Sunday, 11 June 2017

Whether presumption can be drawn that Muslim man had no wife other than whose name is mentioned in service book?

 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,
 V
         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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