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:
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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
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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
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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.
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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
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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
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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.
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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
