THE HON’BLE SRI JUSTICE B PRAKASH RAO AND THE HON’BLE SRI JUSTICE B SESHASAYANA REDDY A S NO. 1258 OF 2000 AND CROSS OBJECTIONS IN AS (SR) 46216 OF 2000 COMMON JUDGMENT : (Per Sri Justice B Prakash Rao) The appellant herein who is defendant no.3, files this appeal under section 28 of the Hindu Marriage Act, assailing the judgment and decree in O S No. 28 of 1998 dated 22.3.2000, on the file of the Family Court, Secunderabad decreeing the suit filed by the respondents 1 to 5 herein. Whereas, respondents 1 to 5 herein have filed Cross Objections aggrieved against the findings given in favour of the third defendant/appellant herein to the extent of awarding half share to her. Heard Sri S Krishna, learned counsel for appellant, Sri Karanam Ramesh, learned counsel appearing for respondents 1 to 5/cross objectors and learned Standing Counsel for railways/ respondents 6 and 7 herein. In the suit, respondents 1 to 5 herein/plaintiffs sought for declaration that the first plaintiff is legally wedded wife and plaintiffs 2 to 5 are legitimate children of late U Ramachander, who has been employee of railways/defendants 1 and 2 and a further claim was made to hold that they are entitled to receive all the terminal benefits as legal heirs of late U Ramachander. The case of the plaintiffs in short as per the plaint is that first plaintiff is legally wedded wife of Mr U Ramachander whose marriage was solemnised on 24.6.1959 at Goulipura in Hyderabad as per Hindu rites and customs. Late U Ramachander was working as C & W Kalasi at HTKR office at kazipet with the railways and enrolled as a member of Central Railway TXR Staff Mutual Benefit Fund, Secunderabad on 9.10.1958. Though, initially U.Ramachander nominated U.Bhagyavathi, however, subsequently as per the letter addressed to authorities of railways on 7.12.1972 informed that U Bhagyavathi was his brother’s daughter, therefore to replace her name and to nominate his wife Smt Lalitha Bai/first plaintiff as his nominee. During the wedlock the second plaintiff born on 24.8.1960, the third plaintiff born on 7.2.1964, the fourth plaintiff born on 8.1.1968 and fifth plaintiff born on 21.6.1970. Though, Mr U Ramachander happily lived up to 1975 and have been travelling from one place to another due to posting. In March 1973 late U Ramachander went to Bombay along with plaintiffs 1 to 5 availing railway pass. In 1970 he was transferred to Secunderabad and then to Kagaznagar and they lived happily. The first plaintiff also availed medical benefits from the railway hospital in 1973 and underwent family planning operation. However, on account of some misunderstanding Mr U Ramachander started harassing the first plaintiff and she was forced to live at her matrimonial house in the year 1976. She with great difficulties brought up plaintiffs 2 to 5 by working as domestic servant, however Mr U Ramachander helped in performing the marriages of the children. The first plaintiff came to know that the third defendant is living with Mr U Ramachander as a concubine and there is no divorce in between first plaintiff and Mr U Ramachander. Mr U Ramachander died on 26.6.1995 and the plaintiffs performed his last rites. Even though plaintiffs approached the Senior Divisional Officer, South Central Railways, Hyderabad Division, for settlement of the terminal benefits as legal heirs of late U Ramachander, nothing was forthcoming. Therefore the plaintiffs had approached the Central Administrative Tribunal by filing O A No. 173 of 1997 which was contested by the parties and later disposed of with a direction to obtain succession certificate from the competent court, hence the suit is filed. In the suit, the defendants 1 and 2 remained ex-parte. In the written statement filed by the third defendant, there is denial as to the fact that the plaintiff is legally wedded wife of late U Ramachander, whereas she asserted that it is she who is legally wedded wife and widow of late U Ramachander , that their marriage took place on 26.11.1997 at Alwal in Secunderabad as per Hindu rites and customs and that out of the wedlock they begot a son viz., Naveen on 15.12.1980 and a daughter viz Jyothi on 17.10.1982. That late U Ramachander died on 26.6.1995 while working as Chief Train Examiner in South Central Railways. It is stated that she is not aware of first plaintiff nor other plaintiffs. No doubt, as per the directions of the Central Administrative Tribunal, succession certificate has to be obtained, however, the claim of the plaintiffs is wholly false and unsustainable and therefore the plaintiff is not entitled to any declaration or relief as sought for. With these and other pleadings as set forth, the Court below framed the following issues ; 1. Whether the first plaintiff was the legally wife of late U Ram,achander and plaintiffs 2 to 5 are legitimate children of late U Ramachander? 2. Whether the plaintiffs are entitled for the terminal benefits of late U Ramachander. 3. To what relief. During the course of the trial, on behalf of plaintiff, 5 witnesses were examined. The first plaintiff examined herself as P W.1, the second and fourth plaintiffs were examined as P.W.2 and P.W.3, Sister of late U Ramachander was examined as P.W.4 and his brother was examined as P.W.5 and marked Ex.A.1 to Ex.A.30. Whereas on behalf of third defendant two witnesses were examined, i.e., the third defendant was examined as D.W.1 and Mr Md.Afzal was examined as D.W.2 and marked Ex.B.1 to B.4 and Ex.C1 and C2. Considering the evidence adduced by both the sides, the Court below believed the version as spoken to by PWs 1 to 5 and the respondent/third defendant not properly established her marriage. The Court below held that the first plaintiff is legally wedded wife and having regard to the manual of the Railways and especially Supplementary Circular No.5 to Master Circular NO. 16 dated 2.1.1992 the first plaintiff and third defendant are entitled to share the terminal benefits and family pension of late U Ramachander equally in the interest of justice. Hence, the appeal and cross objections. Having heard the learned counsel on either side and on perusal of the material on record, the point which arises for consideration is as to whether in the facts and circumstances, the plaintiffs are entitled to the relief as sought for and whether the decree awarding half share to each of first plaintiff and defendant no.3 is sustainable. The case as set forth and as mentioned above, in the plaint it has been elicited by the first plaintiff who was examined as P W 1 stating about her marriage and birth of children. Similarly P W 2 who is son and P.W.3 who is daughter reasserted the same. That apart, P W 4 and 5 reiterated the factum of marriage of U Ramachander with first plaintiff which took place on 24.6.1959 and subsequently above mentioned children were born and ultimately U Ramachander died on 26.6.1995. We have perused the depositions of P.Ws 1 to 5 and we do not find any reason either from cross examination to disbelieve the version as spoken to by them as to marriage and birth of children. The marriage between first plaintiff and late U Ramachander was held long back i.e., on 24.6.1959. In rebuttal, no doubt, defendant no.3 examined herself as D.W.1 and examined another witness as D.W.2 and claims that her marriage was performed on 26.11.1997 at Alwal in Secunderabad and denies about the marriage of first plaintiff with late U Ramachander and also pleaded ignorance in regard to plaintiffs. D.W.3 except mere assertion about the said marriage, has not filed any material in support of her marriage, that apart, she claims that she married U Ramachander on 26.11.1997 at late hour of life of U Ramachander, whereas the marriage of first plaintiff took place on 24.6.1959. Therefore, though another witnesses i.e., D.W.2 was examined, he is of no consequences as far as factum of marriage of U Ramachander with third defendant is concerned. Except the sole testimony of D.W.1 there is no other deposition or valid material forthcoming on behalf of third defendant to establish that she is legally wedded wife. Be that as it may even the version of D.W.1 is taken into account, her marriage took place in the year 1997, i.e., far after and at much later stage to the marriage of the first plaintiff which was performed in the year 1959 itself. There being no divorce as required under law between the first plaintiff and late U Ramachander, it cannot be said that D.W.3 is legally wedded wife of late U Ramachander to make any claim or succeed to the estate of late U Ramachander in any manner whatsoever. No law prescribe any such right, title or interest whatsoever for entitlement in regard to the estate of a deceased where the very marriage is found illegal, therefore it cannot be said that defendant no. 3 would be entitled to any share as now sought to be given by the Court below, more so, only on the footing of interest of justice and the same cannot outweigh regular law and no equities can be worked out contrary to the mandate of law. The Court below exceeded in holding to share the amounts equally between first plaintiff and third defendant. No other reason is given, except referring to a Supplementary Circular No.5 to Master Circular No.16 issued by the respondent railways, which for the sake of convenience is extracted below; “1. It is clarified that in the case of Railway employee dying in harness etc., leaving more than one widow along with children born to the second wife, while settlement dues may be shared by both widows due to Court orders or otherwise on merits of each case, appointments on compassionate grounds to the second widow and her children are not be considered unless the administration has permitted the second marriage in special circumstances, taking into account the personal law etc. 2.. The fact that the second marriage is not permissible in invariably clarified in terms and conditions advised in the offer of initial appointment. 3.. This may be kept in view and the cases for compassionate appointment to the second widow or her wards need not be forwarded to Railway Board.” Even taking into account such circular for making provision for the wife under second marriage, the same is virtually in the teeth of law and mandate therein, therefore we are of the view that the said circular cannot be enforced in Court of law. In the circumstances, we are of the view that though Court below was right in holding that the first plaintiff is the legally wedded wife , it erred in granting half share to the third defendant. During the course of arguments, though, this aspect was canvassed seriously across the bar, however, learned counsel appearing for both sides submits that having regard to the facts and circumstances of the case, there would not be any objection in sharing the benefits of late U Ramachander equally in between the first plaintiff and third defendant. Recording the same, we hold that there are absolutely no merits in the appeal and accordingly the same is dismissed. Consequently, the Cross Objections are disposed of with same effect. No costs. _______________ B PRAKASH RAO,J ____________________ B SESHASAYANA REDDY DATE: -04-2010 TVK THE HON’BLE SRI JUSTICE B PRAKASH RAO AND THE HON’BLE SRI JUSTICE B SESHASAYANA REDDY A S NO. 1258 OF 2000 AND CROSS OBJECTIONS IN AS (SR) 46216 OF 2000 PD JUDGMENT FOR PERUSAL OF HON’BLE SRI JUSTICE B SESHASAYANA REDDY