KALLAPPA SIDDAPPA SURYAWANSHI Vs. AKKAVVA ALIAS LEELAVATHI

JUDGEMENT

(1.) The appellant in this appeal is the plaintiff. He filed O.S.163/62 in the Court of the Civil Judge, Jr. Divn., Hukkeri, on 21st December, 1962, claiming the following reliefs : (1) . Declaration that the marriage solemnised between the plaintiff and the defendant is null and void and as such the defendant is not the wife of the plaintiff; and (2). Declaration that the issue which would be born to the defendant is not a legitimate issue of the plaintiff. For the purpose of proper appreciation of the points arising in this appeal, it is necessary to set out the geneological tree which has been mentioned by the plaintiff in the plaint. It is as follows: The case of the plaintiff is that he is the natural son of Padmavati wife of Satappa Tevanappa Shankannawar who happened to be the daughter of Siddappa son of Raghu alias Rayappa shown in the geneological tree. His case is that Siddappa's son Tavanappa died without any issues several years ago and it is for this reason he took the plaintiff who happens to be the daughter's son in adoption on the 10th of November 1932. It was also stated that the deed of adoption has been executed on the 15th of December 1932 and as such he has become the adopted son of deceased Siddappa. It was therefore alleged that as the result of adoption his ties in the natural family has been extinguished and he has become the member of Suryawanshi family. It is also the case of the plaintiff that the defendant is the daughter of one Shanker who happens to be the son of the elder brother of his adoptive father Siddappa and on account of such relationship existing between them, there could not have been a marriage between the parties. It was, however, stated that such a marriage which has taken place in the year 1944 between him and the defendant as per Hindu Law is illegal because the relationship of the parties was within prohibited degrees. It was further stated that after attaining majority, he came to know about his marriage being null and void on account of its being within prohibited degrees and also after coming to know that the defendant is leading immoral life, he did not keep any contact with the defendant as husband and wife. It was also alleged that as the defendant and her father did not agree for dissolution of the marriage and as there was every likelihood of the defendant leading an immoral life and giving birth to an illegitimate child, the suit was instituted.

(2.) In the plaint it was further alleged that the cause of action for the suit arose some time in October 1962 as the defendant has taken steps to approach the Magistrate's Court for recovery of maintenance.

(3.) The defendant resisted the suit on several grounds. It was contended by her that the marriage beween herself and the plaintiff is not within the prohibited degrees and as such it is not null and void. It was contended that only blood relationship should be taken into consideration and not the relationship by adoption and therefore the marriage between the plaintiff and the defendant is not within the prohibited degrees. It was also contended that the parties are not governed by Hindu Law and even assuming that they are governed by Hindu Law, as there was no blood relationship between the parties, it could not be considered that the marriage is within the prohibited degrees. It was also contended by her that they have cohabited after marriage and the marriage has been consummated and they had access to each other at the relevant point of time. It was specifically stated that the defendant was residing near her father's house and after attaining puberty she went to the plaintiff as a wife and they were living together as husband and wife and that recently plaintiff's sister Sonawwa with an intention to marry her sister's daughter Champawwa began to treat the defendant with cruelty and she was compelled to leave the house. It was further stated that she had become pregnant on account of her co-habitation with the plaintiff and that the said Sonawwa was trying to take 'Sodapatra' from the defendant with a view to marry her sister's daughter Champawwa with the plaintiff. The defendant contended that as she is the legally wedded wife of the plaintiff and has become pregnant by him, the plaintiff is not entitled to the reliefs sought for. The defendant also contended that the suit filed by the plaintiff was barred by limitation. It was stated that the marriage has taken place years ago and the suit which has not been filed within 6 years from the date of marriage, is barred by time. The plaintiff also plea'ded estoppel.