Civil Application No.9 of 2009. Case: Swaroopa Naik Vaigankar Vs Deepa Prakash Naik and Ors.. High Court of Bombay (India)
| Case Number | Civil Application No.9 of 2009 |
| Counsel | M S Usgaonkar, Pravin Faldesai, S Malkarnekar, Sudesh Usgaonkar, V A Lawande |
| Judges | N A Britto, J. |
| Issue | Civil Procedure Code (CPC) - Order 47, Rule 1; Civil Code, 1867 - Articles 1108, 1109, 1235 and 2135; Constitution of India - Article 137; Supreme Court Rules - Order 40 |
| Citation | 2010 (4) ALLMR 88, 2010 (3) BomCR 562 |
| Judgement Date | April 13, 2010 |
| Court | High Court of Bombay (India) |
Judgment:
N A Britto, J.
Heard.
This is an application for review filed under Order 47, Rule 1, CPC, by defendant no.5 in Special Civil Suit No.61/1996 for review of the judgment of this Court dated 2/12/2008, dismissing the appeal filed by her, against judgment/decree dated 26/09/2003 of the learned Civil Judge, Senior Division, in the said civil suit.
Some basic facts are required to be stated.
The dispute is essentially between the two wives of Prakash Naik alias Vaingankar of Ribandar, Goa, for the estate left by him. The said Prakash Naik alias Vaingankar married Mrs. Deepa P. Naik (plaintiff no. 1 in the said Civil Suit) on 17/03/1978. The said marriage was short lived till about 8/04/1979. According to the said Prakash Naik alias Vaingankar, the said Deepa P. Naik abandoned the conjugal domicile on or about 8/04/1979, but according to the said Deepa P. Naik (plaintiff no.l) it is she who was driven out of the house by him. At that time, the said Deepa P. Naik was expecting and she gave birth to Kalidas (plaintiff no.2) on 27/05/1979.
Thereafter, the said Prakash Naik married Swaroopa P. Vaigankar (defendant no.5/applicant herein) on 17/07/1983, at Sawantwadi, while the first marriage was subsisting. A suit for divorce filed by the said Prakash Naik alias Vaingankar against the said Mrs. Deepa P. Naik, the first wife, presumably, inter alia, on the ground of abandonment of conjugal domicile came to be dismissed as abated after his death on 13/04/1996. The said Prakash Naik alias Vaingankar lived with the second wife the said Mrs. Swaroopa P. Vaingankar at Ribandar till his death. Upon the death of the said Prakash Naik alias Vaingankar, the said second wife Mrs. Swaroopa made a deed of succession on or about 24/06/1996 claiming to be the only legal heir to the estate of the said Prakash Naik alias Vaingankar. The claim and counter claim by the first wife (plaintiff no. 1) and the second wife (defendant no.5) is again essentially to the moneys which were due and payable to the said Prakash Naik alias Vaingankar by defendants no.2, 3 & 4 (Respondents nos.4, 5 and 6, herein).
The first wife along with their son, as plaintiffs, filed the said civil suit, inter alia, for direction to the said defendants to pay to the plaintiffs the benefits due upon the death of the said Prakash Naik alias Vaingankar and also for declaration that they were the sole and universal heirs of the said Prakash Naik alias Vaingankar and for declaration that the deed of succession and qualification be declared null and void. The suit was resisted by the second wife, defendant no.5, stating that at no point of time, the said Prakash Naik alias Vaingankar had disclosed to her that he was married, before the Registrar of Sawantwadi where they had got married, and after the said marriage he was staying with her in a joint family along with her in-laws and continued to do so. She had also stated that neither the said Prakash Vaingankar nor her in-laws or relatives or friends or anyone, told her about the alleged first marriage of the said Prakash Naik alias Vaingankar to the plaintiff no.l.
The learned trial Court by judgment dated 26/09/2003 declared the said plaintiffs to be the sole and universal heirs of the said Prakash Naik alias Vaingankar and further declared as void, the said marriage of Prakash with Swaroopa (applicant, herein) as well as the succession deed and all the said three defendants were directed to pay the amount due upon the death of the said Prakash Naik alias Vaingankar to the plaintiffs only.
The defendant no.5 preferred First Appeal No.9/2004 and the main contention put forward on her behalf was that her marriage to the said Prakash Naik alias Vaingankar on 17/ 07/1983, solemnized at Sawantwadi, was entered into by her in good faith and, therefore, she was entitled to a share in the estate left by the deceased Prakash Naik alias Vaingankar in view of Article 30 of the Family Laws in force in this State [Decree dated 26/05/1911]. Article 30 when translated reads as follows;
"Whenever a void or voidable marriage has been contracted in good faith, it will produce civil effects in relation to the spouses. If only one of the spouses has contracted it in good faith, the marriage shall produce effect only in favour of such spouse."
The said Article appears in Chapter IV with a heading which when translated reads as follows;
Of the effects of annulment, specially in respect of the fate of minor children.
Referring to Article 30 of the Family Laws, it was urged before the learned Single Judge that whenever a void or voidable marriage has been contracted bona-fide, the women who gets married to the person already married, is entitled to a share in the estate of that person, if the marriage was contracted bona-fide. It was further urged that defendant no.5 had contracted the marriage with the late Prakash Naik alias Vaingankar, relying upon the representation made by him, that he was unmarried and admittedly the said Prakash Naik alias Vaingankar was not staying with plaintiff no. 1 for a period of over six years before the solemnization of his marriage with defendant no.5 and the only inference which could be drawn was that the defendant no.5 had contracted the marriage bona-fide. It was also submitted that the share of defendant no.5, would be l/4th in the estate left by the said Prakash Naik alias Vaingankar. A further concession has now been made that the said share of defendant no.5 would be l/8th only, with reference to Article 1235 of the Civil Code, 1867.
It appears that the plaintiffs had remained absent at the hearing of the said first appeal. Nevertheless, the learned Single Judge first noted, in para 10, that from a bare reading of Article 30, it is clear that if a void or voidable marriage has been contracted bona-fide by a spouse, it shall have civil effects with relation to the spouses. Then the leaned Single Judge noted that Article 30 finds its place in Chapter IV dealing with effects of annulment specially with respect to the fate of minor children and then in para 11 concluded that Article 30 did not confer any right on the spouse to claim a share in the estate left by her spouse, if the marriage is void or voidable provided such marriage is contracted bonafide.
The learned Single Judge also observed that it was not seriously disputed by the learned Counsel appearing for the appellant (defendant no.5) that the second marriage was void having been solemnized during the subsistence of the first marriage and, therefore, the learned Single Judge rejected the submission made on behalf of the...
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