486 pe 1 CWP No1482 of2008 e1 1 INTHE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No1482 of 2008 10S Ml Date of Decisionl I9l 1 l Nirmala Devi Petitioner 0 0 Versus I Union of Indiaand others Respondents C5 1 Z CORAMHONBLE MRJUSTICE MAHESH GROVER C2 Presente Mr Balkar SinghAdvocate for the petitioner I Mr JagdishMarwaha Advocate for respondentNol to 3 Z Mr Arvind RajotiaAdvocate for respondentNo oo W2 MAHESH GROVERJ Z ll The petitionerprays that a writ in the nature of mandamus be issued directingthe respondents to reiease the familypension to the petitioneralongwith 18010interest on the delayedperiod She also makes a prayer that her daughterbe givenappointmentunder the Exatia scheme The facts of the case are that Ramesh Kumar who was the employeeof the Railwayswas found dead on 1 June006 The petitionerclaims that she was the second wife of the deceased and her marriagewas solemnized with the deceased on 251997 The deceased Anita 2014.01.10 12: 09 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:24 I attest to the accuracy and integrity of this document 487 CWR No 1482of2008 2e was a widower it is aiso pleadedthat priorto her marriagewith the deceasedthere was a girlnamelyKiran Kumari who was born out of the wedlockof the deceased with his first wife The petitioner was also having girlchild namelySunena from her exlusbancl This child was adoptedby thedeceased at the timeof marriageand an aHidavit was executed bythe m deceasedbefore the Executive Magistrate at the time of marriagewith the r petitioner 0 0 Afterthe death of her husbandshe has made a claim for family I pensionand also prayedthat her daughterbe givenappointment under the C5 Exvgratia scheme I denied her claim and have stated that the Z petitioner is not the widow of the deceased and that she was merelyIiving t with him and that her first husband was alive at the timewhen the alleged I marriage of the petitionetook placewith the deceased This accordingto the respondentis contraryto the provisionsof Section 5l I of the Hindu Z MarriageAct and this marriagehas to be treated as void ab initio They m further pleaded that accordingto the rules oniy the widow of the 7 deceased is entitled to the familypension Duringthe course of the Z proceedingsthe petitionerplaced on record a decree by which the e marriageof the petitionerwith her erstwhile husband was dissolved by a decree of divorce This decree is dated 187e2011 It is to be noticed that the allegedsecond husband of the petitionerexpiredon 13 of June 2006 Duringthe proceedingsthis Coun had directed the Railway Authorities e respondents to consider the claim of Kiran Arora daughter of the deceasedPr o forma respondentNo for appointmenton compassionategroundon a post commensurate with her educational qualifications Anita 2014.01.10 12: 09 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:24 I attest to the accuracy and integrity of this document 11 488 CWP Nol482 of2008 3e 1 5 When the matter came up for hearingtoday Iearned counsel for the respondents has stated that the daughterof the deceased namely KiranArora has been givenappointment and the necessary process to this effect is under way which is also Iikelyto be formalisedtodayitself This sufficientlyaddresses the concern of the Court expressed 1 in itsearlier order This Ieaves the Court to deal with solitarygrievanceof the 0 petitioner that she be givenfamilypension C0 I Learned counsel for the petitionerreferred to Annexure P4 t5 which is a copy of the employeecard wherein the petitionerhas been I described as the wife of the deceased in the details of the familyfurnished Z bythe deceased himself He has further referredto Annexure F5 which tr are particularsof account of the Bank where the petitionerhas been I described as the wife of the deceased IikewiseAnnexure Pm6also refers to t3 the account of the petitioner where she was initiallygrantedfamilypension Z bythe respondents but the same was discontinuedsubsequentlyWith the 00 aforesaid material Iearned counsel for the petitionerwants this Coun to 5 inferthat the petitioner was a Iegallywedded wife of the deceaseciamesh Z Kumar and was thus entitled to familypensionLearned counsei for the tl petitionerto substantiate his case placedreliance upon Badri Parsad V DeloutvDirectorof ConsoiidationsAlR 1978SupremeCourt 1557 He has further placedreliance on a decision of Madhya Pradesh High Court reportedin Amar Lal Gonu and another V Y B AlR 1959 Madhya Pradesh 400 46 C 1361 to say that respondents are precludedfrom questioning the status of the petitioner as beingthe Iegallywedded wife of the deceased as this prerogativerests onlywith the partiesto the arrangementand it islly ersbNhilehusband Anita 2014.01.10 12: 09 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:24 I attest to the accuracy and integrity of this document 489 CW P No1482 of2008 4 4oee who could questionher status as the Iegallywedded wife of the deceased As againstthis Iearned counsel for the respondentshave placedreliance upon the judgmentof the Honble Supreme Coun reported as Bharatha Matha and another vViiav Ranqanathanand others 2010 13IRCR Civio252 wherein it has been held that a woman 1 Iivingwith a man for a Iongperiodwhile her husband was alive does not become his Iegallywedded wife so as to enable her children to Iaya claim 0 0 to the estate of the deceased as their status continues to be that of illegitimate children 9 Likewise reliance has been placedon Mahendra Nath Yadav I Va Sheela Devi 20141 Indian Civii Cases 626 wherein a divorce Z obtained by custom between the partiesand an attemptby them to C dissolve their marriagethroughPanchayatwas regardedas illegal I Reliance has also been placedon a decision rendered by Orissa High Court repottedas Tanlkdhar Nath v Prabhabati Nath 1991 111HLR Z 451 in which it has been observed that second marriageduringthe m subsistence of the first is null and void m Z have considered the matter in some detail Om The foremost questionis that as to whether the petitionerIS entitied to the familypension by regardingher as the widow of the deceased as such a benefit is to be conferred onlyupon the widow or the Iegalheirs of the deceased as per the rules It is also to be considered as to whether she can be considered to be the Iegallywedded wife of the deceased in view of the earlier subsistingmarriagewith her erstwhile husband and that further whether such a marriage as purponedly petformedby the petitionerwith the deceased under the provisionsofthe Hindu MarriageAct can be considered to be a Iegitimate marriage Anita 2014.01.10 12: 09 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:24 I attest to the accuracy and integrity of this document 490 CWPN014820f2008 5 AnnexurePe3 is the amdavit executed by the deceased in which he the factum of the marriagewith the petitionerIt has been stated in para IV that l have solemnized this mamge as per Hildu MarriageRites and RituaIs The Petitioner pleads that she has obtaineddivorce from the erstwhile husband as per the custom in the year 1 1997 This fact unfonunately cannot be evaluated in proceedingsunder Articles226227 of Constitution of India because these are facts which 0 0 haveto be established in a Court of Iaw by pleadingand provingthem I The subsequentdecree of divorce which is of July 2011 makes it more t5 difficultto even evaluatethe pleaof customarydivorce It Ieads to a sneakingsuspicionthat all this is orchestratedby Z the petitionerto Iay a claim for familypensionwhich suspicionis also borne from the fact that deceased died an unnaturaiand a violent death I In any eventualitythis Court does not wish to delve any t deeperintothis aspectof the matter Z The marriageof the petitionerwith the deceased cannot be m acknowledged to be a Iegaland can be termedto be void ab initio as the m Z same has been performeduringthe subsistenceof her marriagewith the tlrst husband Il In S Khushboo V Kanniammai S Anr JT 2010 SC 478 and in Lata SinghV State of UP S Anr 2006 31HLR SC 443 it has been observed by the Honble SupremeCourt that IiveinelationshipIS permissibleonly in unmarried majorpersons of heterogeneous sex In case one of the said persons is married man may be guiltyof offence of adulteryand it would amount to an offence under Section 427 Cr P Further the provisionsof Section 501of the Hindu Marriage Act 1955 0lereinafterreferredto as the Actlwhich is extracted here below Anita 2014.01.10 12: 09 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:24 I attest to the accuracy and integrity of this document 491 rPnV e4 Pe5 CWP Nol482 of2008 6 7 also Iendsupportto this view Conditions for a Hindu Marriagen A marriage maybe solemnized between any two Hindus if the following conditionsare fulfilied namely i1 neitherpartyhas a spouse iivingat the time of the marriage 1Z The customarydivorce that the petitionerpleads cannot be 0 in a writjurisdiction for two evident constraints 0 I 11 That it is a fact which has to be pieadedand provedbefore a 9 Court of Law I 21 In support of the aforesaid plea even custom has to be Z pleadedand provedto show that the partiesare actuallygovernedby custom which is prevalent It is at this stagethat the Iearnedcounsel for the petitioner with I t some vehemenceat his command has stated that iiveeinrelationshipif Z existing for a Iongtime has to Iead to the presumption of marriage m He placedreliance on a decision of the Honble Supreme 7 Court in Badri Prasad v Dv Inspectorof Consolidation and others A1R Z 1978 S1557supral whereinthe HonbleSupremeCoun obseNed as Om follows For around 50 years a man and a woman as the facts in this case unfold Iived as husband and wife An adventuristchallengeto the factum of marriagebetween the two by the petitionerin this specialIeave petition has been negativedby the High Court A strong presumptionarises in favour of wedlock where the partnershave Iivedtogetherfor a Iongspellas husband and wife Althoughthe presumption IS rebuttable a Anita 2014.01.10 12: 09 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:24 I attest to the accuracy and integrity of this document 492 CWR Nol482 of2008 e7 heavyburden Iies on him who seeks to deprivethe relationshipof iegal origin Law Ieans in favour of Iegitimacyand frowns upon bastardy In this viewthe contentionof Shri Garq for the petitionerthat Iona aner the alleqed marriaqe evidence has not been produced V to sustain its ceremonial process bv examininathePriest Q or other witnesses deserves no consideration If man 0 and woman who Iive as husband and wife in societv are 0 I compelledto prove half a centurv Iater bv evewitness C5 evidence that thev were validlv married few will I succeed The contention deserves to be negativedand Z we do so without hesitation The specialIeave petitions are dismissed SpecialIeavepetitionsdismissed I The Honble SupremeCoun in Mahendra Nath Yadav v Z Sheela Devi 2010411C 626 has held that a marriagebetween the m partiescannot be dissolved throughPanchayatas per custom prevailing Itl 7 the community and any document preparedand duiysignedbythe panies Z before the Panchayatcannot be acknowledged even by courts to consider tl it while dealingwith the petitionunder Section 13 of the Act There is indeed no doubt about this fact that iiven relationship has been acknowledged to Iead to a presumption of marriageif subsisting for a Iongtime but such a presumption is also rebuttableand therefore it is againa fact which has to be pleadedand established in a Couit of law on the basis of material and evidence on record and the fact that such a presumptionbeing rebuttable would necessarilyinvolve recourse to recordingof evidence Learned counsel for the petitionerwouIdthen argue that even Anita 2014.01.10 12: 09 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:24 I attest to the accuracy and integrity of this document 493 CWR Nol482 of2008 8 thechildren born from Iiveeinrelationship wouid be entitledto estate of the deceasedin view of Section 16 of the Act and on this anoiogythe petitioner too deserves the famiiypension But this contention has aiso to be Once the marriageof the petitionerwith the deceased is consideredto be void in view of the provisions of Section 5l of the Act and 1 once it is held that the petitionerhad married the respondentduringthe subsistenceof her marriagewith her erstwhile husband then mereiy 0 0 becauseshe had been in Iivevinrelationship with the deceased would not I invitesuch a presumption of marriage so as to consider her to be the wife C5 of the deceased I The Honble SupremeCourt in Bharatha Matha and another v Z RViiava Renganathan and others 201031RCivill 252 observed as followsl I 1 5 In the instant case the Courts below had t appreciatedthe entire evidence and came to the Z conclusion that Smtlengammaldefendant No l was m Iegallywedded wife of AlagarsamiRaddiar and thus did 2 not presume her marriagewith Muthu Reddiar The Z HighCoult withoutmakingany referenceto the evidence of the plaintiffswitnesses particularlyKumarasamy PW and Kandasamy Pl5 reversed the Ondingof fact and reached the conclusion that merelyIivemine relationship between the said two partieswould Iead the presumption of marriagebetween them The HighCourt erred in not appreciatingthat the judgmentsof the Courts below could be based on another presumption providedunder Section 112 of the Evidence Act 1872 hereinafter called as the EvidenceActI Anita 2014.01.10 12: 09 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:24 I attest to the accuracy and integrity of this document 4eV 494 e C W P No 1482of 2008 16 Section 112 of the Evidence Act providesfor a presumptionof a child being Iegitimateand such a presumptioncan only be displaced by a strong preponderance of evidence and not merelybya balance of probabilitiesas the Iaw has to Iive in favour of 1 innocent child from beingbastardized In the instant r case as the proofof noneaccess between Rengammal 0 CAO and Alagarsamihad never been pleadedwhat to talk of I provingthe same the matterhas not been examined by 9 the HighCourt in correct perspectiveIt is settied Iegal I proposition that proofof noneaccess between the parties Z to marriageduringthe relevantperiodis the onlyway to 2 0 rebutthat presumption I 17 The HighCoun has decided the ISSue regarding t the factum of marriagebetween Alagarsamiand Z Rengammalonlyplacingreliance upon the statement of r SmSeethammal DW1 stepmother of Muthu Teddiar 7 who had been disbelieved bythe Courts below by giving Z cogentreasons and takingnote of the fact that she had tl arrangedtheir marriagespendinga sum of Rsl O otllYe The HighCouIt has also reappreciated the documentaty evidence and took a view contraryto the view taken by the couits below it was not appropriatefor the High Court to reappreciatethe evidence in Second Appealas no substantialquestionof Iaw involvedtherein Both the courts below found that Rengammal was Iegallywedded wife of AlagarsamiThe courts below had placedvery heavyreliance upon the witnesses examined by the Anita 2014.01.10 12: 09 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:24 I attest to the accuracy and integrity of this document 495 4 CW P Nol482 of2008 10 particuiarlyKumarasamy w PW2 and KandasamyPW5 180 in view of the fact that the HighCourt did not even take note of the depositionof the piaintiffswitnesses 6ndingsrecorded by the High Court itself become perverse and thus Iiableto be set aside ll s lr 0 24n Rameshwari Devi State of Bihar S ors 2000 0 11ST1084 1 AlR 2000 SC 735 this Court dealt With 9 a case wherein aner the death of a Govemment I d employeechildren born iiiegitimatelyby the woman Z who had been Iivingwiththe said employeeclaimed the 2 share in and other deathecumetiral e benefitsalongwith children born out of a Iegalwedlock I This Court held that under Section 16 of the Act children Z of void marriageare IegitimateAs the empioyeea OO Hindu died intestate the children of the deceased r m7 employeeborn out of void marriagewere entitled to Z share in the familypensiondeathecumetiral beneOts tl and gratuity For the aforesaid reasons I am of the opinionthat the claim of the petitionerfor family pensionon the groundthat she has to be considered to be the Iegallywedded wife of the deceased is misplaced and the petitionis held to be without any merit and is dismissed The petitionermay if SO advised take recourse to the Olingof a civil suit to provethe factum of her marriageand if she is successful the observations made in the writ petitionshall have no bearingon the outcome of the proceedingsbefore the Civii Coun However the dismissal of the writ Anita 2014.01.10 12: 09 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:24 I attest to the accuracy and integrity of this document 496 11 CWR No 1482of2008 11 petition shall not implythat the daughterof the deceased who has been givenemployment pursuantto the orders of this Court shali in any manner be affected bythe observationsmadebythis Court e MAHESH GROVERI Decemberl2011 JUDGE GDl Aarti C 0 0 WHETHERTO BE REFERRED TO REPORTER2 YESINO I C5 I e Z C I Z 1r 00 J Z Om 31 ll 4e 1 Anita 2014.01.10 12: 09 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:24 I attest to the accuracy and integrity of this document