Vimalan N. v. Village Officer, Karunagappally; Tahsildar, Karunagappally; Sub-Treasury Officer, Karunagappally; State of Kerala; Radhamony

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **FRIDAY, THE 27TH DAY OF SEPTEMBER 2019 / 5TH ASWINA, 1941** # **WP(C).No.22829 OF 2016(C)** ## **PETITIONER/S:** **SRI. VIMALAN.N, AGED 70 YEARS, ADVOCATE, S/O. NEELAKANTAN, KODUVAYIL HOUSE, MARUTHOOR KULANGARA NORTH, ALUMKADAVU.P.O., KARUNAGAPPALLY, KOLLAM - DIST., PIN - 691 513.** **BY ADVS. SRI.K.BABU RAJAN SRI.K.JALADHARAN SRI.C.A.NAVAS** ## **RESPONDENT/S:** - **1 THE VILLAGE OFFICER, KARUNAGAPPALLY VILLAGE, KARUNAGAPPALLY .P.O., KOLLAM DISTIRCT. PIN: 691 518.** - **2 THE TAHSILDAR, TALUK OFFICE, KARUNAGAPPALLY, KARUNAGAPPALLY.P.O., KOLLAM DISTRICT.** - **3 THE SUB-TREASURY OFFICER, CIVIL STATION, KARUNAGAPPALLY, KARUNAGAPPALLY.P.O., KOLLAM DISTRICT, PIN: 691 518.** - **4 THE STATE OF KERALA (REPRESENTED BY) THE DISTRICT COLLECTOR, KOLLAM, KOLLAM - 691 013.** - **5 SMT. RADHAMONY, AGED 70 YEARS, VELIYIL VEEDU, THURAVOOR SOUTH VILLAGE, THURAVOOR.P.O., CHERTHALA TALUK, ALAPPUZHA DISTRICT, PIN: 688 532.** **BY ADVS. R1 TO R4 - SRI. B. VINOD, SENIOR GOVERNMENT PLEADER** W.P.(C) No.22829 of 2016 2 **R1 BY ADV. R5 - DR.K.P.SATHEESAN (SR.) SRI.P.MOHANDAS ERNAKULAM SMT.P.S.SIJI SRI.K.SUDHINKUMAR SRI.S.VIBHEESHANAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18-09-2019, THE COURT ON 27-09-2019 DELIVERED THE FOLLOWING:** W.P.(C) No.22829 of 2016 3 ## **JUDGMENT** This writ petition is filed by the petitioner who is entitled to draw family pension consequent to the death of his wife as a High School Assistant in harness on 28.02.2003, seeking to declare that petitioner has not re-married based upon any valid documents as is put forth by the respondents and to quash Ext.P5 report, Ext.P10 order and Ext.P11 notice issued by respondents 1 to 3 respectively, and for other consequential reliefs. Brief material facts for the disposal of the writ petition are as follows: 2. Petitioner is a practising advocate aged 70 years, and drawing family pension on the death of his wife in harness. Petitioner drew his pension till 29.02.2016, up to which time, a self-attested declaration of non-remarriage was only essential to draw family pension. The official respondents demanded a non-remarriage certificate from the concerned Village Officer from March, 2016 onwards. Accordingly, petitioner approached the 1[st] respondent requesting for issuance of the same. But the Village Officer rejected the application endorsing that, on investigation, it is understood that petitioner is living with a lady, evident from Ext.P1. W.P.(C) No.22829 of 2016 4 3. Under the above circumstances, petitioner approached the councillor of Karunagappally Municipality, wherein the petitioner resides, and secured a certificate endorsing that the petitioner is not re-married, evident from Ext.P3. Anyhow, aggrieved by Ext.P1, petitioner preferred Ext.P4 appeal before the 2[nd] respondent, Tahsildar. In the meantime, petitioner secured Ext.P5 under the Right to Information Act from the official respondents, from where it is evident, the reason for non-issuance of the certificate is that, petitioner has re-married the 5[th] respondent, based on an alleged agreement and anonymous complaint to the above effect, evident from Exts.P8 and P7. Under the above circumstances, 2[nd] respondent called the petitioner for a personal hearing and petitioner submitted Ext.P9 statement. But the 2[nd] respondent without appreciating Ext.P9 and without taking into account the un-sustainability of Exts.P7 and P8, passed Ext.P10 order rejecting petitioner's appeal, and consequently, 3[rd] respondent issued Ext.P11 notice for recovering an amount of Rs.11,50,720/received by the petitioner towards family pension between 30.06.2006 and 29.02.2016. These are the basic background facts projected by the petitioner. 5 W.P.(C) No.22829 of 2016 4. The 2[nd] respondent has filed a detailed counter affidavit, refuting the claims and demands raised by the petitioner, and justifying the stand adopted by the officials in the orders under challenge. Among other contentions, it is submitted that, on enquiry conducted by the Village Officer, it was revealed that petitioner is cohabiting with the 5[th] respondent after the death of his wife, and it was also revealed that petitioner has re-married to 5[th] respondent on 30.06.2006. However, it is stated that the marriage of the petitioner and the 5[th] respondent was not solemnized in any temple. But it was conducted in the premises of his own house by exchanging 'Pudava' (wedding cloth), and signing in a deed dated 30.06.2006 by the parties. But the deed was not registered before any authority, and consequently, petitioner had transferred 02.02 Ares of land comprised in Survey No.135/12-1 owned by him to the 5[th] respondent by way of a gift deed, which has been registered, and the 5[th] respondent is paying land tax for the same. Therefore, according to the 2[nd] respondent, it was on the basis of substantial documents and other factual circumstances, the orders are passed by the 1[st] and 2[nd] respondents and Ext.P11 6 W.P.(C) No.22829 of 2016 consequential notice is issued seeking to recover the amounts paid to the petitioner towards family pension. 5. The 5[th] respondent has also filed a counter affidavit, stating that, by executing Ext.P8 agreement on 30.06.2006, a ceremonial function of marriage was conducted by and between the petitioner and the 5[th] respondent at the house of the brother of the petitioner, which was a customary marriage attended by the relatives of the petitioner as well as the 5[th] respondent. From that date onwards, petitioner and the 5[th] respondent were living together as husband and wife. It is also submitted that, petitioner used to come and stay with 5[th] respondent at her official quarters at Malappuram, and after retirement in 2010, they were permanently residing at Karunagappally in the house of the petitioner. It is also pointed out that, when a man and lady are living together for a considerable period of time as husband and wife, they attain the status of the legally wedded couple, even if there is no registration of the marriage. The customary marriage is also valid and the same need not be registered, and that is the reason why after executing Ext.P8 agreement, petitioner used to come and stay with the 5[th] respondent. Anyhow, during January, W.P.(C) No.22829 of 2016 7 2016, petitioner asked the 5[th] respondent to go and stay at her house at Cherthala, since the Tahsildar reported that the petitioner is already married to the 5[th] respondent, and thereafter the 5[th] respondent is residing at Cherthala. Other contentions are also raised. 6. A reply affidavit is filed by the petitioner to the counter affidavit filed by the 5[th] respondent, refuting the allegation that the petitioner and the 5[th] respondent are married. It is further submitted that, the only male child of the petitioner was suffering from cancer and while he was undergoing treatment at Regional Cancer Centre, Thiruvananthapuram, he expired in the year 1997, and as a consequence, petitioner's wife got depression and developed suicide tendency. While undergoing treatment in the Medical College Hospital, Thiruvananthapuram, her condition deteriorated and in spite of every efforts, she expired on 28.02.2003. However, some mischievous complaints were filed that his wife committed suicide, which may be investigated. The police conducted an enquiry and submitted report that the anonymous complaint was false. W.P.(C) No.22829 of 2016 8 7. It is also the case of the petitioner that, the death of his wife and son aged 8 ½ years and leaving two college going daughters without any other member in the family put the petitioner under severe stress, and various consequential diseases are afflicted to the petitioner. That apart, it is submitted that, the 5[th] respondent used to visit the house from the year 2004 to 2015 for the purpose of prosecuting an E.P. before the Subordinate Judge's Court, Karunagappally, bearing No.68/2014 in O.S.No.81 of 2003, and having found that the daughters of the petitioner are put to various difficulties, the 5[th] respondent used to help the petitioner in the household activities. Other contentions are also raised by the petitioner justifying the personal relationship that was maintained by the petitioner and the 5[th] respondent. Petitioner has also produced Ext.P13 Gift Deed, conveying a small extent of land to the 5[th] respondent. 8. I have heard Sri. C.A. Navas, learned counsel for the petitioner, Sri. B. Vinod, learned Senior Government Pleader and Sri. P. Mohandas, learned counsel appearing for the 5[th] respondent and perused the pleadings and the documents on record. 9 W.P.(C) No.22829 of 2016 9. The basic contention advanced by learned counsel for the petitioner is that, there is no legal marriage by and between the petitioner and the 5[th] respondent, disabling the petitioner from receiving the family pension, consequent to the death of his wife. Various contentions are raised by the petitioner with respect to the relationship that was being maintained by the petitioner and the 5[th] respondent, which are absolutely factual circumstances, that cannot be adjudicated and reach a final conclusion by this Court in writ jurisdiction under Article 226 of the Constitution of India. 10. Learned counsel for the petitioner has invited my attention to the judgment of this Court in _**'Subramanian v. State of Kerala**_ ' [2006 (1) KLT 967], wherein this Court has held that the benefit conferred by the Kerala Service Rules cannot be taken away by an executive order, otherwise than as permitted under the Rules, and the Rules do not permit the Government to deny the benefit of family pension to a pensioner who satisfies the requirements of Rule 90(1) and (2) of K.S.R Part-III. 11. So also, learned counsel has invited my attention to the judgment of this Court in ' _**Lakshmi**_ W.P.(C) No.22829 of 2016 10 _**Rajamma v. Kochikka Amma Kunji**_ ' [1967 KLT 532], wherein, considering the issue under Rule 88 of Kerala Service Rules, Part III, it was held that the law always contemplates a relationship which can be legally recognised, and a person can claim herself to be a wife only if there is a legally recognised marriage subsisting between herself and the deceased. It was further held that, a woman cannot be a wife unless she is lawfully married to a man, and a woman cohabiting with a man without being lawfully married by him may be his mistress or concubine, but not his wife. Therefore, it follows that the award of family pension to the woman whose marriage with the deceased is not disputed and not proved to have been terminated by a divorce during his life was right; and the person, who is not shown to be the wife of that man has no right to claim it. 12. Learned counsel for the petitioner has also invited my attention to the judgment of the apex court in ' _**Surjit Kaur v. Garja Singh and Others**_ ' [(1994) 1 SCC 407], wherein, interpreting Sections 5 and 7 of the Hindu Marriage Act, it was held that, evidence of mere living as husband and wife does not confer status of husband and wife, and without pleading any custom W.P.(C) No.22829 of 2016 11 prevalent in the area and performance of ceremonies, mere statement that “gur” was distributed after marriage and the couple lived as husband and wife, is not sufficient to establish marriage. 13. So also, the judgment of this Court in ' _**Leelamma v. Radhakrishnan**_ ' [2005 (2) KLT 212] has brought to my attention, wherein, it was held that, long cohabitation as husband and wife and declaration in ration card and in other documents executed in her favour is not sufficient for proving the essentials of marriage conducted as per the customary rites of the parties, and existence of marriage cannot be presumed otherwise. 14. On the other hand, learned Senior Government Pleader has invited my attention to the judgment of the apex court in ' _**Reema Aggarwal v. Anupam and Others**_ ' [(2004) 3 SCC 199], wherein the proof of necessity and the expression “husband” was considered and held that, it would cover a person who enters into a marital relationship and under the colour of such proclaimed or feigned status of husband subjects the woman concerned to cruelty or coerces her in any manner or for any purposes enumerated in Sections 304-B/498-A, whatever be the legitimacy of the marriage itself, and W.P.(C) No.22829 of 2016 12 therefore, the husband contracting second marriage during subsistence of earlier marriage can be charged under Sections 304-B and 498-A. 15. So also, the judgment of the apex court in ' _**Challamma v. Tilaga and Others**_ ' [(2009) 9 SCC 299] was brought to my attention, wherein also the issue considered was in respect of an insurance claim, and held that, a presumption of valid marriage though is refutable, a heavy burden lies on the person who seeks to prove that no marriage has taken place. Relying upon the said decision, the contention advanced by the learned Senior Government Pleader is that, there is a heavy burden casts upon the petitioner to prove that petitioner has not re-married the 5[th] respondent. 16. So also, the judgment in ' _**Chanmuniya v.**_ _**Virendra Kumar Singh Kushwaha and Another**_ ' [(2011) 1 SCC 141] was pressed into service and canvassed the proposition that due to long cohabitation, presumption of the marital status is available and hence there is a strong presumption in favour of marriage, and therefore, there is a strict burden cast upon the petitioner to prove that there is no valid marriage. 17. Learned counsel appearing for the 5[th] respondent also submitted that, due to long W.P.(C) No.22829 of 2016 13 cohabitation, the existence of marriage by and between the petitioner and the 5[th] respondent can be legally presumed. 18. I have evaluated the rival contentions raised by the parties. In my considered opinion, the judgments cited by the learned Senior Government Pleader were all considering the question of disputes by and between two parties who are having long cohabitation as husband and wife and the claims/maintenance raised by the wife against such persons. But, here is a case where the 5[th] respondent is not in any manner prejudiced, consequent to the receipt of family pension by the petitioner. There is also no proof before this Court to show that there was a valid marriage in existence to decline the service benefits to the petitioner under the Kerala Service Rules, Part III. So also, the judgment rendered by this Court in ' _**Lakshmi Rajamma**_ ' ( _supra_ ), is answering the real question raised in this writ petition by the petitioner that unless and until there is a valid marriage established by and between the parties in accordance with law, mere cohabitation of the 5[th] respondent will not suffice to decline the family pension to the petitioner. I find force in the said ## W.P.(C) No.22829 of 2016 14 contention. Therefore, in my considered opinion, even assuming that there was a long cohabitation by and between the petitioner and the 5[th] respondent, that will not prevent the petitioner from receiving the family pension on account of the death of his wife in harness. 19. In that view of the matter, I am of the view, petitioner has established a case justifying interference of this Court under Article 226 of the Constitution of India. Accordingly, petitioner is entitled to succeed, and there will be a direction to the 1[st] respondent to re-consider the application submitted by the petitioner for issuance of nonremarriage certificate, and if no valid marriage is established other than the one taken into consideration by the 1[st] respondent, certificate shall be issued to the petitioner, at the earliest, and at any rate, within two months from the date of receipt of a copy of this judgment, after providing an opportunity of hearing and participation to the petitioner. In order to enable the 1[st] respondent to proceed with the directions contained above, Exts.P5 and P10 will stand quashed. Ext.P11 is a consequential notice passed on the basis of Exts.P5 and P10, directing the petitioner W.P.(C) No.22829 of 2016 15 to return the family pension received, and therefore, at this stage of the proceedings, Ext.P11 has no legal sustenance, accordingly it is also quashed. Petitioner as well as the respondents will be guided by the orders passed by the 1[st] respondent in accordance with the directions contained above. The writ petition is allowed to the above extent. **Sd/-** ## **SHAJI P.CHALY** **JUDGE** W.P.(C) No.22829 of 2016 16 ## **APPENDIX** ||**APPENDIX**| |---|---| |**PETITIONER'S/S**|**EXHIBITS:**| |**EXT.P1:**|**TRUE COPY OF THE APPLICATION DATED**| ||**16.02.2016 SUBMITTED BY APPLICANT WITH**| ||**ENDORSEMENT THEREUPON BY 1ST RESPONDENT.**| |**EXT.P2:**|**TRUE COPY OF THE CERTIFICATE DATED**| ||**25.02.2016 ISSUED BY 1ST RESPONDENT.**| |**EXT.P3:**|**TRUE COPY OF THE CERTIFICATE DATED**| ||**25.02.2016 ISSUED BY MUNICIPAL COUNCILOR.**| |**EXT.P4:**|**TRUE COPY OF THE APPEAL DATED MARCH 2016 BY**| ||**PETITIONER.**| |**EXT.P5:**|**TRUE COPY OF THE REPORT DATED 4.4.2016 BY**| ||**1ST RESPONDENT.**| |**EXT.P6:**|**TRUE COPY OF THE APPEAL DATED 28.4.2016 BY**| ||**PETITIONER.**| |**EXT.P7:**|**TRUE COPY OF THE ANONYMOUS COMPLAINT DATED**| ||**22.03.2016.**| |**EXT.P8:**|**TRUE COPY OF THE ALLEGED MARRIAGE AGREEMENT**| ||**DATED 30.06.2006.**| |**EXT.P9:**|**TRUE COPY OF THE STATEMENT SUBMITTED BY**| ||**PETITIONER BEFORE 2ND RESPONDENT IN**| ||**PERSONAL HEARING.**| |**EXT.P10:**|**TRUE COPY OF THE ORDER DATED 25.5.16 PASSED**| ||**BY 2ND RESPONDENT IN APPEAL EXT.P4.**| |**EXT.P11:**|**TRUE COPY OF THE NOTICE DATED 29.6.16**| ||**ISSUED BY 3RD RESPONDENT TO THE PETITIONER.**| |**EXT.P12:**|**TRUE COPY OF THE REGISTERED COVER RETURN BY**| ||**POSTAL AUTHORITIES ENDORSING "NOT KNOWN"**| ||**FROM THE ANONYMOUS COMPLAINT.**| |**EXT.P13:**|**GIFT DEED DATED 01.03.2011.**| |**EXT.P14:**|**CANCELLATION DEED DATED 29.03.2011.**| |**EXT.P15:**|**STATEMENT GIVEN ON 18.06.2016 BY THE 5TH**| ||**RESPONDENT BEFORE THE 2ND RESPONDENT.**| W.P.(C) No.22829 of 2016 17 **RESPONDENTS' EXHIBITS: EXHIBIT R5(A) TRUE COPY OF THE GIFT DEED DATED 27.06.2012 EXECUTED BY THE PETITIONER IN FAVOUR OF 5TH RESPONDENT.** //TRUE COPY// P.S. TO JUDGE St/-