Meenakshi vs Sahadevan
2021 Latest Caselaw 4436 Ker

                  IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                   PRESENT

                THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE

                                         &

                     THE HONOURABLE MR.JUSTICE C.S.DIAS

           MONDAY, THE 08TH DAY OF FEBRUARY 2021 / 19TH MAGHA,1942

                          Mat.Appeal.No.306 OF 2016

           AGAINST THE JUDGMENT IN O.P.NO.936/2011 DATED 31-05-2014
                         OF FAMILY COURT, THIRUVALLA
                                  ---------

APPELLANT/S:

       1         MEENAKSHI, AGED 76 YEARS, D/O.NANI,
                 PARAMESWRATHU PUTHEN VEETTIL, MALLOOR MURI, PATTAZHI
                 VADAKKEKARA, PATHANAPURAM - 689 695.

       2         REMANI, AGED 58 YEARS, D/O.MEENAKSHI,
                 PARAMESWRATHU PUTHEN VEETTIL, MALLOOR MURI, PATTAZHI
                 VADAKKEKARA, PATHANAPURAM - 689 695.

       3         RADHAMANI, AGED 56 YEARS, W/O.SHANMUGHAN,
                 ANEESH BHAVAN, NEAR MALOOR COLLEGE, PATTAZHI VADAKKEKARA,
                 PATHANAPURAM - 689 695.

                 BY ADV. SRI.JAMES ABRAHAM (VILAYAKATTU)

RESPONDENT/S:

       1         SAHADEVAN, PUTHENVILAYIL MARALI MANDIRAM,
                 ELAMANOOR.P.O.,ENADIMANGALAM, ADOOR - 691 524.

       2         THAMARAKSHI, PUTHENVILAYIL MARALI MANDIRAM,
                 ELAMANOOR.P.O., ENADIMANGALAM, ADOOR - 691 524.

       3         NADA MURALEEDHARAN, SREE NILAYAM, MAROOR MURI,
                 ENADIMANGALAM - 686 608.

       4         GIRIJA BABU, CHARUVILA HOUSE, MAROOR MURI,
                 ENADIMANGALAM - 686 608.

       5         M.S.VIKRAMAN, AMAL NIVAS, POOTANKARA MURI,
                 ENADIMANGALAM - 686 608.

       6         M.B.PRAKASH, MURALEE MANDIRAM, (MUKALUVILAYIL),
                 MAROOR MURI, ENADIMANGALAM - 686 608.

                 BY ADV. SRI.D.KISHORE

THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 08.02.2021, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 Mat.Appeal.No.306/2016                2




                                JUDGMENT

Dated this the 8th day of February 2021

C.S.Dias, J.

The appellants were the petitioners in

O.P.No.936/2011 on the file of the Family Court,

Thiruvalla. The respondents herein were the respondents

in the said Original Petition.

2. The case of the appellants/petitioners in the

original petition is that, the first petitioner is the wife of

late Balakrishnan. The petitioners 2 and 3 are the

children born out in the wedlock between the first

petitioner and late Balakrishnan. The deceased

Balakrishnan had obtained title and possession over the

petition A schedule property having an extent of 17 cents

of land. Similarly, petition B schedule property, having

an extent of 10 cents of land, was purchased by

Balakrishnan and his brother, the first respondent. The

marriage between the first petitioner and late

Balakrishnan was solemnised on 10.2.1957 at the

residence of the parents of the first petitioner in

accordance with the customary rites and ceremonies of

the Hindu Ezhava community. After the marriage, the

first petitioner and Balakrishnan lived together as

husband and wife and petitioners 2 and 3 were born in

the said wedlock. When the second petitioner was three

years old and the third petitioner was 9 months old,

differences of opinion arose between the first petitioner

and late Balakrishnan. Accordingly, they have entered

into a registered divorce agreement on 18.05.1961.

When the petitioners 2 and 3 attained majority, the

differences between the first petitioner and late

Balakrishnan was settled and late Balakrishnan started

visiting the first petitioner. Balakrishnan died intestate.

Taking advantage of the differences of opinion between

the first petitioner and late Balakrishnan, the

respondents fabricated certain documents to establish

that the second respondent is the wife of late

Balakrishnan, and the respondents 3 to 6 are the

children born in their wedlock. The petitioners filed

O.S.No.250/2007 before the Court of the Munsiff, Adoor.

Based on the preliminary objection raised by the

respondents, the suit was dismissed, relegating the

petitioners to approach the Family Court. Accordingly,

the original petition was filed before the Family Court,

seeking for declaration, partition and recovery of

possession of petition schedule properties.

3. The respondents filed a joint written objection,

refuting the allegations in the original petition.

According to them, the wife of the first respondent is

one Pankajakshi, who died in September, 2006.

Pankajakshi is the sister of the second respondent. The

second respondent is the wife of late Balakrishnan and

respondents 3 to 6 are the children born in their

wedlock. The purported marriage between late

Balakrishnan and the first petitioner is totally false. Late

Balakrishnan never married the first petitioner and the

petitioners 2 and 3 are not the children of late

Balakrishnan. The deceased Balakrishnan was residing in

Murali Mandiram for 40 years. The second respondent is

not the wife of the first respondent. The petition B

schedule property was jointly purchased in the name of

late Balakrishnan and the first respondent. The divorce

deed was created only for the purpose of showing that

there was a marriage between the first petitioner and

late Balakrishnan. The attempt of the petitioners is to

grab the property of Balakrishnan by some clandestine

methods. The petitioners are not entitled for any relief

as prayed for in the Original Petition and the same may

be dismissed.

4. The first petitioner and two witnesses were

examined as PWs 1 to 3 and Exts.A1 to A8 were marked

in evidence through them. Two witnesses were examined

on the side of respondents as CPWS 1 and 2 and Exts.B1

to 8 were marked in evidence.

5. The Family Court, after evaluating the pleadings

and the materials on record, dismissed the original

petition holding that the petitioners have not proved with

the cogent materials that the deceased Balakrishnan was

the husband of the first petitioner or the father of the

petitioners 2 and 3. Therefore, the petitioners cannot

claim any right title or interest over the properties of late

Balakrishnan or to recover possession of the same.

6. Heard Sri.James Abraham (Vilayakattu), the

learned counsel appearing for the appellants/petitioners

and Sri.D.Kishore, the learned counsel appearing for

respondents/respondents.

7. On a re-appreciation of the pleadings and

materials on record, we find that the Family Court has

principally placed reliance on Exts.B3 to B8 ration cards

and SSLC books of respondents 3 and 4 which clearly

substantiate that the second respondent is the wife of

late Balakrishnan and the respondents 3 to 6 are the

children born in the wedlock between late Balakrishnan

and the second respondent. Although the first petitioner

made a bald assertion in the original petition that she

was married to late Balakrishnan, absolutely no material

was forthcoming from her to substantiate her contention.

She was very well aware of the fact that late

Balakrishnan was living with the second respondent and

respondents 3 to 6 were born in the relationship of late

Balakrishnan and the second respondent. If that was the

case, the petitioner ought to have filed a suit for

declaration of marital status and paternity during the life

time of Balakrishnan and used scientific evidence to

prove atleast the paternity of petitioners 2 and 3. This

was not done. Whether the inaction was willful or an

omission is only known to the petitioners, but the same

has proved fatal, as it was the best piece of evidence to

prove the crucial aspect.

8. On an evaluation of the evidence of PW3, it is

seen that he had deposed that Ext.A4 marriage

certificate was written by him without reference to any

records, but on the basis of hearsay evidence as

requested by PW1. Similarly, Ext.A5 divorce agreement

executed between the parties as early as in the year

1961 has no relevance in the matter because there is no

proof of a valid marriage solemnized between late

Balakrishnan and the first petitioner. Therefore, even

assuming that the parties had arrived at a consensus to

live separately, there is no proof regarding the

purported marriage between late Balakrishnan and the

first petitioner.

9. On a re-appreciation of the oral testimonies of

PWs 1 to 3 and CPWs 1 and 2, Exts.A1 to A8 and B1 to

B8, we are satisfied that the Family Court has rightly

arrived at the conclusion that the petitioners had

miserably failed to prove that they are the wife and

children of late Balakrishnan as claimed in the Original

Petition. There is no apparent error in the impugned

judgment warranting interference by this Court. In the

result, the appeal fails and is dismissed. The parties

shall bear their respective costs.

Sd/-

A.MUHAMED MUSTAQUE

JUDGE

Sd/-

C.S.DIAS

JUDGE

ln