Karnataka High Court
Smt. Savithramma Savalagi, ... vs Subhashchandra Savalagi, ... on 5 January, 2024
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RSA No. 5845 OF 2010
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 5TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE ANIL B KATTI
REGULAR SECOND APPEAL NO. 5845 OF 2010
BETWEEN:
SMT. SAVITHRAMMA SAVALAGI
W/O SUBHASH CHANDRA SAVALAGI
AGED ABOUT 48 YEARS
OCC: R/O EWS-199, K.H.B COLONY
NIJALINGAPPA NAGAR
RAICHUR - 584 101.
...APPELLANT
(BY SRI. S. H. MITTALKOD., ADVOCATE FOR
SRI. V.M. SHEELAVANT., ADVOCATE)
AND:
SUBHASCHANDRA SAVALAGI
S/O VEERAPPA
VIJAYALAKSHMI
M KANKUPPI AGED ABOUT 54 YEARS
OCC: GOVERNMENT SERVANT
Digitally signed by
VIJAYALAKSHMI M R/O K.H.B COLONY - 574 212
KANKUPPI
Date: 2024.01.12 BELLARY ROAD, SIRUGUPPA.
13:50:13 +0530
...RESPONDENT
(RESPONDENT SERVED)
***
THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION
100 R/W ORDER 41 RULE 1 OF CPC PRAYING AGAINST THE
JUDGMENT AND DECREE DATE4D 19.03.2010 PASSED IN R.A. NO.
22/2009 ON THE FILE OF THE PRL. CIVIL JUDGE (SR. DN) AND CJM,
BELLARY, ALLOWING THE APPEAL BY SETTING ASIDE THE
JUDGMENT DATED 19.02.2009 AND THE DECREE PASSED IN O.S.
NO. 102/2007 ON THE FILE OF THE CIVIL JUDGE (JR. DN) AT
SIRUGUPPA, DECREEING THE SUIT FILED FOR MAINTENANCE.
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RSA No. 5845 OF 2010
THIS REGULAR SECOND APPEAL COMING ON FOR FURTHER
HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Appellant/plaintiff feeling aggrieved by the judgment
of First Appellate Court on the file of Prl.Civil Judge
(Sr.Dn.) and CJM Bellary in R.A.No.22/2009, dated
19.03.2010 in setting aside the judgment and decree of
the Trial Court on the file of Civil Judge (Jr.Dn.) and JMFC,
Siruguppa in O.S.No.102/2007 dated 19.02.2009
preferred this appeal.
2. Parties to the appeal are referred with their ranks
as assigned in the Trial Court for the sake of convenience.
3. The factual matrix leading to the case of plaintiff
can be stated in nutshell to the effect that the marriage of
plaintiff with defendant was performed on 17.12.1980 at
Puttaswamy Community Hall, Bengaluru. Out of the wed
lock they have got a daughter by name S.Priya and they
were living at Raichur. The defendant gradually started to
live with Smt.Annapurna who was working as a teacher in
RSA No. 5845 OF 2010
Siruguppa. The defendant after coming into illicit contact
with Smt.Annapurna started ill-treating and harassing the
plaintiff and driven out the plaintiff and her daughter from
the matrimonial home. The defendant started living with
Smt.Annapurna and failed to provide any maintenance for
the survival of plaintiff. The plaintiff has sent legal notice
to the defendant dated 14.08.2007 for providing
maintenance. However, the defendant has sent evasive
reply and denied to provide any maintenance. Therefore,
the plaintiff was constrained to institute the suit on hand
for the relief claimed in the suit.
4. In response to the suit summons the defendant
has appeared through counsel and filed written statement
contending that suit of plaintiff is false, frivolous and not
maintainable in law. The defendant admits his marriage
with plaintiff which was performed on 17.12.1980 at
Puttaswamy Community Hall, Bengaluru as per the rituals
and customs prevailing in their community. Out of the wed
lock they have got a daughter by name S.Priya. The
defendant has specifically denied that gradually he has
RSA No. 5845 OF 2010
developed illicit relationship with Annapurna and neglected
the plaintiff, further having driven out the plaintiff and her
daughter from the matrimonial home. It is the case of
defendant that he was married with Annapurna in the
year 1974 against the will of his parents and relatives. Out
of the wed lock with Annapurna they have got two children
by name Umakanth and Prathima born in 1976 and 1982
respectively. The parents and brothers of the defendant
forcibly performed another marriage with plaintiff with the
consent of Annapurna who is the first wife of the
defendant in the year 1980. The defendant has discharged
the marital obligations and providing monthly maintenance
to the plaintiff, so also performed marriage of their
daughter Priya. The plaintiff is running vegetable stall in
Sahakara Sangha Horticulture(Thotagarike) office at
Raichur and has got independent source of income. The
defendant is always ready and willing to take back plaintiff
to lead marital life. Therefore, on these grounds prayed for
dismissal of the suit.
RSA No. 5845 OF 2010
5. The Trial Court on the basis of pleadings of both
the parties framed necessary issues. The Trial Court after
hearing arguments of both sides and on appreciation of
oral and documentary evidence placed before it decreed
the suit of plaintiff and directed defendant to pay
maintenance of Rs.4,000/- per month from the date of
order till her death.
6. The defendant has challenged the said judgment
and decree of Trial Court before the First Appellate Court
on the file of Prl.Civil Judge (Sr.Dn.) and CJM Bellary in
R.A.No.22/2009. The First Appellate Court after re-
appreciation of material evidence has allowed the appeal
and set aside the judgment and decree of Trial Court.
7. The said judgment and decree of the First
Appellate Court has been challenged by the plaintiff in the
present appeal in view of the grounds urged in the appeal
memo.
8. The respondent in spite of due service of notice
remained unrepresented.
RSA No. 5845 OF 2010
9. This Court by order dated 21.01.2014 has framed
the following substantial question of law for consideration:
1) Whether the First Appellate Court has committed
a grave error in dismissing the suit only on stray
admission of PW.1 that Annapurnamma is his first
wife?
2) Whether the First Appellate Court has committed
serious error in dismissing the suit holding that
plaintiff is not entitled for maintenance?
10. Heard the arguments.
11.On careful perusal of pleadings of both the parties
coupled with the oral and documentary evidence placed on
record, it would go to show that the marriage of plaintiff
with defendant was performed on 17.12.1980 at
Puttaswamy Community Hall, Bengaluru as per the rituals
and customs prevailing in their community and out of the
wed lock they have got a daughter by name S.Priya is not
disputed by the defendant.
12. The plaintiff has contended that gradually the
defendant started to live with Annapurna who is the
teacher at Siruguppa and living with her for almost last 20
years. The defendant has willfully refused and neglected to
RSA No. 5845 OF 2010
maintain the petitioner and failed to provide any
maintenance. On the other hand the defendant has
contended that Annapurna is his first wife and out of the
wed lock Umakanth and Prathima were born to them in
the year 1976 and 1982 respectively. The said marriage
was not acceptable to the family of defendant. The parents
and brothers of defendant have forcibly performed the
marriage of plaintiff with him in the year 1980 with the
consent of his first wife Annapurna.
13. The oral testimony of plaintiff PW.1 and her
daughter PW.2 Smt.S.Priya and PW.3 brother of
defendant, so also PW.4 Annapurna is said to be the wife
of defendant would goes to show that plaintiff is wife of
defendant. According to defendant, the said Annapurna is
his first wife. The evidence of all these witnesses would go
to show that the plaintiff is legally wedded wife of
defendant and their marriage was performed on
17.12.1980 at Puttaswamy community hall as per the
rituals and customs prevailing in their community and out
of the wed lock they have got a daughter by name S.Priya.
RSA No. 5845 OF 2010
The aforementioned oral testimony of PWs.1 to 4 is further
corroborated by Ex.P.1 legal notice, Ex.P.3 reply given by
the defendant to the legal notice of plaintiff, Ex.P.6 ration
card, Ex.P.7 voter list, Ex.P.8 marriage invitation, Ex.P.9
birth certificate of Priya(PW.2). The said evidence has not
been challenged by the defendant. It is specifically
contended by the defendant that Annapurna is his first
wife and the said marriage was not acceptable in the
family of defendant. Out of the wed lock they have got two
children by name Umakanth and Prathima born in the year
1976 and 1982 respectively. The defendant has further
contended that his parents and brother forcibly performed
his marriage with plaintiff on consent of Smt.Annapurna.
The onus of proving the above fact to negate the claim of
plaintiff is on the defendant.
14. The evidence of PW.4 Annapurna would go to
show that she has been working as a primary school
teacher since 1985 and her date of birth is 05.09.1955.
The defendant is also a government employee working in
Revenue department and his date of birth is 01.04.1958.
RSA No. 5845 OF 2010
It means that the defendant is younger to PW.4
Annapurna. The defendant neither in the written
statement nor in his evidence as DW.1 has given any
particulars as to when his marriage with Annapurna was
performed and the place where it was performed. The
defendant and PW.4 Annapurna being educated and in
government service are the proper and better persons to
give the particulars regarding their marriage as to the date
and place where it was performed. However, the pleading
of defendant in this regard, the evidence of DW.1 and
PW.4 Annapoorns is totally silent on this aspect of the
matter. The defendant has chosen to produce the
documents Ex.D.1 to Ex.D.36 to show that he has sent
some money to the plaintiff, but has never bothered to
produce the vital documents of the date and place where
the marriage of defendant with Annapurna was performed.
The defendant during the course of his evidence as DW.1
has never whispered anything about the date and place of
his marriage with Annapurna.
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RSA No. 5845 OF 2010
15. The defendant admittedly joined government
service in the year 1975. The evidence of PW.4 Annapurna
would go to show that she joined service as primary school
teacher in the year 1985. The defendant is also in
government service. If at all Annapurna was to be the first
wife of defendant, then certainly in their service records,
the status of both defendant and PW.4 Annapurna would
have been recorded. However, for the reasons best known
to defendant neither has chosen to produce any service
records of himself or PW.4 Annapurna to show his
relationship with Annapurna as his first wife. PW.4
Annapurna during her examination-in-chief itself has
categorically stated that there are no documents to show
her marriage with the defendant. Looking to the conduct
of defendant in producing the documents to show that he
has sent some money to the plaintiff Ex.D.1 to 3, 6, 11 to
36 would not have failed to produce the documents
evidencing his marriage with Annapurna to prove the fact
that Annapurna is the first wife of defendant. The
defendant has also not produced any public document like
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RSA No. 5845 OF 2010
ration card, voter list and the birth extract of their two
sons at least to draw an inference that Annapurna is the
first wife of defendant. However, for the reasons best
known to the defendant, he has not produced any such
public documents to prove that Annapurna is the first wife
of defendant. The evidence of PW.4 Annapurna is also
silent of her marriage with defendant regarding the date
and place of performing their marriage, further, the
entries made in her service records regarding her status
with defendant as wife. She has also not produced the
service particulars of the defendant nor the defendant has
chosen to produce the service documents evidencing his
status with Annapurna. The defendant and PW.4
Annapurna have withheld the documents available with
them. Therefore, due to non production of vital documents
in their custody, adverse presumption will have to be
drawn against them in terms of Section 114(g) of Indian
Evidence Act.
16. It has been elicited in the cross-examination of
DW.1 that father of plaintiff was working as Agriculture
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RSA No. 5845 OF 2010
Joint Director in Bengaluru and the defendant has
admitted the same. The father of plaintiff was admittedly
working as Agriculture Joint Director and he being a
Government servant naturally expected to know the
consequences of his daughter giving in second marriage
with defendant. In the given set of facts and
circumstances of the case, it would be difficult to believe
the case of defendant that father of plaintiff would agree
to give his daughter in second marriage that too with the
consent of first wife Annapurna. In normal course, unless
there are some compelling reasons which were made
known to the father of plaintiff, no father of a girl could
agree for giving his daughter in marriage with defendant
when he has already married with Annapurna. The
defendant has not placed any evidence on record that it
was made known to the father of plaintiff that he was
married with Annapurna and got two children. Therefore,
in view of the above referred facts, it is very difficult to
accept the contention of defendant that Annapurna is his
first wife. Therefore his further contention that the said
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RSA No. 5845 OF 2010
marriage was not acceptable to his family, and as such his
parents and brothers have forcibly performed the marriage
with plaintiff cannot also be accepted, since own brother of
defendant PW.3 Shivalingappa has given evidence that
marriage of plaintiff was performed with defendant. There
is nothing that has been brought on record in the cross-
examination of PW.3 to discredit his evidence.
17. The evidence placed on record by the plaintiff
would go to show that, her marriage was performed with
defendant dated 17.12.1980 and out of the wed lock they
got daughter by name S.Priya who has examined PW.2 in
this case. The said evidence of plaintiff PW.1 is further
corroborated by the evidence of the daughter of plaintiff
PW.2 Smt.S.Priya and the evidence of defendant's own
brother PW.3 Shivalingappa, so also by the evidence of
PW.4 Annapurna. When the defendant has failed to place
rebuttal evidence to displace status of plaintiff being wife
of defendant and further failed to prove that Annapurna is
the first wife then it will have to be held that plaintiff is the
first wife of defendant, further their marriage was
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RSA No. 5845 OF 2010
performed dated 17.12.1980 as per the rituals and
customs prevailing in their community has to be accepted.
18. The Trial Court has rightly appreciated the
evidence on record and granted maintenance at the rate of
Rs.4,000/- per month. However, the First Appellate Court
has reversed the finding of the Trial Court for the reasons
recorded in para 15 of it's judgment holding that PW.1 in
her evidence has admitted that name of first wife of
defendant is Annapurnamma and their marriage was
performed in the year 1974. The age of son of Annapurna
may be around 32 years and the age of daughter is about
26 years old has held that Annapurna is the first wife of
defendant. The question is as to whether the stray
admission of PW.1 would be sufficient to hold that
Annapurna is the first wife of defendant. The plaintiff has
no any educational background and she is residing in
Siruguppa village of Raichur district, under such
circumstances if the stray admission of PW.1 regarding
Annapurna as the first wife of defendant without there
being any corroborative material evidence either through
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RSA No. 5845 OF 2010
Annapurna who has examined as PW.4 before the Court or
through the evidence of DW.1 cannot be accepted as
sufficient rebuttal evidence as against the case made out
by the plaintiff that she is the wife of defendant. The
status of plaintiff being the wife of defendant has not
challenged by PW.4 Annapurna who is said to be the wife
of defendant. The burden of proving the specific defence
taken by the defendant in the written statement is on the
defendant to prove the said fact. However, the material
evidence produced on record by the defendant is
insufficient to rebut the positive evidence placed on record
by the plaintiff regarding her status being wife of
defendant. When the defendant has failed to place credible
rebuttal evidence, then the claim of plaintiff that she is the
first wife of defendant is to be accepted.
19. The First Appellate Court in para 15 of it's
judgment has further held that looking to the age of son
and daughter as 32 years and 26 years respectively
admitted by DW.1 in his cross-examination has proceeded
to hold that Annapurna is the first wife of defendant and
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RSA No. 5845 OF 2010
the said finding of the First Appellate Court cannot legally
sustained. It is pertinent to note that the defendant has
not produced any evidence to prove his marriage with
Annapurna, so also he has not produced any documents
regarding the date of birth of his son and daughter.
Further, the defendant and PW.4 Annapurna have withheld
the best available documents with them in the form of
their respective service records. Wherein, there was every
opportunity to declare their marital status in the service
records when they entered into service. Therefore, in the
absence of any evidence on record, the finding of the First
Appellate Court for the reasons recorded in para 15 of it's
judgment in negating the claim of plaintiff that she is the
first wife of plaintiff cannot be legally sustained. The
finding recorded by the First Appellate Court on the basis
of stray admission of PW.1 in her cross-examination
without there being further corroboration to the said
statement has erroneously proceeded to record finding
that Annapurna is the first wife of defendant. The said
finding recorded by the First Appellate Court is contrary to
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RSA No. 5845 OF 2010
the evidence on record and same needs to be interfered
by this Court. Consequently, substantial question of law
framed by this Court are answered in affirmative.
Consequently, proceed to pass the following:
ORDER
Appeal filed by appellant/plaintiff is hereby allowed.
The judgment of the First Appellate Court on the file
of Prl.Civil Judge (Sr.Dn.) and CJM Bellary in
R.A.No.22/2009, dated 19.03.2010 is hereby set aside.
The judgment and decree passed by the Trial Court
on the file of Civil Judge (Jr.Dn.) and JMFC, Siruguppa in
O.S.No.102/2007 dated 19.02.2009 is restored.
Parties to the appeal are directed to bare their own
cost.
Registry to send back the records to Trial Court with
a copy of this order.
Sd/-
JUDGE
GSR
