Rugmini v. Pushpavathy and others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE K.HARILAL** **&** **THE HONOURABLE MR. JUSTICE A.M.BABU** **FRIDAY, THE 2ND DAY OF MARCH 2018 / 11TH PHALGUNA, 1939** **MAT.APPEAL.NO. 927 OF 2009** **-------------------------------** **AGAINST THE ORDER/JUDGMENT IN OP 1068/2002 OF FAMILY COURT,THRISSUR DATED 07-10-2009** **APPELLANT/IST RESPONDENT** **-------------------------** **RUGMINI, D/O.MUTHUVATTIL VEETTIL KUNJAPPU, PARANNUR VILLAGE, THALAPPILLY TALUK.** **BY ADV.SRI.P.RAMAKRISHNAN** ## **RESPONDENTS/PETITIONERS & RESPONDENTS 2 & 3** ## **-------------------------------------------** **1. PUSHPAVATHY, PERUVALLOOR DESOM, PRAPPUR VILLAGE, THOLUR GRAMA PANCHAYATH, THRISSUR DISTRICT.** **2. SINDHU.P.A, W/O.POONGATT VEETTIL RAMESH, PERUVALLOOR DESOM, PRAPPUR VILLAGE, THOLUR GRAMA PANCHAYATH, THRISSUR DISTRICT.** **3. PRIYA, W/O.VADAKKUMCHERY PREMGAN, PERUVALLOOR DESOM, PRAPPUR VILLAGE, THOLUR GRAMA PANCHAYATH, THRISSUR DISTRICT.** **4. DEPUTY CHIEF ENGINEER, VAIDHYUTHI BHAVANAM, K.S.E.BOARD, KOTTAPPURAM ROAD, THRISSUR TALUK.** **5. SECRETARY, K.S.E.BOARD, VAIDHYUTHI BHAVANAM, THIRUVANANTHAPURAM.** - **R1 TO R3 CAVEATOR BY ADV. SRI.K.A.SREEJITH R4 & R5 BY ADV. SRI. ASOK M.CHERIYAN, SC, KSEB** **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 02-03-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **:2:** **MAT.APPEAL.NO. 927 OF 2009 -------------------------------** ## **APPENDIX** **PETITIONER'S ANNEXURES ----------------------** |**ANNEXURE-1:**|**TRUE COPY OF 1ST PAGE OF THE SSLC BOOK OF**|**TRUE COPY OF 1ST PAGE OF THE SSLC BOOK OF**| |---|---|---| ||**SRI.SUBRAMANIAN.**|| |**ANNEXURE-2:**|**TRUE COPY OF INDIAN**|**PASSPORT ISSUED TO**| ||**SRI.SUBRAMANIAN.**|| |**RESPONDENTS'**|**EXHIBITS: NIL**|| |**---------------------**||| |||**//TRUE COPY//**| |**vgd/05.03.18**||**PA TO JUDGE**| **“CR”** ## **K.Harilal & A.M.Babu, JJ.** ====================== **Mat.Appeal No.927 of 2009** ======================= Dated this the 2[nd] day of March, 2018 ## **JUDGMENT** ## **K.Harilal, J.** The appellant is the first respondent in O.P.1068/2002 on the file of the Family Court, Thrissur. The aforesaid original petition was filed by the respondents 1 to 3 herein, seeking a decree for declaring that the first respondent is the legally wedded wife of the deceased Aravindakshan and she is entitled to receive the family pension of the deceased Aravindakshan. The parties are referred to as they are in the original petition. 2. The facts of the case can be encapsulated as follows: According to the first petitioner, she is the wife of the deceased Aravindakshan, who died on 1.10.2002. The said Aravindakshan married the first petitioner on 10.2.1974 at Villumangalam temple, Puthenchira as per Hindu religious rites and custom. Petitioners 2 and 3 are the children born 2 Mat.Appeal No.927 of 2009 to them in the said wedlock. Aravindakshan was employed as an Overseer in the Kerala State Electricity Board, Electrical section, Parappoor village and he retired from service on 31.10.1995. Before the marriage with the first petitioner, the said Aravindakshan was in love with the first respondent. But, there was no marital relationship between Aravindakshan and the first respondent. During that time, the first respondent was the wife of one Shanmughan and Shanmughan married the first respondent in the year 1962. They have a daughter, named Sheeba. While the marital relationship between the said Shanmugham with the first respondent was subsisting, she was living with the deceased Aravindakshan for quite some time. There was no legal marriage between the first respondent and the deceased Aravindakshan. The marital relationship between Shanmugham and the first respondent was not legally dissolved while she was living with Aravindakshan. Thus, according to the first petitioner, she alone is the legally 3 Mat.Appeal No.927 of 2009 wedded wife of the deceased Aravindakshan and the first respondent was not the wife of the said Aravindakshan. But, now it is learned that the first respondent is trying to get the family pension under the guise that she is the legally wedded wife of the said Aravindakshan. The first respondent has no right to receive pension, as she was not the legally wedded wife. In the above context, the first petitioner was constrained to institute the petition, seeking a declaration that she is the legally wedded wife of the deceased Aravindakshan and she is eligible to get family pension. 3. The first respondent filed a counter statement denying all the averments in the petition stating that they are false and incorrect. 4. According to the 1[st] respondent, the petitioner has no right to institute the present petition for declaring her marital status as the petitioner is not the legally wedded wife of the deceased Aravindakshan. But, she admitted that 4 Mat.Appeal No.927 of 2009 Aravindakshan died on 01.10.2002. The 1[st] respondent denied the averment that the 1[st] petitioner was living with Aravindakshan as husband and wife. The allegation that the marriage between Aravindakshan and the 1[st] petitioner was solemnised at Villumangalam Temple in accordance with Hindu religious rites and ceremonies is also denied. According to her, Aravindakshan married the 1[st] respondent on 19.01.1996 at her residence as per Hindu religious customs and rites and three children were born out of the wedlock. The elder son Subramanian is aged 36 years and younger daughter Sheeba is aged 32 years and one child is no more. Further, she denied the allegation that she married Shanmughan. The 1[st] respondent has no relationship with Shanmughan and no issue was borne out of the relationship between Shanmughan and the 1[st] respondent. According to her, she is the legally wedded wife of the deceased Aravindakshan and she is entitled to get family pension of deceased Aravindakshan. Mat.Appeal No.927 of 2009 5 5. On the aforesaid pleadings, both parties adduced evidence, which consist of the oral testimony of PW1 to PW3 and RW1, the documentary evidence Exts.A1 to A17 and B1 to B8. After considering the aforesaid evidence on record, the Family Court decreed the suit on a finding that the 1[st] petitioner is the legally wedded wife of the deceased Aravindakshan and she is entitled to get family pension. The legality and correctness of the aforesaid finding is challenged in this appeal, by the 1[st] respondent. 6. Heard the learned counsel for the appellant and the learned counsel for the respondent. Though, this appeal has been filed, on various grounds challenging the findings of the Family Court, the learned counsel for the appellant mainly contended that the suit itself was barred by Section 4 of The Pensions Act, 1871. But the Family Court without considering the legal bar of the suit, proceeded with the suit and went wrong by passing judgment and decree on merits accepting the averments in the original petition. So also it 6 Mat.Appeal No.927 of 2009 is contended that absolutely there is no evidence to prove that the marriage between the 1[st] petitioner and P.C.Aravindakshan was solemnized in accordance with Hindu religious rites and customs. It is further contended that unless the solemnization of the marriage in accordance with religious rites and customs is proved, no decree could have been passed declaring that the 1[st] petitioner is the legally wedded wife of the said Aravindakshan. The Family Court went wrong by granting a decree, on the basis of some documentary evidence, which would show that the 1[st] petitioner and the said Aravindakshan were lived together and in some document, the name of the 1[st] petitioner happened to be entered as wife of the said Aravindakshan. 7. Per contra, the learned counsel for the petitioners advanced arguments to justify the findings of the Family Court, whereby the suit was decreed as prayed for. According to him, there is sufficient evidence on record to prove that the 1[st] petitioner is the legally wedded wife of the 7 Mat.Appeal No.927 of 2009 deceased Aravindakshan and their marriage was solemnized in accordance with Hindu religious rites and customs. Further, the learned counsel for the petitioners drew our attention to Exts.A1 to A17 and contends that in the aforesaid documents the name of the 1[st] petitioner is shown as wife of the deceased Aravindakshan. According to her, the oral testimony of PW1 to PW3 coupled with documentary evidence referred above would justify the passing of decree as prayed for. 8. In view of the arguments at the bar, the first point to be considered is whether the suit was barred by Section 4 of the Pensions Act, 1871? It is apposite to have a look at Section 4, which reads as follows: “4.Bar of suits relating to pensions.- Except as hereinafter provided, no Civil Court shall entertain any suit relating to any pension or grant of money or land-revenue conferred or made by the Government or by any former Government, whatever may have been the Mat.Appeal No.927 of 2009 8 consideration for any such pension or grant, and whatever may have been the nature of the payment, claim or right for which such pension or grant may have been substituted.” The proposition that can be deduced from Sec.4 is a legal bar against institution of the suit relating to any pension before the civil court. The statutory mandate is that no civil court shall entertain any suit relating to any pension for grant of money or land revenue conferred or made by the government. Further Sec.5 provides that “Any person having a claim relating to any such pension or grant may prefer such claim to the Collector of the District or Deputy Commissioner or other officer authorised in this behalf by the appropriate Government”. Further, Sec.6 provides that “A Civil Court, otherwise competent to try the same, shall take cognizance of any such claim upon receiving a certificate from such Collector, Deputy Commissioner or other officer authorised in that behalf that the case Mat.Appeal No.927 of 2009 9 may be so tried, but shall not make any order or decree in any suit whatever by which the liability of Government to pay any such pension or grant as aforesaid is affected directly or indirectly”. On a combined reading of Sec.4 to Sec.6, it can be held, without any doubt, that the civil court has no jurisdiction to try any suit relating to the pension of a deceased Government servant, unless a certificate has been received from Collector, Deputy Commissioner or other officer authorised in that behalf that the case may be so tried. 9. The above view is fortified by the decision reported in _**Baldeo Jha and others v. Ganga Prasad Jha and other [AIR 1959 PATNA 17]**_ . In the said decision after analysing Sec.4 of the Pension Act, the High Court held that “The words “any suit relating to any pension” used in S.4 of the Act are quite indicative of the position that all suits relating to such pension are barred under that section, and it is immaterial whether the Government is or is not a 10 Mat.Appeal No.927 of 2009 party to such suits”. In the instant case, the employers of the deceased are Secretary, Kerala State Electricity Board and Deputy Chief Engineer, Kerala State Electricity Board. 10. In the instant case, the suit is filed for a declaration that she is the legally wedded wife of deceased Aravindakshan and she alone is entitled to get family pension, without receiving a certificate from Collector, Deputy Commissioner of other authorised officer in that behalf. Moreover, the cause of action arose on her apprehension that the 1[st] defendant is trying to obtain family pension under the pretext that she is the legally wedded wife of the deceased Aravindakshan. 11. In the above view, we find that the Family Court had no jurisdiction to try the suit, without a certificate from the District Collector or authorized person, under Section 6 of the Pensions Act. 12. Coming to the merits, _prima facie,_ we see that no issue was framed as to whether the marriage between the Mat.Appeal No.927 of 2009 11 1[st] petitioner and the deceased Aravindakshan was solemnized in accordance with Hindu customary rites and ceremonies. The Family Court ought to have framed such an issue, in view of the rival claims to get marital status. The legal position stands settled by the Supreme Court is that in order to make a declaration that a spouse is legally wedded wife of the other spouse, the proof of solemnization of marriage, in accordance with religious rites and customs, is indispensable. In a suit for declaration that the petitioner is the legally wedded wife of the deceased, the aforesaid issue is the main issue; but unfortunately the said issue was not framed or considered in the instant case. The evidence adduced by both parties are overwhelming to the effect that the 1[st] petitioner and the 1[st] respondent were lived along with the deceased Aravindakshan during different periods. In certain documents, the name of the 1[st] petitioner is seen entered as wife of the deceased Aravindakshan, but in some other documents the name of the 1[st] respondent is shown as Mat.Appeal No.927 of 2009 12 his wife. We are of the opinion that even if, the evidence adduced by the petitioners are accepted at its entirety, the said evidence is not sufficient to make a declaration that the 1[st] petitioner or the 1[st] respondent is the legally wedded wife of the deceased Aravindakshan. It is pertinent to note that no attempt was made to prove the solemnization of marriage in accordance with Hindu customary rites and ceremonies. In the above view, we do not make any observation on the findings of the court below on the aforesaid documents and the evidence adduced by both parties, particularly, when the suit was not maintainable before the civil court. 13. In the above analysis, we set aside the impugned order passed by the Family Court. But it is made clear that this judgment will not stand in the way of the proceedings to be initiated by the petitioners in accordance with Sec.4 of the Pensions Act and this judgment shall not be a bar against any subsequent suit to be instituted in accordance Mat.Appeal No.927 of 2009 13 with Section.6 of the Pensions Act, 1871 also. This Appeal is allowed accordingly. Sd/- **K.HARILAL, JUDGE** Sd/- **A.M.BABU, JUDGE** vgd/05.03.18