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2026 DAILYLAW 684 (KER)

Lalitha D/o. Sharada v. Vijayan S/o. Bhaskaran

2026-06-09

A K Jayasankaran Nambiar, Preeta A K

body2026
JUDGMENT : D r . A.K. Jayasankaran Nambiar, J. 1.As this Mat. Appeal and RP(FC) arise from a common judgment dated 30.3.2023 of the Family Court, Attingal in O.P.No.543 of 2017 and M.C.No.492 of 2016, they are taken up together for consideration and disposed by this common judgment. 2. The appellant before us Smt. Lalitha had filed O.P.No.543 of 2017 before the Family Court, Attingal, seeking a declaration that she was the legally wedded wife of the respondent Vijayan. She had also preferred M.C.No.492 by 2016 claiming maintenance in terms of Section 125(1) of the Code of Criminal Procedure[hereinafter referred to as the 'Cr.P.C.']. The case of the appellant before the Family Court was that she and the respondent, both of whom belong to the Hindu Ezhava community, had solemnized a marriage on 30.5.1974 in accordance with communal rites and ceremonies. According to her, the marriage was witnessed by invitees named in the original petition, and after the marriage, the appellant and the respondent were living together as husband and wife at Kadakkavoor. She also states that in the marital relationship, three children were born, a daughter and two sons, although the youngest son Shibu committed suicide on 5.10.2016. The elder daughter Sheela and the younger son Biju are both stated to be married. During the subsistence of her marriage with the respondent Vijayan, the latter was enamored by the beauty of her younger sister Ragini and he deserted the appellant for carrying on a life with the said Ragini in the Gulf for about 36 years. They thereafter returned to the native place and continued to live there. According to the appellant, after deserting her, the respondent did not care to maintain either her or her children and she was treated in a cruel manner; that it was because of the mental and physical harassment by the respondent and his second wife Ragini, that her son Shibu committed suicide on 5.10.2016. A crime was therefore registered by the appellant against the respondent and his second wife as Crime No.1308 of 2016 of the Kadakkavoor Police Station. She further states that it was on account of the respondent neglecting her that she was forced to file M.C.No.492 of 2016 before the Family Cout, claiming maintenance from him. 3. The respondent Vijayan, on the other hand, vehemently disputed the claim of alleged solemnization of a marriage with the appellant. She further states that it was on account of the respondent neglecting her that she was forced to file M.C.No.492 of 2016 before the Family Cout, claiming maintenance from him. 3. The respondent Vijayan, on the other hand, vehemently disputed the claim of alleged solemnization of a marriage with the appellant. While he stated that the appellant had three issues, he denied that he was the father of any of them. He further maintained that he had married the appellant's sister Ragini, and in that marriage, he had a daughter, and that after his marriage with Ragini, he had left for the Gulf along with her, and there was no question of deserting the appellant with whom he did not have any marital relationship. In response to M.C.No.492 of 2016 filed by the appellant, the respondent pointed out that the appellant was running a business at Kadakkavoor market, and further, that a claim for maintenance against him would not lie in the absence of any marital relationship between him and the appellant and also in the absence of anything to suggest that he was the father of her children. Referring to the documents relied upon by the appellant, the respondent stated that they were not sufficient to establish the appellant's claim that he was her husband or the father of her children so as to entitle her for maintenance under Section 125 (1) of the Cr.P.C. 4. The court below framed the following issues for determination in the O.P. and the M.C. namely, (i) Whether the appellant was entitled to get a declaration that she was the legally wedded wife of the respondent ? (ii) Whether the appellant was entitled to get maintenance @ Rs.7,500/- per month from the respondent and his assets ? and (iii) Relief and costs ? 5. At the trial before the court below, the appellant marked Exts.A1 to A23 documents, testified as PW1 and examined PW2 and PW3 witnesses. On the side of the respondent, Exts.B1 and B2 documents were marked and the respondent testified as DW1. 6. The court below thereafter heard the learned counsel for the appellant and the respondent and found against the appellant on the first issue by holding that the appellant was not entitled to get a declaration as the legally wedded wife of the respondent. 6. The court below thereafter heard the learned counsel for the appellant and the respondent and found against the appellant on the first issue by holding that the appellant was not entitled to get a declaration as the legally wedded wife of the respondent. As a consequence of the finding on the first issue, the court also held the appellant disentitled for maintenance from the respondent. The court however granted a limited relief of maintenance @ Rs.2,000/- from the date of the M.C. and @ Rs.4,000/- from the date of the order to the appellant in terms of Section 20(d) of the Protection of Women from Domestic Violence Act. 7. In the appeal before us, it is the contention of Sri.Haridas P., the learned counsel for the appellant that the trial court erred in not appreciating the documentary evidence that was led in the instant case, wherein, the status of the respondent as the 'husband' of the appellant and as the 'father' of her children was clearly recorded. The said documents were in the nature of the passport of the appellant, her Aadhaar card, her election ID card, ration card, passports of her children, abstract of the school admission registers of her children and conveyance documents in which the respondent was described as the father of her children. It is his submission, placing reliance on the decisions in Challamma v. Tilaga – [2009 (3) KLT SN 50 (C.No.53) SC], Yogendra and Ors. v. Leelama and Ors. - [2010 (1) KLT Suppl. 43 (SC)] and Sumathy v. Kamalamma – [2013 (3) KLT SN 60 (C.No.62)] that the said documents gave rise to a presumption, albeit a rebuttable one, that the respondent was the husband of the accused and the father of her children. He would further point out that the witnesses on behalf of the appellant, in particular, PW2 Thankappan and PW3 Sree Ramakrishnan had clearly deposed to having witnessed the solemnization of the marriage between the appellant and the respondent, and inasmuch as nothing was brought out in cross- examination to discredit the testimony of those witnesses, the trial court ought to have found in favour of the appellant on the issue of declaration of her status as the legally wedded wife of the respondent. Consequently, the learned counsel adds that the appellant's claim for maintenance also ought to have been allowed by the court below. 8. Consequently, the learned counsel adds that the appellant's claim for maintenance also ought to have been allowed by the court below. 8. Per contra, it is the submission of Sri.Anil Kumar, the learned counsel for the respondent that the respondent had clearly explained the circumstances under which, in the documents produced on behalf of the appellant, the respondent was recorded as the father of her children. In particular, in the affidavit filed by him, he had stated as follows: He points out that these averments in the proof affidavit were never challenged in cross examination, and hence, the said evidence clearly rebuts the presumption that could otherwise have been drawn from the documents relied upon by the appellant. He would also point out that inasmuch as the respondent had denied the very solemnization of a marriage with the appellant, it was incumbent upon the appellant to specifically plead and prove aspects regarding the essential ceremonies and rites that were followed while solemnizing the alleged marriage. He points out that the proof affidavit filed on behalf of the appellant did not go into the specifics of the customary rites that had to be followed for the purposes of solemnizing a marriage, and even in the oral evidence adduced through the witnesses, they have only stated that the marriage was solemnized in accordance with the rituals applicable to the Hindu Ezhava community. He also points out that among the documents produced on behalf of the respondent, was Ext.B1 marriage certificate dated 11.3.1994, which evidenced the marriage between the respondent and Ragini, wherein the appellant has signed as a witness. This crucial fact, he points out, is sufficient to dislodge the presumption of a marriage of the respondent with the appellant, that might otherwise have arisen from a perusal of the documents relied upon by the appellant. 9. On a consideration of the rival submissions, we find ourselves in complete agreement with the findings of the court below that dismissed the O.P. and the M.C. preferred by the appellant herein. We have to bear in mind the fact that it was the appellant, who filed the O.P. for a declaration of her status as the wife of the respondent. It is trite that the burden of proving the existence of fact or a relationship is that of the person alleging its existence. We have to bear in mind the fact that it was the appellant, who filed the O.P. for a declaration of her status as the wife of the respondent. It is trite that the burden of proving the existence of fact or a relationship is that of the person alleging its existence. In matrimonial matters, that burden is to be discharged on the threshold of balance of probabilities. While determining whether that threshold has been crossed, the court must keep in mind that a prudent man faced with conflicting probabilities concerning a fact situation will act on the supposition that the fact exists if on weighing the various probabilities he finds that the preponderance is in favour of the existence of the particular fact. The first step in the process is to fix the probabilities, the second to weigh them. The impossible is weeded out at the first stage, the improbable at the second [Dr. N.G. Dastane v. Mrs. S. Dastane – [ AIR 1975 SC 1534 ]] . In the instant case, what appears to us to be bewildering is that the appellant, who alleges that her marriage with the respondent was solemnized on 30.5.1974, did not approach any Forum for a declaration that she was the legally married wife of the respondent till 2017 when she filed the O.P. before the Family Court. Even if it is assumed that there was no occasion for her in the past to seek such a declaration, since she was being looked after by the respondent till 2017, there is still no explanation as to why she did not choose to seek such a declaration after 11.3.1994, the date of the marriage certificate certifying the marriage of the respondent with Ragini on 7.4.1984. We say so because it has come out in evidence that the appellant had signed as a witness to the marriage certificate dated 11.3.1994, and at least on that day, she ought to have realised that her alleged marital relationship with the respondent had come under threat. As already noted, the O.P. before the Family Court was filed only in 2017, which is 23 years after that date. It is also evident from the averments in the O.P. filed by the appellant herself that the respondent had been living along with Ragini in the Gulf for about 36 years after his marriage with her. As already noted, the O.P. before the Family Court was filed only in 2017, which is 23 years after that date. It is also evident from the averments in the O.P. filed by the appellant herself that the respondent had been living along with Ragini in the Gulf for about 36 years after his marriage with her. This admission by the appellant would also militate against her claim that she was legally wedded to the respondent, and that, he had in fact deserted her to marry Ragini. The conduct of the appellant itself, without anything more, establishes the falsity of her claim that she is the legally wedded wife of the respondent. For the same reason, we also do not find any illegality or irregularity in the dismissal of a claim for maintenance under Section 125 (1) of the Cr.P.C by the court below. The upshot of the above discussion is that we find no merit in these cases, and for the reasons already stated above, the Mat. Appeal and the R.P(FC) are dismissed as devoid of merit.