IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC FRIDAY, THE 1ST OCTOBER 2010 / 9TH ASWINA 1932 WP(C).No. 18337 of 2003(G) -------------------------------- PETITIONER: ------------------ K.DEVAKY, KADAPPALLYCHIRAYIL HOUSE, VARANAM P.O., THANNEERMUKKOM, ALAPUZHA DISTRICT. 2ND PETITIONER IMPLEADED P2. G,VISWANATHAN, SON OF P.G.GOPALAN, AGED 57 YEARS, ROHINI VIHAR, CMC 12, CHEERTHALA. (2ND PETITIONER IS IMPLEADED AS PER ORDER DCATED 6.3.09 IN IA. 2588/09) BY ADVS. SRI.S.P.ARAVINDAKSHAN PILLAY SRI.G.NEELAKANTA PILLAI SRI.V.VARGHESE SMT.N.SANTHA SRI.PETER JOSE CHRISTO SRI.S.A.ANAND RESPONDENTS: --------------------- 1. STATE OF KERALA, REPRESENTED BY ITS CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM. 2. ACCOUNTANT GENERAL (A & E), KERALA, THIRUVANANTHAPURAM. 3. THE DISTRICT COLLECTOR, ALAPUZHA. 4. SUB TREASURY OFFICER, CHERTHALA. 5. LAKSHMI @ LAKSHMIKUTTY, PUTHENTHARA, VARANAM, KARIKKAD P.O., THANEERMUKKOM, ALAPUZHA DISTRICT. R1 TO R4 BY GOVERNMENT PLEADER, SRI.T.K.ARAVINDKUMAR BY R5 ADV. SRI.J.OM PRAKASH THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 1 / 10 / 2010 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: VK WP(C).No. 18337 of 2003(G) -------------------------------- APPENDIX PETITIONER;S EXHIBITS. EXT.P1. COPY OF THE LETTER NO.H2-22120/2000 DATED 2.5.2000 OF THE 3RD RESPONDENT. EXT.P2. COPY OF THE LETTER DATED 30.5.2000. EXT.P2(a). COPY OF THE PENSION PAYMENT ORDER. EXT.P2(b). COPY OF THE DEATH CERTIFICATE EXT.P2(c). COPY OF THE DOCUMENTS TO PROVE THAT THE PETITIONER IN HIS LEGALLY WEDDED WIFE. EXT.P2(d). COPY OF THE CERTIFICATE FROM THE TREASURY OFFICER TO SHOW THE DATE UPTO WHICH HE HAD RECEIVED PENSION. EXT.P3. COPY OF THE LETTER NO.H2. 48869/02 DATED 18.2.02 OF THE 3RD RESPONDENT. EXT.P4. COPY OF THE LETTER NO.B3.1/03 DATED 3.1.03 OF THE 4TH RESPONDENT. EXT.P5. COPY OF THE LETTER NO.H2.48869/902 DATED 1.2.03 ADDRESSED TO THE SUB TREASURY OFFICER, CHERTHALA, THE DISTRICT COLLECTOR, ALAPPUZHA. EXT.P6. COPY OF THE LETTER NO.B3.1/93 DATED 19.4.03 OF THE 3RD RESPONDENT. EXT.P7. COPY OF THE CERTIFICATE NO.K.DIS.15716/03/A4 DATED 23.7.2003 OF THE TAGHSILDAR, CHERTHALA. EXT.P8. COPY OF THE REPORT DATED 18.7.2000 OF THE VILLAGE OFFICER, THANNEERMUKKOM NORTH. EXT.P9 COPY OF THE IDENTITY CARD OF THE PETITIONER. EXT.P10. COPY OF THE IDENTITY CARD. EXT.P11. COPY OF THE CERTIFICATE NO.1333/-3 DATED 12.6.2003 OF THE VILLAGE OFFICER, THANNEERMUKKOM NORTH VILLAGE. EXT.P12. COPY OF THE CERTIFICATE OF THE PRESIDENT, THANNEERMUKKOM NORTH VILLAGE DATED 15.7.2003. EXT.P13. COPY OF THE CERTIFICATE DATED 15.7.2003 OF THE SECRETARY OF SNDP, SAGHA YOGAM NO.570, VARANOM, KARIKKAD P.O., EXT.P14. COPY OF THE PART 03 OF VOTERS LISTOF WARD NO.10 OF THANNEERMUKKOM GRAMA PANCHAYAT. EXT.P15. COPY OF THE ORDER ON IA. 1380/02 IN O.S.618/00 DATED 12.6.2003 OF THE COURT OF THE ADDITIONAL MUNSIFF, CHERTHALA. EXT.P16. COPY OF THE I.A.NO.1893/2003 WITH THE SUPPORTING AFFIDAVIT. WP(C).No. 18337 of 2003(G) -------------------------------- RESPONDENTS EXHIBITS EXT.R5(a). COPY OF THE IDENTITY CARD ISSUED TO THIS RESPONDENT BY THE ELECTION COMMISSION OF INDIA DATED 28.4.98. EXT.R5(b). THE RELEVANT PAGE OF THE PENSION BOOK OF P.G. GOPALAN SHOWING THE NOMINATION OF THE 5TH RESPONDENT DATED 24.2.93. EXTR5(c). THE RELEVANT PAGE OF THE RATION CARD OF P.G. GOPALAN REGARDING THE MEMBERS of the FAMILY. EXT.R5(d). THE RELEVANT PAGE OF THE VOTERS LIST OF THE MARARIKULAM ASSEMBLY CONSTITUENCY IN THE YEAR 1995. EXT.R5(e). COPY OF THE ORDER OF THE 3RD RESPONDENT DATED 15.6.72 ISSUED TO P.G. GOPALAN. EXTR5(f). COPY OF THE ORDER OF THE 2ND RESPONDENT ISSUED TO P.G. GOPALAN DATED 24.2.93. EXT.R5(g). COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN O.P. NO.6904/2000. EXT.R5(h) . COPY OF THE LETTER ISSUED BY THE 3RD RESPONDENT TO THE 5TH RESPONDENT DATED 5.5.2003. P.S. TO JUDGE / TRUE COPY/ VK ANTONY DOMINIC, J. ``````````````````````````````````````````````````````` W.P.(C) No. 18337 of 2003 G ``````````````````````````````````````````````````````` Dated this the 1st day of October, 2010 J U D G M E N T This writ petition was originally filed by late Smt.K.Devaky, claiming to be the widow of Sri.P.G.Gopalan, a freedom fighter, who expired on 10-03-2000. 2. It is stated that Sri.Gopalan was being paid Kerala Freedom Fighters' Pension. According to the petitioner, on the death of Sri.Gopalan, she applied for pension. She was issued Ext.P1 letter requiring to produce the documents mentioned therein. Thereupon, she submitted Ext.P2 enclosing Exts.P2(a), P2(b), P2(c) and P2(d), which are the pension payment order, death certificate of Gopalan, a registered agreement describing the petitioner to be his wife and a document showing that Gopalan was in receipt of pension till 29-02-2000. 3. Thereupon, the District Collector sought certain clarifications from the Treasury Officer, which was replied by WPC.18337/03 : 2 : Ext.P4 stating that the fifth respondent is the nominee of the deceased for the purpose of payment of pension. Further clarifications were sought by the District Collector and at that stage, on the petitioner coming to know that the fifth respondent was going to be paid pension, this writ petition was filed, seeking a declaration that the petitioner is the legally wedded wife of the deceased and that she is entitled to be paid pension under the Rules referred above. 4. Case of the petitioner is that she is the legally wedded wife of the deceased. In addition to Exts.P2(a) to P2 (d), petitioner has also produced Exts.P7 to P14 documents in support of a contention that she is the legally wedded wife with a son in that wedlock. It is stated that under the Rules, only the wife can be nominated and, therefore, even if a nomination in favour of the fifth respondent has been made, since she is not the legally wedded wife, petitioner alone can claim pension. 5. During the pendency of this writ petition, petitioner WPC.18337/03 : 3 : expired and thereupon, her son got himself impleaded and is prosecuting this writ petition. 6. Counter affidavit has been filed by the additional respondents and also the fifth respondent. The fifth respondent contends that she is the legally wedded wife of the deceased. She has also produced Ext.R5(a) voter ID card, Ext.R5(b) nomination made by the deceased, Ext.R5(c) ration card, Ext.R5(d) voters list, Ext.R5(e) pension payment order and Ext.R5(f) authorisation issued by the Accountant General. She also relies on Rule 22(2) of the Rules and contends that it was recognising her status as wife, that the deceased nominated her for receipt of pension. She also argues that Ext.P2(c) agreement relied on by the petitioner is invalid in the light of the judgment of this Court in Sayed Abdul Basith Vs. Assistant Commissioner of Police [2009 (2)KLT 1]. Further, she also says that the very fact that there was continuous cohabitation between the deceased and herself and that she has given birth to four children, presumes WPC.18337/03 : 4 : her status as wife of the deceased entitling her for pension. 7. Thus, on the one side relying on Ext.P2 series and Exts.P7 to P14, the deceased petitioner claims to be the legally wedded wife entitled to pension of the deceased, on the other, the fifth respondent on the strength of Ext.R5 series documents contends that she is the legally wedded wife entitled to be paid pension. 8. In my view, the declaration of status of a person as a legally wedded wife of a person, requires adjudication of various factual issues and consideration of evidence produced by both sides. Such an exercise is impermissible in a proceedings under Article 226 of the Constitution of India. Therefore, I am not persuaded to go into the disputed questions involved. In that view, I refrain from exercising my jurisdiction and dismiss the writ petition on that ground. (ANTONY DOMINIC, JUDGE) aks WPC.18337/03 : 5 : ANTONY DOMINIC, J. ````````````````````````````````````````````` W.P.(C) No. 18337 of 2003 G ````````````````````````````````````````````` J U D G M E N T 1st day of October, 2010