IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID TUESDAY, THE 5TH JANUARY 2010 / 15TH POUSHA 1931 AS.No. 681 of 1997() -------------------- OS.66/1992 of ADDL.SUB COURT, ALAPPUZHA .................... APPELLANT(S): -------------- 1. SANTHAMMA, WIFE OF BALAGOPALAN, VADAKKEKARUKAYIL, MARRARIKULAM SOUTH, SHERTALLAI. 2. VALSALA, D/O.BALAGOPALAN,DO. BY ADV. SRI.V.G.ARUN RESPONDENT(S): --------------- BALAGOPALAN, SON OF PADMANABHAN, VIKKIRIPARAMBU HOUSE, MANNANCHERRY, ARYAD NORTH, ALLEPPY, WORKING AS TEACHER, VICTORIA MEMORIAL GIRLS HIGH SCHOOL, CHITTUR, PALGHAT. ADV. SRI.P.GOPALAKRISHNAN NAIR FOR R1 THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 05/01/2010, THE COURT ON THE SAME DAY, DELIVERED THE FOLLOWING: HARUN-UL-RASHID, J. --------------------------- A.S.NO.681 OF 1997 ---------------------------- JUDGMENT 5th January, 2010 HARUN-UL-RASHID, J. ---------------------------------------- A.S.No.681 of 1997 ---------------------------------------- Dated this the 5th day of January, 2010 JUDGMENT The plaintiffs in OS.No.66/1992 on the file of the Additional Sub Court, Alapuzha are the appellants. The suit was filed for arrears of maintenance. The Trial Court held that the plaintiffs have failed to establish that the first plaintiff is the legally wedded wife of the defendant and that the second plaintiff is the daughter born to the defendant in that wedlock. The suit was dismissed with cost of the defendant. The parties hereinafter are referred as plaintiffs and defendant as arrayed in the suit. 2. The plaintiffs claimed that they are the wife and the daughter of the defendant. It is the first plaintiff's case that the first plaintiff and the defendant got married in the year 1963 and the second plaintiff was born in the wedlock. It is averred in the plaint that the defendant married again and thus committed bigamy. It was alleged in the plaint that the defendant was convicted by the Magistrate Court. It is the plaintiffs grievance that after the second marriage, the defendant is not maintaining the plaintiffs. The plaintiff's claim maintenance at the rate of Rs.650/- and Rs.600.- respectively as monthly maintenance. A.S.No.681 of 1997 -2- 3. The defendant denied the plaint allegations. He denied the relationship alleged in the plaint. According to him, the first plaintiff is a maid servant in his family house during 1962-63 and she left the job on 23.12.1993. It is also contented that the conviction entered by the Magistrate Court confirmed in appeal was subsequently set aside by this Court in Criminal Revision Petition. Since the first plaintiff is not the legally wedded wife and the second plaintiff is not his daughter, the plaintiffs are not entitled to any relief sought for in the plaint. 4. The parties adduced oral and documentary evidence. On the side of the plaintiffs, PWs1 and 2 were examined and Exts. A1 and A2 were marked. DW1 to 4 were examined on the side of the defendant and Ext.B7 to B24 were marked. 5. The status of the plaintiffs is the important question examined by the court below in the light of the oral and documentary evidence adduced by the parties. The first plaintiff herself tendered evidence as PW1 and examined another witness. The plaintiffs mainly relied on Exts. A1 and A2 to prove the marriage. PW1 tendered evidence stating that the marriage between her and the defendant was solemnized on 1.1.1963 at her residence as per the custom of the community. The Court below A.S.No.681 of 1997 -3- noted that the records are not produced regarding the date of marriage, place of marriage, time of marriage etc. and could not prove that the parties performed the ceremonies of marriage. The court also held that there is no foundation in the pleadings. 6. The Trial Court examined and appreciated the oral and documentary evidence. Court below examined Ext.B14 to Ext.B16, B21 and B22 letters and concluded that the claim of the plaintiff that she was residing with the defendant for more than 20 years is not correct. The evidence adduced by the defendant positively shows that they were not living together during the period between 1963 and 1979. In the year 1979 the defendant's marriage was solemnized. The oral testimony of PWs1 and 2 were examined by the trial court in detail. PW 1's case is that the defendant married her in the year 1963. She admitted that there is a practice in her area that every marriage in the Ezhava Community are registered with the SNDP local branch. She also admitted that before the marriage there was the practice of sending 'Pathrika' from one unit of the SNDP to other unit. PW1 admitted that their marriage was not registered with SNDP Branch and further that the practice of sending 'Pathrika' was not followed. It is also important to note that the plaintiff failed to produce the relevant documents namely, A.S.No.681 of 1997 -4- ration card, electoral card etc. which would go to show that the first plaintiff and the defendant are living together as husband and wife. The plaintiff also failed to examine neither the witnesses who were present at the time of marriage nor the priest who had conducted the ceremonies of marriage. As PW1 she tendered evidence stating that her uncle, her mother and other relatives participated in the marriage. None of them were examined to prove the factum of marriage. The Court below scrutinized the evidence with reference to Ext.B14 to B17 and rightly concluded that the name of the defendant was not mentioned in the column wherein the name of the father had to be filled. 7. Ext. B6 to B9 are produced by the defendant which would go to show that the name of the defendant and his wife are shown in the electoral card from 16.2.1985 onwards. Admittedly, in the electoral card the plaintiff's name was not shown as the wife of the defendant. The Trial Court observed that if as a matter of fact, the defendant was living with the 1st plaintiff, her name would have been shown in Ext.B14. On a perusal and examination of the oral and documentary evidence adduced by the plaintiff it is seen no reliable evidence was adduced to substantiate her case. 8. Exts. A1 and A2 are the copies of judgment in CCNo185/91 A.S.No.681 of 1997 -5- and Criminal Appeal no.58/92 on the file of the Judicial First Class Magistrate Court, Ramankari and the Session's Court, Alappuzha respectively. The learned counsel for the respondent/defendant submitted that the judgment in Criminal appeal No. 58/92 was set aside by this court in revision. In the circumstances no reliance can be placed on Ext.A1 and A2. Thus the trial courts finding that the plaintiffs failed to establish that the first plaintiff is the legally wedded wife of the defendant and the second plaintiff is the daughter born in the wedlock has to be sustained. The overwhelming evidence adduced by the defendant positively shows that he married only once and that is in the year 1979. The evidence adduced in this case positively point out that there is no bonafide in filing the suit and the suit was filed as an experimental measure. I fully agreed with the findings entered by the trial court on all issues, I do not find any reason to interfere with the judgment and decree passed by the trial court. In the result, appeal fails and accordingly dismissed. No order as to costs. (HARUN-UL-RASHID, JUDGE) jma.