Kaliyaperumal v. Thangamani

JUDGMENT This Second Appeal is filed to set aside the Judgment and Decree dated 19.02.2019 passed in A.S.No.4 of 2016 on the file of Sub Court, Kulithalai, confirming the Judgment and Decree dated 28.02.2014 passed in O.S.No.74 of 2011 on the file of the District Munsif, Kulithalai.

¶2The Plaintiff in the suit is the Respondent and the 1st Defendant in the suit is the Appellant herein. For the sake of convenience, the parties shall be referred as Plaintiff and Defendant as per the ranking in the suit.

¶3The suit is filed by the plaintiff as indigent person. The prayer in the suit is to direct the 1st defendant to pay Rs.3,000/- as past and future maintenance and to create charge over the suit mentioned property for paying maintenance. The brief facts as stated in the plaint is that the plaintiff and the 1st defendant were married 30 years ago and out of the wedlock two sons were born namely Ramachandramoorthi and Krishnamurthi. Since the 1st defendant was living wayward life, the sons were living separately. Further the 1st defendant is addiction to alcohol and would beat the plaintiff black and blue. Inspite of unlawful activities and wayward life of the 1st defendant, the plaintiff was living with the 1st defendant and tolerated his activities. However, the 1st defendant had driven the plaintiff during February 2005. The plaintiff was not having any means to live and hence the suit for maintenance.

¶4The 1st defendant had filed written statement wherein the 1st defendant had denied the allegations stated in the plaint and stated that the 1st defendant did not know the plaintiff and no way related with the 1st defendant at any point of time. The marriage between the plaintiff and the 1st defendant is denied and prayed to dismiss the suit.

¶5After considering the pleadings and evidence the Trial Court decreed the suit. Aggrieved over the same the 1st defendant had preferred First Appeal and the same dismissed. Aggrieved over the same the 1st defendant had preferred the present second appeal. In the second appeal the following substantial questions of law are raised: i. Whether the marriage of the 1st defendant with the appellant herein was established in accordance with law? ii. Even assuming but without admitting that the marriage between the appellant and the 1st respondent is accepted to be established, whether the marriage is valid when the appellant is already married to another woman and the same is subsisting? iii. Whether the Courts below are right in accepting the mere oral evidence of the 1st respondent in proof of marriage? iv. Whether the documents produced in Ex.A1 to A11 are sufficient to establish a legally valid marriage?

¶6The plaintiff had not proved any marriage invitation or photo to prove the marriage between the plaintiff and the 1st defendant. But had produced ration card, voter list, Aadhar, passport, pan card, transfer certificate of children, community certificate of children as Ex.A1 to A11, wherein the 1st defendant's name is mentioned as father. The PW 2 and PW3 have stated that the marriage to the 1st defendant happened with the plaintiff and the said Dhanalakshmi on the same date. Further the 1st defendant had deposed as DW1, wherein he had stated it is common to marry two women in their community. Further the 1st defendant had admitted that his father is aware of his marriage with the plaintiff. This fact is considered by the First Appellate Court and has come to the conclusion that the marriage is established and the relevant portion of the judgment is extracted hereunder:

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¶7As far as the contention of the 1st defendant that he had been married one Dhanalakshmi, the Courts below had dealt with the plea and held that the first defendant has not stated in his pleadings and the said plea has been raised at the time of oral evidence. The relevant portion of the judgment is extracted hereunder: "On perusal of records, it is (pertinent to) clear that the 1st defendant has never raised any pleadings in respect of marriage with Dhanalakshmi. But on the other hand, he has taken a stand that he married Dhanalakshmi and he got three children through Dhanalakshmi. It is settled law that pleadings is the part and parcel of evidence . Therefore, this Court is of the view that the 1st defendant cannot given evidence in the absence of specific pleadings." When the first defendant has not pleaded that he has been married to the said Dhanalakshmi, any oral evidence cannot be entertained and the Trial Court has rightly come to the conclusion. Further the 1st defendant had not stated the date of marriage with Dhanalakshmi and has not established the said marriage. A bare statement that he had been married to the said Dhanalakshmi is not sufficient to consider the said plea.

¶8For the reasons stated supra all the substantial questions of law are answered against the 1st defendant. The judgment and decree of both the Courts are confirmed and the second appeal is dismissed.

¶9The plaintiff had submitted calculation sheet for arrears of maintenance. As per the calculation the amount payable by the 1st defendant is Rs.6,03,000/-. The 1st defendant has already deposited a sum of Rs.50,000/- in the EP Court and the balance amount payable is Rs.5,06,000/- as on date i.e., 26.03.2024. The 1st defendant is directed to pay the balance amount of Rs.5,06,000/- in three installments. The 1st defendant shall pay the first installment of Rs.2,00,000/- (Rupees Two Lakhs only) on or before 02.09.2024. The second installment of Rs.2,00,000/- (Rupees Two Lakhs only) shall be paid on or before

02.10.2024. And the third installment of Rs.1,06,000/- (Rupees One Lakh Sixty Thousand only) shall be paid on or before 02.11.2024.

¶10The plaintiff is directed to furnish her Bank account details to the 1st defendant herein. The 1st defendant is directed to pay the aforesaid amount in the Bank account number which has been given by the plaintiff.

¶11In case, if the 1st defendant is making any default, the plaintiff is at liberty to approach the EP Court to execute the decree.

¶12Accordingly, this Second Appeal stands dismissed. No costs. Connected Miscellaneous Petitions are closed.

Index : Yes / No

26.03.2024 NCC : Yes / No jbr TO:

1.The Sub Ordinate Judge, Kulithalai.

2.The District Munsif Judge, Kulithalai.

¶3The Section Officer, VR Section, Madurai Bench of Madras High Court, Madurai.

S.SRIMATHY, J.

jbr S.A.(MD)No.200 of 2024 Dated:

26.03.2024

THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 26.03.2024 CORAM: THE HONOURABLE MRS.JUSTICE S.SRIMATHY S.A.(MD).No.200 of 2024 Kaliyaperumal ... Appellant Vs 1. Thangamani, 2. The Tahsildar, Kulithalai Taluk Office, Kulithalai, Karur District. 3. The Revenue Divisional Officer, Kulithalai, Karur District. 4. The District Collector, Collectorate, Thanthonimalai, Karur Taluk, Karur District. ... Respondents P RAYER : Second Appeal filed under Section 100 of the Civil Procedure Code, to set aside the Judgment and Decree passed by the Court of learned Sub Ordinate Judge, Kulithalai in A.S.No.4 of 2016 on 19.02.2019, confirming the judgement and decree passed in O.S.No.74 of 2011 by the District Munsif, Kulithalai, on 28.02.2014. For Appellant : Mr.S.Srikanth for M/S.APN.Law Associates For R-1 : Mr.G.Sridharan