Danial Lamp v. Maria Rhytham

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Reserved on

28.04.2023 & 08.06.2023 Pronounced on

16.06.2023 CORAM THE HONOURABLE MR.JUSTICE C.SARAVANAN and C.M.P.(MD) No.5719 of 2023 Danial Lamp ... Petitioner in all C.R.Ps.

Vs. Maria Rhytham ... Respondent in all C.R.Ps. Civil Revision Petitions filed under Article 227 of the Constitution of India, to call for the records and set aside the orders dated 12.12.2022 made in I.A.Nos.2, 3 & 4 of 2021 in I.D.O.P.No.24 of 2016 respectively on the file of the Family Court, Trichy. For Petitioner in all C.R.Ps. : Mr.B.Jameel Arasu For Respondent in all C.R.Ps. : Mr.S.Vinayak

Page No. 1 of 10 C O M M O N O R D E R By this common order, all the three Civil Revision Petitions are being disposed of.

¶2In C.R.P.(MD) No.1183 of 2023, the petitioner has challenged the impugned fair and decreetal order dated 12.12.2022 passed by the Family Court, Trichy in I.A.No.2 of 2021 in I.D.O.P.No.24 of 2016.

¶3By the impugned order dated 12.12.2022 in I.A.No.2 of 2021 in I.D.O.P.No.24 of 2016, the Family Court, Trichy has dismissed the application filed by the petitioner for amendment of prayer. Relevant portion of the impugned order dated 12.12.2022 in I.A.No.2 of 2021 in I.D.O.P.No.24 of 2016 reads as under:- 'rl;lj;jpw;Fl;gl;L jdf;Fk; rjP];FkhUf;Fk; jpUkzk;

ele;jjhf

vjpHkDjhuu; njhptpf;ftpy;iy. ,t;thwhd epiyapy; jw;NghJ ,e;j kDit kDjhuu; kpfTk; fhyjhkjkhf

jhf;fy;

nra;J

tof;F tprhuizia fhyjhkjg;gLj;j Kay;fpwhu; vd;gJ

njupfpwJ.

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,k;kD mDkjpf;fj;jf;fjy;y vd;Wk; kDit js;Sgb nra;J cj;jutpLtNj ePjpapd; eyDf;F cfe;jJ vd;Wk; KbT nra;ag;gLfpwJ." Page No. 2 of 10

¶4In C.R.P.(MD) No.1199 of 2023, the petitioner has challenged the impugned fair and decreetal order dated 12.12.2022 passed by the Family Court, Trichy in I.A.No.3 of 2021 in I.D.O.P.No.24 of 2016.

¶5By the impugned order dated 12.12.2022 in I.A.No.3 of 2021 in I.D.O.P.No.24 of 2016, the Family Court has ordered the petitioner to pay Litigation Expenses of Rs.5000/- to the respondent. Relevant portion of the impugned order dated 12.12.2022 in I.A.No.3 of 2021 in I.D.O.P.No. 24 of 2016 reads as under:- ',Wjpahf

,k;kD

gFjpahf mDkjpf;fg;gLfpwJ.

kDjhuu;/vjpu;kDjhuUf;F tof;F nryTj; njhifahf &.5>000/- j;ij vjpu;kDjhuu;kDjhuu; ,e;j cj;juT NjjpapypUe;J xU khj fhyj;jpw;Fs; NeupNyh my;yJ tq;fp fzf;F %ykhfNth toq;fNtz;Lk; vd;W cj;jputplg;gLfpwJ."

¶6In C.R.P.(MD) No.1219 of 2023, the petitioner has challenged the impugned fair and decreetal order dated 12.12.2022 passed by the Family Court, Trichy in I.A.No.4 of 2021 in I.D.O.P.No.24 of 2016. Page No. 3 of 10

¶7By the impugned order dated 12.12.2022 in I.A.No.4 of 2021 in I.D.O.P.No.24 of 2016, the Family Court has ordered interim maintenance of Rs.4000/- per month to the respondent. Relevant portion of the impugned order dated 12.12.2022 in I.A.No.4 of 2021 in I.D.O.P.No.24 of 2016 reads as under:- ',Wjpahf

,k;kD

gFjpahf mDkjpf;fg;gLfpwJ. vjpu;kDjhuu;/kDjhuu;> ,k;kD jhf;fy; nra;j 23.11.2021k; NjjpapypUe;J mry; kDtpy; tof;F KbtilAk; Njjp tiu kDjhuu;/vjpu;kDjhuUf;F ,ilf;fhy tho;f;ifg; nghUSjtpahf khje;NjhWk; &.4000/- j;ij vjpu;kDjhuu;/kDjhuu; toq;fp tuNtz;Lk; vd;Wk;> khjj;jpw;fhd

[Ptdhk;r

njhifia vjpu;kDjhuu;/kDjhuu; njhlu;e;J tUk; Mq;fpy khjk; 5k; Njjpf;Fs; kDjhuu;vjpu;kDjhuuplk; NeupNyh my;yJ tq;fp fzf;F %ykhfNth nrYj;jNtz;Lk; vd;Wk;> 23.11.2021k; NjjpapypUe;J ,d;W tiuAs;s [Ptdhk;r ghf;fp njhifia cj;juT NjjpapypUe;J xU khj fhyj;jpw;Fs; vjpu;kDjhuu;/kDjhuu;>

kDjhuu;/vjpu;kDjhuupd; tq;fp fzf;fpd; %ykhfNth my;yJ NeupNyh nrYj;jNtz;Lk; vd;Wk; cj;jutplg;gLfpwJ."

¶8The Court below has dismissed the I.A.No.2 of 2021 filed by the petitioner/husband for amending the pleadings while allowing I.A.Nos.3 & 4 of 2021 filed by the respondent/wife for interim maintenance and for litigation expense. Page No. 4 of 10

¶9The petitioner is the petitioner in I.D.O.P.No.24 of 2016 before the Family Court, Trichy. The above said I.D.O.P. has been filed by the petitioner to dissolve the marriage solemnized between the petitioner and the respondent on 18.10.2012 as per the custom. The above said I.D.O.P. has been filed by the petitioner against the respondent on the ground of desertion and cruelty.

¶10During the cross-examination in I.D.O.P.No.24 of 2016, the petitioner claims to have elicited several adverse admissions from the respondent to the effect that the respondent was earlier married to one Satheeshkumar and that the Marriage Reception was also celebrated in the presence of the respondent's parents and the parents of the said Satheeshkumar with whom she is said to have been married. A reference is made to the following passages from the statement of the respondent during cross examination in I.D.O.P.No.24 of 2016:- '3.12.2010 md;W fhty; epiyaj;jpy; vd; ngw;NwhHfs; re;jpj;j gpd;dH jhd; mtHfs; tpLtpf;fg;gl;lhHfs;.

fhty;

epiyaj;jpy; rjP\;Fkhhpd; jhahH $wpa thrfq;fis vOjp nfhLj;Njd;. mjpy; vq;fs; jpUkzj;jpw;F ghJfhg;G nfhLf;Fk;gb vOjg;gl;bUe;jJ vd;why; rhpjhd;. fhty;epiyak; nry;Yk; Kd;G Nfhtpy; Kd;G jhypfl;ba

tptuk;

gjpthshplk;

gjpa nra;ag;gltpy;iy. ehd; Kjd;Kiwahf md;iwa Page No. 5 of 10 jpdk; vOjp nfhLj;Njd;. mjw;F Kd;G fhty;epiyak; nrd;wjpy;iy. rjP\;FkhUld; te;jpUe;j

egHfSk;

fhty;epiyak; te;jpUe;jhHfs;. kj;jpaNgUe;j epiyak; mUfpy; Xl;ly; ftpjhtpy;

tuNtw;G

epfo;r;rp

ele;jJ. fhty;epiyaj;jpypUe;J te;j 5 ehl;fSf;F gpwF tuNtw;G epfo;r;rp ele;jJ. vd; ngw;NwhUk; rjP\;Fkhhpd; FLk;gj;jpdUk; fye;J Ngrp tuNtw;G epfo;r;rp elj;jpdhHfs; vd;why; mJ gw;wp vdf;F njhpahJ vd; ngw;NwhH rjP\;FkhH FLk;gj;jpdUld; Ngrp jhd; tuNtw;G epfo;r;rp elj;jpAs;shHfs; vd;W jw;NghJ njhpe;J nfhz;Nld;. me;j tuNtw;G epfo;r;rpapy; vd; ngw;NwhUk; vd; nghpag;ghTk; vd; nghpak;khTk; fye;J nfhz;lhHfs;. me;j tuNtw;G epfo;r;rpapy; Gifg;glk; vLf;fg;gl;ljh vd;why; vLf;ftpy;iy."

¶11It is submitted that after the above said admission by the respondent during the cross-examination admitting to the previous marriage, the petitioner thus filed I.A.No.2 of 2021 under Order 6 Rule 17 and Section 151 of Code of Civil Procedure, 1908 to amend the prayer from "dissolution of marriage on the ground of desertion and cruelty" to "nullity of marriage under Sections 18 and 19(4) of the Indian Divorce Act, 1869".

¶12The Family Court, Trichy has dismissed I.A.No.2 of 2021 filed under Order 6 Rule 17 and Section 151 of C.P.C. to amend the prayer Page No. 6 of 10 from "dissolution of marriage on the ground of desertion and cruelty" to "nullity of marriage under Sections 18 and 19(4) of the Indian Divorce Act, 1869".

¶13The Family Court has held that the petitioner was aware of the so called first marriage of the respondent with the said Satheesh Kumar earlier at the time of filing the I.D.O.P.No.24 of 2016 itself.

¶14Amendment to the pleadings can be allowed even at the stage of final arguments with the leave of the court. Amendment to the pleading cannot be allowed to alter the characteristic of the case. By allowing amendment, there is no final determination of the issues. Amendments are intended to help the Court to resolve the issues before it.

¶15In the present case, the petitioner seeks to alter the characteristic of the case from "dissolution of marriage" to "nullity" on account of the previous marriage of the respondent. The petitioner is seeking to declare the marriage with the respondent as a nullity by amending the petition under Rule 6 Order 17 and Section 151 of CPC. Page No. 7 of 10

¶16A reading of the deposition and averments indicates that the alleged marriage between the respondent and the said Satheeshkumar is said to have taken place on 02.12.2010. Prima facie such ceremony cannot be recognized as a valid marriage in the eye of law unless the respondent had relinquished her religion by birth i.e. Christianity and converted to Hinduism. To conclude that the said marriage between the respondent and the said Satheeshkumar was a valid marriage, both should have been 'Hindus' on the date of the alleged marriage between them on

02.12.2010, otherwise, the said ceremony of marriage is itself a nullity.

¶17As per Section 5 of the Hindu Marriage Act, 1955, a Hindu can marry only a Hindu and subject to fulfilment of certain conditions. In case of inter caste marriage/secular marriage between two persons of different faith, the marriage has to be solemnized only under the provision of Special Marriage Act, 1954. Further, the Tamil Nadu Registration of Marriages Act, 2009 is in force. The marriages are required to be registered under this Act. There are no records to show that the so called previous marriage was registered under the provisions of the Tamil Nadu Registration of Marriages Act, 2009.

Page No. 8 of 10

¶18In the case of Ashok Kumar Vs. Krishna Kumari, 1993 (1) HLR 114, it was held that in the case of a bigamous marriage, it is necessary to establish the performance of essential ceremonies to constitute a valid marriage and thereafter leading some evidence in support thereof.

¶19There are no records to show that the alleged marriage between the respondent and the said SatheeshKumar was solemnized under the provision of Special Marriage Act, 1954. Further, I.A.No.2 of 2021 was filed by the petitioner/husband for amending the pleadings, after the evidences on either side were completed. Therefore, there is no merits in the challenge to the impugned order dated 12.12.2022 in I.A.No.2 of 2021 in I.D.O.P.No.24 of 2016.

¶20I.A.Nos.3 & 4 of 2021 were filed by the respondent for interim maintenance and for litigation expenses after the evidences were closed. As far as the interim maintenance and the litigation expenses are concerned, there is no scope for interference. The amount of Rs.4000/- that has been awarded towards interim maintenance on monthly basis to the respondent is too meagre. Only a sum of Rs.5,000/- has been ordered Page No. 9 of 10

C.SARAVANAN, J. Jen to be paid towards litigation expenses. The said amount is also far below the litigation expenses that would have been incurred by the respondent. Therefore, there is no scope for interference.

¶21In the result, C.R.P.(MD) Nos.1183, 1199 & 1219 of 2023 are dismissed. No cost. Consequently, connected Miscellaneous Petition is closed.

16.06.2023 NCC : Yes / No Internet : Yes/No Index: Yes/ No smn2/jen To The Family Court, Trichy. Pre-Delivery Common Order made in and C.M.P.(MD) No.5719 of 2023 Page No. 10 of 10