IMPORTANT POINTS
• The burden of proof to establish that there subsisted a marriage, is on the appellant. The appellant not being the holder of the document, she could only have produced photocopies of the passports. The rigor of the Indian Evidence Act, 1872 is not to be applied in a proceeding before the Family Court in view of Section 14 of the Family Courts Act, 1984.
• Whether entry in the passports alone are sufficient to hold that the first marriage of the respondent subsisted at the time of his marriage with the appellant. In exercise of the powers conferred by Section 24 of the Passports Act, 1967, the Central Government has made the Passports Rules, 1980. A reading of Clause A(2) (e) of Schedule III to the Passports Rules, 1980 as it stood then, would show that at the time when the respondent obtained/renewed his passports, production of marriage certificate or an affidavit in lieu thereof, was mandatory for issuance of Exts.A5 and A5(a) passports. Therefore, going by Section 114 of the Evidence Act, it must be presumed that passports were issued to the respondent following the due official procedure and on production of proof of existing marriage of the respondent with his first wife Uma.

JUDGMENT :

N. NAGARESH, J.

1. The appellant, who is the wife of the respondent, is aggrieved by the judgment in O.P. No.479/2016 of the Family Court, Thiruvananthapuram, whereby the Family Court has dismissed the O.P. filed by the appellant seeking for a declaration that she is not the legally wedded wife of the respondent.

2. In her Original Petition, the appellant averred that the marriage between the appellant and the respondent was solemnised on 03.02.2010 in accordance with the rituals and customs of their community. The appellant was married earlier and had two children in her first marriage. However, the appellant's first marriage was mutually dissolved. The respondent also had an earlier marriage and at the time of his marriage with the appellant, the appellant was made to believe that his earlier marriage was also dissolved.

3. After the marriage of the appellant with the respondent, they lived in Tamil Nadu. Their married life became difficult due to the irresponsible way of life of the respondent. He used to leave home for weeks together. The respondent used to say that his creditors are chasing him. Therefore, they shifted their residence to Thiruvananthapuram. On a desire to purchase a flat at Thiruvananthapuram, the appellant sold her gold ornaments and handed over Rs.50 lakhs to the respondent. However, the respondent did not purchase flat. Instead, he left to Gulf in June, 2012, planning to start a business there. The appellant was also taken to Gulf in September, 2013. The respondent took trade licence in the name of the appellant and took huge amounts as loan from a number of persons, without the knowledge of the appellant. These amounts were spent for his personal needs. The appellant came to know of this only when creditors and banks initiated action. The appellant was therefore forced to sell her landed properties and gold ornaments to settle the liabilities and to release the respondent from jail.

4. The appellant stated that the two years of her life with the respondent in Gulf was harrowing. On 24.05.2014, the respondent deserted the appellant and switched off his phone. After about six months, the respondent returned to home. The appellant was not aware of the whereabouts of the respondent during this period. While so, she happened to see photocopies of his two Indian passports and she noticed that against the column of spouse, name of his first wife Uma was recorded. Then only the appellant came to know that the respondent married the appellant during the subsistence of his earlier marriage. The respondent entered into marriage with the appellant concealing the existence of his first marriage. The appellant was made to enter into marriage with the respondent deceitfully and fraudulently. It is raising such allegations that she filed O.P. No.479/2016. Therefore, the appellant prayed that a declaration be made that the appellant is not the legally wedded wife of the respondent and that there is no valid marriage in existence between them.

5. The respondent -husband remained ex-parte. The appellant was examined as PW1 and marked Exts.A1 to A6 documents.

6. The Family Court noted that Ext.A1 marriage photograph would prove the marriage between the appellant and the respondent. Ext.A2 order in O.P.(HMA) No.1025/2008 would prove that the first marriage of the appellant was dissolved. The Family Court, however, found that the complaint of the appellant is that one Uma's name is entered in the bank account and passbook of the respondent and that it is not a ground to find that the respondent had a spouse living at the time of their marriage. The Family Court concluded that the marital relationship between the appellant and the respondent may not be happy but it is not a sufficient reason to declare the marriage between them as void. The Family Court held that no valid or legal grounds exist to declare the marriage between the appellant and the respondent as void. On these premises, O.P. No.479/2016 filed by the appe