Smt. Suvarnamma D/O Late ... vs H N Lohiteshwara S/O Late ...
2023 Latest Caselaw 2995 Kant

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                                                       NC: 2023:KHC:19702
                                                         RSA No. 1296 of 2009




                      IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                             DATED THIS THE 8TH DAY OF JUNE, 2023

                                           BEFORE
                      THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
                      REGULAR SECOND APPEAL NO. 1296 OF 2009 (DEC)


                      BETWEEN:

                      1.   SMT. SUVARNAMMA
                           D/O LATE MARULASIDDAPPA
                           AGED ABOUT 48 YEARS

                      2.   CHANDRASEKHARA
                           S/O SMT. SUVARNAMMA
                           AGED ABOUT 26 YEARS

                           BOTH ARE RESIDENTS OF
                           MADALU VILLAGE, KANAKATTE HOBLI
                           ARSIKERE TALUK
                           HASSAN DISTRICT-573 103.


                                                              ...APPELLANTS
Digitally signed by
LAKSHMINARAYANA
MURTHY RAJASHRI
Location: HIGH        (BY SRI. A V GANGADHARAPPA, ADVOCATE)
COURT OF
KARNATAKA
                      AND:

                      1.   H.N. LOHITESHWARA
                           S/O LATE NANJUNDAIAH
                           AGED ABOUT 58 YEARS
                           WORKING AS FOREST GUARD
                           AT PAKSHIDHAMA FOREST DEPARTMENT
                           SRIRANGAPATNA
                           MANDYA DISTRICT -571 438.
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                                 NC: 2023:KHC:19702
                                    RSA No. 1296 of 2009




   SINCE DEAD BY LRs.

   1(a) SMT. TARAMANI
        D/O LATE SIDDAPPA
         CLAIMS TO BE THE
         W/O H.N. LOHITHESHWARA
         AGED ABOUT 55 YEARS

   1(b)   VINAY
          S/O TARAMANI
          AGED ABOUT 27 YEARS

   1(c)   PUNEETH
          S/O TARAMANI
          AGED ABOUT 25 YEARS

       ALL ARE RESIDING AT No. 1083/71
       SUMUKHA NILAYA NEAR
       N.G. IYENGAR BAKERY
       OPPOSITE TO RAMALINGEHSWARA TEMPLE
       VIDYARANYAPURAM
       MYSORE.


                                   ...RESPONDENTS



(BY SRI. S. BHARATH KUMAR, ADVOCATE FOR R1(a-c))

     THIS RSA IS FILED U/S 100 OF CPC, AGAINST THE
JUDGEMENT & DECREE DTD 10.07.2009 PASSED IN
R.A.NO.12/2007 ON THE FILE THE CIVIL JUDGE (SR.DN) &
ADDL. CJM, ARSIKERE, ALLOWING THE APPEAL AND
SETTING ASIDE    THE JUDGEMENT AND DECREE DTD
10.01.2007 PASSED IN O.S.NO.222/2004 ON THE FILE OF
THE PRINCIPAL CIVIL JUDGE (JR.DN) ARSIKERE.


     THIS APPEAL COMING ON FOR FURTHER HEARING
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
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                                     NC: 2023:KHC:19702
                                         RSA No. 1296 of 2009




                        JUDGMENT

seeking to set aside the judgment and decree dated

10.07.2009 in R.A. No. 12/2007 by Civil Judge (Senior

Division), Arsikere and praying to confirm the

judgment and decree dated 10.01.2007 passed in

O.S. No. 222/2004 by the Principal Civil Judge (Junior

Division) and JMFC, Arsikere.

2. Parties will be referred to their rankings as per

the trial Court. The appellants were defendant Nos. 1

and 2 and respondent was the plaintiff in O.S. No.

222/2004.

3. Plaintiff had filed a suit against the defendants

for the relief of declaration to declare that the plaintiff

is not married to defendant No. 1 at Kappuru Gaddige

of Chikkanayakanahalli on 04.07.1983 and the alleged

marriage on the said date with defendant No. 1 is a

void marriage as per the Hindu Marriage Act and

NC: 2023:KHC:19702 RSA No. 1296 of 2009

further to declare that defendant No. 2 is not the son

of plaintiff through defendant No. 1.

4. It is the case of the plaintiff before the trial

Court that he is one of the sons of Sri. Nanjundaiah.

Got primary education at Hassan city and continued

education in school at Mysuru and during those days

he was residing with his brother Sri. H.N.

Chandrashekhara who was working in KSRTC. After

completing his education he had undergone Forest

Guard training and he was appointed as a Forest

Guard and he was serving in the Forest Department as

a Forest Guard. The marriage of the plaintiff has been

performed with one Smt. Taramani daughter of Sri.

Siddappa resident of Hebbalu, Halebeedu hobli, Belur

taluk on 08.05.1980. After marriage, he was living

with his wife Smt. Taramani and from their wedlock he

has got two children by name Vinay and Punith. The

plaintiff was shocked and surprised when defendant

No.1 claimed that her marriage has been performed

NC: 2023:KHC:19702 RSA No. 1296 of 2009

with him on 04.07.1983 at Kappuru Gaddige of

Chikkanayakanahalli taluk and after their marriage

she led marital life with plaintiff at Hassan and

subsequently plaintiff demanded her to bring more

money, harassed and deserted her. Defendant No. 1

has filed Crl.Misc.No. 30/2002 under Section 125 of

Cr.P.C. seeking maintenance for herself as well as for

defendant No. 2 from the plaintiff stating that

husband's name is Jayadevappa @ Lohitheshwara.

The plaintiff is called by one name Lohitheshwara and

at no point of time he was being called as

Jayadevappa @ Lohitheshwara. His name has not

been mentioned in any of the documents as

Jayadevappa @ Lohitheshwara. It is stated that

defendant No. 1 has created marriage invitation card

pertaining to one Dodda Suvarnamma and

Jayadevappa son of Nanjundappa and filed

Crl.Misc.No. 30/2002. It is stated that name of father

of plaintiff is Nanjundaiah and not Nanjundappa. It is

stated that plaintiff took contention in the said petition

NC: 2023:KHC:19702 RSA No. 1296 of 2009

that he never married defendant No. 1 and defendant

No. 2 is not his son through defendant No. 1 and he

denied the said marriage invitation card. Defendant

No. 1 in the said petition failed to prove her alleged

marriage with the plaintiff. It has been held by the

Court in the said petition that the question of marriage

should be determined by the civil Court. With this, he

filed a suit seeking declaration as stated above.

5. Defendants have filed written statement

denying all the allegations. They contended that the

plaintiff has intentionally mentioned his name as

Lohitheshwara instead of mentioning his name as

Jayadevappa even though plaintiff's name is

Jayadevappa @ Lohitheshwara. It is contended that

marriage of defendant No. 1 with the plaintiff was

performed on 04.07.1983 at Kappuru Gaddige of

Chikkanayakanahalli taluk in accordance with their

traditions and customs and from their wedlock

defendant No.1 gave birth to defendant No.2 and later

NC: 2023:KHC:19702 RSA No. 1296 of 2009

for some time plaintiff and defendant No.1 led marital

life and after that, plaintiff started ill treating

defendant No.1 to bring more money. The plaintiff

deserted defendant No. 1 without providing food and

clothing and hence, defendant No.1 under threat left

matrimonial house and started to lead her life by

eking out her livelihood by doing daily labour and she

brought up defendant No. 2. The defendants

contended that plaintiff neglected to maintain them

and therefore, defendant No.1 filed Crl.Misc. No.

30/2002 seeking maintenance. The Court has not

accepted the contention of the plaintiff in the said suit

and decided the said petition on merits and awarded

maintenance. Said order has been challenged in

Crl.R.P. No. 93/2004. It is contended that the plaintiff

is estopped from raising the said plea which he had

taken up in the Crl.Misc. No. 30/2002. It is contended

that marriage of defendant No.1 with plaintiff is legal.

The plaintiff has created a story that he married one

Smt. Taramani on 08.05.1980 for the purpose of suit.

NC: 2023:KHC:19702 RSA No. 1296 of 2009

Defendants have filed counter claim seeking

declaration that alleged marriage of plaintiff with Smt.

Taramani is created and Vinay and Punith are not their

children and prayed to declare that defendant No.1 is

the wife and defendant No.2 is the son of plaintiff.

6. To the said counter claim, plaintiff filed

written statement contending that on 08.05.1980 he

married Smt. Taramani as per Hindu customs and

since then they are leading marital life and from their

wedlock they have got two children by name Vinay

and Punith. The plaintiff has denied the contention

taken up by the defendants in the counter claim and

prayed to dismiss the counter claim.

7. On the basis of said pleadings, the trial Court

framed the following issues:

a. Whether the plaintiff proves that there was no marriage between him and defendant No.1 as on 04.07.1983 and defendant No.1 is not his legally wedded wife?

NC: 2023:KHC:19702 RSA No. 1296 of 2009

b. Whether the plaintiff proves that defendant No.2 is not his son? c. Whether the plaintiff is entitled for the relief sought for in the present suit? d. Whether the defendants prove that she is the legally wedded wife of the plaintiff and the alleged marriage of plaintiff on 08.05.1980 is null and void?

e. Whether the defendants prove that defendant No.2 is born to defendant No.1 through plaintiff?

f. Whether the defendants are entitled for the relief of counter claim made in this suit?

g. What order or decree?"

8. Plaintiff has examined himself as P.W.1, Smt.

Taramani has been examined as P.W.1 and two

witnesses have been examined as P.W.3 and P.W.4

and got marked Ex.P.1 to Ex.P.11. Defendant No.1

has been examined as D.W.1 and her mother has

been examined as D.W.2 and got marked Ex.D.1 and

Ex.D.2. The trial Court after hearing arguments on

both sides and appreciating the oral and documentary

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NC: 2023:KHC:19702 RSA No. 1296 of 2009

evidence has answered issue Nos.1 to 3 and 6 in the

negative and issue Nos. 4 and 5 in the affirmative and

dismissed the suit of the plaintiff. Aggrieved by the

said judgment and decree of the trial Court, the

plaintiff filed an appeal in R.A. No. 12/2007 on the file

of Senior Civil Judge, Arsikere (first appellate Court).

The first appellate Court, after hearing arguments on

both the sides, formulated the following points for

consideration;

I. Whether trail court has erred in come to the conclusion that 1st defendant is the legally wedded wife and 2nd defendant is the son of plaintiff through 1st defendant? II. Whether the trial Court has erred in come to the conclusion that plaintiff married 1st defendant on 04.07.1983, even though the alleged marriage is a void marriage? III. Whether the impugned judgment and decree needs to be interfered with by this Court?

IV. What order?"

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NC: 2023:KHC:19702 RSA No. 1296 of 2009

9. The first appellate Court answered point Nos.

1 to 3 in the affirmative and allowed the appeal and

set aside the judgment and decree of the trial Court

and decreed the suit of the plaintiff declaring that the

plaintiff has not married defendant No. 1 on

04.07.1983 and thereby defendant No. 1 is not the

legally wedded wife of plaintiff and defendant No.2 is

the not the legitimate son of plaintiff through

defendant No.1. The first appellate Court further

declared that the alleged marriage of plaintiff with

defendant No.1 dated 04.07.1983 is null and void.

Defendant Nos. 1 and 2, aggrieved by the said

judgment passed by the first appellate Court, have

preferred this second appeal.

10. This second appeal came to be admitted to

consider the following substantive questions of law:

1) Whether the First Appellate Court was justified in reversing the judgment of the trail Court and declaring that the appellants herein were not the wife and son of the

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NC: 2023:KHC:19702 RSA No. 1296 of 2009

respondent and whether such a relief could be granted by way of a Civil Suit?

2) Whether the First Appellate Court was justified in overlooking that there were independent proceedings for recovery of maintenance filed by the appellant No.1 and out of which other proceedings had arisen, whereby it was held that the appellant No.1 herein was the legally wedded wife entitled for maintenance from the respondent?"

11. Heard learned counsel for appellants and

learned counsel for respondent.

12. Learned counsel for appellants would

contend that the relief sought in the suit is a negative

declaration and such a relief cannot be granted under

Section 34 of the Specific Relief Act. On that point he

placed reliance on the decision rendered by a Division

Bench this Court in the case of Bhuvaneshwari Vs.

Revappa @ Rani Siddaramappa Kolli (since

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NC: 2023:KHC:19702 RSA No. 1296 of 2009

deceased) by LRs, reported in 2012 (4) KCCR

2690 (DB) wherein it is held as under:

"21. In fact, we find a relief of this nature is even beyond the scope of Section 34 of the Specific Relief Act as a negative declaratory relief to declare that the marriage had never taken place, is not one that can come within scope of Section 34 of the Specific Relief Act."

13. He contends that in Crl.Misc. No. 30/2002

the Court has awarded maintenance to the defendants

holding that defendant No. 1 is the wife and defendant

No. 2 is the son of plaintiff and therefore, the plaintiff

is estopped from contending otherwise than what has

been held in the said proceedings.

14. He contends that the evidence on record is

not sufficient to hold that plaintiff has married Smt.

Taramani and their marriage has been performed on

08.05.1980 and he is having two children. He

contends that the first appellate Court has erred in re-

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NC: 2023:KHC:19702 RSA No. 1296 of 2009

appreciating the evidence on record and passing the

impugned judgment and decree decreeing the suit of

the plaintiff.

15. Learned counsel for respondent would

contend that the plaintiff's marriage has been

performed with one Smt. Taramani (P.W.2) on

08.05.1980 and out of their wedlock two children are

born by name Vinay and Punith. The marriage

invitation card of the plaintiff with the said Smt.

Taramani is at Ex.P.7 and it is prior to the alleged

marriage of plaintiff with defendant No. 1 i.e. on

08.05.1980. He contends that the ration card

(Ex.P.3), marriage invitation card (Ex.P.7) and

evidence of P.W.1 to P.W.4 establishes that marriage

of plaintiff has been performed with Smt. Taramani on

08.05.1980. He contends that the plaintiff took a

contention in Crl.Misc. No. 30/2002 that defendant

No. 1 is not his wife and defendant No. 2 is not his

son and further contended that he has married Smt.

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NC: 2023:KHC:19702 RSA No. 1296 of 2009

Taramani on 08.05.1980 and out of that wedlock two

sons were born to him. As the plaintiff took up the

said contention, the Court by referring to the decision

of this Court in the case of Rudramma Vs.

Puttaveerabhadrappa reported in ILR 1986 Kar.

1242 has reserved liberty to the parties to establish

the status of their marriage on the declaration of

nullity of marriage before the competent Court for

cancellation of orders of maintenance on production of

proof. It is his contention that therefore, the plaintiff

has filed the suit seeking declaration. He contends

that the suit is maintainable even though negative

declaration is sought for. The suit in the present form

seeking negative declaration is not barred under any

of the laws. On that point he placed reliance on the

decision of the Hon'ble Apex Court in the case of

Ganga Bai Vs. Vijay Kumar and others reported in

MANU/SC/0020/1974. In the said decision it is

held as under:

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NC: 2023:KHC:19702 RSA No. 1296 of 2009

14. It is necessary first to understand the nature of the appeal field by defendants 2 and 3 in the High Court and the relief they sought therein. That appeal was in terms filed only against the finding recorded by the trial Court that the partition between defendant 1 and his sons was a sham and colourable transaction intended to defeat or dealy the creditors. The Memorandum of Appeal as filed originally contained seven grounds, each of which was directed against the finding given by the trial Court on the question of partition. The Memorandum contained a note that as the subject-matter in dispute was not capable of being estimated in terms of a money value, a fixed Court fee of Rs.20 was paid thereon. Only one prayer was originally made in the Memorandum of Appeal that the partition deed be declared as genuine. Counsel for defendants 2 and 3, furnished to the registry of the High Court a written explanation as required by Rule 171 of the High Court Rules that as defendants 2 and 3 were only challenging the finding recorded by the trail Court on the question of partition and as they were merely seeking a declaration that the partition was genuine,

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NC: 2023:KHC:19702 RSA No. 1296 of 2009

the fixed court fee of Rs. 20 was properly paid.

15. It is thus clear that the appeal filed by defendants 2 and 3 in the High Court was directed originally not against any part of the preliminary decree but against mere finding recorded by the trial Court that the partition was not genuine. The main controversy before us centers round the question whether that appeal was maintainable on this question the position seems to us well- established. There is a basic distinction between the right of suit and the right of appeal. There is an inherent right in every person to bring suit of a civil nature and unless the suit is barred by statue one may, at ones peril, bring a suit of one's choice. It is no answer to a suit, howsoever frivolous the claim, that the law confers no such right to sue. A suit for its maintainability requires no authority of law and it is enough that no statute bars the suit. But the position in regard to appeals is quite the opposite. The right of appeal inheres in no one and therefore an appeal for its maintainability must have the clear authority of law. That explains why the right of appeal is described as a creature of statute.

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Said decision has been referred to by the Hon'ble

Apex Court in the case of Mardia Chemicals Ltd.,

and others Vs. Union of Inida (UOI) and ors.,

reported in AIR 2004 SC 2371.

16. He contends that on appreciating the

evidence on record the first Appellate Court has rightly

decreed the suit of the plaintiff.

17. Division Bench of this Court in the case of

Bhuvaneshwarai (supra), referring to the

provisions of Section 7 of the Family Courts Act, 1984

and Section 34 of Specific Relief Act, 1962, has held

that seeking negative declaration that defendant is not

plaintiff's wife and marriage had never taken place is

beyond the scope of Section 34 of the Specific Relief

Act. In the said suit the plaintiff had sought for decree

declaring that the plaintiff is not legally wedded wife

of the defendant. In the present suit also the plaintiff

has sought for declaration that plaintiff has not

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NC: 2023:KHC:19702 RSA No. 1296 of 2009

married defendant No. 1 on 04.07.1983 and

defendant No.1 is not his wife and defendant No. 2 is

not his son. Where there is a dispute on matrimonial

status of any person, a declaration in that regard has

to be sought only before the family Court irrespective

of whether the said declaration is affirmative or

negative in nature. Said question has been considered

by the Hon'ble Apex Court in the case of Balaram

Yadav Vs. Fulmaniya Yadav reported in 2016 (13)

SCC 308, wherein it is held as under:

"7. Under Section 7(1) Explanation (b), a suit or a proceeding for a declaration as to the validity of both marriage and matrimonial status of a person is within the exclusive jurisdiction of the Family Court, since under Section 8, all those jurisdictions covered under section 7 are excluded from the purview of the jurisdiction of the Civil Courts. In case, there is a dispute on the matrimonial status of any person, a declaration in that regard has to be sought only before the Family Court. It makes no difference as to whether it is an affirmative relief or a negative relief. What is important is the

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NC: 2023:KHC:19702 RSA No. 1296 of 2009

declaration regarding the matrimonial status. Section 20 also endorses the view which we have taken, since the Family Courts Act, 1984, has an overriding effect on other laws."

18. In arriving at that conclusion the Hon'ble

Apex Court has considered the provisions of Sections

7, 8 and 20 of the Family Courts Act, 1984. Therefore,

in view of the above decision of the Hon'ble Apex

Court the contention of the learned counsel for

appellants that negative declaration cannot be sought

for has no substance. Accordingly, it is rejected.

19. Defendant Nos.1 and 2 have filed a petition

under Section 125 Cr.P.C. against the plaintiff and

certified copy of the petition of Crl.Misc. No. 30/2002

is at Ex.P.9. Ex.P.10 is the order passed in

Crl.Misc.No. 30/2002. The defence taken by the

plaintiff in the said maintenance proceedings are

stated in paragraph No.3 in the said order wherein it

is stated that the plaintiff has denied the relationship

and solemnization of marriage on 04.07.1983 and the

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relationship with defendant No. 2. The plaintiff has

taken up the contention that he is leading marital life

with his legally wedded wife happily with two children.

The trial Court relying on the said contention taken up

by the plaintiff stated that he has not stated the

name of his wife, date of his marriage and name of his

children. In paragraph No. 9 in the said order it is

stated that this plaintiff who has been examined as

P.W.1 has stated that his marriage having been

solemnized on 08.05.1980 with Smt. Taramani of

Hebbalu, Halebeedu hobli, Belur taluk and two

children by name Vinay and Punith from the said

wedlock. The Court, placing reliance on the decision of

this Court in the case of Rudramma Vs.

Puttaveerabhadrappa reported in ILR 1986 Kar.

1242 wherein it is held that under Section 125 Cr.P.C.

validity of marriage need not be gone into. However,

instead of dismissing the application the Magistrate to

award maintenance leaving wife to establish the

status as wife, husband to establish nullity of marriage

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before the civil Court. The Court has reserved liberty

to the parties to establish status of their marriage in

paragraph No. 15 of the said order. Therefore, said

order passed in Crl.Misc.No. 30/2002 (Ex.P.10) will

not help defendant No.1 in establishing her marital

status with the plaintiff. Plaintiff, in view of the liberty

granted in the said proceedings, filed the suit seeking

declaration that defendant No.1 is not his wife and

defendant No.2 is not his son. The documents, Ex.P.1

- Transfer Certificate, Ex.P.2 - appointment order,

Ex.P.3 - ration card, Ex.P.4 - SSLC marks card of one

Punith H.L., Ex.P.5 and Ex.P.6 identity card issued by

Election Commission of India, Ex.P.11 - II PUC marks

card of Punith H.L., Ex.P.7 - marriage invitation card

coupled with the oral evidence of P.W.1 to P.W.4

reveal that the name of the plaintiff is H.N.

Lohitheshwara and he is not called by name

Jayadevappa as contended by the defendants. The

trial Court has placed much reliance on Ex.D.1 -

vakalath filed on behalf of the plaintiff in Crl.Misc.No.

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30/2002 wherein name of the executant is mentioned

as Jayadevappa @ Lohitheshwara. The first appellate

Court has rightly held that while writing the names of

executant in vakalath the advocates will mention the

name of executant based on the name mentioned in

the cause title of the petition. Even signature

contained in Ex.D.1 - vakalath of plaintiff reveal that

he has signed as H.L. Lohitheshwara. In Ex.D.2 -

printed invitation card it is mentioned as Dodda

Suvarnamma and Jayadevappa son of Nanjundappa.

Name of defendant No. 1 is Suvarnamma and not

Dodda Suvarnamma and name of plaintiff is

Lohiteshwara and not Jayadevappa. Ex.P.7 is the

printed marriage invitation card of Smt. Taramani and

Lohiteshwara and the date ofmarriage is 08.05.1980.

If the said document is read with the evidence of

P.W.2 to P.W.4, it will establish the marriage of

plaintiff with Smt. Taramani on 08.05.1980. In Ex.P.3

- ration card the name of plaintiff is mentioned as

Lohiteshwara, his wife's name is mentioned as

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Taramani and sons names are mentioned as Vinay

and Punith. Ex.P.4 - SSLC marks card of Punith,

Ex.P.11 - II PUC marks card of Punith reveal that his

father's name is Lohitheshwara H.N. and mother's

name is Taramani H.S. and his date of birth is

25.07.1986. Ex.P.5 is the identity card issued by the

Election Commission of India of one H.S. Taramani

wherein her husband's name is mentioned as H.N.

Lohitheshwara and date of issue is 09.03.2004. Said

documents produced by the plaintiff corroborates with

the evidence of P.W.1 to P.W.4. P.W.3 is the brother

of plaintiff and P.W.4 is the elder sister of Smt.

Taramani. Smt. Taramani has been examined as

P.W.2. Defendants have not produced any documents

to establish that defendant No. 2 is the son of plaintiff.

Except the marriage invitation card - Ex.D.2 no other

document is produced by the defendants to prove

their contention. Considering all these evidence the

first appellate Court has rightly held that defendant

No.1 is not the wife and defendant No. 2 is not the

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son of the plaintiff. Accordingly, the substantive

questions of law Nos.1 and 2 are answered in the

affirmative and appeal is dismissed.

In view of dismissal of the appeal, pending I.A.

Nos. 1/2012, 4/2012 and 5/2012 are also dismissed.

Sd/-

JUDGE

LRS