IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 2ND DECEMBER 2010 / 11TH AGRAHAYANA 1932 WP(C).No. 36000 of 2010(Y) -------------------------- PETITIONER(S): --------------- SMT.TREASA, THUDIYIL HOUSE, CHENNOOR, KOTHAD P.O., KOCHI-682027. BY ADV. SRI.ASP.KURUP SRI.SADCHITH.P.KURUP RESPONDENT(S): --------------- 1. THE EXECUTIVE ENGINEER, K.S.E.B., ELECTRICAL DIVISION, ERNAKULAM, KOCHI-18. 2. SMT.MARY, THUDIYIL HOUSE, C/O.THUDIYIL STORES, CHENNOOR, KOTHAD P.O.-682027. GOVT. PLEADER SHRI.K.S.ASIF THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.SIRI JAGAN, J. ================== W.P.(C).No.36000 of 2010 ================== Dated this the 2nd day of December, 2010 J U D G M E N T The petitioner claims to be the legally wedded wife of late Sebastian, who was an employee of the Kerala State Electricity Board. On the death of Sebastian, family pension was paid to the 2nd respondent, who, according to the petitioner, is not the legally wedded wife of late Sebastian. The petitioner claims that she is the legally wedded wife, on the basis of Ext.P1 certificate of marriage issued by a church. The claim in this regard was considered by the 1st respondent and rejected by Ext.P3, which reads thus; “The petitioner, Smt.Treasa alleged to be the legally wedded wife of Late T.J.Sebastian (PPO No.23801) who was working in the KSE Board, filed W.P.C No.21289 before the Hon'ble High Court of Kerala. The cause of action arose with the death of Sri.T.J.Sebastian, family pension was sanctioned to Smt.Mary, second wife of Late T.J.Sebastian. The Hon'ble High Court disposed of the W.P.(C). directing the Executive Engineer, Electrical Division, Ernakulam to decide on Ext.P2 with notice to the petitioner and the 2nd respondent. Accordingly, notices were served to the petitioner and the second respondent and they were requested to appear before the undersigned for a personal hearing which was held on 22.9.2010. Smt.Treasa and Smt.Mary appeared for the hearing. Smt.Treasa while appearing for the hearing stated that she was married to Late T.J.Sebastian in the year 1962. She lived with Sebastian for 18 years and gave birth to three children (2 daughters and one son). She left her husband when the eldest daughter 13 years old and the youngest child 1 year old. In this circumstances, Smt.Mary became the second wife of Sri.T.J.Sebastian to look after the three children of the petitioner. She said that she is living alone in a rented house. Hence she requests to give family pension of Sebastian to her as she has no other means of livelihood. Smt.Mary (second respondent) also appeared for the hearing along with the daughters of the petitioner and her own. She stated w.p.c.36000/10 2 that she became the wife of Sebastian when the petitioner left her husband. She lived with Sebastian for 32 years. Three children of the petitioner (2 daughters and one son and the mother of Sebastian were looked after by her along with her own daughter Sebastian was ill for the last 13 years and she looked after him till his death. All charges of treatment were paid by her. This made her a debtor for Rs. 75,000/- which is being paid from the family pension. Marriage expenses of two daughters of the petitioner namely Saina & Nirmala were also spent by her. Moreover compassionate appointment of Sebastian was given to the son of the petitioner, Sri.Antony Sebastian, who was appointed as Mazdoor vide order No.EBEW/2/99 (24) dtd. 8.6.99 of Chief Engineer (HRM) KSEB, Thiruvananthapuram. Now he is working as Line Man Gr.I at Electrical Section, Central, KSEB, Ernakulam. Smt.Mary produced copies of documents like voter's Identity Card, Ration Card, Baptism Certificate, Paper cutting dtd. 14.6.2009 showing the death column of Sebastian, copy of land tax receipt etc. which prove that she is the wife of Late Sebastian. It is also stated that the daughters of the petitioner have no objection in continuing payment of family pension to Smt.Mary. In this circumstances Smt.Mary requested to give family pension to her. I went through the statements given by both, examined all the documents in detail and the following conclusions are made. Smt.Mary became the wife of Sebastian when Smt.Treasa left him. Smt.Mary lived with Sebastian for about 32 years. The documents produced by Smt.Mary show that she is the wife of Sebastian. There is no mention in the Ration Card about Smt.Treasa. Voter's Identity Card also shows that Mary is the wife of Sebastian. From the statement it is clear that three children of the petitioner were looked after by Smt.Mary. She also looked after Sebastian till his death and all medical expenses were paid by her. Marriage of the daughters of the petitioner were also done by Smt.Mary. Moreover Sebastian nominated Mary for family pension. Another point to be noted in this contest is that compassionate appointment was given to the son of the Petitioner. Antony Sebastian, son of the petitioner was appointed as Mazdoor vide under (sic) No.EBEW/2/99 (24) dtd.8.6.99 of Chief Engineer (HRM), KSEB, Thiruvananthapuram on compassionate ground. Now he is working as Lineman Gr.I at Electrical Section, Central, KSEB, Ernakulam. Family pension to Smt.Mary was sanctioned as per order also. PA III PPO 23801 dtd. 12.1.2000 of the Chief Engineer (HRM), Vyduthibhavanam, Pattom, Thiruvananthapuram. As compassionate appointment was given to the son of the petitioner, the family pension sanctioned to Smt.Mary is in order. Based on the above I order as follows: I order to continue family pension which is being given to w.p.c.36000/10 3 Smt.Mary. With the above Order the Ext.P2 as per W.P.(c). No. 21289 of 2010 is disposed herewith.” 2. The petitioner seeks the following reliefs; “A) Issue a writ of certiorari or any other appropriate writ, order or direction quashing PA III.PPO.23801 dated 12.1.2000 of AO Pension Audit, office of CE (HRM) in so far as it excludes the petitioner from getting family pension. B) Issue a writ of certiorari or any other appropriate writ, order or direction quashing Ext.P3 order as illegal and unsustainable in law. C) Issue a writ of mandamus or any other appropriate writ, order of direction directing the first respondent to grant the family pension of the petitioner's deceased husband Sebastian, to the petitioner.” The question as to whether who is the legally wedded wife of late Sebastian is a matter which requires proof. Whether Ext.P1 marriage certificate is acceptable under law is a question to be proved by evidence. This Court cannot ordinarily take evidence in a petition under Article 226 of the Constitution of India. Therefore, I am of opinion that the petitioner should more appropriately prove her right in a suit for the purpose of deciding as to who is the legally wedded wife of late Sebastian. Without prejudice to that right, this writ petition is dismissed. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge w.p.c.36000/10 4