IMPORTANT POINTS:
• Presumption under Sec.112 of the Indian Evidence Act is also available to the children born out of a valid marriage only. Unless and until, valid marriage is proved, the children also cannot claim that they are legitimate children born out of the wedlock. If the children are not born out of a valid marriage, there cannot be a presumption under Sec.112 of the Evidence Act also.
• Any marriage solemnised whether before or after the commencement of the Act shall be voidable and may be annulled by a decree of nullity on any of the grounds mentioned in clause (a) to (d). The benefit under Sec.16(1) and (2) is available to void and voidable marriages and there cannot be a void marriage without solemnization of marriage.

K.Harilal, J.

The appellants are the petitioners in OP No.1557/2003 on the file of the family court, Thiruvananthapuram. The aforesaid original petition was filed seeking a decree granting a declaration that the first appellant is the legally wedded wife of the late D.Prasad and appellants 2 and 3 are the children born out of the wedlock between the said Prasad and the first appellant and that they are entitled to get all the service benefits of the said Prasad. The first respondent is the mother of the deceased Prasad and the second respondent is his daughter born to the deceased first wife of the said Prasad. The third respondent is the Secretary, Kerala State Electricity Board and the fourth respondent is the Executive Engineer, Kerala State Electricity Board and they are impleaded in the original petition to represent the employer under whom the said Prasad was working at the time of his death. The respondents 1 and 2 opposed the said original petition disputing the status of the appellants 1, 2 and 3 as wife and children respectively of the deceased Prasad.

2. Heard the learned counsel for the appellants and the learned counsel for the first respondent.

3. On the rival pleas, both parties adduced evidence which consists of oral testimony of PW1 and DW1 and Exts A1 to A11 and B1 to B5 were marked. After considering the aforesaid evidence, the family court dismissed the original petition on a finding that the appellants failed to prove that the first appellant is the legally wedded wife of the deceased Prasad and the appellants 2 and 3 are the legitimate children born out of the wedlock between the first appellant and the deceased Prasad. The aforesaid finding, whereby the family court dismissed the original petition is assailed in this appeal on various grounds.

4. The sum and substance of the arguments advanced by the learned counsel for the appellants is that the family court went wrong by finding that the appellants failed to plead and prove the customary marriage of the first appellant with the deceased Prasad. According to the learned counsel, Ext A1 to A11 coupled with the oral testimony of PW1 would prove that the marriage between the first appellant and deceased Prasad was solemnised in accordance with the customary rites and they have lived together as husband and wife till the death of Prasad and appellants 2 and 3 are the children born out of the said wedlock. But the family court miserably failed to appreciate the aforesaid evidence in its correct perspective. It is also contended that long cohabitation between the first appellant and the deceased Prasad can be inferred from Exts A9, A10 and A11 and it gives rise to the presumption of a valid marriage. Similarly, Exts A2 and A3 admission registers would prove that the appellants 2 and 3 are the children of the deceased Prasad. Therefore the court below ought to have found that the first appellant was the legally wedded wife of the deceased Prasad and the 2nd and 3rd appellants are the legitimate children born out of the wedlock between the first appellant and the deceased Prasad.

5. Per contra the learned counsel for the first respondent advanced arguments to justify the findings whereby the family court dismissed the original petition. According to the learned counsel for the first respondent, absolutely there is no pleadings or evidence to prove that the marriage between the first appellant and the deceased Prasad was solemnised in accordance with the customary rites of Hindu Ezhava community to which they belong. Unless and until the customary marriage was proved it cannot be held that the marriage was a legally valid marriage and the children are legitimate children born out of the said wedlock.

6. In view of the arguments, the point to be considered is whether the appellants have succeeded to plead and prove legally valid marriage between the first appellant and the deceased Prasad and the legitimacy of the children. It is the specific case of the appe