Parukutty Amma v. R. Sumangi Amma and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE V.K.MOHANAN & THE HONOURABLE MR.JUSTICE A.HARIPRASAD FRIDAY, THE 27TH DAY OF JUNE 2014/6TH ASHADHA, 1936 Mat.Appeal.No. 280 of 2005 ( ) ------------------------------- AGAINST THE JUDGMENT IN OS 92/2000 of FAMILY COURT,THIRUVANANTHAPURAM DATED 22-06-2005 APPELLANT(S)/DEFENDANT NO.1 : --------------------------------------------------- PARUKUTTY AMMA, D/O.KAMALAMMA, CHEVOORVILA PUTHENVEEDU, PALLICHAL P.O., NEMOM THIRUVANANTHAPURAM. BY ADVS.SRI.S.V.BALAKRISHNA IYER (SENIOR ADVOCATE) SRI.K.JAYAKUMAR SRI.P.B.KRISHNAN RESPONDENT(S)/PLAINTIFF AND DEFENDANTS 2 TO 4: ------------------------------------------------------------------------------- 1. R.SUMANGI AMMA, W/O.LATE N.GOPALAKRISHNAN NAIR POYTHALA VEEDU, PALLICHAL P.O. NEMOM, THIRUVANANTHAPURAM. 2. THE OFFICER-IN-CHARGE OF RECORDS, INDIAN ARMY, MADRAS REGIMENT, P.B.NO.1 WELLINGTON, NILGIRIS-643 231. 3. THE MANAGER, DISTRICT CO-OPERATIVE BANK, PRAVACHAMBALAM BRANCH THIRUVANANTHAPURAM. 4. THE MANAGER, STATE BANK OF TRAVANCORE, PRAVACHAMBALAM THIRUVANANTHAPURAM. R1 BY ADV. SRI.G.UNNIKRISHNON R3 BY ADV. SRI.S.M.PREM R3 BY ADV. SMT.K.P.SANTHI R4 BY ADV. SRI.SATHISH NINAN R4 BY ADV. SRI.SANTHOSH MATHEW R2 BY ADV. SRI.T.SANJAY, CENTRAL GOVERNMENT COUNSEL THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 16-06-2014, THE COURT ON 27-06-2014 DELIVERED THE FOLLOWING: MAT.APPEAL NO.280/2005 ORDERS ON IA NOS.2795/2005, 903/2007 & 2049/2011 CLOSED 27.06.2014 Sd/-V.K.MOHANAN, JUDGE Sd/-A.HARIPRASAD, JUDGE APPENDIX APPELLANT'S EXHIBITS: ANNEXURE - A1 DATED 07.11.2006 TRUE COPY OF THE APPLICATION FILED BY THE APPLICATION FILED BY THE APPLICATION BEFORE THE RESPONDENT NO.206 ANNEXURE-A2 DATED 28.11.2006 TRUE COPY OF THE COMMUNICATION RECEIVED FROM RESPONDENT NO.2 //TRUE COPY// **V.K.MOHANAN & A.HARIPRASAD, JJ. -------------------------------------Mat. Appeal No.280 of 2005 -------------------------------------Dated this the 27[th] day of June, 2014.** ## **JUDGMENT** ## A.Hariprasad, J. N.Gopalakrishnan Nair, a retiree from Indian Army died on 25.11.1999. Immediately thereafter, two ladies raked up rival claims regarding the status of wife of the deceased. Each claimed, in exclusion of the other, that she is entitled to the retirement benefits of deceased N.Gopalakrishnan Nair. As to who is the legally wedded wife entitled to the benefits is the core issue. The 1[st] respondent/plaintiff has gone to the Family Court with a suit for declaration of status and other consequential reliefs. The suit was decreed by the trial court in her favour. Aggrieved by the judgment and decree, the 1[st] defendant has come up in appeal. 2. 1[st] respondent claimed that she is the legally wedded wife of deceased N.Gopalakrishnan Nair. Admittedly the parties are Hindus. He married the 1[st] respondent on 14.06.1958 according to the custom prevailing in the community. Four issues were born in the wedlock. During the subsistence of the marriage, the deceased Gopalakrishnan Nair developed illicit intimacy with the appellant and a female child was born to 2 Mat.Appeal No.280/2005 them. 1[st] respondent had filed M.C.No.238 of 1999 under Section 125 of the Code of Criminal Procedure Code (in short, “Cr.P.C.”) during the life time of N.Gopalakrishnan Nair. Subsequent to the death of her husband, she approached the 2[nd] respondent for receiving family pension. Then she knew that the deceased had nominated the appellant as the beneficiary for pension. According to the 1[st] respondent, the appellant has no right to claim any benefit accrued on the death of N.Gopalakrishnan Nair. The 2[nd] respondent took a stand that the establishment is unable to recognize the 1[st] respondent's claim as the service records showed the name of the appellant as wife of the deceased. Therefore, the 1[st] respondent approached the court below for appropriate reliefs. 3. Appellant/1[st] defendant filed written statement disputing the claim made by the 1[st] respondent/plaintiff. According to the appellant, she is the only legally wedded wife of deceased N.Gopalakrishnan Nair. Allegation raised by the 1[st] respondent that the appellant and the deceased were living in an illicit relationship is strongly denied by the appellant. 1[st] respondent's contention that she has four children through the deceased is also disputed by the appellant. Deceased N. Gopalakrishnan Nair had shown the appellant as his wife in the service records. 1[st] respondent has no right to challenge that nomination. She is not entitled to get family pension. 3 Mat.Appeal No.280/2005 4. 2[nd] respondent contended that the Department is an unnecessary party to the proceedings. Facts asserted in the plaint that deceased N.Gopalakrishnan Nair, former Captain of the Indian Army died on 25.11.1999 is correct. He was enrolled in the Army on 24.09.1956. His papers were transferred to the Pension Establishment Department with effect from 01.01.1998 after his service of 31 years, eight months and seven days. As per the service records available, he had married the appellant on 23.01.1968. He nominated the appellant to receive all benefits in the event of his death. Two female children named Beeju and Preetha were born to them on 30.08.1970 and 30.05.1971 respectively. Since the records show the appellant as wife of the deceased, the Department notified the family pension in favour of the appellant. The pensioner was reported to have died on 25.09.1995. On receipt of the death intimation from the appellant, Defence Pension Disbursing Officer, Thiruvananthapuram was requested to disburse the family pension to the appellant. A petition was received from the 1[st] respondent intimating the death of the pensioner and mentioning her marriage with the deceased in 1958. However, the pensioner never intimated to the Department about the marriage with the 1[st] respondent during his life time. The Department properly sanctioned the family pension to the appellant since the pensioner himself had nominated her as the legal heir. The suit against the 2[nd] 4 Mat.Appeal No.280/2005 respondent is not maintainable. 5. Evidence in the case consists of oral testimony of PWs 1 to 4 on the side of the 1[st] respondent and DWs 1 to 5 on the side of the appellant. Exts.A1 to A19 are the documents produced and proved by the 1[st] respondent/plaintiff and Exts.P1 to P24 are those on the side of the appellant/1[st] defendant. 6. We heard the learned Senior Counsel Shri S.V.Balakrishna Iyer, for the appellant, Shri G.Unnikrishnon for the 1[st] respondent and Shri T.Sanjay, learned Central Government Counsel for the 2[nd] respondent. 7. Defence case pleaded by the 1[st] respondent /plaintiff is that deceased N.Gopalakrishnan Nair married her as per the rituals prevalent among the community on 14.06.1958 at her house Poythala Veedu. When she testified as PW1, she adhered to the pleadings in the plaint. She deposed that in their marital relationship four children were born. Admittedly all of them have attained majority. When PW1 was crossexamined, she specifically stated about the ceremonies of her marriage with the deceased. As there was no compulsory registration of marriage at that time, PW1 would depose that there is no marriage certificate obtainable to establish the fact. She deposed with certainty that her marriage was at about 11.00 a.m. on 14.06.1958. Deceased Gopalakrishnan Nair gave her 'pudava' ( meaning thereby a sacred cloath, 5 Mat.Appeal No.280/2005 prevalent in customary form of marumakkathayam marriage) and tied thali (sacred thread) around her neck. She deposed that about 100 people attended the marriage ceremony. After marriage, deceased N.Gopalakrishnan Nair took her to his family house, viz., Cheeyoorvila Puthen Veedu. Thereafter, they started living in her house at Pallichal. PW1 would state that there had been occasioned rough weather in the marital relationship between the deceased and herself as the former developed illicit intimacy with the appellant. As he failed to provide maintenance, PW1 filed a case under Section 125 Cr.P.C. as M.C.No.238 of 1999 before a competent court. It is a common case of the parties that N.Gopalakrishnan Nair died on account of an accidental fall into a canal. His death was on 25.11.1999. Eldest son of the 1[st] respondent has done the last r **it** es of his father. Testimony of PW1 clearly shows the fact that the deceased had married her and four children were born to them. 8. To support the testimony of PW1, PWs 2 and 3 were also examined. They also testified that the deceased had married PW1 and they were blessed with four children. PW2 is a relative of PW1 and he was a child at the time of PW1’s marriage. PW3 is an independent witness aged about 73 years at the time of examination. He is almost of equal age of the deceased. His testimony regarding the marriage between PW1 and the deceased remains unshaken in spite of cross-examination. 6 Mat.Appeal No.280/2005 9. PW4 is the eldest son of the 1[st] respondent. He also deposed emphatically that the deceased married PW1 and he and three siblings are the children born to the deceased through PW1. 10. Apart from the oral evidence, learned counsel for the 1[st] respondent relied heavily on the documents produced and proved on the side of the 1[st] respondent. According to him, the un-impeachable oral and documentary evidence will only take the court to an irresistible conclusion that the deceased married the 1[st] respondent as stated in the plaint. Exts.A1 and A2 are the two certificates issued by the Military Establishment wherein it is certified that Sreekantan Nair (PW4) and Sreekala are the son and daughter respectively of the deceased N.Goapalakrishnan Nair. These documents are of the years 1979 and 1986 respectively. It cannot be stated that they were prepared to suit the convenience of the 1[st] respondent. Exts.A3 to A6 are copies of Secondary School Leaving Certificates in respect of the four children of 1[st] respondent born through the deceased. It is pertinent to note that Ext.A3, relating to PW4, would show that he was born on 16.06.1959. In all these documents, in the relevant column, name of the deceased was shown as father. Ext.A7 is the copy of the voters list in relation to polling station No.131 in Kovalam Legislative Constituency. Sl.No.937 is the 1[st] respondent and Sl.No.937 is deceased Gopalakrishnan Nair. In the voters list, 1[st] respondent is 7 Mat.Appeal No.280/2005 described as the wife of deceased N.Gopalakrishnan Nair. Ext.A9 series are money order coupons evidencing payment of money by the deceased to the 1[st] respondent. Ext.A10 series letters written by the deceased to the 1[st] respondent would show the cordial relationship existed between the deceased and the 1[st] respondent as husband and wife. Court below placed special reliance on Ext.A10 series letter dated 30.06.1960 to find that the deceased had marital relationship with the 1[st] respondent even before the alleged marriage between the deceased and the appellant in 1968. There are other documents also available in the records to show that long prior to 1968, the deceased had considered the 1[st] respondent as his wife and acknowledged the children born to her. Ext.A11 is a document showing the remittance made by deceased Gopalakrishnan Nair in the account maintained with Kiliyoor Service Co-operative Bank. Therein the name of the 1[st] respondent is shown as the nominee. Exts.A12 to A14 are the marriage invitation letters in respect of two daughters and the son of the deceased Gopalakrishnan Nair. These documents would amply prove the case of the 1[st] respondent, contended the learned counsel. 11. Per contra, the learned Senior Counsel appearing for the appellant would submit that oral evidence adduced on the side of the appellant and the documentary evidence produced would show that the claim made by the appellant is the true version of the story. Appellant 8 Mat.Appeal No.280/2005 testified as DW1. Her definite case is that the deceased married her on 23.01.1968. According to DW1, deceased N.Gopalakrishnan Nair was his uncle’s son. Fact that both of them grew up in the same house is not in dispute. 1[st] respondent and the witnesses examined on her side have practically admitted that during the subsistence of marital relationship between the deceased and the 1[st] respondent, he developed intimacy with the appellant. Appellant has a girl child by name Preetha as a progeny through the deceased is an admitted fact. Even though the 2[nd] respondent in their written statement contended that the deceased had mentioned names of two female children by name Beeju and Preetha in his service records as his children, the evidence would show that Preetha is the only girl child born to the appellant through the deceased and she is also called as Beeju. Whatever that may be, the deceased is the father of Preetha born to the appellant. DW1 also stated that there was a customary marriage between herself and the deceased. DW2 is her son-in-law. It is evident that he is incompetent to prove his mother-in-law’s marriage as he had no direct knowledge in respect of that fact. DW3 Preetha is the daughter of the deceased born to the appellant. As mentioned earlier, there is no dispute regarding her paternity. DW4 is the sister of the deceased. Both DW1 and DW4 were living together in DW4’s family house and they are closely related to one another. DW5 is an independent 9 Mat.Appeal No.280/2005 witness. He proved Exts.B19 to B21. It is indisputable that the deceased nominated the appellant/1[st] defendant in the service records as his wife. Besides, Ext.B2 is an important document relied on by the appellant. It is the copy of the pension certificate of the deceased wherein the appellant is shown as his wife. Similarly, Exts.B3 and B4 documents would also show that the appellant is described as his wife. Ext.B5 identity card, Ext.B6 ration card, Ext.B7 intimation, etc. would also show that the deceased described the appellant as his wife. 12. Narration of facts made above would show that both the parties produced documents to support each one's contentions. The testimony on the side of the 1[st] respondent that she was married to the deceased on 14.06.1958 is supported by oral as well as documentary evidence. Public documents like photocopy of relevant pages of the Secondary School Leaving Certificate and voters list would show that there was a valid and subsisting marital relationship between the deceased and the 1[st] respondent. In order to reinforce this contention, the 1[st] respondent has adduced convincing oral evidence to show that the deceased married her in the year 1958. Therefore, the court below is fully justified in finding that the 1[st] respondent/plaintiff is the legally wedded wife of the deceased N.Gopalakrishnan Nair. It is true that the appellant was living with the deceased for some time and DW3 Preetha is the child born in that 10 Mat.Appeal No.280/2005 relationship. It is also come out in evidence that on account of the intimacy between the deceased and the appellant, there were bickerings in the family of the 1[st] respondent going to the extent of filing a maintenance case. Nevertheless, the appellant cannot claim the legal status of a wife as the deceased was lawfully married to the 1[st] respondent at the time of commencement of his relationship with the appellant. No court can legally acknowledge the marriage between the deceased and the appellant during the subsistence of a valid marriage of the deceased as it is a taboo under Section 5(i) of the Hindu Marriage Act, 1955 (in short, “the Act”). Hence, we find that factually there is no error committed by the court below in finding that the 1[st] respondent/plaintiff is the legally wedded wife of the deceased. 13. Now the question remaining to be resolved is whether the appellant is entitled to get the pensionary benefits of the deceased because she has been shown as the wife of the deceased as per the records kept by the Military Establishment. In order to answer this query, a survey of the service law will have to be undertaken. 14. Pension Regulation of the Army is the subordinate legislation touching the subject. For our purpose, following Regulations are relevant, viz., 212, 216, 218, 219 and 220. Regulation 212 deals with to whom ordinary family pension can be allowed. Regulation 216 gives the list of 11 Mat.Appeal No.280/2005 members eligible for claiming family pension in the family. It reads as follows: _“_ _**216** .The following members of the family of a deceased individual shall be viewed as eligible for the grant of a special family pension, provided that they are otherwise qualified:_ _(a) widow/widower lawfully married. It includes a widow who was married after individuals release/retirement/discharge/invalidment._ _(b) Son actual and legitimate/including validly adopted._ _(c) Daughter, actual and legitimate/ (including validly adopted._ _(d) Father._ _(e) Mother._ _(f) Brother._ _(g) Sister._ _Note 1:- The term “widow” used in the above or any other regulation in this sub-section in respect of special family pensionary awards shall be deemed to include such a widow who was married after the individual's discharge/invalidment.”_ Regulation 218 is pertaining to nomination of an heir to family pension. Following extractions from Regulation 218 are relevant for our purpose: _“_ _**218** . (a) An individual may nominate any, but_ 12 Mat.Appeal No.280/2005 _only one, of the relatives specified in regulation 216 as heir to the special family pension._ _(b) xxxxxxx_ _(c) The individual may change the nomination in favour of another eligible heir at any time during his service or after discharge._ _(d) xxxxxxxxx”_ Regulation 219 specifically states that a relative specified in Regulation 216 shall be eligible for grant of family pension. It deals with certain conditions. As general conditions, it must be satisfied that he/she is not in receipt of another pension from Government and he/she is not employed under the Government. In the case of widow, she must remain not re-married. As per Regulation 220, where there is no nomination, the pension shall be granted to the living heir who stand highest in the list in Regulation 216 and who is eligible under Regulation 219, on the date on which the pension sanctioning authority decides that the claim to pension is admissible. 15. Learned counsel for the 1[st] respondent placing reliance on a decision of this Court in **Kunhami v. Union of India (2006 (2) KLT 661)** contended that the Regulations are intended to do justice to the widow, father, son and unmarried daughter of the deceased Army Personnel. These are benevolent provisions enacted with the object of rendering financial assistance to the said persons. The only inhibition that the 13 Mat.Appeal No.280/2005 pension sanctioning authority will have is that the pension can be granted to only one at a time. As mentioned above, Section 5(i) of the Act declares that a Hindu cannot re-marry during the subsistence of his/her earlier marriage. To reinforce this, learned counsel for the 1[st] respondent relied on a decision of this Court in **Saraswathi Amma v. Padmavathi Amma (1992 (2) KLT 276)** . That was a case wherein succession to the service benefits of a Government servant was considered. Of course, that was a case relating to Kerala Service Rules. This Court observed that nomination cannot take away the rights of legal heirs as the right of a nominee is only akin to that of a trustee for the legal heirs and cannot be taken away by nomination (see **Smt. Sarbati Devi and another v. Smt. Usha Devi - AIR 1984 SC 346)** . 16. Learned counsel for the 1[st] respondent submitted that plethora of evidence is available to show that the deceased and the 1[st] respondent lived as man and wife for a long spell of time. Therefore, there can be a presumption in favour of the wedlock. In order to fortify this contention, decision reported in **Tulsa and others v. Durghatiya and others ((2008) 4 SCC 520)** is relied on. Relying on the decision in **Gettam Israil v. M.Siromani and others (AIR 2002 A.P. 279)** learned counsel for the 1[st] respondent contended that the deceased could not have during the subsistence of his marriage with the 1[st] respondent nominated the 14 Mat.Appeal No.280/2005 appellant as wife to receive the death or retiral benefits. 17. The evidence in this case coupled with the legal provisions mentioned above make it amply clear that the 1[st] respondent was validly married by the deceased and during the subsistence of that marriage, an extramarital relationship between the deceased and the appellant was established. Therefore, the decision of the court below is proper and legally justifiable. 18. Learned Senior Counsel for the appellant submitted that hither to the appellant was receiving family pension as nominated by the deceased. Up to a certain period of time, the 2[nd] respondent disbursed family pension to the appellant. It is seen from the records in this case that an interim order was passed by this Court on 12.10.2006 suspending the operation of the order passed by the trial court in this matter. The interim order was extended for two months on 01.02.2007. The records would show that from 01.04.2007 onwards, there is no order in force. As we find no material to decide the date upto which the 2[nd] respondent disbursed family pension to the appellant, we do not propose to make a finding upto what time the pension was disbursed by the 2[nd] respondent to the appellant. Learned Senior Counsel submitted that this Court may not direct the authorities to recover the pension amount already received by the appellant as per the wish expressed by the deceased. Considering the 15 Mat.Appeal No.280/2005 relationship between the parties, we find force in the submission. We dispose of the appeal in the following lines: We confirm the finding of the court below that the 1[st] respondent is the legally wedded wife of deceased N.Gopalakrishnan Nair, a retiree from the Indian Army, who died on 25.11.1999. As per the provisions in the Regulations mentioned above, the 1[st] respondent is entitled to get family pension. However, we make it clear that the 1[st] respondent is entitled to get family pension only from the date on which the 2[nd] respondent stopped payment of the same to the appellant. 2[nd] respondent shall make future payments of family pension to the 1[st] respondent. No order as to costs. ## **V.K.MOHANAN, JUDGE.** ## **A. HARIPRASAD, JUDGE.** **cks**