IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR TUESDAY, THE 16TH SEPTEMBER 2008 / 25TH BHADRA 1930 Mat.Appeal.No. 210 of 2006() ---------------------------- OP.636/2003 of FAMILY COURT,TRIVANDRUM APPELLANT/ORIGINAL RESPONDENT: ------------------------------------------------------- OMANA AMMA, W/O.LATE SASIDHARAN NAIR, SANISH BHAVAN, ULLOOR, THIRUVANANTHAPURAM. BY ADV. SMT.K.KUSUMAM RESPONDENTS/1ST ORIGINAL PETITIONER & 2ND RESPONDENT: -------------------------------------------------------------------------------------------------- 1. SREEKUMARI, D/O. LATE VELAYUDHAN NAIR, KARYAVATTOM, TRIVANDRUM AS SHOWN IN THE PLAINT IN OP 636/2003 OF FAMILY COURT TRIVANDRUM BUT ACTUALLY RESIDING .AT ASHA NIVAS, PEYADU,VILAVORKAL PANCHAYAT, TVM, AND IS HAVING PERMANANT ADDRESS OF JAYALAYAM, MANNALACKEL, MARUKIL, URUTTAMBALAM P.O., TVM DIST. 2. MANAGING DIRECTOR, KERALA STATE ROAD TRANSPORT CORPORATION, TRANSPORT BHAVAN, EAST FORT, TRIVANDRUM. BY ADV. SRI.GOPAKUMAR R.THALIYAL FOR R1 SRI.SAJEEVKUMAR K.GOPAL, SC, KSRTC FOR R2 THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 16.9.2008, ALONG WITH MA NO. 241 OF 2006 THE COURT ON THE SAME DAY, DELIVERED THE FOLLOWING: P.R. RAMAN & T.R. RAMACHANDRAN NAIR, JJ. = = = = = = = = = = = = = = = = = = = = MAT. APPEAL NOS. 210/2006 & 241/2006 = = = = = = = = = = = = = = = = = = = = = = DATED THIS, THE 16TH DAY OF SEPTEMBER, 2008. J U D G M E N T Raman, J. Both the appeals are filed by one Omana Amma who is the petitioner in O.P. 220/2003 and the respondent in O.P. 636/2003. O.P. 220/2003 was filed by the appellant for declaration of status and consequential relief, inter alia contending that she is the only legally wedded wife of one Somasekharan Nair, that there was a valid marriage as per the Hindu customs on 30.8.1972 and a daughter by name Deepa was born in the said wedlock. Somasekharan Nair was working as a driver in the Kerala State Road Transport Corporation before his death. In order to enter the name of the wife in the service book a marriage deed was executed on 13.3.1992. Though it is admitted that the appellant had a relationship with one Sasidharan Nair and three children were born in that relationship, she denied that there was any matrimonial relationship between herself and the said Sasidharan Nair and according to her, she had legally married only Somasekharan Nair. But because of the dispute raised by one Sreekumari, a M.A. 210 & 241/2006 :2: decision was not taken by the authorities in the matter of nomination for the benefits due to Somasekharan Nair, from K.S.R.T.C. This necessitated the filing of the original petition seeking for a declaration about her status as the legally wedded wife of Somasekharan Nair. 2. On the other hand, O.P. 636/2006 was filed by Sreekumari inter alia contending that Somasekharan Nair married her according to the rites and customs prevalent among their community, on 8.6.1998. It is contended that Somasekharan Nair was employed as a driver in the K.S.R.T.C., that at the time of his demise, they were residing at Kuzhivila Veedu, Karyavattom, that subsequently, he died on 16.11.2002, that the K.S.R.T.C. authorities paid an amount of Rs. 2,000/- for the funeral expenses of Somasekharan Nair to her, that it was when she filed an application for getting heirship certificate from the Tahsildar, Thiruvananthapuram that she came to know that another lady by name Omana Amma had also filed a similar application, that Omana Amma is the wife of one Sasidharan Nair who is still alive and is living along with Omana Amma, that he retired from the Travancore Titanium Products Ltd. on 31.3.2002, that Omana Amma has four children through Sasidharan Nair, that the deceased Somasekharan Nair had no relationship with Omana Amma, that she is the legally wedded wife of Somasekharan Nair and that second respondent is the only child in that M.A. 210 & 241/2006 :3: wedlock. 3. Both the original petitions were tried together and evidence recorded in O.P. 636/2003. The evidence in the case consists of the oral testimony of PWs 1 to 5 on the petitioner' side besides Exts. A1 to A14. Petitioner in O.P. 220/2003 was examined as CPW.1. CPW.2 was also examined on her side besides marking Exts.B1 to B11 series. Ext.X1 marked is the pension payment order. 4. The court, after framing necessary issues, considered the evidence on record and found that Sreekumari is the legally wedded wife of Somasekharan Nair and declared her status as such and dismissed the original petition filed by the appellant herein. Since there were two original petitions filed by two parties, two appeals are filed. But the question to be considered remains the same, we dispose of these appeals by this common judgment. 5. Learned counsel Smt. K. Kusumam appearing on behalf of the appellant contended that the court below has mis appreciated the evidence on record and came to a wrong conclusion that the legally wedded wife of Somasekharan Nair is Sreekumari and not the appellant herein. It is her contention that though the appellant had some relationship with Sasidharan Nair she had not married him and her only marriage was with Somasekhara M.A. 210 & 241/2006 :4: Nair and therefore, his subsequent marriage, if any, with Sreekumari Amma is not legal and valid. It is also contended that there is sufficient evidence adduced in the case to show that the marriage of the appellant with Somasekharan Nair was according to the customary rites prevalent in the community. Reference was also made to the oral testimony of the witnesses examined the case. It is also contended that even assuming for argument's sake that there is no proof for the customary marriage with Somasekharan Nair because of the long co-habitation with Somasekhara Nair there is a presumption of marriage and she has two children in that wedlock. It is also prayed that in case it is found that there is no ample evidence to support her case she may be given an opportunity to adduce additional evidence in the matter. 6. Per contra, the learned counsel appearing on behalf of the respondent would contend that admittedly, the appellant herein had some relationship with Sasidharan Nair in which she has got two children. She has also submitted that the marriage of the respondent with Somasekharan Nair, as per the customary right is proved on evidence by the oral testimony of the witnesses examined in the case who are none other than the close relations of Somasekharan Nair. It is also contended that the relationship if any, Somasekharan Nair had with the appellant, cannot be presumed to M.A. 210 & 241/2006 :5: be based on any valid and legal marriage and therefore, he supports the order passed by the court below. 7. The court below has found that in order to prove the marriage of the petitioner in O.P. 636/2003, namely, Sreekumari, she had examined PWs 2 to 4 who are the brother, mother and sister of deceased Somasekharan Nair. PW.2 is the younger brother of deceased Somasekharan Nair. The death of Somasekharan Nair was an unnatural one and his body was identified by PW.2. The funeral ceremonies were conducted in the house of PW.2. It is admitted that Rs. 2,000/- was paid by the Employees Welfare Board for the funeral expenses which was received by the respondent herein. He was cross examined by the other side. He stated that through him an application was filed by Sreekumari for claiming the service benefits from K.S.R.T.C. on the death of his brother. He also admitted that he knows Omana Amma but he denied that she had any relationship with his family. Kuzhivila house is his family house where Somasekharan Nair along with his wife was residing. PW.3 , the mother of Somasekhara Nair also deposed before the court that the marriage of her son Somasekhara Nair was in 1998 and her daughter-in-law is Sreekumari, who is the petitioner in O.P. 636/2003 and that her grant daughter is Lakshmi, the second respondent herein. The obsequies of her son were conducted in M.A. 210 & 241/2006 :6: her family house. She denied that her son had married the appellant herein. 8. PW.4 is the elder sister of Somasekharan Nair who also witnessed the marriage of Somasekharan Nair with Sreekumari which was solemnized on 8.6.1998 at Karthika Kalyanamandapam, Thirumala. She also identified the photographs of Somasekharan Nair. She denied that Somasekhara Nair had married anybody else. It is contended by the learned counsel appearing on behalf of the appellant that Ext.A3 series produced in the case are only photographs and without marking the negatives it has no evidentiary value and according to her, objection was also raised at the time of marking those documents. But we find that there is no merit in this argument. Ext.A3 series is not the solitary evidence in the case. Even ignoring Ext.A3 series, there is ample evidence to show that the marriage between the respondent herein and Somasekharan Nair was performed as per the customary rites. No prejudice is shown to have caused by the appellant herein by marking those photographs. It only corroborates the evidence adduced by the petitioner in O.P. 636/2003. Therefore, we cannot find fault with the court below in marking Ext.A3 series or to make reference to the said documents while discussing the evidence in the case. We may, in this connection, point out that the Enforcement Officer of the Regional Provident Fund Office was examined M.A. 210 & 241/2006 :7: as PW.5 in the case. The pension payment order of Sasidharan Nair, produced as Ext.X1 contains the joint photographs of Sasidhara Nair and his wife Omana Amma (the appellant herein). PW.5 also stated that Sasidharan Nair was working in Titanium Products and that Ext.X1 contains the joint photograph of Sasidharan Nair and his wife Omana Amma, who is the appellant herein. Further, in Ext.X1 Deepa S. Nair is also shown as the daughter of Sasidhara Nair and Omana Amma. It is also admitted by Omana Amma that she had some relationship with Sasidharan Nair and though she technically denied having any valid marriage with him, the evidence on record will show that she was co-habiting with him. Ext.X1 also amply supports this conclusion we have reached. 9. In the above circumstances, there is a strong presumption of a marital relationship between the appellant and Sasidhara Nair and though no concrete form of evidence is adduced to establish that any customary marriage has been taken place, the other evidence in the case will clearly show that they are living as husband and wife. If so she cannot have a second marriage with Somasekharan Nair during the subsistence of the first marriage with Sasidharan Nair. Though there was an attempt to show that the marriage of Somasekharan Nair with Omana Amma was performed in the house of Omana Amma, the court below, after referring to the oral M.A. 210 & 241/2006 :8: evidence on record, was not prepared to believe the same and we do not find any reason to come to a different conclusion either. The factum of the marriage of Somasekharan Nair with Sreekumari, the petitioner in O.P. 636/2006 is amply proved by the evidence of PWs 1 to 4 besides the photographs Exts. A3 series. In the above circumstances, the conclusion reached by the court below, on an entire appreciation of the evidence on record, cannot be said to be perverse or in any way illegal. We do not find any reason to interfere with the said finding. There is no merit in this appeal. In the circumstances, we dismiss the appeal; however, without any order as to costs. P.R. RAMAN, (JUDGE) T.R. RAMACHANDRAN NAIR, (JUDGE) knc/-