IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR MONDAY, THE 19TH DECEMBER 2011 / 28TH AGRAHAYANA 1933 Mat.Appeal.No. 633 of 2010 ----------------------------------- OP.369/2009 of FAMILY COURT, KOTTAYAM .................... APPELLANT/PETITIONER: ASHOKAN, AGED 46 YEARS, S/O.SIVADASAN, PUTHENPARAMBIL HOUSE, ANIKKADU KARA, FROM PALAPARAMBIL HOUSE, ELAMBALLY KARA, ANIKKADU VILLAGE, KOTTAYAM DISTRICT. BY ADV. SRI.P.M.HABEEB RESPONDENT/RESPONDENT: RADHA, AGED 43 YEARS, KOCHUPURACKAL HOUSE, MEDUKKAKKUNNU P.O., POOVARANY KARA, MEENACHIL TALUK, FROM PERUMBRAYIL HOUSE, PERUMBAYIKKATTUSSERI KARA, PERUMBAYIKKADU VILLAGE, KOTTAYAM. THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 19/12/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Thottathil B.Radhakrishnan & C.T.Ravikumar, JJ. ------------------------------------------------------------- Mat. Appeal No.633 of 2010 & C.M.Appl.No.1908 of 2010 ------------------------------------------------------------- Dated this the 19th day of December, 2011 JUDGMENT Thottathil B.Radhakrishnan J. The appellant and the respondent cohabited. They have two children. The elder daughter is given in marriage. The younger boy is in the 10th standard. On the premise that the respondent left the home of cohabitation, the appellant filed an original petition before the court below seeking a declaration that there was no marriage between him and the respondent and that they lived under Exhibit A1 agreement, which does not amount to a valid marriage. The respondent did not contest the proceedings before the court below. She does not contest the proceedings here also. Learned Judge of the Family Court bestowed attention to all materials, including the testimony of the appellant and his brother in the form of proof affidavits. On an anxious consideration, the learned Judge of the Family Court concluded MA 633/2010 2 that it cannot be held, at this distance of time, that there was no valid marriage between the appellant and the respondent. This inference was drawn going by the appellant's case that the parties cohabited for a fairly long time, begot children and the elder daughter was married. The society had accepted the couple as man and wife. The parties are Hindus. Long cohabitation has been accepted in certain extreme and exceptional cases to hold that that there was a valid marriage. Normally, such a situation arises in cases where the alleged matrimony is disputed. From the realm of inference such conclusions are arrived at, essentially, to sustain the concept of family and thereby legitimacy, to exclude vagrancy and destitution. 2. In the case in hand, in our view, the impugned judgment recognises institution of a marriage between the appellant and the respondent. It sustains the public concept of paternity and social acceptance of two children, one of whom is already married. We are, therefore, clear in our mind that the court below has rightly rejected the claim as a necessary corollary. The MA 633/2010 3 judgment of the court below contains the implied declaration as to the matrimonial status or a marriage between the appellant and the respondent. Parties being Hindus, they can very well be treated as a couple covered by a marriage under the provisions of the Hindu Marriage Act. If at all any application for divorce is to be considered, it could be only under the provisions of that Act. For the aforesaid reasons, we do not find any merit in the appeal. Having considered the appeal on merits, we dismiss both the C.M. Application and the appeal, subject to the observations made above. (Thottathil B.Radhakrishnan, Judge) (C.T.Ravikumar, Judge) tkv