The validity of subsequent marriage during the subsistence of a previous marriage under Section 11 of the Hindu Marriage Act.

JUDGMENT :

C.Pratheep Kumar, J.

1. Two old women are fighting against each other in this appeal, claiming the status of the legally wedded wife of deceased K.T.Ramakrishnan Nambiar. Ramakrishnan Nambiar, who was working as a Village Officer, died on 24.9.2012. According to the 1st respondent, Ramakrishnan Nambiar married her on 27.4.1966 as per the religious rites and ceremonies and the 2nd respondent is the only son born in that wedlock. On the other hand, the 1st appellant claims that late Ramakrishnan Nambiar married her on 28.3.1970 as per the customary rites and appellants 2 to 4 are the children born in that wedlock. After the death of Ramakrishnan Nambiar, the respondents applied for legal heirship certificate before the Revenue Officials for claiming family pension. Since the appellants raised objection, they approached the Family Court, Kannur, for a declaration that the 1st respondent A.K.Radhamani is the legally wedded wife of K.T.Ramakrishnan Nambiar and that the 2nd respondent A.K.Rajeevan is the son born in that wedlock. As per the impugned judgment dated 15.5.2017, the Family Court allowed the claim. Aggrieved by the above judgment, the appellants preferred this appeal.

2. A preliminary objection was raised that the OP for declaration before the Family Court without any claim on marital relationship is not maintainable. For reaching the conclusion, the Family court mainly relied upon the oral testimonies of PWs 1 to 7 and the documentary evidence Exts.A1 to A15 and X1. The trial Court further found that the subsequent marriage between K.T.Ramakrishnan Nambiar and the 1st appellant during the subsistence of the earlier marriage with the 1st respondent is hit by Section 11 of the Hindu Marriage Act.

3. It was contended by the learned counsel for the appellants relying upon various precedents that late K.T.Ramakrishnan Nambiar lived along with the 1st appellant for more than 40 years and hence the long cohabitation between them as husband and wife along with the recognition of K.T.Ramakrishnan Nambiar that the 1st appellant is his wife, give rise to a presumption of valid marriage in favour of the appellants. Further it was contended that absence of 'Kanyadan' ceremony in the marriage between the 1st respondent and Ramakrishnan Nambiar fatally affects the validity of their marriage. On the other hand, according to the learned counsel for the respondents, since there is a valid marriage between the 1st respondent and late Ramakrishnan Nambiar, even if there is cohabitation between the 1st appellant and Ramakrishnan Nambiar, the same will not confer any presumption of valid marriage between them.

4. Now the points that arise for consideration are the following :

(i) Whether there is any merit in the contention that the OP is not maintainable before the Family Court ?

(ii) Whether the finding of the Family Court that the 1st respondent is the lawfully wedded wife of K.T.Ramakrishnan Nambiar and the 2nd respondent is the son born in that wedlock is correct ?

(iii) Whether cohabitation between a man and woman how ever long the same may be, during the existence of another valid marriage, acquires the character of a valid marriage ?

5. Heard both sides.

6. Point (i) – The learned counsel for the appellants would content that this OP is not maintainable before the Family Court as declaration regarding the legitimacy was claimed without any claim on marital relationship. He has also relied upon the decision of a Division Bench of this court in Bharat Kumar v. Selma Mini, 2007 (1) KLT 945, in support of his argument. In the above decision, the question that arose for consideration was whether paternity of a child is an issue to be considered by the Family Court under Section 7(1)(e) of the Family Courts Act, 1984, without a matrimonial cause. In the above case, a declaration was sought for declaring legitimacy of a child born in an extra marital relationship. However, in the instant case, the specific case of the 1st respondent is th