IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR FRIDAY, THE 23RD SEPTEMBER 2011 / 1ST ASWINA 1933 Mat.Appeal.No. 820 of 2009() ------------------------------------- OP.937/2008 of FAMILY COURT, THIRUVALLA .................... PETITIONER(S): APPELLANT ------------------------------------------ SITHARA, AGED 23 YEARS, D/O. THULASEEDHARAN PILLAI, BALAVILASOM, ELAMANNOOR PO, ELAMANNOOR, ENADIMANGALAM VILLAGE, ADOOR TALUK, PATHANAMTHITTA DISTRICT. BY ADVS. SRI. K.SHAJ SRI.SAJJU.S RESPONDENT(S): RESPONDENT --------------------------------------------- HARIKRISHNAN NAIR, AGED 27 YEARS, S/O.UNNIKRISHNAN NAIR, MODIYIL HOUSE, KOZHUVZLLOOR, PO.KOZHUVZLLOOR, MULAKKAUZHA VILLAGE, CHENGANNUR TALUK, ALAPPUZHA DISTRICT. BY ADV. SRI.ANANDARAJAN.N FOR R1 THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 23/09/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: DS Mat.Appeal.No. 820 of 2009() APPENDIX PETITIONERS EXHIBITS: EXT A3: MARRIAGE CERTIFICATE DATED 19/10/2002 ISSUED BY SUB REGISTRAR/MARRIAGE OFFICER, MAVELIKARA. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ PA TO JUDGE ds THOTTATHIL B.RADHAKRISHNAN & C.T.RAVIKUMAR, JJ. ----------------------------------- Mat.A.No.820 OF 2009 ------------------------------------ Dated this the 23rd day of September, 2011 JUDGMENT Thottathil B.Radhakrishnan,J. C.R. 1.Appeal is admitted. Service complete. Respondent appears through counsel. Heard. 2.Appellant sought an order declaring that the marriage solemnized between her and the respondent on 8.5.2008 is null and void since he then had a spouse living. If her allegations are established, she is entitled to the relief in view of Section 5(i) of the Hindu Marriage Act, 1955. The Family Court dismissed her application. Hence this appeal. 3.Respondent remained ex-parte in the Family Court. Appellant deposed as PW1. She stated that she came to know that the respondent had been married before. She MA.820/09 2 produced Ext.A2, the photocopy of the certificate of marriage solemnized on 19.10.2002 between the respondent and Suji Raj. The Family Court held that the particulars of the prior marriage of the respondent are not specifically pleaded and Ext.A2, being only a photostat copy, cannot be acted upon. 4.Appellant, as PW1, spoke about her information as to the previous marriage of the respondent. Her testimony is unchallenged. Her plea in the petition that the respondent was already married when he misrepresented, cheated and married her is not challenged by any pleading whatsoever. She identified Ext.A2 as the photocopy of the certificate of respondent's earlier marriage. Section 20 of the Family Courts Act, 1984 provides overriding effect to the provisions of that Act. Section 14 enjoins that a Family Court may receive as evidence any report, statement, documents, information or matter that may, in its opinion, assist it to deal effectually with a dispute, whether or not the same MA.820/09 3 would be otherwise relevant or admissible under the Indian Evidence Act, 1872. Going by Section 15, it is sufficient that a memorandum of the substance of what the witness deposes is recorded. The flexibility of procedure as authorised under Section 10(3) is also noteworthy. The rules in the Evidence Act governing admission of primary evidence and secondary evidence would be of guidance as tool of fair procedure only when such a tool become necessary for application on the face of any challenge to the material produced. This is part of the wisdom emanating from Section 14 of the Family Courts Act. In the absence of any contra evidence and pleadings or any challenge to the credibility of Ext.A2, the Family Court ought not to have adopted the technical approach of insisting on strict rules of pleadings and evidence. 5.Be that as it may, the appellant has produced the certified copy of the certificate of the respondent's prior marriage as additional evidence. We are satisfied with the grounds MA.820/09 4 stated in the affidavit accompanying I.A.No.2476/11. We are also of the view that admission of document produced as Annexure -I along with the affidavit is absolutely necessary to render justice to the parties. We, accordingly, allow I.A.2476/11 and admit the document produced along with that interlocutory application in evidence as Ext.A3 following the marking of the documents by the court below. 6.With the above, we find that there is no contra evidence to the appellant/petitioner's plea and evidence that the respondent had a spouse living at the time he married the appellant/petitioner. Therefore, the marriage between the appellant and the respondent is null and void. 7.In the result, i. Mat. Appeal is allowed. ii.Impugned order is vacated. MA.820/09 5 iii.It is declared that the marriage shown to have been solemnised between the appellant/petitioner and the respondent/respondent on 8.5.2008 is null and void. THOTTATHIL B.RADHAKRISHNAN, Judge. C.T.RAVIKUMAR, Judge. kkb.