Kerala High Court
Mrs.Marykutty Abraham vs B.Baby on 7 August, 2025
Author: Sathish Ninan
Bench: Sathish Ninan
2025:KER:58879
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
&
THE HONOURABLE MR.JUSTICE P. KRISHNA KUMAR
THURSDAY, THE 7TH DAY OF AUGUST 2025 / 16TH SRAVANA, 1947
MAT.APPEAL NO. 349 OF 2016
AGAINST THE ORDER/JUDGMENT DATED IN OP NO.577 OF 2013 OF
FAMILY COURT, NEDUMANGAD
APPELLANT/S:
MRS.MARYKUTTY ABRAHAM
AGED 59 YEARS
AGED 59 YEARS, W/O.MADHU KUMAR, SHEN BHAVAN,
AMBOORI.P.O., AMBOORI VILLAGE, NEYYATTINKARA TALUK,
THIRUVANANTHAPURAM.
BY ADV SHRI.G.S.REGHUNATH
RESPONDENT/S:
B.BABY
AGED 53 YEARS, NANDANAM VEEDU, INDIRA NAGAR, MGRA -
124, PEROORKADA, PEROORKADA.P.O., THIRUVANANTHAPURAM-
695 005.
BY ADVS.
SRI.SHAJIN S.HAMEED
SRI.S.SHAJI (PULLIPRA)
THIS MATRIMONIAL APPEAL HAVING COME UP FOR ADMISSION ON
07.08.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
2025:KER:58879
SATHISH NINAN & P. KRISHNA KUMAR, JJ.
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Mat.Appeal No.349 of 2016
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Dated this the 7th day of August, 2025
JUDGMENT
Sathish Ninan, J.
The original petition filed seeking a declaration that the petitioner is the legally wedded wife of late Madhukumar, and for declaration of rights over his assets, was dismissed by the Family Court. The petitioner is in appeal.
2. According to the petitioner, her marriage with late Madhukumar took place on 03.05.1985 at the petitioner's house according to the rites and ceremonies in the Hindu community. Since the petitioner was a Christian, they had a marriage agreement executed and registered at the Sub Registry Office. On 27.10.1986, a child was born to the 2025:KER:58879 Mat.Appeal No.349 of 2016 -: 2 :- couple. Madhukumar died on 27.06.2006. Since the respondent claims that she is the legally wedded wife of Shri.Madhukuar, the original petition was filed seeking the following relief:
"To grant a decree declaring the petitioner is the legally wedded wife of Late Madhukumar N.R., 'Padmalayam', Pallikkalparambu, Ottasekharamangalam P.O., Keezharoor Village, Idava Desom, Neyyattinkara Taluk, Thiruvananthapuram district. And declaring that the petitioner is entitled to succeed the estate of Late Madhukumar."
3. The respondent contended that she is the legally wedded wife of Madhukumar and their marriage was solemnised as per the Hindu customary rites on 13.09.1986.
4. The Family Court found that the petitioner failed to prove a valid marriage with Madhukumar. Accordingly, the original petition was dismissed.
5. We have heard Shri.G.S. Reghunath, the learned counsel on behalf of the appellant and Shri.Saneer P.M., the learned counsel on behalf of the respondent.
6. Admittedly, the petitioner is a Christian and 2025:KER:58879 Mat.Appeal No.349 of 2016 -: 3 :- Shri.Madhukumar is a Hindu. It is the claim of the petitioner that the marriage was solemnsied at the petitioner's house in accordance with the Hindu religious rites. Under the Hindu Marriage Act, marriage under the Act could only be in between two Hindus. There is no case that, on 03.05.1985, when the marriage is claimed to have been solemnised between the petitioner and Shri.Madhukumar, the petitioner had embraced hinduism and had got converted as a Hindu, and thereafter, the marriage was conducted according to the Hindu rites. In the pleadings and in the evidence of the petitioner, it is asserted that, the petitioner was a Christian at the time of marriage. Therefore, there could not be a legal and valid marriage between the parties under the Hindu Marriage Act.
7. Shri.G.S. Reghunath, the learned counsel appearing for the appellant, would place reliance on the provisions of the Special Marriage Act and contend that there could be marriage between parties of two religions under the Act.
2025:KER:58879 Mat.Appeal No.349 of 2016 -: 4 :- However, it is to be noted that there is no case for the petitioner that the marriage was registered under the Special Marriage Act and in accordance therewith. On the contrary, it is the definite case that since the petitioner was a Christian and Shri.Madhukumar was a Hindu, a marriage agreement was executed and got registered before the Sub Registrar. In the absence of any plea and evidence of any marriage under the Special Marriage Act, the claim of the petitioner that she is the legally wedded wife of late Madhukumar is only to be negatived.
8. There being no legal marriage of the petitioner with Late Madhukumar, the documents relied upon by her indicating that the child born in the wedlock was acknowledged by Shri.Madhukumar, his employer, etc., and that the petitioner had sought for regularisation of the service and fixation of pension of Madhukumar, are of no assistance to her.
9. The respondent and Late Madhukumar are Hindus, and 2025:KER:58879 Mat.Appeal No.349 of 2016 -: 5 :- the claim is that their marriage was solemnsied as per religious rites on 13.09.1986. Ext.B1 is the marriage invitation letter. Ext.B2 is a certificate by the Kerala Paravan Service Society certifying the marriage of the respondent with Madhukumar having been solemnsied at Rajadhani (Akshaya) Kalyanamandapam, Thiruvananthapuram on 13.09.1986 (ചചിങങ 13 ശനചിയയാഴഴഴ), at the 'muhoortham' between 8.25 a.m. and 8.55 a.m. Exts.B3 and B4 are the birth certificates of the children born in the wedlock.
10. The learned counsel for the appellant would argue that Ext.B9 agreement of dissolution of marriage registered before the Sub Registry Office cannot amount to legal divorce. The marriage of Madhukumar with the respondent having been entered into without legal divorce, it cannot be recognised, it is argued. As was held earlier, there was no legal marriage between the petitioner and Madhukumar. Hence, Ext.B9 agreement of dissolution of marriage, is of no consequence. There having been no legal marriage between the 2025:KER:58879 Mat.Appeal No.349 of 2016 -: 6 :- petitioner and Late Madhukumar, the marriage between the respondent and Madhukumar is valid.
11. The learned counsel for the appellant would urge the contention that sufficient opportunity was not given to the petitioner to adduce evidence. The petitioner had intended to examine one more witness. However, the counsel appearing on her behalf made a submission that there is no further evidence on her side. Realising the mistake, an application was filed to re-open the evidence. However, it was dismissed by the Court, it is grieved. As we have already noticed, even going by the plea in the Original Petition and the evidence of PW1, there was no legal marriage between the petitioner and late Madhukumar. Under such circumstances, any amount of evidence adduced to claim that they were living as husband and wife, cannot be of any assistance to the petitioner. At any rate, we do not find that the case could not have been made any better by adducing further evidence.
2025:KER:58879 Mat.Appeal No.349 of 2016 -: 7 :-
12. The original petition is bound to fail and was rightly dismissed by the Family Court.
There is no merit in the appeal. The appeal fails and is dismissed. No costs.
Sd/-
SATHISH NINAN JUDGE Sd/-
P. KRISHNA KUMAR JUDGE yd //True Copy// P.A. To Judge