IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL. F.A. No. 35 of 2005 Smt. Sureshi Devi … Appellant. Versus Smt. Rajandri Devi and 2 others .. Respondents. Mr. V.B.S. Negi, Advocate for the appellant. Mr. M.C. Tiwari, learned S.C. for the respondents 2 and 3. None has appeared for the respondent No.1. Dated: 1-7-2008 Hon’ble B.C. Kandpal, J. This First Appeal, under Section 96 of the C.P.C., has been preferred against the judgment and decree dated 4.4.2005, passed by the District Judge, Uttarkashi, in O.S. No. 32 of 2000, Smt. Rajendri Devi Versus Basic Siksha Parishad and others. 2- The facts of the case, in brief, giving rise to this appeal, are that the plaintiff/respondent No.1, Smt. Rajendri Devi filed a declaratory suit against the defendant/appellant. State of U.P., Basic Siksha Parishad, Uttarkashi and Anil Kumar were also made defendants in the suit. According to plaintiff she was married with late Lakshmi Prasad Semwal according to Hindu rites in the year 1957. For some years the married couple lived a happy life, but in the year 1968 her husband started treating her with cruelty and ultimately he turned her out of the house and since then she is residing in her parents house, in village Sald, Patti Badahat, Tehsil Bhatwari, District Uttarkashi. According to her the marriage was not dissolved by any divorce and she is the only married wife of late Lakshmi Prasad Semwal. Late Lakshmi Prasad Semwal after turning the plaintiff out of his house, developed illicit relations with Smt. Jamunotri Devi and from her Anil Kumar and 2 Munni Devi were born. After some time Smt. Jamunotri Devi has died and on her death late Lakshmi Prasad developed illicit relations with another lady, i.e. Smt. Lakshmi Devi and kept her his concubine but she also died. In the year 1989 late Lakshmi Prasad also developed illicit relations with defendant Smt. Sureshi Devi and kept her with him as his concubine. The assertion of the plaintiff is that late Lakshmi Prasad has not performed marriage with any of the aforesaid ladies, except the plaintiff. Lakshmi Prasad Semwal also died on 16-1-2000, leaving behind him, the plaintiff as his widow and Anil Kumar as his son. According to the plaintiff, Anil Kumar was taken in government job on the death of Lakshmi Prasad under the Dying in Harness Rules. The further allegation of the plaintiff is that she is entitled to receive the family pension, gratuity, group insurance benefit and G.P.F. amount on the death of Lakshmi Prasad from Education Department where he was working as a Principal in some College, but the Department did not pay the aforesaid amounts inspite of the repeated requests made by the plaintiff and asked her to file succession certificate. Hence the plaintiff has filed the suit for declaration to the effect that she is only legally wedded wife of late Lakshi Prasad Semwal. 3- The defendants Basic Siksha Adhikari and State of U.P. filed written statement and admitted this fact that late Lakshmi Prasad was working on the post of Principal in Bonga. It was also admitted that defendant No.4 Anil Kumar was given appointment under dying in harness rules. They also alleged that S.D.M. Bhatwari has issued certificate dated 1.4.2000 showing Anil Kumar, Smt. Rajendri Devi and Sureshi Devi, as near relations and heirs of late Lakshmi Prasad Semwal. It was also alleged that both the plaintiff Smt. Rajendri Devi 3 and defendant Smt. Sureshi Devi have been filing applications claiming the payments payable to the late Lakshmi Prasad, therefore, the Basic Siksha Parishad asked them to furnish succession certificate. 4- The defendants 3 and 4, Smt. Sureshi Devi and Anil Kumar, also filed written statement, alleging therein that the plaintiff Smt. Rajendri Devi is not the legally wedded wife of late Lakshmi Prasad Semwal. They also alleged that late Lakshmi Prasad Semwal never treated the plaintiff as his wife, hence no question of divorce arise. They also alleged that Smt. Jamunotri Devi was the legally wedded wife of late Lakshmi Prasad from whom two children are born and after her death the defendant Smt. Sureshi Devi is the legally wedded wife. They also raised the point that if the plaintiff was the legally wedded wife of late Lakshmi Prasad, she should not have remained at her parents house for such a long period. During 1991 earthquake the plaintiff has received Rs. 10,000/- as relief, material for house construction and Rs. 15,000/- as loan in the capacity of legal heir of her father Bishan Dutt, and she did not signify herself as the wife of Lakshmi Prasad. The defendants, therefore, alleged that the plaintiff is not the legal heir of late Lakshmi Prasad Semwal, hence, she has no right to get the amounts payable to late Lakshmi Prasad and the suit is liable to be dismissed. 5- The plaintiff also filed replication alleging therein that she was married with late Lakshmi Prasad about 44 years back and after one year of the marriage she gave birth to a child who died after about 7 months. In the year 1965, also a daughter was born to her named Usha, who was got married by late Lakshmi Prasad Semwal in his life time. The plaintiff also alleged that the 4 defendant No.3, Smt. Sureshi Devi was married with Ram Saran in the year 1958-59 and lateron she left his house and went in village Mahar Gaon in the property of Daya Ram Bahuguna, where she gave birth to a male child from Daya Ram. After some time she also left the house of Daya Ram and went in village Sarnol at the house of Vidya Dutt where she also gave birth to a female child. From there also she went at the house of Ram Krishna Uniyal and then after the marriage of the daughter of the plaintiff, Lakshmi Prasad brought Sureshi Devi from the house of her maternal uncle, Damodar of village Badahaat, to his house and kept her with him as his concubine. 6- On the pleadings of parties, the learned District Judge framed the following issues in the petition:- 1- Whether Smt. Rajendri Devi was the wedded wife of late Lakshmi Prasad?. 2- Whether Smt. Sureshi Devi is the real wedded wife of late Lakshmi Prasad?. 3- Whether Smt. Rajendri Devi is getting old aged pension, in which she has mentioned the name of her father instead of her husband?. If so, its effect?. 4- Whether the plaintiff is entitled to the declaratory relief, as sought?. 7- The plaintiff in support of her case examined herself as P.W.1, Mangal Prasad, P.W.2, and Jagdish Prasad as P.W.3. The defendants also produced Smt. Sureshi Devi as D.W.1, Surat Singh as D.W.2 and Jyoti Singh as D.W.3. Parties also filed documentary evidence. 5 8- The learned District Judge after hearing learned counsel for the parties and considering the evidence adduced by parties, decreed the suit of the plaintiff, declaring Smt. Rajendri Devi the only legally wedded wife of late Lakshmi Prasad Semwal and holding that she is entitled to get the retiral benefits of late Lakshmi Prasad Semwal from the Department, viz. family pension, gratuity, group insurance and G.P.F. etc. 9- Feeling aggrieved, Smt. Sureshi Devi has preferred this appeal before this Court. 10- In spite of sufficient service of notice on the plaintiff/respondent No.1, neither she put in appearance nor any counsel has appeared in order to plead the case on her behalf. I have heard Sri V.B.S. Negi, learned counsel appearing on behalf of the appellant and learned Standing Counsel and perused the record. 11- Learned counsel for the appellant has submitted that in view of Section 1 of The U.P. Public Services (Tribunal) Act , 1976 (hereinafter referred as ‘the Act’) this suit is barred. He has invited my attention towards the provision of Section-1 of the Act, which reads as follows:- “1. Short title, extent, commencement and application- (1) This Act may be called the Uttar Pradesh Public Services (Tribunal) Act, 1976. (2) It extends to the whole of Uttar Pradesh. (3) It shall be deemed to have come into force on November 24, 1975. (4) This section and Sections 2 and 6 shall apply in relation to all public servants while the remaining provisions shall not apply to the following classes of public servants, namely- 6 (a) a member of a judicial service; (b) an officer or servant of the High Court or of a court subordinate to the High Court; (c) a member of the secretariat staff of any House of the State Legislature; (d) a member of the staff of the State Public Service Commission; (e) a workman as defined in the Industrial Disputes Act, 1947 (Act XIV of 1947), or the United Provinces Industrial Disputes Act, 1947 (U.P. Act No. XXVIII of 1947). (f) a member of the staff of the Lok Ayukta; (g) the Chairman, Vice-Chairman, Members, Officers or other employees of the Tribunal]”. 12- A careful perusal of the aforesaid provision, I find that there is no force in the argument advanced by the learned counsel for the appellant. Learned counsel for the appellant has submitted that although this pleading has not been taken by the appellant/defendant in her written statement, but since the matter goes to the root of the jurisdiction and is a legal point, therefore, the same can be agitated at the stage of appeal. 13- In order to appreciate the submission raised by the learned counsel for the appellant, it would again be relevant to go through the provision of Section 1(4) of the Act, which is quoted above. The appellant is not a person envisaged under the provisions of Section 1(4) (a) to (g) of the Act, nor it is a case in which it can be said that the State Government is an aggrieved party. Basically the suit was not filed by the plaintiff/respondent No.1 against the State Government. The dispute relates to the point as to whether the plaintiff/respondent No.1 Smt. Rajendri Devi is a legally 7 wedded wife of late Sri Lakshmi Prasad Semwal or the defendant/appellant Smt. Sureshi Devi is a legally wedded wife of late Sri Lakshmi Prasad Semwal and who, being the legally wedded wife, is entitled to the benefit of pension, gratuity and other allowances etc. Therefore, the provision of Section 1 of the Act has no application in the present case. 14- Now coming to the factual aspect of the case, it will be relevant to go through the evidence adduced by the parties in the case. The plaint case is that the plaintiff Smt. Rajendri Devi was married with Lakshmi Prasad Semwal in the year 1957 according to Hindu rites. She lived with him for some years and in the year 1968 he started treating her with cruelty and turned her out of his house and since then she has been living at her parental house. The case of the plaintiff further is that no divorce has ever took place between her and late Lakshmi Prasad Semwal. Further case of the plaintiff is that she gave birth to a child from their wedlock, after one year of the marriage, who had died after 7 months of the birth. Again in the year 1965 she gave birth to a daughter named Usha, who was got married during the life time of Lakshmi Prasad. The plaintiff’s further case is that Late Lakshmi Prasad Semwal after turning the plaintiff out of his house, developed illicit relations with Smt. Jamunotri Devi and from her Anil Kumar and Munni Devi were born. After some time Smt. Jamunotri Devi has died and on her death late Lakshmi Prasad developed illicit relations with another lady, i.e. Smt. Lakshmi Devi and kept her his concubine, but she also died. In the year 1989 late Lakshmi Prasad also developed illicit relations with defendant Smt. Sureshi Devi and kept her also as concubine. The assertion of the plaintiff is that late Lakshmi Prasad has not performed 8 any marriage with any of the aforesaid ladies, except the plaintiff. The plaintiff Smt. Rajendri Devi, as P.W.1, has deposed the above facts on oath. She has also deposed that when her husband took the decision to keep Smt. Jamunotri Devi as his concubine, on 23.4.1970 she has sent notice through Advocate and scolded her not to live with her husband late Lakshmi Prasad Semwal. 15- P.W.2, Mangal Prasad is the Pandit of the village and witness of the marriage between Smt. Rajendri Devi and late Lakshmi Prasad Semwal. He has deposed that the marriage was performed by his father. He further alleged that as the parental house of Rajendri Devi is at a height, therefore, he had gone in the marriage party as Pandit on behalf of Lakshmi Prasad, as his father could not climb the height. In his cross- examination nothing could be brought out from the side of the defendants which may turn him as unreliable witness. 16- Plaintiff also filed certified copy of voter list of 1966 paper No. 87-C. In this voter list name of Smt. Rajendri Devi has been mentioned at serial No. 54 denoting her as the wife of Lakshmi Prasad Semwal. Contrary to the above document, defendant Smt. Sureshi Devi also filed voter list of year 1988 paper No. 94-C in which at serial No. 193 name of Sureshi Devi has been mentioned as the wife of Lakshmi Prasad. From perusal of these two documents it is quite clear that in the earlier electoral roll Smt. Rajendri Devi has been shown as wife of late Lakshmi Prasad and in the later electoral roll Smt. Sureshi Devi is shown his wife. These documents give support to the assertion of the plaintiff that she was married to Lakshmi Prasad and that is the reason that in earlier voter list her name finds place in 9 the capacity of wife of Lakshmi Prasad. Lateron when the plaintiff did not turn up at the house of Lakshmi Prasad, the name of Sureshi Devi has been written as wife of Lakshmi Prasad, as she was residing at his house as his concubine. Paper No. 49-C is the reply of notice dated 5-1-1968 sent by Lakshmi Prasad Semwal in which he has admitted that marriage between him and Smt. Rajendri Devi was performed about 9 years ago. In the document dated 24-2-1968 paper No. 50-C/2 also late Lakshmi Prasad admitted that Smt. Rajendri Devi is his legally wedded wife and also admitted that if Smt. Rajendri Devi come to live with him, he will not treat her with cruelty, failing which he will pay a sum of Rs. 40/- per month for her maintenance. From the above evidence it is fully established that Smt. Rajendri Devi was married with late Lakshmi Prasad Semwal according to Hindu rites. It is also pertinent to mention here that there is no documentary or any other reliable evidence on the record to show that ever divorce had taken place between the plaintiff Smt. Rajendri Devi and Lakshmi Prasad Semwal. In view of above evidence adduced by the plaintiff, it is fully proved that the plaintiff Smt. Rajendri Devi is a legally wedded wife of late Lakshmi Prasad Semwal and no divorce ever took place between them. 17- Here it will not be out of place to mention that the evidence adduced by the defendant/appellant Smt. Sureshi Devi in support of her case, is not convincing and reliable. She has filed her affidavit paper No. 128-A and deposed that first wedded wife of late Lakshmi Prasad was Smt. Jamunotri Devi who has died about 25- 26 years ago. After the death of Jamunotri, she was married with Lakshmi Prasad according Hindu rites. She has admitted in his deposition that a child was born to 10 Rajendri Devi from Lakshmi Prasad but she denied the marriage of Rajendri Devi with Lakshmi Prasad and alleged that there was illicit relation between Lakshmi Prasad and Rajendri Devi. Affidavit of D.W.2 Surat Singh and Jyot Singh D.W.3 have been filed to corroborate the testimony of Smt. Sureshi Devi that Smt. Jamunotri Devi was the first wedded wife of Lakshmi Prasad and after her death, Sureshi Devi was got married with him. No reliable and convincing evidence has been adduced by the appellant to prove this fact that Smt. Rajendri Devi is not the legally wedded wife of late Lakshmi Prasad. Against this, as stated in the earlier part of the judgment, the plaintiff has made specific assertion in the replication as well as in her statement on oath that the defendant Smt. Sureshi Devi was married with Ram Saran and she left his house and went to Daya Ram. From there she went with Vidya Dutt and again left the house of Vidya Dutt and went with Ram Krishna Uniyal and thereafter she developed illicit relations with late Lakshmi Prasad lived as his concubine. These averments have not been refuted from the side of the defendant by adducing any reliable evidence in this respect. Therefore, on the basis of evidence adduced by defendant/appellant it cannot be said that she is a legally wedded wife of late Lakshmi Prasad, specially in the event when Smt. Rajendri Devi is alive and no divorce has ever taken place between Rajendri Devi and late Lakshmi Prasad. 18- Learned counsel for the appellant has submitted that in 1991 earthquake Smt. Rajendri Devi has accepted the relief and material of house construction in the capacity of legal heir of her father, Bishan Dutt. He further submitted that Smt. Rajendri Devi is getting old age pension from Social Welfare Department which is payable only to a old person having 11 no source of income. He therefore contended that the above facts clearly establish that Smt. Rajendri Devi is not a legally wedded wife of late Lakshmi Prasad Semwal. 19- I do not find any force in the above submission. It is the specific case of the plaintiff that after some years of the marriage, with late Lakshmi Prasad Semwal, she was turned out of the house by her husband in the year 1968 and since then she has been residing in her parental house and if she has accepted the earthquake relief and material of house construction in the capacity of legal heir of her father Bishan Dutt and did not disclose the name of her husband, this does not mean that she is not a legally wedded wife of late Lakshmi Prasad Semwal. As she has accepted the relief as the legal heir of her father, hence name of her husband could not be mentioned, for the earthquake relief of the share of Bishan Dutt, father of the plaintiff. Further, if Smt. Rajendri Devi is getting old age pension from Social Welfare Department, the same also does not lose her status as a legally wedded wife of late Lakshmi Prasad Semwal. Admittedly she has not been paid as yet the family pension, G.P.F., Group Insurance and other allowances payable to her husband late Lakshmi Prasad Semwal, by the Education Department, hence she might not be source of income, and would be getting old age pension. 20- I have also gone through the finding recorded by the learned District Judge. The learned trial court has dealt with the matter in a great detail and recorded categorical finding refusing the claim of the defendant/appellant. I do not find any illegality and infirmity in the finding of the trial court. The trial court has rightly come to the conclusion that Smt. Rajendri 12 Devi, plaintiff/respondent No.1, is the legally wedded wife of late Sri Lakshmi Prasad Semwal and she is entitled to get the family pension, gratuity, G.P.F., Group Insurance etc. on the death of late Lakshmi Prasad Semwal. 21- For the above reasons I do not find any merit in this appeal and the same is liable to be dismissed. 22- Accordingly, the appeal is dismissed. The judgment and decree dated 4.4.2005 is hereby confirmed. (B.C. Kandpal, J.) ISB