IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No. 393/2011 Reserved on: 6.12.2011 Decided on:16.12. 2011 ___________________________________________________ Smt. Kamla Devi wife of late Sh. Sunder Singh, resident of village Khojer, Tehsil Pachhad, District Sirmaur, H.P. Singh Rarewala. …Appellant. Versus 1. The Secretary (Defence) Ministry of Defence, Central Government Secretariat, New Delhi. 2. Office Incharge, Records, Raksha Suraksha Corps Abhilikh, Defence Security Corps Record, Mill Road, Cannaore-6770013. …Respondents. Regular Second Appeal under section 100 of the Code of Civil Procedure against the judgment and Decree passed by District Judge Sirmaur District at Nahan dated 7.5.2011 in Civil Appeal No. 48-CA/13 of 2010 whereby the learned First Appellate Court has affirmed the judgment and decree passed by the learned trial court dated 18.12.2009 in Civil Suit No. 97/1/2009 of 2005 titled as Kamla Devi versus Secretary Defence and others with the prayer to decree the suit as prayed for by the plaintiff-appellant by setting aside both the judgments and decrees in the facts and circumstances detailed hereinafter. ________________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes For the appellant : Mr. Rupinder Singh, Advocate. For the Respondents : Mr. Ajit Saklani, Advocate, Central Government Counsel. 1 Whether reporters of the local papers may be allowed to see the judgment? Yes 2 _____________________________________________________ Justice Rajiv Sharma, Judge. This Regular Second Appeal is directed against the judgment and decree dated 7.5.2011 rendered by the learned District Judge, Sirmaur District at Nahan in Civil Appeal No.48-CA/13 of 2010. 2. Material facts necessary for the adjudication of this Regular Second Appeal are that the appellant-plaintiff (hereinafter referred to as ‘plaintiff’ for convenience sake) filed a suit against the respondents-defendants (hereinafter referred to as “defendants’ for convenience sake) seeking declaration to the effect that she is entitled to family pension on account of death of her husband since 25.2.2003 alongwith arrears thereon till realization being legally wedded wife of Sunder Singh. According to the averments contained in the plaint, Sunder Singh, husband of the plaintiff, died on 25.2.2003. He was ex- serviceman and he served the Dogra Regiment as Sepoy (LNK) and retired from Indian Army on 31.1.1983. He had put in 21 years of service. He was receiving pension through bank vide account No. 1601 till his death. He has left behind his wife and two sons as legal heirs. Sunder Singh was earlier married to one Suman Devi. The marriage was dissolved in the year 1979 as per local custom and thereafter Sunder Singh solemnized marriage with the plaintiff. Suman Devi also solemnized marriage with Pyare Lal. The divorce of husband of the plaintiff and Suman Devi was entered in the Panchayat 3 record. The name of Suman Devi was deleted from Gram Panchayat, Naina Tikkar. Suman Devi had also executed an affidavit on 13.8.2001. 3. Claim of the plaintiff was opposed by the defendants. It is admitted by the defendants that Sunder Singh served Indian Army and he retired on 31.1.1983. He was granted pension at the rate of ` 157/- per month with effect from 1.2.1983. Plaintiff has not produced any decree of divorce between Sunder Singh from Suman Devi passed by any court or registration of any marriage to establish that she was only legally wedded wife of Sunder Singh. In the absence of any certificate, marriage of the plaintiff with Sunder Singh being second marriage could not be recognized by the defendants. The marriage of Suman Devi with Pyare Lal was also not to the knowledge of the defendants. 4. Civil Judge (Senior Division) framed issues on 12.6.2006. He dismissed the suit on 18.12.2009. Plaintiff preferred an appeal before the District Judge, Sirmaur District at Nahan. He dismissed the same on 7.5.2011. Hence, the present Regular Second Appeal. 5. Mr. Rupinder Thakur on the basis of substantial questions of law framed has vehemently argued that both the courts below have misread and misconstrued the oral as well as documentary evidence led by the parties. According to him, the plaintiff has proved herself to be legally wedded wife of Sunder Singh. The marriage between Sunder Singh and 4 Suman Devi was dissolved as per local custom prevailing in the area and the entry to this effect was also entered in the Gram Panchayat record. 6. Mr. Ajit Saklani, learned Central Government Counsel has supported the judgments and decrees passed by both the courts below. 7. I have heard the learned counsel for the parties and have perused the pleadings carefully. 8. Plaintiff has appeared as PW-1. According to PW-1, her marriage was solemnized with Sunder Singh according to Hindu rites and customs in the year 1980. Sunder Singh retired from the Indian Army on 31.1.1983. Sunder Singh was earlier married to Suman Devi, but according to the local custom, they divorced in the year 1979. Suman Devi deposed an affidavit denouncing any claim over pension of Sunder Singh on 13.8.2001 attested before the Executive Magistrate, Pachhad. Plaintiff has two sons from her marriage with Sunder Singh. 9. PW-2 Shyama Devi has issued certificate Ex.PW- 2/A with regard to divorce between Suman Devi and Sunder Singh on 17.10.1979. 10. PW-3 Jag Mohan was serving as Clerk in Tehsil Office, Sarahan. He has proved affidavit dated 13.8.2001. 11. PW-4 Suman Devi has deposed that she was married to Sunder Singh as per Hindu customs and rites. They were divorced as per local custom. Thereafter, she 5 solemnized marriage with one Sh. Pyare Lal. She deposed that she has no claim over the property of Sunder Singh. She admitted her affidavit Ex.PW-3/A. 12. C.M. Rawat, Clerk D.S.C. Records, Kannoor, Kerala has proved the endorsement of family pension of Sunder Singh, his death certificate and correspondence between the plaintiff and the department. 13. Plaintiff has proved legal notice Ex.PW-1/A, certificate issued by PW-2, i.e. Ex.PW-3/A mentioning therein that Suman Devi had no claim to the estate of Sunder Singh and also testifying with regard to divorce of Sunder Singh. Copy of letter Ex.PW-1/C dated 5.5.2005 whereby the claim of plaintiff was rejected has also been proved. The plaintiff has also placed on record EXPX being endorsement dated 9.10.2000. 14. Plaintiff while appearing as PW-1 has admitted that in the earlier record Suman Devi was recorded as wife. She has also admitted that her husband was earlier married to Suman Devi. She also admitted that the marriage of Suman Devi was not dissolved before any court of law. She also admitted that her claim was rejected by the defendants on 11.4.2005. PW-2 has also admitted that the divorce did not take place in any court of law between Sunder Singh and Suman Devi. PW-4 Suman Devi has testified in her cross- examination that she did not divorce Sunder Singh but Sunder Singh had deserted her. She also stated that the plaintiff was 6 earlier wife of Hira Lal, brother of Sunder Singh. No contemporaneous record with regard to issuance of Ex.PW-2/A by PW-2 has been placed on record. The marriage of Sunder Singh and Suman Devi could only be dissolved under the provisions of Hindu Marriage Act. The alleged custom prevailing in the area has neither been pleaded nor proved by the plaintiff. It was necessary for the plaintiff to plead and prove on record prevalence of the custom at the time of divorce between Sunder Singh and Suman Devi. Ex.PW-3/B cannot be given any credence since the marriage between plaintiff and Sunder Singh was not solemnized in accordance with law. Plaintiff was entitled to family pension if the marriage of Sunder Singh was dissolved in accordance with law and thereafter the marriage between plaintiff and Sunder Singh was solemnized in accordance with Hindu Law. Merely that PW-4 has given affidavit Ex.PW-3/A will not entitle the plaintiff to claim family pension after the death of Sunder Singh. 15. Accordingly, both the courts below have correctly appreciated the oral as well as documentary evidence led by the parties and there is no substantial question of law involved in the Regular Second Appeal and as such the same is dismissed. Pending application(s), if any, also stands disposed of. There shall, however, be no order as to costs. (Justice Rajiv Sharma), Judge. 16.12. 2011 *awasthi*