Geological Survey of India & Others v. Sakunthala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** # **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **THURSDAY, THE 03RD DAY OF OCTOBER 2019 / 11TH ASWINA, 1941** **WA.No.1143 OF 2017** **AGAINST THE JUDGMENT IN WPC 5843/2007 DATED 18-10-2016 OF HIGH COURT OF KERALA** ## **APPELLANTS/RESPONDENTS IN WP(C):** **1 GEOLOGICAL SURVEY OF INDIA, REPRESENTED BY ITS DIRECTOR & HEAD OF OFFICE, SOUTHERN REGIONAL OFFICE, BANDLAGUDA, HYDERABAD-500068. 2 THE DEPUTY DIRECTOR GENERAL, GEOLOGICAL SURVEY OF INDIA, STATE UNIT KERALA, THIRUVANANTHAPURAM, MANIKANTESWARAM PO, TRIVANDRUM-695013. 3 PAY ACCOUNTS OFFICER, GEOLOGICAL SURVEY OF INDIA, SOUTHERN REGIONAL OFFICE, HYDERABAD-500068. BY ADV. SRI.SUVIN R.MENON, CGC** ## **RESPONDENT/WRIT PETITIONER:** **SAKUNTHALA, AGED 70 YEARS, W/O.LATE CHELLAPPAN, PUTHUVAL PUTHEN VEEDU, KALINGARAJAPURAM, VALLAVILAI, KOLLEMCODE, KANYAKUMARI DISTRICT.** **R1 BY ADV. SRI.BENOJ C AUGUSTIN R1 BY ADV. SRI.U.M.HASSAN R1 BY ADV. SMT.P.PARVATHY R1 BY ADV. SRI.RAFEEK. V.K. R1 BY ADV. SRI.SAIJO HASSAN R1 BY ADV. SRI.VISHNU BHUVANENDRAN.** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 03.10.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **- 2 -** **W.A.No.1143 of 2017** **K.Vinod Chandran & V.G.Arun, JJ. ---------------------------------------W.A.No.1143 of 2017 ---------------------------------------Dated this the 03[rd] day of October, 2019** ## **JUDGMENT** ## **K. Vinod Chandran,J:** **The appellants herein are the Geological Survey of India and its officers, who were the respondents in the writ petition originally filed by the husband of the respondent in the appeal. The writ petition was originally filed by Chellappan, who was superannuated on 31.07.1986 as a Driver from the Geological Survey of India. The writ petition was filed alleging inaction on the part of the appellants herein to change the nomination for receiving family pension in the name of his second wife, the respondent herein. While the writ petition was pending, Chellappan passed away and his second wife was impleaded as the petitioner. The application was also rejected, which order was also produced and challenged in the Writ petition.** **2. On facts, it has to be noticed that Chellappan had originally married one Thayi. A second marriage was contracted, as is seen from Exhibit R2(b), extract of the Marriage Register of the community to which Chellappan belonged. Exhibit R2(b) indicated his first marriage and** **- 3 -** **W.A.No.1143 of 2017** **also indicated that Chellappan's first wife was bed-ridden and Sakunthala was taken as his second wife to nurse his first wife and look after the children born in that first wedlock. However, no valid dissolution of the first marriage was obtained by Chellappan.** **3. As was noticed, Chellappan retired on 31.07.1986 and later to that, Thayi, his first wife, died. It was then that an application dated 10.02.2005 was submitted by Chellappan requesting to change his nomination for family pension in the name of his second wife, Sankuthala-the sole respondent here. Exhibit R2(b) was produced as proof of marriage. The learned Single Judge, finding that the application having been given after the death of the first wife and also no disciplinary action having been proceeded against Chellappan for contracting a second marriage while in service, observed that there should have been no difficulty in accepting the second nomination. It was also found that the pension sanctioning authority had recommended acceptance of nomination by Exhibit P1 and when there was no rival claim, the Accounts Officer ought not to have rejected the request for change of nomination. On the above reasoning, it was found that the official respondents were unreasonable in denying the benefit of family pension to Sakunthala, the second wife of** **W.A.No.1143 of 2017 - 4 -** **the retired employee. Exhibit P4, issued by the 3[rd] respondent [3[rd] appellant herein] was, hence, set aside by the learned Single Judge and directed the subsequent nomination to be accepted.** **4. The learned Central Government Counsel pointed out that under the Hindu Marriage Act, 1955 a Hindu male cannot enter into a second marriage when the first one subsists and the second marriage, if entered, would be treated as void. It is also specifically pointed out that if such a second marriage is entered into by the Government employee, he is liable to be proceeded against for misconduct. It is also contended that there is no marriage entered into between the retired employee and the respondent herein after the death of the first wife. Reliance is placed on** _**(2000) 2 SCC 431**_ **[** _**Rameshwari Devi v. State of Bihar**_ **] to drive home the point that the second marriage entered into by the employee, while the first marriage was subsisting, was void and not liable to be considered for the purpose of disbursement of family pension.** **5. We first take note of the decision in** _**Rameshwari Devi**_ **, which we find to be quite distinct on facts. There, the first wife and second wife, both along with their children, claimed the benefits due to the family** **- 5 -** **W.A.No.1143 of 2017** **on the death of the employee. The Government accepted the claim of the first wife, who was legally married to the employee. A learned Single Judge held the children of the second wife along with the first wife and her son to be entitled to family pension and death-cum-retirement gratuity; however, the children only till they attain majority. The second wife was content with such an order. The first wife, unsuccessfully challenged the same before the Division Bench alleging that the children born in the second wife were not legitimate, since there was no valid second marriage. The Hon'ble Supreme Court accepted the contention that the second marriage was void; but, however, rejected the claim that the children were illegitimate. It was found that when there is a charge of bigamy under Section 494 of the IPC strict proof of solemnization of the second marriage with due observance of rituals and ceremonies has been insisted upon. However in the present case, which was concerned with the rival claim set up by the descendants of a retired employee, the enquiry conducted by the State was sufficient. The State Government had made an enquiry and found the existence of the second marriage and there was also witnesses testifying that the marriage between the second wife and the deceased employee had in fact taken place and they were living as husband and** **- 6 -** **W.A.No.1143 of 2017** **wife. The enquiry and the findings thereon were relied on to find that the children in the second marriage are also legitimate.** **6. In the present case, we notice that the first wife had no objection whatsoever at any point of time, who was also the elder sister of the second wife. We see from the extract of the Marriage Register of the community that the existence of the first marriage was disclosed and the reason of the second marriage was the medical condition of the first wife, who was bed-ridden. The employee did not at any point alter the nomination to receive the family pension made on behalf of his first wife during her life time. It was only after her death that Chellappan, the employee, approached the authorities for change of nomination to that of the second wife. He also** _**bona fide**_ **produced the certificate issued by his community in the year 1969. There is absolutely no cause to find any ground for proceeding for misconduct against the employee since even the Department was made aware of the second marriage after his retirement. On being made aware of the second marriage which was contracted even when the the first marriage was subsisting, the Department could not have initiated any proceeding against the retired employee.** **- 7 -** **W.A.No.1143 of 2017** **7. A marriage contracted after the death of the first wife would have solved the entire problems. However, the retired employee did not want his second wife, who was living with him for more than 30 years, to contract a second marriage after the death of his first wife and suffer such ignominy. We also have to keep in mind the peculiar facts arising of a male Hindu having contracted a marriage with the younger sister of his first wife for reason of the first wife being bed-ridden. The husband was careful not to bring any disrepute on his first wife by attempting a dissolution of the marriage. Considering the peculiar facts in the present case, we are of the opinion that the learned Single Judge properly exercised discretion in allowing the claim of the nomination of the second wife for the purpose of receipt of family pension. We perfectly agree with the learned Single Judge that the respondent herein has to be granted the entire benefits of family pension, including arrears starting from the month succeeding the death of Chellappan, the employee, i.e., with effect from 01.06.2009.** **8. Considering the fact that the matter was pending before this Court for more than 12 years in a writ petition and then in appeal, we are of the opinion that the appellants should disburse the entire arrears within three** **- 8 -** **W.A.No.1143 of 2017** **months from the date of receipt of a certified copy of this judgment and commence disbursal of family pension to the respondent from November, 2019 onwards. If any failure to comply with our directions is occasioned, then the arrears shall carry interest at the rate of 7% per annum from the date on which the respective monthly pension becomes due and the same shall be paid by the Department; but, however, such liability incurred of interest shall be recovered from the officers who were responsible for such default.** **The Writ Appeal is rejected with the above directions, leaving the parties to suffer their respective costs.** **Sd/K.VINOD CHANDRAN JUDGE** **Sd/V.G.ARUN JUDGE** **Vku/-** **[ true copy ]**