1. The appellant-plaintiff brought a suit -- O. S. No. 49 of 1970--in the court of the Munsiff, Basavanabagewadi, for maintenance at the annual rate of Rs. 1,200/- from the defendant who, according to her, was her father-in-law. The plaintiff claimed that she was the second wife of Shivappa, the only son of the defendant and his first wife being Basalingawwa. She had further stated that she had given birth to a daughter called Laxmawa who died in infancy in 1950 and Shivappa died in 1959. She claimed that the suit properties consisting of lands and houses were the ancestral properties of the defendant, out of which she was legally entitled to annual maintenance, which according to her, has been denied unreasonably by the defendant.
2. The defendant, while resisting the suit, contended inter alia, in the written statement that the plaintiff was not the wife of Shivappa. Shivappa had no second wife and Laxmawa was not the daughter of the plaintiff by Shivappa. It was also contended that the plaintiff had a husband called Rahutappa Siddappa Bilgi who died after some years after his marriage with the plaintiff.
3. It may be relevant to state that the plaintiff never disclosed in her plaint that she was first married to Rahutappa Siddappa Bilgi.
4. The first issue framed by the trial Court was as to whether the plaintiff was the wife of Shivappa and Laxmawa was the daughter of the said Shivappa. On this issue, the plaintiff has examined herself (P. W. 1), besides producing two other witnesses (P. Ws. 2 and 3) to prove her marriage with Shivappa. The trial Court held that the plaintiff has failed to establish the custom and also the requisite ceremonies of her marriage with Shivappa. But, it raised the presumption in favour of the validity of her marriage and the legitimacy of Laxmawa on the ground of her continuous residence in the house of Shivappa. The Trial Court also held that the suit properties were the ancestral properties of the defendant and accordingly, it awarded maintenance as prayed for with effect from 11th June, 1970.
In the appeal preferred by the defendant, the learned Additional Civil Judge, Bijapur, has observed that the plaintiff being formerly the wife of Rahuthappa Siddappa Bilgi and thereafter she having claimed to have married Shivappa, the form of marriage undergone by the plaintiff could be only in Udiki form and that form of marriage has neither been pleaded by the plaintiff in the plaint nor has it been satisfactorily proved in her evidence. On the consideration of other evidence, the learned Judge has found fault with the trial Court for having raised the presumption of legitimacy of the marriage when the very issue of marriage was held to be not proved in the case. With that conclusion, the learned Judge allowed the appeal and set aside the decree of the trial Court.
Hence, the plaintiff appeals to this Court.
5. The plaintiff has also filed an application under Order 23 Rule 1 of the Civil P. C. seeking leave to withdraw the suit on the ground that during the pendency of the appeal, the defendant died, and, consequently, her right has been enlarged and she is now entitled to one-half of the suit properties as a co-widow of Shivappa. She has further stated that owing to the intervention of this subsequent event, there is a defect in the suit akin to a formal defect and, therefore, this Court should permit her to withdraw the suit so as to institute a fresh suit.
6. This application has been resisted by the respondent on the ground that there is no formal defect in the suit and her claim that she is entitled to one-half of the suit properties as a co-widow of Shivappa depends upon the proof of her second marriage and it could not be considered as a formal defect within the meaning and scope of Order 23 Rule 1. I think, the objection of the respondent is well-founded. Formal defect denotes every kind of defect which does not affect the merits of the case. The plaintiff's contention that she is now entitled to one-half of the suit properties as a co-widow of Shivappa due to the death of her father-in-law also depends entirely upon the proof of her second marriage. That is the primary question to be determined on merits in this appeal. It is, therefore, not a formal defect; nor there is any other sufficient ground in this case for granting leave to the plaintiff to withdraw the suit, The application is accordingly rejected.
7. Turning now to the merits of the case, on the question of Udiki form of marriage, she has not averred anything in her plaint. The defendant in his written statement, did point out that the plaintiff was not married to Shivappa and sha has married one man called Rahutappa Shivappa Bilgi of Uppaldinni who died after some years after the marriage, in the course of the evidence, the plaintiff has admitted her first marriage with R. S. Bilgi. That being so, the form of marriage which she could have undergone with Shivappa was that of only the customary Udiki form of marriage. In order to prove that form of marriage, she has examined P. W. 2 and P. W. 3. Their evidence, as observed by the appellate Court, falls short of the requirement. The anxiety prevailed upon me to go through that evidence as it pertains to the status of a woman apart from her right to maintenance. But, I cannot help her. Her evidence is most unsatisfactory. It is nowhere near the standard of proof required in such cases.
Apart from that, there is a greater infirmity in this case. As held by the Andhra Pradesh High Court in Malakayya v. Avati Buchamma, : AIR1973AP208 , where a marriage is alleged to have been performed in accordance with any modified form of Shastric Hindu Law, it must be pleaded and proved as a custom and, in the absence of pleadings, no amount of evidence could be looked into. Plaintiff knew very well when it was brought to her notice in the written statement that she was required to prove the customary marriage. She has not made any attempt to amend her plaint nor produced satisfactory proof of her marriage in the Udiki form,
8. In the result, the appeal fails and is dismissed; but, in the circumstances, I make no order as to costs.
9. Appeal dismissed,