IN THE HIGH COURT OF KERALA AT ERNAKULAM “CR” PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN FRIDAY, THE 23RD JULY 2010 / 1ST SRAVANA 1932 Mat.Appeal.No. 22 of 2004 (E) ---------------------------------------------- OP.595/2001 of FAMILY COURT, KOZHIKODE .................... PETITIONER(S): APPELLANTS/PETITIONERS: 1. GAUTHAM THYAGARAJAN, S/O.V.B.KARUNAKAR, RESIDING AT SUMANGALA, CHAKKORATHUKULAM, KANNUR ROAD, KATHCERI AMSOM AND DESOM, KOZHIKODE TALUK, KOZHIKODE. 2. LEELA T. (THYGARAJAN), W/O.V.B.KARUNAKAR AND D/O.DR.A.THYAGARAJAN, RESIDING AT SUMANGALA, CHAKKORATHUKALAM, KANNUR ROAD, KATCHERI AMSOM AND DESOM, KOZHIKODE TALUK, KOZHIKODE. BY ADV. SRI.O.RAMACHANDRAN NAMBIAR SRI.GEEN T.MATHEW RESPONDENT(S): RESPONDENTS. 1. V.B.KARUNKAR, (died) (MEMO RCORDED) S/O.VANIYAMPARAMBATH, BALASUBRAMANIAN MENON ALIAS V.K.B.MENON, RESIDING AT 5/1135, DEVI POOJA, KOTTARAM CROSS ROAD, NADAKKAVU, CALICUT 673 006. MEMO DATED 17/5/2010 BEARING C.F.NO.6156/10 STATING THAT 1ST RESPONDENT EXPIRED ON 13/5/2010 IS RECORDED VIDE JUDGMENT DATED 23/7/2010. 2. THANUJA NAIR, D/O.A.P.DAMODARAN NAIR, RESIDING AT 5/1135 B, DEVI POOJA, KOTTARAM CROSS ROAD, NADAKKAVU, CALICUT 673 006. 3. POOJA (MINOR) D/O.V.N.KARUNAKAR AND THANUJA NAIR, REP. BY MOTHER AND GUARDIAN 2ND RESPONDENT, RESIDING AT 5/1135 B, DEVI POOJA, KOTTARAM CROSS ROAD, NADAKKAVU, CALICUT 673 006. ADV. SRI.C.P.MOHAMMED NIAS FOR R1 TO 3 THIS MATRIMONIAL APPEAL HAVING BEEN HEARD ON 18/06/09,24/05/2010, THE COURT ON 23/07/2010 PASSED THE FOLLOWING: A.K.BASHEER & P.S.GOPINATHAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mat.A.No.22 OF 2004 - E - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 23rd day of July, 2010 JUDGMENT Basheer, J: 1970's - A Brahmin girl meets a Nair boy in a college campus at Calicut. Bitten by the love bug, they promise to each other to live together unto death. But the families of the young lovers had different ideas. Still the youngsters decide to defy their parents. 2. A typical Bollywood script of the 1970s, nay, relevant even for the 21st century. 3. The hero and heroine in this case started to live together as husband and wife and the script proceeded on predictable lines for a few years. The couple was blessed with a baby boy. But very soon the proverbial “seven-year itch” appears to have hit the young couple and they fell apart. 4. The story took a dramatic turn when the young man despatched a communication informing the girl that he had taken an irrevocable decision to end the relationship between them. He reminded her that their relationship was only a “contractual arrangement”. The girl, stung by the preposterous stand taken by Mat.A.No.22 OF 2004 - E :: 2 :: the young man, reminded him about their customary marriage at Guruvayoor. But nothing could save the relationship and the young lovers drifted apart. Their young son who turned 19 took up cudgels with his father and filed a petition before the Family Court, Kozhikode to get his status declared as the legitimate son born in the legal wed lock between the two. The court below rejected the prayer for declaration. However respondent No.1 was directed to pay an amount of Rs.54,000/- to his “illegitimate son” as past maintenance within a period of three months. Hence this appeal. 5. Appellant No.1 is the son and appellant No.2 is the mother. According to appellant No.2, she and respondent No.1 fell in love with each other while they were studying in Malabar Christian College, Kozhikode. They got married as per the rites and custom prevalent in the Hindu Religion at Sreekrishna Temple, Guruvayoor on December 21, 1976 in the presence of their friends and colleagues. Thereafter on January 22, 1977, about a month after the ceremony, “a marriage agreement” was registered at the Sub Registrar's office in Kozhikode. It was contended by appellant No.2 that she and respondent No.1 had started to live together as husband and wife in a rented house at Malaparamba in Kozhikode Mat.A.No.22 OF 2004 - E :: 3 :: right from the day of their marriage. A wedding reception was held in their rented house shortly after the marriage in which their close relatives also participated. Their son (appellant No.1) was born in the wed lock on March 20, 1982. But soon thereafter respondent No.1 started to drift away from her and the young child. 6. In January 1983, respondent No.1 issued a registered letter alleging that appellant No.2 had deserted him and left for her parental home without his consent or knowledge. He therefore informed appellant No.2 that he had taken an irrevocable decision to end the “contractual relationship” between them suppressing the fact that a customary marriage was held at Guruvayoor. A reply was sent by appellant No.2 reminding him about the customary marriage ceremony undergone by them and requesting him to reconsider his so called irrevocable decision. It was further averred in the petition that though respondent No.1 had been living with respondent No.2 as his wife and respondent No.3 was born in that relationship, both of them would never get the status of legitimate wife and child, since the marriage between her and respondent No.1 was still subsisting. Appellants contended that Mat.A.No.22 OF 2004 - E :: 4 :: respondent No.1 was liable to pay maintenance to appellant No.1 at the rate of Rs.30,000/- per annum. They quantified the amount of maintenance at Rs.3,90,000/- at the rate of Rs.30,000/- for 13 years from age 5 till the attainment of majority of the minor. 7. The primary prayer in the petition was for a declaration that appellant No.1 was the legitimate son of respondent No.1 born to him in his legally wedded wife (appellant No.2). The other prayer was to grant a decree of injunction restraining the respondents from denying the legal status of the appellants as the legitimate son and legally wedded wife of respondent No.1and also prohibiting respondents 2 and 3 from claiming the status of legally wedded wife and legitimate daughter of respondent No.1. 8. The primary contention raised by respondent No.1 in his counter statement was that no customary marriage ceremony was performed at Guruvayoor temple on December 21, 1976 as alleged in the petition. They had never lived as legally wedded wife and husband. But he admitted that a marriage agreement was executed between him and appellant No.2 on December 21, 1976. But according to respondent No.1, the said contract was not acted upon by both the parties and hence he issued a notice intimating his Mat.A.No.22 OF 2004 - E :: 5 :: intention to put an end to the contractual relationship between them , if any. He further alleged that appellant No.2 abandoned his company on her own wish and at the instigation of her father. He further contended that he had entered into the marriage agreement without the knowledge of their respective parents. He admitted the paternity of appellant No.1. However, he alleged that continuous interference of the father of the appellant No.2 and her stubborn attitude “put an end” to the contract of marriage and the limited life as man and woman living together ended in the year 1989. It was further contended by respondent No.1 that the petition filed before the Family Court was intended to wreck his marriage with respondent No.2 and also to cause disrepute to him and to his family. He also denied his liability to maintain appellant No.1. 9. Appellant No.2 got herself examined as PW1 and two of her witnesses were examined as PW2 and PW3. Exts.A1 to A7 were also marked on her side. Respondent No.1 was examined as RW1 and his witness as RW2. Exts.B1 to B6 were marked on his side. The marriage agreement was summoned from the Registrar's office and marked as Ext.X1. 10. As has been noticed already, the court below declined the Mat.A.No.22 OF 2004 - E :: 6 :: main prayer for a decree of declaration and injunction holding that the claim of appellant No.2 was barred by limitation. As regards the claim of appellant No.1, the court below held that he would not be entitled to get the status of a legitimate son, since he was not born in a legal marriage eventhough his paternity is admitted by respondent No.1. 11. The question that arises for consideration is whether the above findings are legally valid and sustainable. 12. We have heard Sri.Ramachandran Nambiar, learned counsel for the appellant and Sri.Krishnanunni, learned counsel who appeared for the respondents. 13. At the very outset, it may be noticed that the ultimate decision in this case will have far reaching or calamitous consequence on the two families which are involved in this traumatic and unfortunate legal imbroglio. What makes it more unpleasant is the involvement of two youngsters - a 19 year old boy on one side who seeks to get his legitimacy declared in the eye of law. The dilemma of the young boy is perfectly understandable. He wants the entire world to know that he was born in a legal and legitimate marital relationship. He does not want to be labelled as Mat.A.No.22 OF 2004 - E :: 7 :: a legal non-entity brought into existence by his father in a freak relationship which our traditional society and culture will never accept. 14. Pitted against the young boy is a young minor girl who for no fault of hers is hauled up before the court to face the gloomy prospect of being declared as an illegitimate child if appellant No.1 succeeds. The society has thus far accepted and recognised her as the legitimate daughter of her parents born in a wedlock. But she is now facing the music in this bizarre drama on the centre stage on which her parents and herself, apart from her step brother and his mother are also trying desperately to don the mantle of legitimacy. 15. But why all this? And at what cost? 16. We posed this question to the learned counsel on either side and requested them to find out an amicable solution. They must have deliberated with their parties. Both sides however reported later that there is no light at the end of the tunnel. Thus we are called upon to decide the issue. 17. Undoubtedly and inevitably the court has to take up such onerous judicial responsibilities in certain situations; however Mat.A.No.22 OF 2004 - E :: 8 :: tricky and daunting the problem or the task may be. The kind of abiding faith and confidence that the citizenry of this country has reposed in the system is such that the decision making process cannot be avoided. 18. It is not in dispute that appellant no.2 and respondent No.1 lived together for nearly 5 to 6 years. While appellant No.2 would contend that they lived as legally wedded husband and wife pursuant to a properly and validly conducted marriage ceremony, the contention of respondent no.1 is that their cohabitation as husband and wife was only on the strength of Ext.X1 (Ext.A1 is stated to be the photocopy of Ext.X1 “marriage agreement” dated, December 21, 1976). It is also beyond controversy that appellant No.1 is the progeny born in the relationship between appellant no.2 and respondent No.1. The specific case of appellant No.2 is that a customary marriage ceremony was performed in Sreekrishna temple at Guruvayoor on December, 21 1976 in the presence of their friends and colleagues. She further asserts that both of them started to live together as husband and wife in a rented house in Malaparamba Housing Colony from day one, which was never disputed by respondent No.2. Mat.A.No.22 OF 2004 - E :: 9 :: 19. Appellant No.2 while she was examined as PW1 has spoken about the customary rites of marriage performed at the ceremony. She stated that the marriage ceremony took place at the eastern nada of the temple. Necessary arrangements for the marriage ceremony at Guruvayoor were made by respondent No.1, his relative Gopi and friend Sri.Vijaya Raghavan (PW3). The small ceremony was attended by PW3 his wife Santha, Arun George and his fiancee Chithra Subramaniam, Deepa Narayanan and another friend of respondent No.1 named Narayanan. About 8 to 10 people attended the ceremony. The “chit” for wedding was obtained earlier as arranged by respondent No.1. The ceremony was held on the stage (mandapam) outside the temple where traditional lamp and vessel containing rice, etc. were arranged. She and respondent No.1 exchanged rings in the presence of and as instructed by the priest (Poojari). PW1 further stated that respondent No.1 tied thali around her neck and they exchanged garlands. Both of them went around the traditional lamp three times. She had been wearing the cloth (pudava) which respondent no.1 had purchased for her. 20. After the ceremony, both of them came down from the Mat.A.No.22 OF 2004 - E :: 10 :: mandapam and went round the temple. After offering prayers they came back to Calicut to 'Kili Illam', house taken on rent by respondent no.1 at Malaparamba housing colony. PW1 asserted that they started to live together as husband and wife right from the day of their marriage. She further stated that the parents and near relatives of the two families did not participate in the marriage at Guruvayoor. However, about two weeks after the marriage, a wedding reception was held on January 16, 1977 in which the family members participated. When she was 8 months pregnant, she was taken to her parental home accompanied by her husband's sister. She further asserted that traditional functions like Seemantham, Valakappu, which are usually performed in Brahmin families during pregnancy were also held. According to PW1, the sister and brother in law of respondent no.1 and another near relative Sree Sankaranarayan and his uncle and aunt had also participated along with respondent No.1 in those ceremonies. She gave birth to appellant No.1 on March 20, 1982 at Rajasree Nursing Home, Calicut. The naming ceremony of the child was held at her residence. For that function also the parents of respondent No.1 had participated. She vehemently refuted the Mat.A.No.22 OF 2004 - E :: 11 :: case of respondent No.1 that no marriage ceremony was held at Guruvayur, though both of them had lived together as husband and wife. 21. The evidence of PW2 is not very material, since he had only produced Ext.X1 document as authorised by the Sub Registrar pursuant to the summons issued by the court. 22. PW3 deposed before the court that he was working in Gwaliyor Rayons as Assistant grade officer during 1976. He claimed that respondent No.1 was his friend during the period. He was introduced to respondent No.1 by Gopalakrishnan known as Aradhana Gopi who was his close friend. He had taken the initiative to conduct the marriage between appellant No.1 and respondent No.1 as requested by Gopi. PW3 stated that apart from him, Gopi @Gopalakrishnan, Deepa, Arun George, Chithra Subramaniam and Narayanan had participated in the marriage held at Guruvayur on December 21, 1976. All of them had gone to Guruvayur in two cars belonging to him and respondent No.1. Arrangements for the marriage had been made in advance through a priest whom he knew. Muhurtham was at 10.30 a.m. The chit for the marriage was obtained in advance. The ceremony was held on Mat.A.No.22 OF 2004 - E :: 12 :: the stage (mandapam) outside the temple. The priest came with the garlands. Traditional lamp and rice bowl were kept on the mandapam. Appellant No.2 and respondent No.1 exchanged rings. Respondent No.1 tied thali around the neck of appellant No.2. Both of them exchanged garlands. They took three rounds around the lamp. He also stated that appellant no.2 was wearing the pudava (cloth) purchased by respondent no.1. All of them came back to Calicut after taking meals. Appellant no.2 and respondent no.1 started to live together in 'Kili Illam', a rented house in Malaparamba Housing Colony from that day onwards. This witness also stated that on January 22, 1977 he had gone to Sub Registrar's office at Chevayoor and signed as a witness in Ext.X1 document along with Arun George. He saw appellant No.2 and respondent No.1 signing the document before the Sub Registrar. He denied the case of respondent No.1 that no customary marriage had taken place at Guruvayur. This witness further stated that the family members of appellant No.2 and respondent No.1 had participated in the reception held at the rented house before registration of Ext.X1 marriage agreement. He further stated that he had also participated in some of the ceremonies held at the Mat.A.No.22 OF 2004 - E :: 13 :: residence of appellant No.1 after the marriage. He also referred to Ext.A4 photo album, containing the photographs taken in connection with some of the ceremonies. 23. We will now deal with the evidence adduced by the respondents in the case. Rw.1 asserted in his evidence that he and appellant No.2 had never undergone any form of marriage ceremony at any point of time, much less the alleged customary ceremony at Guruvayur temple. According to him, he and appellant No.2 had decided to live together as husband and wife because of their mutual love for each other and also on the face of stiff resistance from their family members for a marriage alliance. They had executed an agreement in this regard on December 21, 1976. According to him he had treated appellant No.2 as his lawful wife. But their relationship got strained when appellant No.2 violated the conditions of the agreement and deserted him. He issued a notice to appellant No.2 intimating his decision to put an end to the contractual relationship. (Respondent No.1 further contended in his counter affidavit that the “agreement to live together as husband and wife was unknown to the personal law of the parties” and therefore appellant No.2 could never claim that Mat.A.No.22 OF 2004 - E :: 14 :: she is his legally wedded wife.) In his evidence before the Court he reiterated whatever he had stated in his counter statement. He further contended that the claim of the appellants was barred by limitation and therefore they were not entitled to get any reliefs in the petition. 24. In his cross examination he admitted that he and appellant No.2 had lived together as husband and wife and appellant No.1 was born in the said relationship. He further admitted that a wedding reception was held at Malapparamba Housing Colony. According to him this reception was held either on 7th or 8th of February 1977. When he was confronted with certain photographs in the album (Ext.A4 (series)) taken in connection with some ceremonies allegedly conducted at the residence of the appellants, he admitted that he was also present at some functions. He also admitted that in the photographs, which were apparently taken in connection with some ceremony held in connection with the birth of the child, his parents as well as the parents of appellant No.2 were also seen. But he could not say in connection with which ceremony the said photographs were taken. 25. Rw.1 who was examined on the side of the respondents Mat.A.No.22 OF 2004 - E :: 15 :: stated that he was a college mate of appellant No.2 and respondent No.1 in the Malabar Christian College. He stated that he was a witness to Ext.X1 registered agreement executed between appellant No.2 and respondent No.1. He admitted that Pw.3 was also a witness to the agreement. But according to this witness, he met Pw.3 only on that day. He denied the suggestion that he had participated in the marriage ceremony at Guruvayur temple on December 21, 1976. He had been living in Canada since 1991. He further stated that he had signed as a witness in Ext.X1 after understanding that it was an agreement evidencing marriage between the two and that they had decided to live together as husband and wife. He further admitted that all the people knew that appellant No.2 and respondent No.1 were living as husband and wife. He also admitted that he could be seen in one of the photographs in the album along with appellant No.2, respondent No.1, Deepa, Narayanan, Gopi, Vijayaraghavan (Pw.3) etc. He could not remember whether he had attended any function arranged at the house of appellant No.2 in connection with the birth of the child. 26. A careful analysis of the evidence adduced by the parties Mat.A.No.22 OF 2004 - E :: 16 :: will reveal that the whole world around them knew that appellant No.2 and respondent No.1 had been living as husband and wife since 1976 and that appellant No.1 was born in the said relationship. While respondent No.1 would contend that there was no formal customary marriage in the eye of law, the specific case of appellant No.2 is that they had undergone a marriage ceremony as per customary rites in Guruvayur temple on December 21, 1976 in the presence of their close friends. 27. Having carefully perused the testimonies of Pw.1 (appellant No.2) and Pw.3, we do not find any reason to discard their evidence. It must be remembered that these two witnesses were being examined in the Court after a lapse of about 27 years. But still, they spoke about the ceremony in a convincing manner. In our view, there is a ring of truth in the evidence of these two witnesses. It may be true that there are some very minor discrepancies. But on the whole there is nothing on record to indicate that these witnesses were speaking any falsehood. 28. In this context we may have to take note of the fact that respondent No.1 had admitted that they had started to live together as husband and wife on the strength of Ext.X1 marriage Mat.A.No.22 OF 2004 - E :: 17 :: agreement. Respondent No.1 admitted that the above agreement was executed on December 21, 1976 with a definite understanding by both of them to live as husband and wife, though it was got registered only on January 22, 1977. Respondent No.1 had further admitted that a wedding reception was held shortly after the marriage. While the case of appellant No.2 was that the reception was held on January 16, 1977, respondent No.2 stated that it might have been held on 7th or 8th of February 1977. Anyhow in the counter affidavit respondent No.2 candidly admitted that Ext.X1 agreement was executed on December 21, 1976. But the said agreement is seen to have been registered at the Sub Registry Office only on January 22, 1977. But still the fact remains that appellant No.2 and respondent No.1 started to live together some time during December 1976-January 1977. If this admitted position is kept in view, we are inclined to accept the case of appellant No.2 as more probable and believable. As mentioned earlier, we do not find any ambiguity or improbability in the case of appellant No.2 (Pw.1) and Pw.3. All the attendant circumstances, especially the conduct of the parties clearly indicate that appellant No.2 and respondent No.1 had undergone a Mat.A.No.22 OF 2004 - E :: 18 :: marriage ceremony at Sree Krishna Temple, Guruvayur on December 21, 1976. 29. It may be true that the two families of the couple could not initially agree to a marriage alliance, for reasons best known to them. Both families were in affluent circumstances, though one belonged to Brahmin community, and the other to Nair community. However, as it turned out, the two families had reconciled later especially after appellant No.2 conceived her child. The evidence on record will show that some customary ceremonies were held at the residence of appellant No.2 during her pregnancy. The photographs bear testimony of this. Thereafter when the child was born, some other customary functions were also held. In all these functions the parents of the couple had participated as could be seen from the photographs in the album produced before the court. Significantly respondent No.2 had