IN THE HON'BLE HIGH COURT OF CHHATTISGARH AT BILASPUR FIRST APPEAL (M) N0. ^ I /2010 0|V^iOri APPELLANT Smt. Geeta B. Nair widow of late G.B. Nair, aged about 42 years, resident of Fokatpara, Kasaridih, Durg, Tah. 85 Distt. - Durg. (C.G.) VERSUS RESPONDENT ,-x^^ .^y^' :^^1. Siyaram son of Shivprasad >'\\^^~ ^ 9 Chandrakar, aged 50 years, ^'•.^* resident of Laxmanpur, Post&P.S. Chhui Khadan, Tah. & Distt.- Rajnandgaon (C.G.) 2. Shri G.N. Nair S/o. Late G Gopal C, Pillai Through Attorney in General Smt. A.R. Das W/o. K. Ramdas resident of 17/ 1221, Krishalayam, Pandari Pragatinagar, Pandari, Tah. 85 Distt.- Raipur (C.G.) SrsusTDivisional Officer, Electrical and Engineering R.R. Division (Irrigation Department) Utai Road, Durg, Tah. 85 Distt. Durg (C.G.) MEMORANDUM OFFIRST APPBAL UNDER SECTION - 19 OF THE FAMILY COURT ACT A OF AT . I.M.,Quda.asi ® HoB?bIe SSlri_G. Miilh^jaddia, JJo IM1 M0» 31 QF 2010 : Smt. Geeta B. Nair ¥^y^^u^ ;, Sivai-aiB. ai-id otliers. 19 ACT Shrl Manish Upadhyay, couiisel with the appeliaiit. Shri. R»S..Mai'has, counsel for respoudeut No.2. oii 23rd ofAiigust, 201 lj I.M. J. TKis appeal has beeu flled uuder Sectlou 19(1) of tlie Faiiilfy Courts Act^ 1984 agalust the inipugued judgmeut and decree dated 31-10-2009 passed uy thc Flrst Additioual Priudpal Judge, Famify Court:, Durg lu Cl.vil Suit No.38-A/2007 whereby aiid vvher-eunder tlie sult, filed by fhe appellao.t/plaiutliThas been dlsmlssed. 2. It is not iu dlspute t.ha.t the appellaiit was llrst maiTied to respondeiTt No,l -..Siyaram. It is also uot in dlspute that the appellaut has flled au application uuder Section 372 of the Indlaa Successiou Act uefore tiie Civu Judge, Class-I^ Durg fbr gTaiit of succession certlffcate lii respect of the retlral beueflts of late Shri G.B. .Nair aiid fhe saiiie has beeu dlsniissed< The mlscellaiieous appeal filed agalust 'the - said order of' dlsiulssal has also been dlsiulssed. Rest ofthe facts are.lu dlspute. 3. Facts lii brief are th.at tlje appellaiit was flrst maTried to respondent No. 1 - Slyar-am some tlme In 1970-71 aud had fouj- chlldreu from Slyaram. After leavlug mamed life \ \ \ ', \ for about 10 years with respouddut No. 1 - Slyaraiu^ aispuies arose :Deiweeu iiie appeiiaiit aiia responueox .NO, 1 — Siyaraiii ou accouufc of whlch the appellaiit left the house of respoudent No. 1 - Siyaram aad started liviiig with her parents. Atter so.me time, respou.deiit No. 1 —Sly'ai'uia caiieci a meetiug ol tue persous 01 liis coiiimunity ano. ifi thelr preseuce, he divorced hls wlTb/appellant by customary mode. After that, some time lu the year 1982- ^3 whlle workliig as labour ia Chhindharl aud Nathela Daiii tlic appellaiit caine lu contact witli late G.B. Naii- who was Cralu operator in the Imgation Departmeut. Botii of theni developed iutimacy and ultmiately G.B. Nair maiTied the appellant ia a temple situated at Chhluduari Daiu in the Baptapadl lbrm» After resldlug ibr about a year at ChhladhaTl Colony wifu G.B. Nalr as hls wlfe, both ofth^m shlffced on traasfer to Padmanabhpur, Durg whei^ G.B, Nair aud the appellaat resided together as husband aad wlfe. m the year, 1992 G.B. Nalr explred m D.K. Hospltal, Raipur. G.B. Nalr had appoiuted the appellaut his wife as uomliiee lu hls servlce records. Wheu fhe appellam: approached tlie Inigation Depaitment. for releasing Uie reui'al beueflts oflate Shri G.B» Nalr to her, elder brother 01 late Shri G.B. Nair raised aa oujectlon before the coucemed DepaTtoient ou account of which the department dlrected the appeUaut to obtaia a successiou certificate froiu the couipetent Court. Pursuaut to thls, appellaut moved an application uuder Sectlon 372 of the ludlan Successlou Act, befbre the Cwll Judge, Class-I,. uurg 2or grani 01 successiou ceniiicaie. Aiier couaucuag due enqulry, fhe applicatiou of tlie appellaiTt was r^jected by the Court of Clvil Judge, Class-I, Durg agalnst whlch the appellaiit filed a Biiscellaneous appeal befbre the Court of District Judge^ Durg ajid the same was also disniisscd, After that, the appellaiit filed a suit. for declai-atlon that she is the lawfLilly wedded wlfe of late Shr! G.B. Nalr. After ^^ 4"'^^^^"^:^,:. ;.v "^l ;c?^ .^ ":^~;^"'~ ^'-.- trial, uie sald CM1 Sult No. 38-A/2007 has been dlsniissed by judgmeut. ajid decree dated 31-10-2009 by the First Addltloual PpJjicipal Judge, FaDilly Court, D'liTg. Aggr'ie^red by the said judgment and decree, tlie preseiit appeal has ueeu iiiea< 4, Accordlng to appellajrt^ aiter obtauilng dlvorcc in tlie custoHiary niode before the m.eiubers of the Commuuity, the appellant had Biarried to late Suri G-»B. Nalr ia the year 1982-83. As such she is the lawfully wedded wife of late Shri G,B. Nau:' and hence entltled to receive all the petlral beuefits of fhe deceased. /-.,-. ...l^, ^ o. un 'Lne couLT'ary^ accorciiug 10 responaeni r^o, ^ wuo was defeudant No, 2 in tlie Clvll Sult and wh.o is aiso elder brotlier of lale Shd G.B. Nair, the appellaiit was uever .maiTled to late Shii G,.B, Nair* .A.ppellant is the wlife of responde.c.t No. 1 - Slyaram who 1s allve aiid SiyaraiD. has not divorced the appellant, As such 'the appellajit is uot. entitled to recelve any reural beneuts ofthe deceased. 6. Tiie soie questiou to ue deteriniaed lii tijls appeal 1s "whe'th.er "the appellaiit is the lawfLilly wedded wife of tlie deceased late Shri G.B. Nalr?" 7. Belbre the Trial Court^ tlie appellajifc has Iii addition to herself exaiii^'ied Devilal Chaadrakar (PW-2), Nazlr Baksh (PW~3)^ SlyaTaui (FW~4) aad Parasraiu Chadrakar (PW-5). 8. On behalf of respoudent No, 2 Q.N. Nair, her sister Smt. A.R. Das has been examined. as DW-1. The lultial burdeu lies oii the appellaat/plaliitlff1 to prove that she is the Imvfully wedded wife oflate Shri G.B. Nalr. 9, .According to appellajit Geeta^ she was divorced by ticr prevlous uusband respoudent No. 1 - Sjyaram by customaTv mode befbre the members of the Com.muuitv, ^5-. \I>- AS pcr uie sTaieiuem 01 appeiiaiil —u-ecta (.rw-lj ax 'uie tiiue of divorce, ouly ParasrsLm, Devilal, RaiHadhar aiid Matru were present, Aiuoiig these persons^ Devilal aiid Parasram have been exaiulned. In. addltlou to th.ls^ respondent No. 1/defeudant No. 1 - Sjyaraui has also been examlued ou behalf of the appellant who was her pre'vious husband, Witaess Devilal (PW~2) 1s brother of fhe appellaiit who has stated that at the tlme wheu- respondeut No. 1 - SlyaTTam had given divorce to the appellant, DukaluraiLi^ Sadhuram and VlshTain were preseutp who all have expired. Accordiug to the appellant, the proceedlngs of divorce were reduced to wr.ltlng but accordiug to Devllal (PW-2), the proceedings were uot reduced to wTiting. Althougu the appellaat's previous husbaad respondeut No.l - Slyai'am (PW-4) has stated ia his examiuatiou-iu- C.hlef that he had giveu drvorce t.o tlie appellciiit by custoiiiary mode befbre the iuember of th.e Comiiiuulty but this witness SiyaTaui has in very clear tenus In para. 10 of his stafcement has admitted that divorce has uot taLken place betw'een hlui and his wlfe/ appellant Geeta aiid oniy because tiie members of the Community hau told him that as his wife, the appellaiit is not commg back to luui, therefbre, leave her aad 011 the basis of this, he is saylug that he has dlv'orced her. In view' of this, it camiot be said to have beeii proved that befbre manyiug late Shri G,B. Nalr, the' appellaiit was validly divorced by her earller husbarid respondent No. 1- Slyaram by customary mode. In addltlou to this, froiu the evidence adduced, it has not been estBl)lished that late Shn. G,B. Nair had mairied the appellaufc . IB 'Saptapadi' form, as such the undings recorded by learued Trlal Court which 1s based on proper appreclatlou of evldence canuot be temied as faulty warrantlug any Interfere.uce uy tliis Co'uTt* N^ •^- 10. ?u the result^ the appeal beiag devold of substaace^ desei-ves to be aiid is accorclmgly dismissed. Thejudgmeut aud decree passed by First Additional Priiicipal Judge, Faiiiily Com-t, Dm-g in Clvll Suit No. 38-A/2007 dated 31- 10-2009 1s alTu-med. 11. There shall be no order as to costs, Sd/- LM.Quddusi Judge Sd/- G. Minhajuddin Judge ^ &