- 1 - HC-KAR NC: 2025:KHC:28174 RSA No. 890 of 2023 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF JULY, 2025 BEFORE THE HON'BLE MR. JUSTICE H.P.SANDESH REGULAR SECOND APPEAL NO.890 OF 2023 (DEC/INJ) BETWEEN: 1. SMT. H. BHARAMAKKA W/O LATE SHIVANNA AGED ABOUT 53 YEARS, HOUSEHOLD AND ANGANAWADI WORKER, 2. SRI S. SRIDHAR S/O LATE SHIVANNA AGED ABOUT 31 YEARS, BOTH ARE R/AT A K COLONY, J C R EXTENSION, JAGALUR-577528 DAVANAGERE DISTRICT …APPELLANTS (BY SRI. PRASANNA B.R., ADVOCATE) AND: 1. KUM. S. SAHANA D/O LATE S SHIVANNA AGED ABOUT 27 YEARS, 2. SRI S ASHWATH S/O LATE S SHIVANNA AGED ABOUT 24 YEARS, BOTH ARE R/AT J.C.R. EXTENSION, JAGALUR TOWN - 577528 DAVANAGERE DISTRICT. Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:28174 RSA No. 890 of 2023 3. THE EXECUTIVE ENGINEER (ELECTRICAL) O AND M DIVISION, BESCOM NEAR STADIUM, HADADI ROAD, DAVANAGERE 577004 4. THE ASSISTANT EXECUTIVE ENGINEER (ELECTRICAL) CITY SUB DIVISION-I BESCOM, NEAR AMBEDKAR CIRCLE, DAVANAGERE-577002 …RESPONDENTS (BY SRI. SANTOSH R NELKUDURI, ADVOCATE FOR C/R1 & R2; SMT. GIRIJA PATIL, ADVOCATE FOR R3 & R4) THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 28.03.2023 PASSED IN R.A.NO.33/2022 ON THE FILE OF THE III ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, DAVANAGERE AND ETC. THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE H.P.SANDESH - 3 - HC-KAR NC: 2025:KHC:28174 RSA No. 890 of 2023 ORAL JUDGMENT Heard the learned counsel appearing for the appellants and also the learned counsel appearing for the respondents. 2. This second appeal is filed against the divergent finding of the Trial Court and also the First Appellate Court. In O.S.No.178/2014, the plaintiffs claim that plaintiff No.1 is the wife of deceased Shivanna and second plaintiff is the son of said Shivanna and her marriage was performed on 23.12.1989 with Shivanna at Sri Lingeswara Temple, Davanagere. In the said wedlock, second plaintiff was born. Earlier, the life of the first plaintiff and Shivanna was running smoothly and both of them were happy. Thereafter, Shivanna started to ill-treat the first plaintiff and subjected her for harassment. Hence, the first plaintiff filed a petition against the husband for maintenance in Jagalur Court invoking the offences punishable under Sections 498A and 506 of IPC. After the trial, Shivanna - 4 - HC-KAR NC: 2025:KHC:28174 RSA No. 890 of 2023 was convicted and sentenced to undergo imprisonment for a period of three years and he was also ordered to pay the fine. Aggrieved by the said judgment of conviction, Shivanna referred a Criminal Appeal in which also he was unsuccessful but he was sentenced to undergo imprisonment for a period of six months and to pay a fine of Rs.12,000/-. Again, the said Shivanna filed revision petition in Crl.R.P.No.1509/2006 assailing the judgment passed in Criminal Appeal No.66/2006. In the said Revision, on advice of the elders and the family members, an application was filed to compound the offences and Shivanna also filed an affidavit stating that he would look after the first plaintiff well and would lead a life with the first plaintiff. In view of the said facts, Criminal revision petition was allowed on 27.07.2006 and conviction recorded against Shivanna was set aside. Similarly, Shivanna filed an affidavit in the maintenance proceedings in Criminal Miscellaneous No.43/2005 and the same was also came to be dismissed. After the disposal of the - 5 - HC-KAR NC: 2025:KHC:28174 RSA No. 890 of 2023 criminal revision petition by this Court and dismissal of Criminal Miscellaneous Petition, Shivanna did not act according to the terms of the affidavit and on the other hand, he continued to neglect the first plaintiff and refused to maintain her. In this background, another application under Section 125 of Cr.P.C was filed by the first plaintiff against the Shivanna before the Family Court at Davanagere and the Family Court ordered to pay monthly maintenance of Rs.3,000/- in Criminal Miscellaneous No. 156/2009. The said Shivanna also filed a petition seeking divorce under Section 13(1)(I-a)(I-b) of Hindu Marriage Act in M.C.No.182/2011 and the said matter came to be dismissed after the contest and Shivanna was directed to pay an amount of Rs.10,000/- to the first plaintiff and the said Shivanna complied the said order. In the said M.C. petition, Shivanna admitted that first plaintiff is his wife and similarly in evidence tendered by him in M.C.No.182/2011 he has admitted the said fact and first plaintiff continued to be the wife of Shivanna and - 6 - HC-KAR NC: 2025:KHC:28174 RSA No. 890 of 2023 relationship between Shivanna and first plaintiff sustained till the death of Shivanna on 27.12.2013. 3. It is further contended that the said Shivanna had admitted the judicial proceedings as well as first plaintiff is the legally wedded wife. Similarly, he has not stated in the previous judicial proceedings that he has taken defendant No.3 as his wife and there is no material to show that Shivanna married defendant No.3 and hence, the claim made by the defendants that defendant No.3 is the wife and defendant Nos.4 and 5 are the children of Shivanna cannot be accepted. The very contention that defendant No.3 was appointed as nominee to receive the pension amount cannot be accepted and endorsement issued by the department stating that there is a dispute with regard to the claim is not correct. It is contended that except the first plaintiff, there is no other wife of deceased Shivanna and defendant No.3 is no way related to Shivanna or the first plaintiff. - 7 - HC-KAR NC: 2025:KHC:28174 RSA No. 890 of 2023 4. In pursuance of the suit summons, defendant No.1 has filed written statement and same is adopted by defendant No.2 by filing an adoption memo. The defendant Nos.1 and 2 have stated in their written statement by way of substantial defence that they admit the fact that Shivanna was working as a Mechanic. The said Shivanna was married to Durugamma, who is defendant No.3 during his lifetime and he nominated her for all his death benefits and also contended that she is entitled for death benefit and contend that plaintiff Nos.1 and 2 are not entitled for the death benefits of deceased Shivanna. According to the Condition No. 13 of the Circular issued by KPTCL, the legal heirs have to obtain judgment and decree and succession certificate from the Family Court to obtain the death benefits of deceased. 5. Defendant No.3 entered her appearance and filed written statement denying the plaint averments contending that plaintiff No.1 is not the wife of deceased Shivanna and plaintiff No.2 is not his son. The plaintiffs - 8 - HC-KAR NC: 2025:KHC:28174 RSA No. 890 of 2023 contend that her marriage was performed on 23.11.1989 and in the said wedlock she gave birth to two children and also contend that the said Shivanna made defendant No.3 as nominee for his service benefits and also executed a Will in favour of defendant No.3 on 01.12.1999 and plaintiffs are not entitled to any relief as sought. Defendant No.3 got married said Shivanna on 22.03.1990 at Jagaluru. Hence, the plaintiffs are not entitled for any relief. 6. Defendant Nos.4 and 5 also filed the written statement denying the fact that plaintiff No.1 is not the legally wedded wife of deceased Shivanna and plaintiff No.2 is also not the legitimate son of Shivanna and they claim that they are the legitimate children of the Shivanna and prayed the Trial Court to dismiss the suit. 7. The Trial Court having considered the pleadings of the parties, framed the Issues and also recasted the Issue No.2 on 14.03.2017. The Trial Court having - 9 - HC-KAR NC: 2025:KHC:28174 RSA No. 890 of 2023 considered both oral and documentary evidence, answered Issue No.1 as affirmative in coming to the conclusion that plaintiffs are the legally wedded wife and son respectively of the deceased Shivanna and they are the only legal heirs of deceased Shivanna and recasted Issue No.2 is answered as negative and not accepted the case of defendant Nos.3 to 5 and granted the relief of permanent injunction but not granted the relief of mandatory injunction while answering Issue No.3 as negative. 8. Being aggrieved by the said judgment of the Trial Court, an appeal was filed in R.A.No.33/2022. The First Appellate Court having considered the grounds urged in the appeal memo and also considering the submissions of both the counsels, formulated the points for consideration of the appeal. The Appellate Court having reassessed the material available on record, comes to the conclusion that the finding of the Trial Court that plaintiffs are the legally wedded wife and son of Late Shivanna is proper and correct and the finding with regard to the fact - 10 - HC-KAR NC: 2025:KHC:28174 RSA No. 890 of 2023 that plaintiffs are only the legal heirs of deceased Shivanna is not proper and correct and comes to the conclusion that defendant Nos.3 to 5 are also the wife and children of late Shivanna respectively and held that the judgment and decree of the Trial Court requires interference. Having considered the material on record the First Appellate Court allowed the appeal and set aside the judgment and decree of the Trial Court. Hence, the present second appeal is filed before this Court. 9. This Court having considered the grounds which have been urged while admitting the appeal by the respective counsel, framed the following substantive questions of law: 1. Whether the First Appellate Court has committed an error in reversing the judgment and decree passed by the Trial Court? - 11 - HC-KAR NC: 2025:KHC:28174 RSA No. 890 of 2023 2. Whether the First Appellate Court has committed an error in recording a finding that defendant No.3 is the wife an ddfs No.4 and 5 are the legitimate children of deceased Shivanna, by ignoring the subsistence of marriage of plaintiff No.1 with deceased Shivanna? 10. The counsel appearing for the appellants would vehemently contend that the very approach of the First Appellate Court is erroneous and no dispute that the deceased was working as a Mechanic and also a specific case of the plaintiffs/appellants that on 23.12.1989, first plaintiff’s marriage was solemnized with deceased Shivanna and second plaintiff is the son of deceased Shivanna and the claim of defendant No.3 that her marriage was taken place on 22.03.1990 and in the said wedlock, defendant Nos.4 and 5 were born to Shivanna hence, the said finding given by the First Appellate Court is erroneous. The counsel would vehemently contend that when the appellants have approached the department, - 12 - HC-KAR NC: 2025:KHC:28174 RSA No. 890 of 2023 they have issued the endorsement in terms of Ex.D2. Even though Trial Court granted the relief of declaration and decreed the suit, the same was erroneously reversed by the First Appellate Court. 11. The counsel would vehemently contend that even though the subsequent marriage dated 22.03.1990 was not proved, the First Appellate Court committed an error in reversing the judgment of the Trial Court and particularly, recording the finding that defendants No.3 is the wife and defendant Nos.4 and 5 are the legitimate children of deceased Shivanna ignoring the subsistence of marriage of plaintiff No.1 with deceased Shivanna and committed an error. 12. Per contra, the counsel appearing to the respondents would vehemently contend that though earlier proceedings was taken place between the first plaintiff and also her husband i.e. criminal prosecution as well as M.C. petition and granted the maintenance, nothing is placed - 13 - HC-KAR NC: 2025:KHC:28174 RSA No. 890 of 2023 on record to show that marriage was solemnized on 23.12.1989 and in the said wedlock, second plaintiff was born. The counsel also vehemently contended that the First Appellate Court rightly reconsidered the materials available on record and comes to the conclusion that marriage was not proved and they are not the legal heirs of said Shivanna. The First Appellate Court considering both oral and documentary evidence placed on record, given proper finding and it does not require any interference. 13. Having heard the respective counsel and also on perusal of the material on record, this Court has to reanalyse the material available on record since there is a divergent finding. At the first instance, Trial Court granted the decree in favour of the plaintiff and also granted permanent injunction but not granted mandatory injunction. But the First Appellate Court reversed the same. the Trial Court having considered the material available on record particularly considering the Ex.P10 - - 14 - HC-KAR NC: 2025:KHC:28174 RSA No. 890 of 2023 copy of petition in M.C.No.182/2011 and also the objection statement as Ex.P11 and judgment and decree in M.C.No.182/2011 as per Ex.P12 and P13 and as well as certified copy of affidavit filed in Criminal Miscellaneous No.43/2005 at Ex.P15 comes to the conclusion that between Shivanna and Bharamakka, that is PW1, proceedings were taken place and also it is not in dispute that he was convicted for the offences punishable under Sections 498A and 506 of IPC and an appeal was filed against the same and the same was also confirmed and also in the revision petition, dispute was compounded and apart from that the very Shivanna had filed a petition for divorce and the same was dismissed, apart from that maintenance was granted in favour of Smt. Bharamakka. 14. No doubt, on the other hand, defendants have also relied upon the documents of Ex.D2 to D9 i.e. Aadhar cards, endorsements and certificate issued by the Tahsildar respectively and marriage invitation card as Ex.D10 and so also the passbook, SB passbook of - 15 - HC-KAR NC: 2025:KHC:28174 RSA No. 890 of 2023 Shivanna as Ex.P11 and P12 and certificate issued by the Health Officer at Ex.D13, Letters, SSLC Marks card, Impatient card, Receipt, ID card, Election ID card, dividend letter, receipts and obituary function invitation, cash bill, endorsement, KEB bill, loan repayment slip, LIC premium receipts, Death Certificate of Shivanna at Ex.D14 to D36. All these documents are relied upon by the defendants. 15. Having reassessed the material by the First Appellate Court comes to the conclusion that these documents which clearly disclose that Shivanna never resided with plaintiff No.1. As such, there was no question that Shivanna subjected plaintiff No.1 to cruelty and as regards desertion is concerned, comes to the conclusion that mere filing of M.C.No.182/2011 and dismissal cannot be a ground to comes to the conclusion that there was a marriage. In paragraph No.43, made an observation that it is clear that plaintiffs have proved that they are the wife and son of Shivanna and even defendants Nos.3 to 5 have - 16 - HC-KAR NC: 2025:KHC:28174 RSA No. 890 of 2023 proved that they are the wife and children of Shivanna; whereas the plaintiff No.1’s wedding with the said Shivanna was solemnized on 23.12.1989, the marriage of said Shivanna with defendant No.3 was solemnized on 22.03.1990, this goes to show that plaintiff No.1’s marriage with Shivanna solemnized prior to the marriage of Sri Shivanna with defendant No.3. Now that it is clear that defendant No.3 is also the wife of Shivanna who married again and defendant Nos.4 and 5 are the children born to him. Now, the Court has to see the consequence of the same. It must be understood that defendants Nos.4 and 5 are the children born to Shivanna. The First Appellate Court also in detail discussed considering both oral and documentary evidence and comes to the conclusion that though the findings of the Trial Court that plaintiffs are the wife and son of Shivanna and hence, they are his legal heirs needs to be upheld. But the findings of the Trial Court that plaintiffs are the only legal heirs and defendant Nos.3 to 5 have failed to prove that they are - 17 - HC-KAR NC: 2025:KHC:28174 RSA No. 890 of 2023 not the wife and children of Sri Shivanna needs to be interfered with. Making this observation, the First Appellate Court comes to the conclusion that they are also the wife and children of deceased Shivanna. 16. In paragraph No.47 made an observation that Issue Nos.1 and 2 are partly affirmative thereby holding that plaintiffs and defendant Nos.3 to 5 are the legal heirs of Shivanna. Further observation is made that it is incumbent upon this Court to point out that the plaintiffs have filed the suit seeking declaration to the effect that they are the only legal heirs of deceased Shivanna. But before issuing such declaration, this Court must foresee the consequences of the same. It is also observed that it must be understood that the declaration to the effect the plaintiffs are the legal heirs of Shivanna is entirely different from seeking the declaration to the effect that the plaintiffs are only legal heirs and where this Court has held that even defendants Nos.4 and 5 are also the legal heirs, dismissing the suit is not correct and it requires - 18 - HC-KAR NC: 2025:KHC:28174 RSA No. 890 of 2023 interference. Making such observations, the First Appellate Court comes to the conclusion that judgment requires to be set aside. 17. Having read the judgment of the Trial Court as well as the First Appellate Court, it discloses that the First Appellate Court also agrees with regard to the fact that plaintiff No.1 is the wife of Shivanna and also the plaintiff No.2 is the son of Shivanna through the Bharamakka and also comes to the conclusion that defendants Nos.3 to 5 are also the wife and children of Shivanna and they are also the legal heirs of Shivanna. But the fact is that when the marriage was solemnized earlier and subsequent marriage was also solemnized with the Shivanna, the second wife will not get any benefit since the very marriage itself is void. But law is settled that even if any second marriage was taken place, if any children born in the said wedlock, the children can be considered as legitimate children to their parents under Section 16 of the Hindu Marriage Act. It is also settled law that they are - 19 - HC-KAR NC: 2025:KHC:28174 RSA No. 890 of 2023 entitled for a share in the property of the parents. When law is settled, having considered the material and record, it discloses that now, defendant No.3 is no more and only plaintiff No.1 and her son and also defendant Nos.4 and 5 who are the children born to defendant No.3 are alive. When such being the case, in view of law is settled under Section 16 and the Apex Court also made it clear that irrespective of the children born to the first wife and second wife, they can be treated as legitimate children and there cannot be any stigma to the children born to the second wife. When such being the case, the plaintiff No.1 and 2 and also defendant Nos.4 and 5 are the legal heirs of deceased Shivanna. In view of the same, they are entitled for share in the property of the Shivanna i.e., in the separate property of Sivanna and only plaintiff Nos.1 and 2 are entitled for a share in the ancestral properties of Shivanna if any. But defendant Nos.4 and 5 are entitled for a share in the separate property of Shivanna along with plaintiff Nos.1 and 2. Hence, it is clarified the same - 20 - HC-KAR NC: 2025:KHC:28174 RSA No. 890 of 2023 by this Court. Thus, the First Appellate Court committed an error in reversing the judgment and decree passed by the Trial Court even though when finding was given that they are the wife and children of deceased Shivanna and also committed an error in recording a finding that defendants No.3 is the wife and defendants Nos.4 and 5 are the legitimate children of deceased Shivanna but ought not to have declared defendants No.3 as the legal wife since, the marriage was taken place when the first marriage was subsisting as pleaded. But defendants Nos.4 and 5 are the legitimate children in view of the law evolved in view of Section 16 as well as judgment of the Apex Court. Hence, the judgment and decree of the First Appellate Court requires to be set aside by modifying the same and the judgment and decree of the Trial Court also requires to be modified holding that plaintiffs as well as defendants Nos.4 and 5 are the legal heirs of the deceased Shivanna. - 21 - HC-KAR NC: 2025:KHC:28174 RSA No. 890 of 2023 18. Now, with regard to the claim made by the parties before the employer i.e., defendant No.1 on the ground of compassionate is concerned, if any application is filed by the parties, the same has to be considered only on the basis of eligibility to claim the appointment on compassionate ground and the employer has to consider the same and take a decision in accordance with law. With this observations, this RSA is disposed of. Sd/- (H.P.SANDESH) JUDGE SN