THE HON’BLE SRI JUSTICE N.V.RAMANA AND THE HON’BLE SRI JUSTICE P. DURGA PRASAD M.A.C.M.A.Nos.2237 of 2006 and 2556 of 2006 ORDER: (per the Hon’ble Sri Justice P.Durga Prasad) Both the appeals are directed against the common Order passed in M.V.O.P.Nos.1174 of 2002 and 536 of 2004 by the District Judge, Visakhapatnam on 15.11.2005. The appellants herein are the petitioners in M.V.O.P.No.536 of 2004 and the respondent No.3 in the said O.P. has filed separate M.V.O.P. No.1174 of 2002, in which the appellants are not parties. In M.A.C.M.A.No.2556 of 2006, it is mentioned that the appeal is preferred aggrieved by the Order passed in M.V.O.P.No.1174 of 2002, but subsequently M.V.O.P.No.1174 of 2002 was struck off and M.V.O.P.No.536 of 2004 was added, it appears since the appellants are not parties to the M.V.O.P.No.1174 of 2002, they have no right to question the said Order. Therefore, they might have amended M.V.O.P.No.1174 of 2002 into M.V.O.P.No.536 of 2004. Therefore, virtually the appellants in both the appeals have questioned the order passed in M.V.O.P.No.536 of 2004. The appellants filed the M.V.O.P.No.536 of 2004 claiming compensation of Rs.14,00,000/- on account of death of one K.Venkateswara Rao claiming that the 1st petitioner is wife and 2nd petitioner is mother of the deceased. The 3rd respondent therein has also filed separate M.V.O.P.No.1174 of 2002 claiming compensation of Rs.4,00,000/- for the death of K.Venkateswara Rao claiming to be his wife. Both the O.Ps are disposed of by common Order dated 15.11.2005. According to the petitioners in O.P.No.536 of 2004 that on 21.07.2002 the deceased K.Venkateswara Rao and herself were returning from Chodavaram to Visakhapatnam and when they reached Sarada Bridge at around 3.00 P.M. an auto bearing No.AP 31U 6547 coming in the opposite direction came in a rash and negligent manner dashed the motor cycle of the deceased, as a consequence of which, both of them fell down and the deceased received grievous injuries and he died while undergoing treatment in the King George Hospital, Visakhapatnam. Respondent No.3 has filed a counter stating that she is the legally wedded wife of deceased K.Venkateswara Rao and their marriage was performed on 05.02.1995 at Visakhapatnam as per Hindu religion and tribal customs and both of them are Valmikis and on account of the differences between them, she filed the suit in O.S.No.64 of 2000 on the file of Judge, Family Court, Visakhapatnam and obtained decree for monthly maintenance of Rs.2,000/- per month with effect from November, 1998 and she is getting monthly maintenance from the said K.Venkateswara Rao till his death and the deceased K.Venkateswara Rao did not obtain divorce from her. Thus, there is a dispute with regard to the marriage of the 1st petitioner with the deceased K.Venkateswara Rao. The learned District Judge has framed the issue No.2 in M.V.O.P.No.536 of 2004: “Whether the petitioners are entitled to the compensation on account of the death of the Korabu Venkateswara Rao, if so to what amount and from whom?” and held that the petitioner No.1 is not legally wedded wife of K.Venkateswara Rao, as such she cannot claim any compensation or death benefits on account of death of K.Venkateswara Rao. During the pendency of the proceedings before the Tribunal, the 2nd petitioner who is the mother of the deceased K.Venkateswara Rao died. Therefore, the 1st petitioner K.Eswaramma is alone claiming the compensation for the death of deceased K.Venkateswara Rao claiming to be as his wife. Questioning the said finding given by the learned District Judge in the said O.P., she has filed the present appeals. Now, the point that arises for consideration is: Whether the appellant No.1 is the legally wedded wife of the deceased K.Venkateswara Rao to claim compensation for his death in a motor vehicle accident? P O I N T: The petitioner in M.V.O.P.No.536 of 2004 herself examined as P.W.1 and examined one D.Vengalayya as P.W.2. The petitioner as P.W.1 has stated that the respondent No.3 K.Venkata Sujatha is the divorced wife of her deceased husband and that divorce was affected even before her marriage with the deceased. According to P.W.1, her marriage took place on 19.01.2001. In the cross-examination, she admitted that the date of marriage was not mentioned in the petition. According to her, their marriage was performed at Venkateswara Swamy temple at Narsipatnam and a receipt was also issued by the temple authorities at the time of marriage, but the said receipt was not filed in the Court. She does not know the 3rd respondent K.Venkata Sujatha prior to her marriage. In support of her contention that the 3rd respondent is the divorced wife of deceased K.Venkateswara Rao, she examined P.W.2 D.Yengalayya, who was ex-sarpanch of Choudupalli village. According to him, he know the 3rd respondent K.Venkata Sujatha and he came to know that due to differences, the 3rd respondent K.Venkata Sujatha is living separately from the deceased. During the year 2000, the dispute between the wife and husband was brought before him. They have resolved the dispute and allowed the 3rd respondent to live separately from the deceased and the deceased got married another woman and that was agreed by both, but there was no document. They belong to Valmiki community, and there was a practice of customary divorce prevailing in the said community. He also stated that the marriage between the deceased and petitioner was performed at Venkateswara Swamy temple at Narsipatnam on 19.10.2001 and they lived as wife and husband. The respondent No.3 used to live with her father in another quarter near Saligramapuram. There is no relationship of wife and husband between Sujatha and deceaed K.Venkateswara Rao. In the cross-examination, he admitted that the 3rd respondent K.Venkata Sujatha is the first wife and he do not remember the date of mediation and he also spoken about the issuance of receipt by the temple authorities at the time of marriage, but the said receipt was not filed into Court. He denied the suggestion that no divorce was affected between the deceased and Venkata Sujatha. K.Venkata Sujatha examined herself as R.W.1. According to her, she married to K.Venkateswara Rao on 05.02.1995 at Saligramapuram Port quarters as per caste custom and Hindu rites. They belong to Valmiki community. In view of the differences arose between them, they are living separately and she has filed a suit in O.S.No.64 of 2000 on the file of Family Court, Visakhapatnam and obtained a decree for payment of maintenance. She denied that the deceased was living with the petitioner Eswaramma till his death. On the above evidence, the appellants’ counsel has pleaded that the petitioner is the legally wedded wife of deceased K.Venkateswara Rao as the 3rd respondent has divorced as per the customs prevailing in the Valmiki community; as such the petitioner is entitled for compensation for the death of the deceased. The respondents’ counsel, on the other hand, has pleaded that the petitioner has failed to establish the customary divorce obtained by the deceased from 3rd respondent. Admittedly, 3rd respondent is the 1st wife of the deceased and there is no material on record to show that there is a custom of contacting 2nd marriage during existence of 1st marriage in the community of Valmiki. Therefore, the alleged marriage of Eswaramma with the deceased is not a valid marriage; as such she is not entitled to claim any compensation. The appellant, who is the petitioner in the O.P. claims that she is the wife of the deceased K.Venkateswara Rao as per the marriage that took place on 19.01.2001 at Venkateswara Swamy temple at Narsipatnam. According to her, the marriage of the 3rd respondent Venkata Sujatha with the deceased was dissolved by way of customary divorce of their community. The learned District Judge has rightly observed since the petitioner is pleading divorce of the respondent No.3 by the deceased, the burden is on her to establish the same. The petitioner in order to establish the customary divorce has examined P.W.2, but he did not spoke anything with regard to the customary divorce that took place between the deceased and Venkata Sujatha. He has only spoken about the differences between Venkata Sujatha and deceased and they are living separately and mediation was held between them. In that mediation, it was agreed that the deceased can marry another woman. That does not mean that the deceased has divorced the 3rd respondent Venkata Sujatha. The petitioner has no personal knowledge about the divorce between the deceased and 3rd respondent Venkata Sujatha and there is no evidence to show what is the procedure to be followed for obtaining customary divorce in their community. Admittedly, there is no document with regard to the mediation held by P.W.2 with regard to the dispute between the deceased and 3rd respondent Venkata Sujatha. Both the petitioner and 3rd respondent produced Legal heir certificates issued by the Mandal Revenue Officer that does not mean that the petitioner is the legally wedded wife of deceased. Moreover, the petitioner also could not able to establish her marriage with the deceased as she could not produce the receipt said to have been issued by the temple authorities, where their marriage alleged to have been performed. Even if, the marriage of the deceased with the petitioner is accepted, since the petitioner has failed to establish the divorce between the deceased and 3rd respondent, who is his 1st wife, the 2nd marriage contacted by the deceased is not a valid marriage. Moreover, it is not the case of the petitioner that there is a custom in their community to contact the 2nd marriage without divorcing the 1st wife. Therefore, petitioner has failed to establish that she is the legally wedded wife of the deceased; as such she is not entitled to claim any compensation for the death of the deceased. Accordingly the issue is held against the petitioner. In the result, both the appeals are dismissed without costs. _______________________ JUSTICE N.V.RAMANA. _____________________________ JUSTICE P. DURGA PRASAD Dated: -08-2011 Ksp