Smt. K Sujatha vs Smt. Jacintha
2023 Latest Caselaw 2139 Kant

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                                    M.F.A.No.3416 of 2016




IN THE HIGH COURT OF KARNATAKA AT BENGALURU
       DATED THIS THE 10TH DAY OF APRIL, 2023
                       PRESENT
        THE HON'BLE MR JUSTICE ALOK ARADHE
                          AND
     THE HON'BLE MR JUSTICE VIJAYKUMAR A. PATIL
             M.F.A. NO.3416 OF 2016 (FC)
BETWEEN

1.     SMT. K. SUJATHA
       AGED 33 YEARS,
       W/O LATE NANJUNDAPPA,
       D/O JAVAREGOWDA,

2.     KUMARI NIKITHA
       D/O LATE NAJUNDAPPA,
       AGED ABOUT 12 YEARS,

       SINCE MINOR REPD. BY
       HER NATURAL GUARDIAN & MOTHER
       K. SUJATHA / 1ST APPELLANT

       BOTH ARE R/AT NO.381,
       NEAR GOVERNMENT SCHOOL,
       CHIKKABANAVARA,
       BANGALORE-560090.
                                          ...APPELLANTS
(BY SRI.B.V.BADRINATH, ADVOCATE)

AND

SMT. JACINTHA
W/O LATE NANJUNDAPPA
AGED 61 YEARS,
R/A 19/1,
6TH CROSS,
TRIVENI ROAD,
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                                        M.F.A.No.3416 of 2016




10TH MAIN ROAD,
K.N.EXTENSION,
YESHWANTHAPUR,
BENGALURU-560022.
                                              ...RESPONDENT
(RESPONDENT-SERVED)

       THIS MFA IS FILED U/S.19(1) OF THE FAMILY COURT
ACT,    AGAINST   THE   JUDGMENT      AND   DECREE    DATED
22.01.2006 PASSED IN O.S.NO.22/2007 ON THE FILE OF II
ADITIONAL PRINCIPAL JUDGE, FAMILY COURT, BENGALURU,
PARTLY ALLOWING THE SUIT FILED U/O. 7, RULE 1 OF CPC.

       THIS APPEAL HAVING BEEN HEARD AND RESERVED ON
05.04.2023,    COMING    ON     FOR   PRONOUNCEMENT       OF
JUDGMENT, THIS DAY, VIJAYKUMAR A. PATIL J., DELIVERED
THE FOLLOWING:


                        JUDGMENT

This appeal under Section 19(1) of the Family Courts

Act, 1984, has been filed against the judgment and decree

dated 22.01.2016 passed in O.S No.22/2007 by the II

Additional Principle Judge, Family Court, Bengaluru, by

which the petition filed by the respondent seeking relief of

declaration, to declare the respondent as legally wedded

wife of late T.Nanjundappa and to set aside Succession

Certificate issued in P&SC No.60/2006, was partly allowed.

M.F.A.No.3416 of 2016

2. Brief facts giving rise to filing of this appeal are that,

the respondent had filed a declaration suit and other

consequential reliefs against the appellant. It is averred

that the respondent was in love with T.Nanjundappa and

they decided to lead life as husband and wife and started

residing at Chikkabanawara, Bangalore from 1983, and

out of wedlock one daughter viz., Kumari Kavitha was

born. It is further averred that T. Nanjundappa was Hindu

by religion and working as driver in Telecom Department

at Bangalore and the respondent is Christian by religion,

the well wishers advised her to register the marriage and

accordingly their marriage was solemnized on 27.04.1989

and registered at the Office of Marriage Officer,

Moodabidare under the provisions of Special Marriage Act,

1954.

3. After the marriage the couple lived in Bangalore

along with the mother and brothers of T.Nanjundappa. It

is also averred that the ration card has been issued by the

Department wherein it reflects that the respondent was

the wife of T. Nanjundappa. Respondent received notice

M.F.A.No.3416 of 2016

dated 09.11.2003 from the Bank, wherein a demand for

repayment of loan obtained by T. Nanjundappa was made

and the same has been discharged by the respondent. It

is pleaded that the respondent's husband T. Nanjundappa

died while in service on 14.8.2003 in a road accident, and

thereafter she has approached the employer for release of

Death cum retirement benefits and for providing job to her

daughter on compassionate ground. In the meantime, the

appellant in collusion with others, filed a petition for

succession certificate and the same was allowed in P&SC

No.60/2006 without making anybody party to the

proceedings. It is further pleaded that the appellant

cannot be considered as a legally wedded wife of late T.

Nanjundappa and the alleged marriage on 31.08.2001 is

denied by respondent and there is no such marriage taken

place between the appellant and late T. Nanjundappa.

4. The appellants have entered appearance before the

Family Court and filed the written statement. The

appellant has denied the averment that the respondent

was in love with T. Nanjundappa in 1983 and they decided

M.F.A.No.3416 of 2016

to live together as husband and wife and further denied

that out of wedlock a female child was born. It is admitted

that T. Nanjundappa was Hindu by religion and working in

Telecom Department. It was specifically denied that the

marriage between the respondent and T. Nanjundappa

was solemnized and the same was registered on

27.04.1989. It is also averred that the appellant is the

legally wedded wife of T. Nanjundappa and their marriage

was solemnized as per Hindu customs and rites on

31.8.2001 and out of wedlock a female child viz., Kum.

Nikita was born, appellant No.2 herein.

5. It is pleaded that after the death of late

T. Nanjundappa in a road accident the appellant had filed

a petition in M.V.C.No.5009/2003 and the MACT,

Bangalore, has awarded the compensation of

Rs.3,00,000/- in their favour and it is further pleaded that

the appellant's are entitled for service benefits of late T.

Nanjundappa, hence they have approached the authorities

and the authorities have instructed them to produce the

succession certificate and accordingly they have filed P&SC

M.F.A.No.3416 of 2016

No.60/2006 and the jurisdictional Court on enquiry

allowed the petition and granted the succession certificate

in their favour. The appellant has denied other averments

and allegations made by the respondent in the plaint.

6. The Family Court has recorded the evidence of the

parties. The appellant No.1 examined herself as DW.1 and

another witness as DW.2 and produced Exs.D1 to D15.

The respondent examined herself as PW.1 and other three

witnesses as PWs.2 to 4 and produced Exs.P1 to P12. The

Family Court based on the evidence adduced by the

parties vide judgment dated 22.01.2016 partly allowed the

suit filed by the respondent. In the aforesaid factual

matrix the present appeal has been filed.

7. Learned counsel for the appellants' submits that the

impugned judgment of the Family Court is contrary to the

pleading and evidence on record. He further submits that

the Family Court has committed grave error in giving a

finding that the respondent is legally wedded wife of

T. Nanjundappa and setting aside the order passed in

M.F.A.No.3416 of 2016

P&SC No.60/2006 without appreciating the evidence on

record in its proper perspective. He also submits that the

Family Court has erred in relying upon the marriage

certificate at Ex.P1 and presuming that the marriage

between the respondent and deceased T. Nanjundappa is

a valid marriage. However, the registration has taken

place in the office of Registrar of Marriage, at Moodabidri,

when the parties were residing at Bangalore and the same

is without compliance of the requirement of law. It is

contended that on the day of registration the deceased

T. Nanjundappa was working at Bangalore, and he did not

avail leave and the presumption of marriage has been

properly rebutted by the appellant.

8. These aspects have not been properly considered by

the Family Court, which resulted in giving perverse finding.

9. It is further contended that the Family Court has

erred in appreciating the evidence of PW.3 that she has

specifically deposed that she does not know the

relationship of the respondent with T. Nanjundappa as

M.F.A.No.3416 of 2016

husband and wife, and the Family Court has failed to

consider oral and documentary evidence in its proper

perspective which resulted in giving erroneous finding and

has sought to allow the present appeal. The respondent

though served has remained unrepresented, hence placed

exparte.

10. We have heard the learned counsel for the appellant

and perused the material on record. The respondent has

filed suit seeking declaration that she is the legally wedded

wife of T. Nanjundappa and that she is entitled for all

service benefits payable, and to set aside the succession

certificate dated 29.8.2006 issued in P&SC No.60/2006 by

the VI Additional City Civil Judge, Bangalore. To

substantiate the said prayer, the respondent has adduced

the oral evidence of herself and other three witness and

produced 12 documents. The appellant has filed detailed

written statement and adduced oral as well as

documentary evidence in support of her contention.

M.F.A.No.3416 of 2016

11. The Family Court has decreed the suit partly by

declaring that respondent is the legally wedded wife of late

T. Nanjundappa and she is entitled to 50% of service

benefits and the appellants 1 and 2 are entitled to receive

remaining 50% of the service benefits of late

T. Nanjundappa and succession certificate dated

29.8.2006 issued in P&SC No.60/2006 was set aside.

12. On meticulous appreciation of pleading and evidence

on record it is evident that the respondent has produced

Ex.P1 the certified copy of the certificate of marriage

issued by the Registrar of Marriage Moodabidri, to

establish the factum of marriage. PW.1 in support of her

plea has deposed that she was living with late

T. Nanjundappa as his wife from 1983 and out of the

wedlock a female child viz., Kum. Kavita was born, and as

per the advise of the well wishers the marriage was

solemnized and the same was registered as per law on

27.4.1989 in the office of the Registrar of Marriages,

Moodabidri. In support of the said contention the

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M.F.A.No.3416 of 2016

respondent has examined other three witnesses who have

also deposed that the couple were residing at

Chikkabanavara, Bangalore along with the other family

members and their marriage was registered as per law.

13. PWs.3 and 4 are none other than the mother and

sister of deceased T. Nanjundappa, and they have deposed

that the respondent and T. Nanjundappa were residing

together as husband and wife. The Family Court on

meticulous appreciation of oral and documentary evidence

has giving the finding that the marriage certificate issued

by the competent authority is a public document and thus

under Section 79 of the Indian Evidence Act, 1872 there is

presumption that the document is genuine. The Family

Court has further recorded a finding the document at

Ex.P1 being a public document does not require further

proof. The appellant has failed to rebut the said

presumption. The appellant has not examined any

independent witness to rebut the presumption of

marriage. The family members of the deceased

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M.F.A.No.3416 of 2016

T.Nanjundappa have supported the case of the respondent

in their oral testimonies hence, we do not find any error in

the aforesaid finding.

14. The appellant has contended that the registration of

marriage is not as per the provisions of the Special

Marriage Act, 1954 (for short 'the Act'). PW.1 in her

cross-examination has categorically deposed that she was

residing for six months in her sister's house hence after

issuing the notice the marriage registration has taken

place.

15. PW.2 who is one of the witness for registration of

marriage as categorically deposed that the respondent was

in love with T. Nanjundappa from 1983 and their marriage

was solemnized and the same was registered on

27.04.1989, PW.2 has further deposed that she was

present during the registration of marriage and she has

signed the certificate as witness and she identifies her

signature on the register of marriage. The Family Court

has appreciated the evidence and given a finding that the

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M.F.A.No.3416 of 2016

respondent is legally wedded wife of late T.Nanjundappa

and their marriage was registered as per the provisions of

law on 27.04.1989. The said finding is based on the

proper appreciation of evidence of PW.1, other three

independent witnesses and also documentary evidence

produced by the respondent. We do not find any

perversity in the said finding calling for interference in the

present appeal.

16. The Family Court has recorded the finding that the

appellant has failed to rebut the presumption of

registration of marriage, to establish that the respondent

never lived with T. Nanjundappa from 1983 as husband

and wife and that she has married late T. Nanjundappa on

31.08.2001. The Family Court has further recorded the

finding that the appellant has failed to elicit any admission

from the witnesses examined on behalf of the respondent

and all the witnesses have deposed that the respondent

was living with the T. Nanjundappa and their marriage was

solemnized and registered as per law. We do not find any

error in the aforesaid finding. The Family Court has

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M.F.A.No.3416 of 2016

recorded a finding that the jurisdictional Court has

proceeded to issue succession certificate in P&SC

No.60/2006 without making the respondent and others as

party to said proceedings and without disclosing that the

respondent has filed the claim before the employer of the

deceased late T. Nanjundappa, hence proceeded to set

aside the orders passed in P&SC No.60/2006.

17. It is evident from the records that the jurisdictional

Court in P&SC No.60/2006 has proceeded to allow the

petition and issue succession certificate without making

the respondent as party to the proceedings despite the

fact that the respondent has submitted representation to

the employer of deceased T.Nanjundappa claiming for

retiral benefit and also claiming for compassionate

appointment to her daughter. The Family Court is justified

in setting aside the order at Ex.P.9 passed by jurisdictional

Court in P &SC No.60/2006, we do not find any error. The

contention of the appellant that Civil Court is the

competent Court to set aside the orders passed in P&SC

No.60/2006, is required to be rejected at the threshold as

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M.F.A.No.3416 of 2016

the Family Court shall have and exercise all the jurisdiction

exercisable by any District Court or any subordinate civil

court under any law for the time being in force in respect

of suits and proceedings of the nature referred to in the

explanation to Section 7 of the Family Courts Act, 1984.

The Family Court has passed the equitable order of

granting 50% of service benefits of late T. Nanjundappa in

favour of the appellant and remaining 50% in favour of the

respondent and on this count also we do not find any error

in the finding and the decision of the Family Court calling

for interference.

18. The Family Court on meticulous appreciation of

evidence on record has recorded a finding that the

respondent has proved that she is legally wedded wife of

late T. Nanjundappa and the appellant has failed to

disprove the same. The aforesaid findings do not suffer

from any infirmity warranting interference by this Court in

the present appeal.

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M.F.A.No.3416 of 2016

19. For the aforementioned reasons we do not find any

merit in this appeal, the same fails and is hereby

dismissed.

Sd/-

JUDGE

Sd/-

JUDGE

NG CT:DMN