RAVINDRA v. GHUGE &R. M. JOSHI, JJPage
Facts
WP-5252-2022.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO. 5252 OF 2022Mrs. Gyanbai W/o Devidasrao KondagirAge: 60 years, Occ: Household work,R/o: Islampur, Tq. Udgir, Dist. LaturAt present residing at Janwada,Tq & Dist. Bidar (Karnataka)...PetitionerVersus1.The State of MaharashtraThrough the Secretary, Revenue andForest Department, Mantralaya,Mumbai – 322.The Accountant General (Pension)Maharashtra State -2, Nagpur3.The Dy. Director of Land RecordsDamdi Mahal, Near PanchayatSamiti, Aurangabad4.The Superintendent of Land RecordsAdministrative Building, Latur,Tq & Dist. Latur.5.The Dy. Superintendent of Land Records,Ahmednpur, Tq. Ahmedpur, Dist. Latur6.Mrs. Shobhabai Devidas Kondagir,R/o. Islampur, Tq. Udgir,Dist. Latur...Respondents...Mr. B. B. Yenge, Advocate for the PetitionerMr. P. K. Lakhotiya, AGP, for the Respondent Nos. 1 & 2Mr. N. L. Jadhav h/f Mr. M. S. Kokate, Advocate for theRespondent No.6...CORAM:RAVINDRA V. GHUGE &R. M. JOSHI, JJPage 1 of 14 WP-5252-2022.odtRESERVED ON:MARCH 14, 2024PRONOUNCED ON:APRIL 04, 2024JUDGMENT (PER R. M. JOSHI, J)1.Petitioner by filing this Petition seeksdirection for payment of family pension on account ofdeath of her husband Devidasrao Raosaheb Kondagir (forshort ‘deceased’), an employee of Respondent No. 5.2.It is the case of the Petitioner that she islegally wedded wife of deceased, who died on17.03.2022. The marriage of the Petitioner withdeceased was performed in the year 1976 and out of thesaid wedlock a son is begotten, namely, Shivaji, in theyear 1977. The deceased was working lastly with theoffice of Respondent No. 5 as a Surveyor, who retiredfrom services on 30.11.2011. According to thePetitioner, due to the differences and domesticviolence sustained at the hands of deceased, she wasforced to live with her parents at Janwada, Tq andDist. Bidar. She delivered a male child while she wasat her parental home. Since, the deceased was nottaking her proper care as well as of the child,proceeding under Section 125 of Code of CriminalProcedure was filed before the learned JMFC, Bidar videPage 2 of 14 WP-5252-2022.odtCriminal Misc. Application No. 12/1998. In the saidproceeding, deceased has candidly admitted in thepleadings as well as in the evidence that thePetitioner is legally wedded wife and that he did notperform any second marriage. The learned JMFC grantedmaintenance of Rs. 500/- per month to the Petitionerand the said amount came to be increased to Rs. 2,000/-per month subsequently. It is alleged by the Petitionerthat after deserting her, her husband started stayingin illicit relationship with one lady, namely,Shobhabai (Respondent No.6). It is claimed thatShobhabai is not wife of deceased and as such, she isnot entitled to receive any pension after the death ofdeceased. Deceased while in service had recorded nameof the Respondent No. 6 as nominee to receive thepensionary benefits and hence, Petitioner’s claim forrelease of pension in her favour is rejected byRespondent No. 5. Hence, this Petition.3.Respondent No. 6 – Shobhabai filed affidavit-in-reply contending that she is legally wedded wife ofthe deceased and the marriage was performed as per thehindu rituals on 10.05.1973. It is claimed that out ofPage 3 of 14
Legal Reasoning
WP-5252-2022.odtuncertain terms that her marriage with the Petitionerwas solemnized in 1975. He also denied suggestion thathe got married for second time in the year 1982 andthat name of his second wife is Shobha. Theseundisputed pleadings and evidence of deceasedconclusively prove that Petitioner is legally weddedwife of deceased.11.As against this, Respondent No. 6 has notplaced any evidence on record in order to indicate thatshe was ever married to deceased. The certificatesought to be relied upon issued by Sarpanch andGramsevak, is not even prima facie sufficient toestablish her contention, as there is no recordavailable with the office of Grampanchayat with regardto her marriage with and deceased. Apart from this,other documents, on which reliance is placed, no wayindicate the factum of legal marriage between deceasedand Respondent No. 6. The document i.e., Form No. 3placed on record by Respondent No. 5 indicates name ofRespondent No. 6 as his wife, however, that would notbe sufficient to declare her as legally wedded wife ofthe deceased, in view of the candid admissions ofPage 9 of 14 WP-5252-2022.odtdeceased in the judicial proceedings about marriagewith Petitioner and also denying performing of anyother marriage.12.In view of the aforestated facts which appearfrom record, prima facie we do not find any issue beinginvolved in the Petition which requires adjudication.Even accepting that the deceased was residing withRespondent No. 6 for long period of time and childrenare begotten from said relationship, having regard tothe provisions of Hindu Marriage Act, while the firstmarriage of the deceased with Petitioner wassubsisting, Respondent No. 6 does not acquire status oflegally wedded wife. We do not wish to make anyobservation with regard to the claim, if any, ofchildren of Respondent No. 6 and it would be open forthem to raise and substantiate any claim as per law.13.Suffice it to say that the right of legallywedded wife of the deceased, Government Employee,cannot be denied unless there is some prima facieevidence on record in order to indicate existence ofany real/genuine dispute requiring determination bycompetent Court of law. We, therefore, do not find anyPage 10 of 14 WP-5252-2022.odtreason or justification to accept the contention of thelearned Counsel for Respondent No. 6 that thePetitioner is required to file any proceeding beforethe Civil Court in order to get her claim as the wifeof deceased adjudicated.14.Now question arises as to whether thecontention of Respondent No. 5 can be accepted thatsince there is nomination done by the deceased ofRespondent No. 6 to be the person to receive pensionarybenefits, claim of Petitioner is not justified. In thisregard, perusal of the relevant pension rulesapplicable to this case indicate that there could notbe any nomination in respect of receipt of pension.Even perusal of Form No. 1 under Rule 116 of thePension Rules filed on record by Respondent No. 5clearly show that the said nomination has been made inrespect of the receipt of amount of gratuity. The saidnomination even if accepted to be correct cannot beused for the purpose of extending pensionary benefitsto Respondent No. 6. Though learned AGP has tried tosubmit that the Government Employee is required tofurnish the family information in Form No. 3, however,Page 11 of 14 WP-5252-2022.odtmerely because the name of the present Petitioner hasnot been included by the deceased in the information,the same would not disentitle the Petitioner to claimthe pensionary benefits in the capacity of being thelegally wedded wife of the deceased. Perusal of thePension Rules, 1964 and 1982 clearly indicate that thewidow is entitled to receive the family pension. Thewidow necessarily means to be the legally wedded wifeof the deceased employee.15.In the present case, there is more thansufficient evidence on record in order to conclude thatthe Petitioner is legally wedded wife of the deceased.Section 11 of the Hindu Marriage Act prohibits amarriage where either of the party has a living spouseat the time of marriage. Any such marriage is void.Respondent No. 6, therefore, ought to have shownevidence to indicate that she was married prior to1975, as deceased has candidly stated about hismarriage with Petitioner in 1975 in the reply filed bydeceased in Criminal Misc. Application No. 12/1998 andevidence led before the said Court. We, therefore, haveno hesitation to hold that this is a fit case toPage 12 of 14 WP-5252-2022.odtdeclare that Petitioner is entitled to receive pensionof deceased. Consequently, non consideration of therequest made by the Petitioner for release of familypension to her by Respondent cannot sustain.16.This Writ Petition is, therefore, allowed.Respondent No. 5, is directed to submit the proposalfor release of family pension in the name ofPetitioner. Such proposal shall be forwarded within aperiod of 30 days from the date of this judgment.Respondent No. 2 to take appropriate decision thereonwithin a period of 90 days thereafter. Orders so passedbe communicated to the Petitioner forthwith.(R. M. JOSHI, J) (RAVINDRA V. GHUGE, J)AFTER PRONOUNCEMENT:1.After this judgment was pronounced, thelearned Advocate for the Respondent No. 6 prayed forstaying the operation of this judgment.2.The learned Advocate for the Petitioneropposes the said request.Page 13 of 14 WP-5252-2022.odt3.Since we have come to a conclusion thatRespondent No. 6 is not the legally wedded wife and aswe have directed the compliance of this judgment within30 days, request for staying the judgment is rejected.(R. M. JOSHI, J) (RAVINDRA V. GHUGE, J)MalaniPage 14 of 14
Arguments
WP-5252-2022.odtsaid wedlock, four children are begotten. It is furtherclaimed that her name was recorded as nominee in FormNo. 3 while indicating the details of the family ofdeceased. She, therefore, claims her right to receivepension and other benefits. In support of hercontention, certificate dated 24.11.2023 issued bySarpanch & Gramsevak, Grampanchayat Islampur, 7/12extract and death certificate of deceased are reliedupon.4.Petitioner filed affidavit in rejoinderdenying the contentions of the Respondent No. 6 and herclaim to be legally wedded wife of deceased. It isreiterated that the Petitioner is legally wedded wifeof the deceased. She placed reliance on the photocopiesof certified copies of pleadings and evidence recordedin Criminal Misc. Application No. 12/1998 beforelearned JMFC, Bidar and judgment dated 10.10.2005passed therein. These documents are not disputed byRespondent no.6.5.Respondent No. 2 filed affidavit-in-replycontending that the deceased had nominated RespondentNo. 6 as the person to receive the pension after hisPage 4 of 14 WP-5252-2022.odtdeath and that this Respondent is not in a position toauthorize pensionary benefits, if either the proposalis not received from the Head of the Office/pensionSanctioning Authority or, if received, it is not in theprescribed format with requisite documents, or if it isfound not conforming to any of the provisions ofMaharashtra Civil Services (Pension) Rules, 1982.6.Respondent No. 5 filed reply of Raju ChaganraoRokade accepting the fact that deceased was an employeein the office of Respondent No. 5 and on attaining ageof superannuation, he ceased to be in the employmentwith effect from 30.11.2011. Deceased died on17.03.2022 and in Form No. 3 name of Respondent No. 6 –Shobhabai is shown as nominee in the record of servicebook. It is claimed that Petitioner has not raisedgrievance at any time i.e., at time of nomination,finalization of all the procedures and disbursement ofthe pension and as such, Petition raising suchgrievance at belated stage deserves to be dismissed. Tosupport the said contention, photocopies of relevantrecord indicating nomination of Respondent No. 6 areplaced before this Court.Page 5 of 14 WP-5252-2022.odt7.The learned Counsel for the Petitioner submitsthat there is overwhelming evidence in the form ofbirth certificate of child begotten out of wedlock ofPetitioner with deceased and the certified copies ofpleadings and evidence recorded before JMFC, Bidar inCriminal Misc. Application No. 12/1998, to prove thefact that Petitioner is legally wedded wife ofdeceased. It is his submission that the parties beingHindu unless the said marriage is lawfully dissolved,question of deceased performing any other validmarriage does not arise. To support his submissions, heplaced reliance on following judgments: KantabaiDhulaji Shriram and Others Vs. Hausabai Dhulaji Shriramand Others, 2013 DGLS (Bom.) 14, Raksha and Another Vs.State of UP and Others, 2024:AHC:25661 & Smt. ShamalMahadeo Tate Vs. District Collector, LAWS (BOM)-2022-2-64.8.The learned Counsel for Respondent No. 6vehemently opposed the said contention by stating thatthe Respondent No. 6 has been nominated as the wife ofthe deceased which is sufficient evidence to prove herstatus as wife of deceased. He further contends that noPage 6 of 14 WP-5252-2022.odtobjection is raised by the Petitioner in this regardfor long period of time and on that count itselfPetition be rejected. He further argued that thequestion as to whether the Petitioner or Respondent No.6 is the legally wedded wife, requires adjudication bycompetent Civil Court and till the time, Petitionerdoes not seek such declaration, she is not entitled toget pensionary benefits. It is his contention thatsince the Respondent No. 6 was not party to theproceeding of Criminal Misc. Application No. 12/1998and hence, the said judgment does not bind her. 9.The learned AGP submits that the deceased hasnominated the Respondent No. 6 as his wife and thatconsidering the information given in Form No. 3, therewould be no reason or justification to allow thisPetition.10.We are conscious of the fact that in anappropriate case where there is a genuine dispute withregard to the status of any woman to be legally weddedwife or not, the same would require adjudication.However, at the same time no one can be permitted todeny such status of a woman, unless, at least primaPage 7 of 14 WP-5252-2022.odtfacie, there is some material to hold existence of suchdispute. The Petitioner herein claims to have marriedto deceased and one son being begotten out of the saidmarriage. To support/substantiate the said contention,apart from other evidence, mainly Petitioner has placedreliance on certified copy of the pleadings, evidenceand judgment in Criminal Misc. Application No. 12/1998before learned JMFC, Bidar. Genuineness of the saiddocuments are not in dispute. Perusal of the replyfiled by deceased in the said Application clearly showsthat he admits relationship as husband with thePetitioner herein. It is specifically stated in thereply that “it is submitted that the Petitioner is thelegally wedded wife fo the Respondent is correct”. Itis further averred therein that “but she has left theRespondent very recently before filing of thisPetition. A son of the Petitioner has been brought upby the Respondent”. In paragraph 5 of the said reply itis stated that “Respondent has not at all contractedsecond marriage and mentioning the name and year etcare false. The said Shobha is not the wife of theRespondent as alleged by Petitioner”. Similarly, incross-examination, deceased has admitted in noPage 8 of 14