The substantial question of law that arises for
consideration in this Regular Second Appeal is, whether a
legal or reasonable presumption can be drawn to the effect
that a Muhammedan Government Servant had no wife
other than the wife whose name is shown in the Service
Book maintained under Rule 93 of the Government
Servants Conduct Rules, 1960.
8. Coming to Rule 93 of the Government Servants
Conduct Rules, it is apposite to extract the same for a
proper understanding and better appreciation. Rule 93
reads as follows:
"Bigamous Marriages.--(i) No Government servant
who has a wife living shall contract another
marriage without first obtaining the permission of
the Government, notwithstanding that such
subsequent marriage is permissible under the
personal law for the time being applicable to him."
The conduct of a Government servant is governed by the
Government Servant Conduct Rules. The statutory
mandate under Rule 93 is that the Government servant,
who has a wife living, shall not contract another wife
without first obtaining the permission of the Government,
though his personal law permits him subsequent
marriages. It is true that the Conduct Rules are issued
under Article 309 of the Constitution of India and therefore
they have the same force as that of a statute, and any
infraction would amount to violation of law. But, in view of
Rule 93, it can never be presumed that a Muhammedan
Government Servant has no wife other than the wife whose
name is shown in the service book or pension book,
particularly when his personal law permits him to marry
more than one wife, upto four. Such a presumption is far
fetched and stretched and it goes beyond the intention of
the said Rule.
9. Coming to the instant case, it is true that
Aboobackerkutty had not obtained permission to marry the
first defendant under Rule 93 of the said Rules. Certainly,
the said disobedience or violation of that Rule would
warrant disciplinary action against him for misconduct
under the Rule. But, it cannot be presumed that he has no
wife other than the first defendant in view of Rule 93,
particularly when his personal law permits him to marry
and maintain more than one wife, upto four. Therefore,
this Court is not inclined to countenance the arguments
advanced by the the learned counsel for the appellant on
the basis of Rule 93 and it stands rejected.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
MR.JUSTICE K.HARILAL
11TH DAY OF JANUARY 2017
RSA.No. 1187 of 2015 (G)
UMMAYUMMA, Vs KIZHAKKINIYAKATH THITHACHUTTY UMMA,
The appellant is the first defendant in
O.S.No.81/2003 on the files of the Munsiff's Court,
Parappanangadi. The aforesaid suit was filed by the 1st
respondent herein for a declaration and also for
consequential injunction. According to the plaintiff, she is
the legally wedded wife of one Aboobackerkutty and
defendant Nos. 2 to 4 are the children born in that wedlock.
The marital relationship between the plaintiff and
Aboobackerkutty was subsisting till the death of
Aboobackerkutty on 26.9.2002. It is further averred that
Aboobackerkutty has not married any other lady. He was
a Government servant and he retired from service in the
year 1986. While so, he started an illicit relationship with
the first defendant and used to visit her house. It was also
averred that Aboobackerkutty was suffering from mental
illness and he was under treatment for insanity till his
death. According to the plaintiff, he was not in a sound
disposing state of mind and the first defendant and her
brothers got executed several documents by
Aboobackerkutty making use of his unsound mind. Thus,
Exts.A1 to A3 documents were executed without his free
will and the plaintiff came to know about the said
documents during April 2002 only. The entire property
acquired by Aboobackerkutty as per partition deed
No.522/92 was described as 'A' schedule property and the
property sold away to the first defendant and others are
shown as 'B to D' schedules. Hence the plaintiff has filed
the above suit for declaration that the documents executed
by the first defendant in favour of defendant Nos.6 to 8 are
not binding on the plaintiff and defendant Nos.2 to 4. The
plaintiff sought for recovery of possession of plaint B, C
and D schedule properties from the first defendant.
2. The first defendant in the written statement
admitted that the plaintiff was the first wife of
Aboobackerkutty and defendant Nos.2 to 4 are children
born to the plaintiff through Aboobackerkutty. According
to the first defendant, Aboobackerkutty divorced the
plaintiff in the year 1965 and thereafter, there was no
marital relationship between the plaintiff and
Aboobackerkutty and subsequently, Aboobackerkutty
married the first defendant on 9.1.1997 and from that day
till his death the first defendant was his legally wedded
wife. Aboobackerkutty accepted the first defendant as his
wife and he expressly stated so in his several documents.
The defendant Nos.2 and 3, who are the children of
Aboobackerkutty, also admitted that the first defendant is
the wife of Aboobackerkutty. According to her, Exts.A1 to
A3 are valid documents, as those documents were executed
by Aboobackerkutty with his free will and sound disposing
mind. She denied the allegation that Aboobackerkutty was
suffering from mental unsoundness. In short, according to
the first defendant, the plaintiff was not the wife of
Aboobackerkutty since 1965. Therefore, the suit is liable
to be dismissed. Besides, she filed a counter claim for
partition of 'E' schedule property.
3. On the rival pleadings, both parties adduced
evidence, in abundance, consisting of the oral testimonies
of P.Ws.1 to 3 and D.W.1 and Exts.A1 to A23, B1 to B57
and X1 to X4 were marked as third party exhibits and
Exts.C1 and C2 were marked as court exhibits. After
considering the aforesaid evidence, on record, the trial
court dismissed the suit and decreed the counter claim and
ordered partition of the counter claim schedule property
among the legal heirs shown as defendant Nos.1 to 4.
4. Aggrieved by the judgment and decree passed by
the trial court, the plaintiff preferred A.S.No.83/2008
before the Sub Court, Tirur, and after reappreciating the
evidence, on record, the lower appellate court reversed the
findings, in part, by holding that Aboobackerkutty
maintained both the plaintiff and the first defendant as
wives and modified the judgment and decree accordingly.
This Regular Second Appeal is filed assailing the legality
and correctness of the modification made by the lower
appellate court in the judgment and decree by allowing the
appeal in part.
5. The learned counsel for the appellant advanced
arguments based on Rule 93 of the Government Servants
Conduct Rules, 1960. The learned counsel submits that
Rule 93 of the said Rule specifically prescribes that no
Government servant, who has a wife living, shall contract
another marriage without first obtaining permission of the
Government, notwithstanding that such subsequent
marriage is permissible under the personal law. Applying
the above Rule to the instant case, it could be seen that in
Ext.A1 Service Book the name of the first defendant is
shown as "wife" and he has not obtained permission as
contemplated under the said Rule. So, according to the
learned counsel, it could be reasonably presumed that the
first defendant alone was the wife of the deceased
Aboobackerkutty, who was a Government servant, at the
time of his death and it further fortifies the case of the first
defendant that even though Aboobackerkutty married the
plaintiff, he subsequently divorced her in the year 1965.
There, the lower appellate court ought not have found that
the plaintiff also was the wife of Aboobackerkutty and he
had maintained two wives at a time.
6. Going by the impugned judgment passed by the
lower appellate court, it could be seen that the lower
appellate court had relied on Exts.A1 to A23 to arrive at a
finding that Aboobackerkutty maintained both the plaintiff
and the first defendant as his wives during his lifetime,
particularly when his personal law permits him to do so.
Being a Second Appeal, this Court is not inclined to
reappreciate the evidence from which the lower appellate
court arrived at a finding that there are sufficient evidence
to show that Aboobackerkutty was maintaining the
plaintiff also as his wife along with the first defendant. The
trial court denied the share to the plaintiff in counter claim
'B' schedule property on a finding that she was a divorced
wife of Aboobackerkutty. But, going by the judgment
passed by the trial court, it could be seen that absolutely
there is no evidence to show that the plaintiff was a
divorced wife. It is pertinent to note that the first
defendant herself had admitted that Aboobackerkutty
firstly married the plaintiff, though she further contended
that subsequently he divorced her. In view of the above
contention, the burden is heavy on the first defendant to
prove that Aboobackerkutty had divorced the plaintiff
subsequently and the burden of proof, to establish that
contention, has not been discharged by the first defendant.
In the absence of evidence to prove divorce, in view of her
own admission that Aboobackerkutty firstly married the
plaintiff, the lower appellate court is justified in finding
that the plaintiff is the legally wedded wife of
Aboobackerkutty till his death and she is also entitled to
share as the first wife of Aboobackerkutty. Thus, the
modification made by the lower appellate court in the
judgment and decree is just and proper. I do not find any
reason to interfere with the said findings.
7. The substantial question of law that arises for
consideration in this Regular Second Appeal is, whether a
legal or reasonable presumption can be drawn to the effect
that a Muhammedan Government Servant had no wife
other than the wife whose name is shown in the Service
Book maintained under Rule 93 of the Government
Servants Conduct Rules, 1960.
8. Coming to Rule 93 of the Government Servants
Conduct Rules, it is apposite to extract the same for a
proper understanding and better appreciation. Rule 93
reads as follows:
"Bigamous Marriages.--(i) No Government servant
who has a wife living shall contract another
marriage without first obtaining the permission of
the Government, notwithstanding that such
subsequent marriage is permissible under the
personal law for the time being applicable to him."
The conduct of a Government servant is governed by the
Government Servant Conduct Rules. The statutory
mandate under Rule 93 is that the Government servant,
who has a wife living, shall not contract another wife
without first obtaining the permission of the Government,
though his personal law permits him subsequent
marriages. It is true that the Conduct Rules are issued
under Article 309 of the Constitution of India and therefore
they have the same force as that of a statute, and any
infraction would amount to violation of law. But, in view of
Rule 93, it can never be presumed that a Muhammedan
Government Servant has no wife other than the wife whose
name is shown in the service book or pension book,
particularly when his personal law permits him to marry
more than one wife, upto four. Such a presumption is far
fetched and stretched and it goes beyond the intention of
the said Rule.
9. Coming to the instant case, it is true that
Aboobackerkutty had not obtained permission to marry the
first defendant under Rule 93 of the said Rules. Certainly,
the said disobedience or violation of that Rule would
warrant disciplinary action against him for misconduct
under the Rule. But, it cannot be presumed that he has no
wife other than the first defendant in view of Rule 93,
particularly when his personal law permits him to marry
and maintain more than one wife, upto four. Therefore,
this Court is not inclined to countenance the arguments
advanced by the the learned counsel for the appellant on
the basis of Rule 93 and it stands rejected. I do not find
any kind of illegality or perversity in the findings, whereby
the lower appellate court modified the judgment and
decree passed by the trial court. No other question of law
arises for consideration in this Appeal.
This Regular Second Appeal will stand dismissed. All
pending Interlocutory Applications will stand closed.
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consideration in this Regular Second Appeal is, whether a
legal or reasonable presumption can be drawn to the effect
that a Muhammedan Government Servant had no wife
other than the wife whose name is shown in the Service
Book maintained under Rule 93 of the Government
Servants Conduct Rules, 1960.
8. Coming to Rule 93 of the Government Servants
Conduct Rules, it is apposite to extract the same for a
proper understanding and better appreciation. Rule 93
reads as follows:
"Bigamous Marriages.--(i) No Government servant
who has a wife living shall contract another
marriage without first obtaining the permission of
the Government, notwithstanding that such
subsequent marriage is permissible under the
personal law for the time being applicable to him."
The conduct of a Government servant is governed by the
Government Servant Conduct Rules. The statutory
mandate under Rule 93 is that the Government servant,
who has a wife living, shall not contract another wife
without first obtaining the permission of the Government,
though his personal law permits him subsequent
marriages. It is true that the Conduct Rules are issued
under Article 309 of the Constitution of India and therefore
they have the same force as that of a statute, and any
infraction would amount to violation of law. But, in view of
Rule 93, it can never be presumed that a Muhammedan
Government Servant has no wife other than the wife whose
name is shown in the service book or pension book,
particularly when his personal law permits him to marry
more than one wife, upto four. Such a presumption is far
fetched and stretched and it goes beyond the intention of
the said Rule.
9. Coming to the instant case, it is true that
Aboobackerkutty had not obtained permission to marry the
first defendant under Rule 93 of the said Rules. Certainly,
the said disobedience or violation of that Rule would
warrant disciplinary action against him for misconduct
under the Rule. But, it cannot be presumed that he has no
wife other than the first defendant in view of Rule 93,
particularly when his personal law permits him to marry
and maintain more than one wife, upto four. Therefore,
this Court is not inclined to countenance the arguments
advanced by the the learned counsel for the appellant on
the basis of Rule 93 and it stands rejected.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
MR.JUSTICE K.HARILAL
11TH DAY OF JANUARY 2017
RSA.No. 1187 of 2015 (G)
UMMAYUMMA, Vs KIZHAKKINIYAKATH THITHACHUTTY UMMA,
The appellant is the first defendant in
O.S.No.81/2003 on the files of the Munsiff's Court,
Parappanangadi. The aforesaid suit was filed by the 1st
respondent herein for a declaration and also for
consequential injunction. According to the plaintiff, she is
the legally wedded wife of one Aboobackerkutty and
defendant Nos. 2 to 4 are the children born in that wedlock.
The marital relationship between the plaintiff and
Aboobackerkutty was subsisting till the death of
Aboobackerkutty on 26.9.2002. It is further averred that
Aboobackerkutty has not married any other lady. He was
a Government servant and he retired from service in the
year 1986. While so, he started an illicit relationship with
the first defendant and used to visit her house. It was also
averred that Aboobackerkutty was suffering from mental
illness and he was under treatment for insanity till his
death. According to the plaintiff, he was not in a sound
disposing state of mind and the first defendant and her
brothers got executed several documents by
Aboobackerkutty making use of his unsound mind. Thus,
Exts.A1 to A3 documents were executed without his free
will and the plaintiff came to know about the said
documents during April 2002 only. The entire property
acquired by Aboobackerkutty as per partition deed
No.522/92 was described as 'A' schedule property and the
property sold away to the first defendant and others are
shown as 'B to D' schedules. Hence the plaintiff has filed
the above suit for declaration that the documents executed
by the first defendant in favour of defendant Nos.6 to 8 are
not binding on the plaintiff and defendant Nos.2 to 4. The
plaintiff sought for recovery of possession of plaint B, C
and D schedule properties from the first defendant.
2. The first defendant in the written statement
admitted that the plaintiff was the first wife of
Aboobackerkutty and defendant Nos.2 to 4 are children
born to the plaintiff through Aboobackerkutty. According
to the first defendant, Aboobackerkutty divorced the
plaintiff in the year 1965 and thereafter, there was no
marital relationship between the plaintiff and
Aboobackerkutty and subsequently, Aboobackerkutty
married the first defendant on 9.1.1997 and from that day
till his death the first defendant was his legally wedded
wife. Aboobackerkutty accepted the first defendant as his
wife and he expressly stated so in his several documents.
The defendant Nos.2 and 3, who are the children of
Aboobackerkutty, also admitted that the first defendant is
the wife of Aboobackerkutty. According to her, Exts.A1 to
A3 are valid documents, as those documents were executed
by Aboobackerkutty with his free will and sound disposing
mind. She denied the allegation that Aboobackerkutty was
suffering from mental unsoundness. In short, according to
the first defendant, the plaintiff was not the wife of
Aboobackerkutty since 1965. Therefore, the suit is liable
to be dismissed. Besides, she filed a counter claim for
partition of 'E' schedule property.
3. On the rival pleadings, both parties adduced
evidence, in abundance, consisting of the oral testimonies
of P.Ws.1 to 3 and D.W.1 and Exts.A1 to A23, B1 to B57
and X1 to X4 were marked as third party exhibits and
Exts.C1 and C2 were marked as court exhibits. After
considering the aforesaid evidence, on record, the trial
court dismissed the suit and decreed the counter claim and
ordered partition of the counter claim schedule property
among the legal heirs shown as defendant Nos.1 to 4.
4. Aggrieved by the judgment and decree passed by
the trial court, the plaintiff preferred A.S.No.83/2008
before the Sub Court, Tirur, and after reappreciating the
evidence, on record, the lower appellate court reversed the
findings, in part, by holding that Aboobackerkutty
maintained both the plaintiff and the first defendant as
wives and modified the judgment and decree accordingly.
This Regular Second Appeal is filed assailing the legality
and correctness of the modification made by the lower
appellate court in the judgment and decree by allowing the
appeal in part.
5. The learned counsel for the appellant advanced
arguments based on Rule 93 of the Government Servants
Conduct Rules, 1960. The learned counsel submits that
Rule 93 of the said Rule specifically prescribes that no
Government servant, who has a wife living, shall contract
another marriage without first obtaining permission of the
Government, notwithstanding that such subsequent
marriage is permissible under the personal law. Applying
the above Rule to the instant case, it could be seen that in
Ext.A1 Service Book the name of the first defendant is
shown as "wife" and he has not obtained permission as
contemplated under the said Rule. So, according to the
learned counsel, it could be reasonably presumed that the
first defendant alone was the wife of the deceased
Aboobackerkutty, who was a Government servant, at the
time of his death and it further fortifies the case of the first
defendant that even though Aboobackerkutty married the
plaintiff, he subsequently divorced her in the year 1965.
There, the lower appellate court ought not have found that
the plaintiff also was the wife of Aboobackerkutty and he
had maintained two wives at a time.
6. Going by the impugned judgment passed by the
lower appellate court, it could be seen that the lower
appellate court had relied on Exts.A1 to A23 to arrive at a
finding that Aboobackerkutty maintained both the plaintiff
and the first defendant as his wives during his lifetime,
particularly when his personal law permits him to do so.
Being a Second Appeal, this Court is not inclined to
reappreciate the evidence from which the lower appellate
court arrived at a finding that there are sufficient evidence
to show that Aboobackerkutty was maintaining the
plaintiff also as his wife along with the first defendant. The
trial court denied the share to the plaintiff in counter claim
'B' schedule property on a finding that she was a divorced
wife of Aboobackerkutty. But, going by the judgment
passed by the trial court, it could be seen that absolutely
there is no evidence to show that the plaintiff was a
divorced wife. It is pertinent to note that the first
defendant herself had admitted that Aboobackerkutty
firstly married the plaintiff, though she further contended
that subsequently he divorced her. In view of the above
contention, the burden is heavy on the first defendant to
prove that Aboobackerkutty had divorced the plaintiff
subsequently and the burden of proof, to establish that
contention, has not been discharged by the first defendant.
In the absence of evidence to prove divorce, in view of her
own admission that Aboobackerkutty firstly married the
plaintiff, the lower appellate court is justified in finding
that the plaintiff is the legally wedded wife of
Aboobackerkutty till his death and she is also entitled to
share as the first wife of Aboobackerkutty. Thus, the
modification made by the lower appellate court in the
judgment and decree is just and proper. I do not find any
reason to interfere with the said findings.
7. The substantial question of law that arises for
consideration in this Regular Second Appeal is, whether a
legal or reasonable presumption can be drawn to the effect
that a Muhammedan Government Servant had no wife
other than the wife whose name is shown in the Service
Book maintained under Rule 93 of the Government
Servants Conduct Rules, 1960.
8. Coming to Rule 93 of the Government Servants
Conduct Rules, it is apposite to extract the same for a
proper understanding and better appreciation. Rule 93
reads as follows:
"Bigamous Marriages.--(i) No Government servant
who has a wife living shall contract another
marriage without first obtaining the permission of
the Government, notwithstanding that such
subsequent marriage is permissible under the
personal law for the time being applicable to him."
The conduct of a Government servant is governed by the
Government Servant Conduct Rules. The statutory
mandate under Rule 93 is that the Government servant,
who has a wife living, shall not contract another wife
without first obtaining the permission of the Government,
though his personal law permits him subsequent
marriages. It is true that the Conduct Rules are issued
under Article 309 of the Constitution of India and therefore
they have the same force as that of a statute, and any
infraction would amount to violation of law. But, in view of
Rule 93, it can never be presumed that a Muhammedan
Government Servant has no wife other than the wife whose
name is shown in the service book or pension book,
particularly when his personal law permits him to marry
more than one wife, upto four. Such a presumption is far
fetched and stretched and it goes beyond the intention of
the said Rule.
9. Coming to the instant case, it is true that
Aboobackerkutty had not obtained permission to marry the
first defendant under Rule 93 of the said Rules. Certainly,
the said disobedience or violation of that Rule would
warrant disciplinary action against him for misconduct
under the Rule. But, it cannot be presumed that he has no
wife other than the first defendant in view of Rule 93,
particularly when his personal law permits him to marry
and maintain more than one wife, upto four. Therefore,
this Court is not inclined to countenance the arguments
advanced by the the learned counsel for the appellant on
the basis of Rule 93 and it stands rejected. I do not find
any kind of illegality or perversity in the findings, whereby
the lower appellate court modified the judgment and
decree passed by the trial court. No other question of law
arises for consideration in this Appeal.
This Regular Second Appeal will stand dismissed. All
pending Interlocutory Applications will stand closed.
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