IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 14TH JULY 2008 / 23RD ASHADHA 1930 OP.No. 17145 of 2001(N) ----------------------- PETITIONER: ------------ SUDARSANAN, POLICE CONSTABLE, Q.3423, CITY POLICE OFFICE, KOZHIKODE. BY ADV. SRI.BECHU KURIAN THOMAS RESPONDENTS: ------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARY, DEPARTMENT OF LAW, GOVERNMENT SECRETARIAT, TRIVANDRUM. 2. SUPERINTENDENT OF POLICE, KOLLAM. 3. COMMISSIONER OF POLICE, CALICUT CITY. 4. G.LALITHA KUMARI, KUNNUMPURATHU VEEDU, CHARUMOODU, IRRORPARA.P.O., THIRUVANANTHAPURAM. BY ADV. SRI.SHOBY K.FRANCIS FOR R4 SMT.SMITHA, GOVERNMENT PLEADER FOR R1TO3 THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 14/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP NO.17145/2001 ORDER ON CMP NO.27345/2001 IN OP NO.17145/2001 DISMISSED. SD/- (C.N.RAMACHANDRAN NAIR, JUDGE) 14/07/2008 SD/- (V.K.MOHANAN, JUDGE) APPENDIX PETITIONER'S EXHIBITS P1 : COPY OF the PETITION DATED 24/11/1999 FILED BY THE 4TH RESPONDENT BEFORE 2ND RESPONDENT. P2 : COPY FO THE COMPLAINT DATED 18/06/2000 BEFORE THE LOK AYUKTA FILED BY 4TH RESPONDENT. P3 : COPY OF THE ORDER DATED 25/05/2001 ISSUED BY THE UPA LOK AYUKTA. //TRUE COPY// PA TO JUDGE. jg C.N.RAMACHANDRAN NAIR & V.K.MOHANAN, JJ. ------------------------- O.P. No. 17145 of 2001 --------------------------------- Dated, this the 14th day of July, 2008 J U D G M E N T Ramachandran Nair, J. Petitioner is challenging Ext.P3 order of the Upa Lok Ayukta, whereunder the Lok Ayukta has held that the complainant before it was entitled to be nominated as wife of petitioner in the writ petition for gratuity, family pension and other benefits. Petitioner has filed this original petition for quashing the order of the Upa Lok Ayukta and for a declaration that the nomination made by him in favour of his legally wedded wife, namely Mrs.Omana, is valid as per Rule 72 of Part-III, Kerala Service Rules. 2. We have heard learned counsel appearing for petitioner and learned counsel appearing for 4th respondent, who was the complainant before the Lok Ayukta. 3. The petitioner while working in a toddy shop maintained relationship with 4th respondent, which according to him was short of marriage, even though he entered into an agreement of marriage with her. However, petitioner has a son in 4th respondent, who is 19 years of age as of now. The case of 4th respondent is that O.P.No.17145/2001 -2- petitioner drove her out of the house with the child, and thereafter, on getting employment in the police force as a Constable he married is sister-in-law's sister on 21/10/1985. In the petition filed before the Superintendent of Police by 4th respondent, her specific allegation is that she was driven out of the house by petitioner's sister-in-law only to get the petitioner married to her sister. In fact, whatever be the truth in the allegation, admittedly, petitioner has married his sister-in-law's sister on 21/10/1985. The 4th respondent does not appear to have resisted the marriage but filed a maintenance case against petitioner. Even though application was rejected by the Criminal Courts, on remand by the High Court to the Family Court, when Family Court was established, the Family Court awarded maintenance against petitioner for 4th respondent and to petitioner's son in her. The maintenance is later enhanced by this Court, which is being paid by petitioner without further contest. 4. However, since 4th respondent went on complaint against petitioner before the superior authorities, petitioner filed a divorce application before the Family Court, Thiruvananthapuram as OP (HMA) No.21/96. However, petitioner and 4th respondent entered into an arrangement by which petitioner offered to pay the maintenance without any default on condition that 4th respondent O.P.No.17145/2001 -3- will not create any problem for him either in the family or before the higher authorities. This compromise is recorded by the Family Court and the divorce petition was dismissed vide order dated 08/01/1996. 5. On coming to know about the nomination of petitioner's present wife for the purpose of gratuity, pension and other service benefits, 4th respondent filed a complaint before the Upa Lok Ayukta, which passed Ext.P3 order holding that 4th respondent is entitled to nomination by petitioner under Rule 72 of Part-III KSR as against the nomination of his 2nd wife. The Lok Ayukta, after noticing litigation and other evidences, held in favour of 4th respondent, vide Ext.P3 order, which is challenged in this original petition. 6. Learned counsel for petitioner has referred to the provisions of the Hindu Marriage Act and contended that the marriage through an agreement between petitioner and 4th respondent is not a marriage at all, and therefore she is not entitled to be nominated for the benefits as wife, who is one of the family members covered by Rule 71 of the KSR. According to petitioner, the relationship between petitioner and 4th respondent, which existed prior to his marriage with the present wife, was not a real O.P.No.17145/2001 -4- marriage and real marriage was held only on 21/10/1985 with Mrs.Omana, who is rightly nominated by him under Rule 72 of Part- III KSR for service benefits. 7. Learned counsel for 4th respondent has referred the maintenance orders and order of the Family Court in the divorce petition and contended that without conceding a marriage, which petitioner really did, the divorce petition filed by petitioner is not maintainable. According to him, filing of divorce petition is sufficient for admission of marriage and there is no need for this Court to go to a finding whether the marriage between petitioner and 4th respondent is in accordance with the Hindu Marriage Act or not. The main contention raised by petitioner is about the jurisdiction of the Lok Ayukta to pass Ext.P3 order. The petitioner has also referred to Section 8 of the Kerala Lok Ayukta Act, 1999 and contended that nomination made in 1993 cannot be challenged after 5 years before the Lok Ayukta. 8. Having regard to the facts stated above, we do not think, we should go into the question whether Lok Ayukta has jurisdiction in the matter because the issue has to be settled by some authority and nothing bars this Court to pass final orders settling the dispute between the parties. Petitioner admits the O.P.No.17145/2001 -5- marriage through an agreement with 4th respondent and he is not denying the paternity of his son born in 4th respondent. However, petitioner's case is that only if the marriage is in accordance with the Hindu Marriage Act, the wife is entitled to nomination under Rule 72 of Part-III, KSR. Rule 72 of KSR authorises nomination of any member of the family, which includes wife also. We are of the view that, petitioner, after having agreed to give maintenance to 4th respondent and after having filed a divorce petition, cannot contend that he has not married 4th respondent. However, the fact remains that after the marriage with 4th respondent and after getting a child, he abandoned her and married another woman, with whom he is living for the last 23 years. We do not find the name of the present wife of petitioner appearing in any proceedings and consequently, it is not known whether she is aware of any of the litigations between petitioner and 4th respondent, which led to maintenance order against petitioner and the compromise decree in the divorce petition filed by petitioner against 4th respondent. Though bigamy among Hindus is prohibited by law and in spite of complaint by 4th respondent departmental authorities have not treated the first marriage as a regular marriage, and consequently, no disciplinary action is taken against petitioner. We do not expect O.P.No.17145/2001 -6- this proceeding also to trigger any disciplinary action against petitioner on this ground. However, on equitable ground, we feel, 4th respondent should not be denied the benefits claimed by her more so when petitioner has a son in her. At the same time it would be inequitable to deny the benefits to the present wife of petitioner, with whom he is living for the last 23 years. In the circumstances, and on the equitable grounds, we declare that the present wife of petitioner, namely Mrs.Omana, and 4th respondent are entitled to nomination on equal basis for the service benefits of petitioner. We, accordingly, direct respondents 1 to 3 to change the nomination by including the name of 4th respondent as equal claimant along with petitioner's present wife Mrs.Omana. We make it clear that the other proceedings, including the maintenance order will not be affected by this judgment. The original petition is disposed of as above. (C.N.RAMACHANDRAN NAIR, JUDGE) (V.K.MOHANAN, JUDGE) jg