IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE KURIAN JOSEPH & THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID MONDAY, THE 31ST MARCH 2008 / 11TH CHAITHRA 1930 Mat.Appeal.No. 173 of 2007() ---------------------------- OP.236/2007 of FAMILY COURT,ERNAKULAM APELLANT/ PETITIONER: MARY, W/O.ANTONY, AGED 58 YEARS, CHALANATTU VEETTIL, VADUTHALA,KOCHI-23, NOW AT C/O.JOSEPH LAZER, PEREPALLY VEETTIL, NEAR THIRUKUDUMBAM SCHOOL, CHITTUR, KOCHI. BY ADVS. SRI.C.A.CHACKO SMT.C.M.CHARISMA SRI.N.A.SHAFEEK RESPONDENTS: RESPONDENTS 1.ANTONY, AGED 83 YEARS, CHALANATTU VEETTIL, VADUTHALA, KOCHI - 23. (DIED ) ADDL.R2. KRISANTHA DANIEL, D/O. LATE ANTONY, KAINIKKADU HOUSE, PALAMUTTQM ROAD, EDAKOCHI, KOCHI-682 006. ADDL.R3. BUDHANSI, D/O. LATE ANTONY, KARAPPARAMBIL HOUSE, PYARI JUNCTION, THOPPPUMPADY. ADDL. R4. IN I.A. NO.2398 OF 2007: JOSE MANUEL, MATTUPURATH, PAZHAMPILLY THOMAS ROAD, VADUTHALA RAILWAY GATE, KOCHI-23, NOW AT C/O. BAIJU ALEX, KARUVELIPARAMBU, KARUVELIPARAMBU ROAD, S.R.M. ROAD. ADDITIONAL RESPONDENTS 2 AND 3 IMPLEADED AS THE LEGAL REPRESENTATIVES OF DECEASED SOLE RESPONDENT AS PER ORDER DATED 25..2.2008 IN I.A. NO. 1207 OF 2007) BY ADV. SRI.K.L.JOSEPH-R3 SRI.TOM K.THOMAS-R4 THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 31/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER IN I.A. NOS. 833 OF 2007 AND 2398 OF 2007 IN MAT. APPEAL NO. 173 OF 2007. DISMISSED 31.3.2008 Sd/-(KURIAN JOSEPH, JUDGE) Sd/-(HARUN-UL-RASHID, JUDGE) KURIAN JOSEPH & HARUN-UL-RASHID, JJ. ---------------------------------------------------------------- MAT. APPEAL NO.173 OF 2007 ---------------------------------------------------------------- Dated this the 31st day of March, 2008 JUDGMENT Kurian Joseph, J. This appeal is filed against the order dated 28.3.2007 in O.P. No.236 of 2007 on the file of the Family Court, Ernakulam.. The suit filed by the appellant herein was found to be not maintainable since there was no evidence regarding the status of the appellant as the wife of Antony. During the pendency of the proceedings Antony expired and the legal heirs have been impleaded. The Family Court found that there was no evidence regarding the marriage between the parties and hence it was held that the dispute cannot be adjudicated by the Family Court. We are afraid that a stage of such a finding had not reached for the Family Court to render a finding to that effect. Even if there is no evidence regarding ceremonial marriage or marriage under any of the enactments, if there is evidence to the effect that the parties have been living as husband and wife for a considerable period. The Supreme Court in the decision reported in Sobha Hymavathi Devi v. Setti Gangadhara Swamy(2005) 2 S.C.C. 244 has taken the view that there has to be a presumption of marriage in such circumstances. Mat. Appeal No.173/2007 2 2. Learned counsel appearing for the respondent submits that Antony had in fact contracted a regular marriage with another woman and had children in that marriage whereas in this alleged long co-habitation there are no children. Be that as it may, in view of the decision of the Supreme Court referred to above, it is only proper that the Family Court goes into the evidence regarding the case on subsistence of long co- habitation leading to presumption of marriage. Without a finding on evidence on either way, it is not proper for the Family Court to enter a finding that the suit is not maintainable. 3. Learned counsel for the additional 4th respondent in I.A. No.2398 of 2007 submits that the 4th respondent is only a bona fide purchaser of the property from late Antony and he has been enjoying the same ever since March, 2007. The additional 4th respondent submitted that he may be permitted to enjoy the property even by making constructions on the undertaking that if the decree goes against him, he will not claim any value for the improvements. The above submission of the additional 4th respondent is recorded. In the result, the appeal is allowed. The impugned order is set aside Mat. Appeal No.173/2007 3 and the matter is remanded to the Family Court for denovo consideration of the issue on maintainability after giving an opportunity to the parties to adduce necessary evidence. If the additional 4th respondent makes any improvements in the property in the meanwhile, it is made clear that in case he is evicted, he will not be entitled for value of any improvements. Needless to say that the original records shall be taken back to file on the appellant presenting the same before the Family Court along with a copy of this judgment. On the records thus being received, the Family Court shall forthwith issue notice to the additional 4th respondent and decide the question of maintainability as directed in this judgment within another four months. (KURIAN JOSEPH, JUDGE) (HARUN-UL-RASHID, JUDGE) sp/ Mat. Appeal No.173/2007 4 KURAIN JOSEPH & HAURN-UL-RASHID, JJ. Mat. Appeal No.173/2007 JUDGMENT 31st MARCH, 2008