Decided on June 06,1967



- (1.) K. N. Nanoo, who was a bus-driver in the State service, retired on September 24,1964 , and died on April 16,1965. Under R. 88, part III, Kerala Service Rules, family pension became due to his family; and by R. 79 'family' is defined to include a wife. Before the government of Kerala the plaintiff and the 1st defendant claimed to have been the wife of Nanoo, entitled to family pension. The Government awarded it to the 1st defendant. The plaintiff instituted the present suit to set aside the award on the ground that at the time of his death she, and not the 1st defendant, was the wife of Nanoo and sought a temporary injunction to restrain the Government from disbursing the amount to the 1st defendant. She concedes Nanoo to have married the 1st defendant, but claims that marriage to have been terminated before 1945, when he married her. There is no proof of a divorce between the 1st defendant and Nanoo; on the other hand, the compromise decree, Ext. D2 dated August 1, 1952 , in a suit by the 1st defendant against Nanoo for maintenance, makes clear that their marriage was subsisting in 1952. The trump card in plaintiff's evidence is a will executed by Nanoo on April 7,1965 , in which he described the plaintiff as his wife and bequeathed all his dues from the State to her. The Courts below have refused temporary injunction holding nanoo's marriage with the plaintiff to have been during the subsistence of his marriage with the 1st defendant and therefore not lawful and the plaintiff not to be the wife of Nanoo. The Subordinate Judge, Mr. G. Kurien, observed thus: "the learned counsel for the appellant argued that kerala Service Rules had not defined 'wife'. So a wife would include even a person who was treated and accepted as the wife though the same is not legally recognizable. I could not accept this argument. The law always contemplates a relationship which could be legally recognized. Plaintiff can claim herself to be a wife only if there is a legally recognized marriage subsisting between herself and deceased Nanoo. In the absence of such a marriage this plaintiff cannot be treated as a wife. " The identical contention is repeated here; and I am glad to express my concurrence with every word of the Subordinate Judge's observation cited above. Under S. 488, Criminal Procedure Code, claims to maintenance have been dismissed by Courts on the ground that only a woman who has been lawfully married can be a wife. See A. T. Lakshmi Ambalam v. Andiammal (AIR. 1938 Mad. 66); P. Madhavan v. Munir Begum (AIR. 1954 Mad. 513); Emperor v. Ganeshibai (44 Crl. L. J. 787 ). The principle in those precedents may well be adopted here too.
(2.) K. J. B. David v. Nilamani Devi (AIR. 1953 Orisia 10)is not a case on the legality of a marriage or the status of a wife. It is a case on mode of proof of a marriage. Reputed cohabitation as man and wife, or admission of parties, or opinion expressed by conduct of persons who had special means of knowledge of the matter may be accepted as proof of marriage. But in a case of proof by reputation or admission, the circumstances of the case have to be scrutinised with some caution because, as the Privy Council observed in Mi Me v. Mi Shwe Ma (39 I. A. 57 at 60), the same word which is used to describe a woman lawfully married is applied by many to a woman living with a man on less honourable terms. Marriage being the foundation of society, the law favours a presumption of validity of marriages and requires 'strong, distinct, satisfactory and conclusive' evidence to rebut it. Even so, Nanoo's blandishments cannot be the last word on plaintiff's status or turn the course of law. To hold that a marriage may be proved by reputation or by admission of parties is one thing: to say that A is the wife of B because A is reputed or admitted to be such, even though the known circumstances are against their conjugal union being lawful is a different thing. Relationship always means legitimate relationship; and whenever other relations are comprehended, law would specifically say so, as in the case of illegitimate children in S. 488, criminal Procedure Code. It follows that a woman cannot be a 'wife' unless she is lawfully married to a man. A woman cohabiting with a man without being lawfully married by him may be his mistress or concubine, but not his 'wife'. It is conceded that polygamy is not lawful in the communities of the parties. It then follows that the award of family pension by the Government to the 1st defendant, whose marriage with Nanoo is not disputed and not proved to have been terminated by a divorce during his life, was right; and the plaintiff, who is not shown to be the wife of that man, has no right to claim it. The order of the Court below is therefore right and the Civil Revision Petition has to fail. Order accordingly. Dismissed.;

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