IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 11.04.2011 Coram: THE HONOURABLE MR.JUSTICE G.RAJASURIA S.A.No.1353 of 2010 M.Gangabai ... Appellant/Plaintiff vs. 1. The Principal Chief Post Master General Tamil Nadu Circle, Chennai 600 002. 2. The Director of Postal Accounts Ethiraj Salai, Egmore, Chennai-8. 3. The Senior Superintendent of Post Office Chennai City South Division North Usman Road, Chennai-17. 4. Manimegalai ... Respondents/Defendants This second appeal is filed against the judgement and decree dated 01.04.2010 passed in A.S.No.21/2009 by the learned V Additional Judge, City Civil Court, Chennai confirming the judgement and decree dated 07.11.2008 passed by the learned VII Assistant Judge, City Civil Court, Chennai in O.S.No.640 of 2006. For Appellant : Mr.N.R.Anantha Ramakrishnan For Respondents : Mr.R.Yashod Vardhan Senior counsel for Mr.K.M.Ramesh for R4 R1 to R3 : No appearance JUDGMENT This second appeal is focussed by the plaintiff, inveighing the judgement and decree dated 01.04.2010 passed by the learned V Additional Judge, City Civil Court, Chennai confirming the judgement and decree dated 07.11.2008 passed by the learned VII Assistant Judge, City Civil Court, Chennai in O.S.No.640 of 2006. https://hcservices.ecourts.gov.in/hcservices/ 2. The parties, for the sake of convenience, are referred to here under according to their litigative status and ranking before the trial Court. 3. A recapitulation and resume of the relevant facts, absolutely necessary and germane for the disposal of this second appeal would run thus: a. The plaintiff filed the suit seeking the following reliefs: - for declaration that the plaintiff is entitled to the terminal benefits of her son A.M.Nagarajan as L.R. - for a consequential permanent injunction against the defendants 1 to 3 from settling the terminal benefits/death benefits of late A.M.Nagarajan to the 4th defendant who has no right whatsoever to claim the same as she is not the legally wedded wife of late A.M.Nagarajan and for costs of the suit. (extracted as such) b. D4 filed the written statement and D3 filed separately another written statement on behalf of the Department, resisting the suit. c. Whereupon issues were framed. During trial, on the side of the plaintiff, one A.M.Srinivasan, examined himself as PW1 and marked Exs.A1 to A27. On the defendants' side, D4 examined herself as D.W.1 and marked Exs.B1 to B17.. d. Ultimately, the trial court dismissed the suit holding that D4 and the deceased A.M.Nagarajan got married legally and gave birth to children and that D4 is the legitimate widow of the deceased. e. Challenging and impugning the judgment and decree of the trial court, appeal was filed by the unsuccessful plaintiff for nothing but to be dismissed by the appellate court confirming the judgment and decree of the trial court. e. Being aggrieved by and dissatisfied with the the judgments and decrees of both the courts below, the plaintiff has preferred this second appeal on various grounds and also suggesting the following substantial questions of law: 1. Whether the courts below have not committed serious error amounting to miscarriage of justice in not going into the issue whether there had been a valid solemnization of marriage as per Hindu Law on 14.11.1983 between the fourth respondent and late A.M.Nagarajan? https://hcservices.ecourts.gov.in/hcservices/ 2. Whether the courts below were right in concluding that the 4th respondent was the validly wedded wife of A.M.Nagarajan solely on the basis of Ex.B2 and other records submitted by the 4th respondent? 3. Whether the courts below had erred in law in presuming that the marriage between the 4th respondent and A.M.Nagarajan was validly solemnized without there being any material warranting such presumption? 4. Whether the courts below were right in presuming a valid solemnization of marriage between the 4th respondent and A.M.Nagarajan when the evidence of DW1 is clearly to the contrary? 5. Whether the courts below were right in law in concluding that the records and evidence submitted by the 4th respondent establish a valid marriage between the 4th respondent and A.M.Nagarajan? 6. Whether the courts below were right in concluding that the 4th respondent was a legal heir of A.M.Nagarajan? (extracted as such) 4. Heard both sides. 5. At the outset itself, I would like to fumigate my mind with the following principles as found enunciated and enshrined in the decision of the Hon'ble Apex Court reported in (2006) 5 Supreme Court Cases 545 – HERO VINOTH (MINOR) VS. SESHAMMAL. 24. . . . (iii) The general rule is that High Court will not interfere with the concurrent findings of the Courts below. But it is not an absolute rule. Some of the well- recognised exceptions are where (i) the Courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. When we refer to "decision based on no evidence", it not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding." The other decisions emerged in this regard are as under: (i) (2011) 1 SCC 673 [Vijay Kumar Talwar v. Commissioner of Income Tax, Delhi], certain excerpts from it would run thus: https://hcservices.ecourts.gov.in/hcservices/ "19. It is manifest from a bare reading of the section that an appeal to the High Court from a decision of the Tribunal lies only when a substantial question of law is involved, and where the High Court comes to the conclusion that a substantial question of law arises from the said order, it is mandatory that such question(s) must be formulated. The expression "substantial question of law" is not defined in the act. Nevertheless, it has acquired a definite connotation through various judicial pronouncements. 23. A finding of fact may give rise to a substantial question of law, inter alia, in the event the findings are based on no evidence and/or while arriving at the said finding, relevant admissible evidence has not been taken into consideration or inadmissible evidence has been taken into consideration or legal principles have not been applied in appreciating the evidence, or when the evidence has been misread." (ii) 2008(4) SCALE 300 – KASHMIR SINGH VS. HARNAM SINGH AND ANOTHER. (iii) 2009-1-L.W.1 – STATE BANK OF INDIA & OTHERS vs. S.N.GOYAL A mere poring over and perusal of those judgments would convey and spotlight that the High Court while exercising its power under Section 100 of CPC should see as to whether any substantial question of law, is involved in the matter. 6. Hence, with an intention to find out as to whether any substantial question of law is involved in this matter I ventured to hear both sides and in that process, the learned counsel for the plaintiff would put forth and set forth his arguments, which could tersely and briefly be set out thus: i) Mere production of Ex.B2, the marriage certificate by no stretch of imagination could be taken as one sufficient to prove the alleged marriage between D4 and the deceased A.M.Nagarajan. ii) Proving the registration of a Hindu Marriage is different from proving the factum of actual marriage and that too, when it has been specifically impugned and challenged by the plaintiff, who happened to be the biological mother of the deceased A.M.Nagarajan. https://hcservices.ecourts.gov.in/hcservices/ iii) None of the document produced on the side of D4 would exemplify and demonstrate that the marriage in stricto sensu was performed in a temple or in any other place in accordance with the Hindu Rites and Customs. iv) D4 examined herself as DW1 and no other witness was examined to prove the said Hindu Marriage but both the courts below misdirected themselves and out of sympathy held as though there took place a valid Hindu Marriage between D4 and the deceased A.M.Nagarajan, warranting interference in this second appeal. 7. In a bid to torpedo and pulverise and to take edge off the arguments as put forth and set forth on the side of the plaintiff, the learned senior counsel for D4 would advance his arguments, which could pithily and precisely be set out thus: a] The mother of the deceased has chosen to fight tooth and nail this litigation because quite against her wish and will, her deceased son and D4 entered into an inter-caste marriage. b] Over and above that absolutely, there is no motive for the plaintiff to litigate in this manner, challenging and impugning the legitimate status of the widow of deceased Nagarajan. c] The deceased A.M.Nagarajan and D4 happened to be the full time Central Government employees, who worked in the postal department. They legitimately got married as evidenced by Ex.B2 and thereafter, they gave birth to two children as evidenced by their Birth Certificates Exs.B3 and B4. d] The other documents and the deposition of DW1 would amply make the point clear that D4 and the deceased Nagarajan got married legally as per Hindu Rites and Customs and got their marriage also registered. They also gave birth to two children and their employer, viz., the Central Government also recognised them as husband and wife. Accordingly, he would pray for the dismissal of the second appeal. 8. From the mere poring over and perusal of the judgments of both the courts below and other records available, it is explicitly and pellucidly clear that the deceased Nagarajan and D4 lived as husband and wife and they gave birth to two children as evidenced by Ex.B2 the marriage certificate and Exs.B3 and B4, the birth certificates of the children. Over and above that Ex.B6, the identity card issued by the Ministry of Health, Central Government Health Scheme, Madras unambiguously and unequivocally, incontrovertibly and unassailably would exemplify and demonstrate https://hcservices.ecourts.gov.in/hcservices/ that the Central Government, viz., the postal department recognised the deceased Nagarajan and D4 as husband and wife and they also recognised their two children as the children born to them. 9. It is common knowledge that if two Government servants of a Department starts living illegally without any valid marriage and give birth to children etc., and if it comes to the knowledge of the employer, viz., the Central Government, certainly departmental action would be taken. But, in this case, no such action emerged. But on the other hand, their employer gave recognition to their status and issued the identity card also. No doubt, the deceased Nagarajan did not nominate D4 and his children for getting the various benefits that would accrue in favour of the deceased and that itself would not falsify the stand of D4. More often than not, we come across day in and day out that most of the Government servants are not adhering to the rule relating to furnishing of the nominations and ultimately such non-adherence of rules results in lot of litigations emerging and lower courts are flooded with litigations. This court can take judicial notice of such facts. Simply because, nomination form was not filled up and furnished by the deceased to his employer that it does not mean that the case of D4 has to be belittled or slighted or discarded. 10. I recollect and call up the following decisions of the Hon'ble Apex Court: (i) AIR 1971 SC 2352 (Perumal Nadar (dead) by Legal Representative vs. Ponnuswami Nadar (Minor) Certain excerpts from it would run thus: "12.Nor can we accept the contention that the plaintiff Ponnuswami is an illegitimate child. If it be accepted that there was a valid marriage between Perumal and Annapazham and during the subsistence of the marriage the plaintiff was born, a conclusive presumption arises that he was the son of Perumal, unless it be established that at the time when the plaintiff was conceived, Perumal had no access to Annapazham. There is evidence on the record that there were in 1957 some disputes between Annapazham and Perumal. Annapazham had lodged a complaint before the Magistrate’s court that Perumal had contracted marriage with one Bhagavathi. That complaint was dismissed and the order was confirmed by the High Court of Madras. Because of this complaint, the relations between the parties were strained and they were living apart. But it is still common ground that Perumal and Annapazham were living in the same village, and unless Perumal was able to establish absence of access, the presumption raised by https://hcservices.ecourts.gov.in/hcservices/ Section 112 of the Indian Evidence Act will not be displaced. 13.In Chilukuri Venkateswarlu v. Chilukuri Venkatanarayana3 in a suit filed by a Hindu son against his father for partition it was contended that the plaintiff was not the legitimate child of the defendant. The defendant relied upon certain documents by which he had agreed to pay maintenance to the plaintiff’s mother and upon a deed gifting a house to her and assertions made in a previous suit that he had no intercourse with her after he married a second wife. The Court in that case observed, following the judgment of the Privy Council in Karapaya v. Mayandi4 that “non-access could be established not merely by positive or direct evidence; it can be proved undoubtedly like any other physical fact by evidence, either direct or circumstantial, which is relevant to the issue under the provisions of the Indian Evidence Act, though as the presumption of legitimacy is highly favoured by law it is necessary that proof of non-access must be clear and satisfactory”, and since on the basis of that proof there was evidence on the record that the plaintiff’s mother lived in the house gifted to her by her husband and there was no impossibility of cohabitation between the parties, there was no acceptable evidence of non-access." (emphasis supplied) (ii) An excerpt from the decision of the Hon'ble Apex Court reported in AIR 1993 SC 2295 (Goutam Kundu vs. State of West Bengal and another) would run thus: "21. above is the dicta laid down by the various High Courts. In matters of this kind the court must have regard to Section 112 of the Evidence Act. This section is based on the well-known maxim pater est quem nuptiae demonstrant (he is the father whom the marriage indicates). The presumption of legitimacy is this, that a child born of a married women is deemed to be legitimate, it throws on the person who is interested in making out the illegitimacy, the whole burden of proving it. The law presumes both that a marriage ceremony is valid, and that every person is legitimate. Marriage or filiation (parentage) may be presumed, the law in general presuming against vice and immorality. (emphasis) https://hcservices.ecourts.gov.in/hcservices/ 22. It is a rebuttable presumption of law that a child born during the lawful wedlock is legitimate, and that access occurred between the parents. This presumption can only be displaced by a strong preponderance of evidence, and not by a mere balance of probabilities. (emphasis supplied) 23. Dukhtar Jahan (Smt) v. Mohammed Farooq this Court held: (SCC p. 629, para 12) “... Section 112 lays down that if a person was born during the continuance of a valid marriage between his mother and any man or within two hundred and eighty days after its dissolution and the mother remains unmarried, it shall be taken as conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten. This rule of law based on the dictates of justice has always made the courts incline towards upholding the legitimacy of a child unless the facts are so compulsive and clinching as to necessarily warrant a finding that the child could not at all have been begotten to the father and as such a legitimation of the child would result in rank injustice to the father. Courts have always desisted from lightly or hastily rendering a verdict and that too, on the basis of slender materials, which will have the effect of branding a child as a bastard and its mother an unchaste woman.” (emphasis supplied) 24. This section requires the party disputing the paternity to prove non-access in order to dispel the presumption. “Access” and “non-access” mean the existence or non-existence of opportunities for sexual intercourse; it does not mean actual “cohabitation”. (emphasis supplied) 25. The quintessence of the legal point that could be understood from the aforesaid decisions is that the presumption contemplated under Section 112 of the Indian Evidence Act is only a rebuttable one. It is therefore, just and necessary to extract the relevant Section, viz., Section 112 of the Indian Evidence Act. "112. Birth during marriage, conclusive proof of legitimacy – The fact that any person was born during the continuance of a valid marriage between his mother and any https://hcservices.ecourts.gov.in/hcservices/ man, or within two hundred and eighty days after its dissolution, them other remaining unmarried, shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten." (emphasis supplied) (iii) Certain excerpts from the recent decision of the Hon'ble Apex Court reported in (2010) 9 SCC 209 [ Madan Mohan Singh and others vs. Rajni Kant and another) would run thus: "23. In S. Khushboo v. Kanniammal18 this Court, placing reliance upon its earlier decision in Lata Singh v. State of U.P.19, held that live-in relationship is permissible only in unmarried major persons of heterogeneous sex. In S.P.S. Balasubramanyam v. Suruttayan20 this Court held that if a man and woman are living under the same roof and cohabiting for a number of years, there will be a presumption under Section 114 of the Evidence Act, that they live as husband and wife and the children born to them will not be illegitimate. 24. The courts have consistently held that the law presumes in favour of marriage and against concubinage, when a man and woman have cohabited continuously for a number of years. However, such presumption can be rebutted by leading unimpeachable evidence. (Vide Mohabbat Ali Khan v. Mohd. Ibrahim Khan21, Gokal Chand v. Parvin Kumari22, S.P.S. Balasubramanyam v. Suruttayan23, Ranganath Parmeshwar Panditrao Mali v. Eknath Gajanan Kulkarni24 and Sobha Hymavathi Devi v. Setti Gangadhara Swamy25.) 25. In view of the above, the kind of material placed by the appellants on record cannot be termed enough to disbelieve the claim of the respondents. The findings of facts recorded by the courts below cannot be disturbed on this material. The appellants’ case has been that the respondents were born prior to 1960 i.e. prior to the year Chandra Deo Singh started living with Smt Shakuntala. As per Annexure P-1 (Colly), Smt Shakuntala was born nearabout 1941. If the documents filed by the appellants are taken to be true, we will have to record a finding of fact that Smt https://hcservices.ecourts.gov.in/hcservices/ Shakuntala gave birth to her two daughters, namely, Asha and Savitri, when she was only 5-6 years of age and in case, the certificate of Rajni Kant, Respondent 1, contained in Annexure P-8 is taken to be true and is considered in the light of the documents contained in Annexure P-1 (Colly), it could be arithmetically clear that Smt Shakuntala had given birth to Rajni Kant, Respondent 1 on 15-7-1940 i.e. even prior to her own birth in 1941. 26. If all the said documents are accepted, they would simply lead not only to improbabilities and impossibilities but absurdity also. It is most unfortunate that none of the courts below had analysed the documents in the correct perspective. The live-in relationship if continued for such a long time, cannot be termed as “walk-in and walk-out” relationship and there is a presumption of marriage between them which the appellants failed to rebut. A cumulative reading of the above precedents would unambiguously and unequivocally highlight and spotlight the fact that the court should be in favour of upholding the marriage rather than picking holes in the evidence relating to the proving of the marriage and label or dub the lady as an illegitimate wife and also the children as illegitimate children unless there is any clinching evidence to that effect. 11. Here, the Exs.B2, B3 and B4 would clearly demonstrate and display that the deceased Nagarajan and D4 lived as man and wife and gave birth to children and their employer also recognised them so and issued the identity card. Over and above that there is nothing to demonstrate and display that anyone looked askance at their conduct whereupon any departmental proceedings were initiated etc. 12. The learned counsel for the plaintiff placing reliance on Exs.A16 and A17 would project and portray that the averments are so artificial that purposely such letters were got created so as to produce as evidence and no man having head over shoulders would ever venture to write such letters to a close relative, who was already aware of the marital status as well as the legitimacy of the children. 13. No doubt, the averments in the letter would evince and evidence as though it was written to a stranger informing about the marital status of the deceased Nagarajan and D4 and also about their children for which, the learned senior counsel for D4 would expound and explain that because the said marriage was an inter-caste marriage and the mother, even during the life time of the deceased Nagarajan did not like the same, the father-in-law of the deceased https://hcservices.ecourts.gov.in/hcservices/ Nagarajan and D4 herself wrote such letters informatively. 14. No doubt, those letters are indicative of the fact that earlier to such letters, the father of D4 or D4 was not in cordial terms with the plaintiff. But that alone would not be sufficient to throw away the case of D4, if that is done so, it would amount to throwing the baby along with the bath water. 15. Both the courts below not only based on mere sympathy but with high responsibility dealt with the matter and decided the lis appropriately and appositely. In matrimonial matters, wooden approach or draconian approach more often than not, would result in wrong conclusion and injustice, which cannot allowed to be done. This is not a case were already the deceased Nagarajan got married to somebody and that there is some rival claim, etc. Similarly, it is also not the case of any one that D4 married already someone and she married once again the deceased Nagarajan. When there is no rival claim and when D4 is claiming to be the legitimate widow of the deceased, based on documentary evidence, the approach should be entirely different, so to say, it should be in favour of upholding the marriage rather than discarding the plea of marriage by picking holes in the evidence. 16. I am fully aware of the fact that proving the Hindu customary marriage is one thing and producing the registration of marriage is another. The registration of the marriage can be proved by producing the registration certificate and it would attract even illustration (e) to Section 114 of the Indian Evidence Act. 15. Here, D4 proved her marital status by producing the marriage certificate and the birth certificates of her children and both the courts below properly appreciated the evidence and decided the lis. No doubt, the addresses might not have been properly mentioned in Ex.B2. The deposition of DW1 to the effect that straightaway from the postal office, they went to the registration department and got married etc may not be strictly in consonance with the theory of they having underwent Hindu Marriage and then going to the registration office. A lady in anxiety, whose status is questioned and impugned, challenged and disputed may not be knowing about the legalities of her version during her cross examination. By and large sticking to her plea of marriage, she uttered out certain words and those words alone cannot be taken in isolation and discard her the status as the legitimate widow and both the courts