This second appeal is filed against the decree and judgment dated 17.01.2005 passed by the III Additional Senior Civil Judge, (Fast Tract Court), Visakhapatnam in A.S.No.164 of 2000 whereby and whereunder the learned III Additional Senior Civil Judge reversed the decree and judgment dated 02.12.1996 passed by the Principal District Munsif, Visakhapatnam in O.S.No.1210 of 1992.

The plaintiff filed the second appeal.

I have heard the learned counsel appearing for the plaintiff and the defendant No.5, who are the contesting parties.

For the sake of convenience, I would like to refer the parties herein as ‘the plaintiff and the defendants’.

The plaintiff filed O.S.No.1210 of 1992 to declare her as legally wedded wife of late Pilla Ramulu and for the consequential relief authorizing her to receive the death benefits of late Pilla Ramulu, who worked as Sipoy No.2549243 in Indian Army of Madras Regiment from 28.06.1960 to 01.07.1975 and later worked in the Indian Oil Corporation, Visakhapatnam under Ex-servicemen quota. The said Ramulu died on 09.01.1985 in a motor vehicle accident and a dispute arose between the plaintiff and the 5th defendant as to the legal status of the wife of the deceased Ramulu which lead to the filing of O.S.No.1210 of 1992 by the plaintiff and ultimately to the present second appeal.

Admittedly, the 5th defendant is the wife of Pilla Ramulu and her marriage was performed with him on 02.08.1962. It was alleged by the plaintiff that some time after marriage, the 5th defendant eloped with somebody and here whereabouts were not known for a period of more than 20 years and as she was unheard of for more than 7 years after deserting her husband, the villagers convened a panchayat on 30.08.1971 and in the said panchayat a resolution was passed dissolving the marriage between Ramulu and the 5th defendant. Subsequently, according to the plaintiff, Ramulu married her on 20.03.1972. She also contends that the parties belong to Kapu community and a custom is prevailing in their community permitting second marriage after obtaining customary divorce. She produced a certificate marked as Ex.A.2 dated 16.12.1987 which is to the effect that in the panchayat convened by the President and members of the Grampanchayat, the marriage between late Ramulu and the 5th defendant was dissolved. PW.2, the then Sarpanch of Nadupuru village to which the parties belong gave evidence to the effect that the 5th defendant eloped with somebody in the year 1962 and since then her whereabouts were not known. It is also to the effect that in the year 1971 a resolution was passed authorizing Pilla Ramulu to go for second marriage and accordingly the witness states that he married the plaintiff. Admittedly, PW.2 is not the Sarpanch of the village on the crucial date when the resolution was passed dissolving the marriage. This witness admitted in the cross examination that for a period of four years after elopement by the 5th defendant, no report was lodged either by Ramulu or anybody about the elopement of 5th defendant, and no application was also submitted to the Grampanchayat stating the said fact. Moreover, it is the version of PW.2 and other witnesses examined on behalf of the plaintiff that the record relating to passing of resolution or any copy of the resolution are not available and admittedly 5th defendant was not present at the time of passing of resolution in the year 1971. It is also admitted that her signature was not obtained on the resolution. According to PW.2, the parents of 5th defendant participated in the said panchayat. Curiously PW.2 stated in his evidence that he had no personal knowledge about 5th defendant eloping with someone.

The burden is on the plaintiff to prove that there is a custom in their community to go for second marriage after obtaining customary divorce, but absolutely, there is no evidence adduced by her in proof of the said custom prevailing in their community. The learned trial Court took jud