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2002 Supreme(Kar) 715
Karnataka High Court
Rajeshwari - Appellant
Versus
Silvia Florance - Respondent
Decided On : 11-22-02
R.S.A. : 797 of 2002
ASHOK PATIL, B.M.Kenchegowda, V.N.Madhava Reddy
Headnote:Entitlement of service benefits to the members of legally unrecognised marriage.
HINDU MARRIAGE ACT, 1955-
Marriage not recognised in law -but living as man and wife -claiming equal share in the service benefits -relationship held to be legitimate -claim of the plaintiffs lawful.
[B. Padmaraj, J.] - The 1st appellate Court being the final Court of facts has found from the evidence on record that the deceased Government servant and the plaintiff No.1 who fell in love with each other had been living together as husband and wife and the plaintiffs 2 and 3 are born to them. The said finding recorded by the 1st appellate court is supported by the evidence. It is essentially a finding which falls in the realm of the appreciation of evidence and hence declined to interfere with the same. Now coming to the status of the plaintiff No.1, it has to be stated that though her status cannot be regarded as that of a legally wedded wife in the presence of the 1st wife of the deceased, marriage being personal right of the spouses, they were entitled to live after the marriage though in the case of a love marriage, openly to the knowledge of all the members of the community in which they live and by such living together and begetting children by such living together they acquired a marital status. Recognition per se is not condition precedent and it is common knowledge that many a times even married men for reasons best known to them fail in love with other women and more so when they are working as colleagues and marry and keep the same secret. In such cases, it may be very difficult rather impossible to prove the factum of marriage. The only competent person to speck to this fact would be either husband or wife. In this case the husband having died, the wife gave evidence about their love marriage. Their conduct of living together and begetting children will lend substantial support to the evidence of the 1st plaintiff about her love marriage with the deceased. The children born to them out of their such marriage were Hindus. Therefore though the marriage of the 1st plaintiff with the deceased had no legal recognition, all the while they were living together as husband and wife and thereby the 1st plaintiff acquired the status of the wife of the deceased. The word, "marriage" includes any intimate union between man and a woman establishing a new family unit. Admittedly in this case it was not a marriage of convenience, but it was a love marriage where by the deceased and the plaintiff No.1 emotionally united together out of their own will in order to form a new family and in fact they formed a new family unit and begot children. Thus the plaintiff No.1 was for all practical purposes the wife of the deceased, but of course in the presence of the defendant the No.1, the 1st wife of the deceased, her status in law cannot be recognized as a wife, but only of a wife by a void marriage. It has to be pointed out that a strong presumption arises in favour of a wedlock where the partners have lived together for more than 14 years as husband and wife and children born to them out of such relation ship. Under the circumstances, the law leans in favour of legitimacy and frowns upon bastardy. Where a man and woman lived together for long years as husband and wife, then a presumption arises in law of legality of the marriage existed between the two. Nevertheless that however does not make the marriage between the plaintiff No.1 and the deceased as legal in the presence of the defendant No.1. But the children born out of such relationship are legitimate children by virtue of sec.-16 of the Hindu marriage Act. Therefore so far as the plaintiff Nos. 2 and 3 are concerned, they were entitled to succeed to the estate of the deceased. This is because under section-16 of the Hindu marriage Act, the children of a void marriage are legitimate. Now the question that would arise for consideration is whether the plaintiffs 2 and 3 who are considered to be legitimate children of the deceased and plaintiff No.1 by virtue of section-16 of the Hindu marriage Act will be entitled for the benefits of Family pension?
Cases Referred : AIR 1975 Bom 278; 2000 (1) CCC 223 (SC); 1991 (1) SLR 735; (2002) 2 SCC 431.
( 1 ) HEARD the arguments of the learned Counsel for the appellants and carefully perused the case records including the impugned judgment and Decree passed by the Ist Appellate Court, whereby it has partly allowed the appeal filed by the appellants.
( 2 ) THE defendants are the appellants herein. This appeal is directed against the Judgment and Decree of the 1st Appellate Court dated 20. 6. 2002 whereby the 1st Appellate Court has partly allowed the appeal and set aside the Judgment and Decree of the Trial court in respect of plaintiffs 2 and 3. By the impugned judgment and Decree, the 1st Appellate Court has held that the plaintiffs 2 and 3 shall get equal share each alongwith the defendants 1 to 4 in the service benefits of late Shivaraj Patil. It has further held that the plaintiffs 2 and 3 and defendants 1 to 4 will have equal shares in the service benefits of late Shivaraj Patil subject to the condition that the plaintiffs 2 and 3 will get their shares in the family pension till they attain the age of majority. It further restrained the defendant no. 1 from taking the share of the plaintiffs 2 and 3 in the service benefits of late Shivaraj Patil and also restrained defendant No. 1 from taking shares of plaintiffs 2 and 3 out of the family pension of late Shivaraj Patil till attaining the age of majority from the defendants 5 to 7. Aggrieved by such Judgment and Decree, the defendants have preferred this Second Appeal before this Court.
( 3 ) THE brief facts of the case as enumerated in the appeal memo may be stated as under:
( 4 ) THE Respondent Nos. 1 to 3 herein filed a suit in O. S. No. 18/99 before the trial Court for the relief of declaration that the respondent No. 1 is the wife and Respondent Nos. 2 and 3 are the sons of late Shivaraj Patil and that they are entitled to claim the benefits like group insurance, leave salary, pension and gratuity from the offices of the Respondent Nos. 4 to 6 and for the relief of injunction restraining the appellant No. 1 from taking the amount of pension of late Shivaraj Patil. According to the respondents, the respondent No. 1 is the legally wedded wife of late Shivaraj Patil and their marriage took place about 14 years ago and it was a love marriage and they were leading a happily married life and respondent Nos. 2 and 3 are born to them out of the wedlock. It is further stated that the appellant No. 1 is the 1st wife of late Shivaraj patil and the appellant Nos. 2 to 4 are the children born to them. The said Shivaraj Patil died on 16. 7. 1998. Late Shivaraj Patil was working as Junior health Assistant at Bheemarayanagudi hospital and due to his death certain benefits are payable from certain government offices and also family pension. The present appellants being the defendant Nos. 1 to 4 contested the suit by denying the relationship of Respondents 1 to 3 with late Shivaraj Patil and that the Respondent No. 1 married late Shivaraj Patil about 14 years ago and as such leading a married life and getting children does not arise. it is stated that the Respondent Nos. 2 and 3 are not the children of late Shivaraj Patil. It is their case that the appellant no. 1 is the legally wedded wife of late Shivaraj Patil and appellants 2 to 4 are the children born to them. Regarding the nomination in lic policy, it is stated that since the Respondent No. 1 was also working in the same office, she has managed to get her name entered in the policy and she succeeded in getting that amount in collusion with the LIC people without the knowledge of the appellants. According to them, the plaintiffs/ respondents are not entitled for any of the reliefs. On the pleadings of the parties, certain relevant issues were framed by the Trial Court and the parties went to trial. At the conclusion of the trial, the Trial Court after hearing the submissions on both sides, dismissed the suit of the plaintiffs. Aggrieved by the Judgment and Decree of the Trial Court, the plaintiffs/respondent Nos. 1 to
