PARAMBA KUNHIRAMAN S/O PERIYADATH KELU CHENDALAM KARINDHALAM VILLAGE HOSDRUG TALUK P.O. KOYITHALA (VIA) NILESHWAR KASARGOD DISTRICT BY ADV. SRI.M.GOPIKRISHNAN NAMBIAR RESPONDENTS: ------------- 1. T.P.CHANDRAMATHI D/O ADUKATH RAMAN ALAMTHATTA KAYYUR VILLAGE HOSDRUG TALUK KASARGOD DISTRICT 2. JAYADEVAN (MINOR) S/O CHANDRAMATHI REP. BY GUARDIAN AND MOTHER T.P. CHANDRAMATHI OF DO. DO. 3. NISHA ( MINOR) D/O CHANDRAMATHI REP. BY GUARDIAN AND MOTHER T.P. CHANDRAMATHI OF DO.. DO. BY ADV. SRI.KODOTH SREEDHARAN THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 22/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS.C.KURIAKOSE, J. - - - - - - - - - - - - - - - - - - - - - A.S.No.435 OF 1995 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 12th day of July, 2008 JUDGMENT The defendant in a suit filed by his wife and children for recovery of past maintenance is aggrieved by the judgment and decree passed against him by the court below in terms of the plaint. The ground which is most seriously urged in the memorandum of appeal is founded on sections 5(1) and 11 of the Hindu Marriage Act. On the basis of Ext.B1 which is certified copy of the deposition of the plaintiff in a previous litigation and the plaintiff's own admission in her evidence as PW1, the appellant contends that the very marriage between him and the first plaintiff during the subsistence of the first plaintiff's marriage with one Kunhikannan is null and void and that the first plaintiff will not be entitled for the maintenance which has presently been decreed in her favour. 2. I have heard the submissions of Sri.M.Gopalakrishnan Nambiar,learned counsel for the appellant and Sri.Kodoth Sreedharan, learned counsel for the respondent. Sri.M.Gopalakrishnan would AS.No.435/95 2 address me very strenuously and persuasively on the grounds raised in the memorandum of appeal. Learned counsel would take me through Ext.B1 and the deposition of the first respondent-first plaintiff and submit that it has been freely admitted by the first plaintiff that she had been married to one Kunhikannan. Since that marriage was admitted, the learned Subordinate Judge was not justified in insisting that the appellant should have proved by adducing cogent evidence that the marriage between the first respondent and Sri.Kunhikannan was a valid marriage. 3. I have considered the submissions. The issue was considered by the learned Subordinate Judge under issue No.1 which was framed as follows; Whether the marriage between the first plaintiff and the defendant is valid in law? 4. The learned Subordinate Judge noticed that in Ext.B1 deposition as well as in her deposition as PW1, the first plaintiff had asserted that her marriage with Kunhikannan was not subsisting at the time of her marriage with the appellant. Despite such assertion by the AS.No.435/95 3 first plaintiff, the appellant did not put even a single question to the first plaintiff in cross examination as to how her earlier marriage with Kunhikannan came to an end. In other words, the learned Judge noticed that the claim of the appellant in the witness box that her marriage with Kunhikannan was not subsisting at the time of her marriage with the appellant was not challenged by the appellant. Learned Subordinate Judge further noticed that in M.C.No. 161/91, which was filed by the first plaintiff against the appellant for maintenance under section 125(1) Cr.P.C, also the appellant had not raised any challenge regarding the legality of his marriage with the first plaintiff. It was also noticed by the learned Judge that though Ext.A3 lawyer notice was issued on 10/9/1991 demanding maintenance from the appellant as the lawfully wedded wife of the appellant, even in the reply notice dated 28/9/1991 the appellant had not disputed his liability to pay maintenance to the first plaintiff on any reason including the reason of nullity of the marriage. The learned Subordinate Judge further noticed that the appellant has also not chosen to put any question to the first plaintiff- PW1 as to the manner in which her AS.No.435/95 4 marriage with Kunhikannan was conducted so that it could be proved that her marriage with Kunhikannan was a valid marriage in terms of law and custom of the community to which the parties belonged. Having gone through the judgment under appeal and having re-appreciated the evidence, I am of the view that it cannot be said that appreciation of the evidence by the court below was so thoroughly erroneous as to justify interference with the judgment. More over, I notice that the decree in question has already been executed. For both these reasons, I am not inclined to interfere with the judgment and decree under appeal. But in the circumstances, there will be a direction to the parties to suffer their cost through out. PIUS.C.KURIAKOSE JUDGE sv. AS.No.435/95 5