THE HON'BLE THE CHIEF JUSTICE HIMA KOHLI
AND
THE HON'BLE SRI JUSTICE B. VIJAYSEN REDDY
F.C.A. No.127 OF 2015
JUDGMENT: (Per the Hon'ble the Chief Justice Hima Kohli)
1. This appeal has been preferred against the judgment dated
06.02.2013 passed by the Family Court, Secunderabad in
F.C.O.P.No.331 of 2009, preferred by the respondents No.1 to 3.
2. Before the learned Family Court, the appellants herein were arrayed as respondents No.2 and 3; respondents No.1 to 3 were the petitioners and the respondent No.4/Railways Department was arrayed as the respondent No.1. The parties are hereinafter being referred to as they were arrayed in the OP filed before the learned Family Court.
3. The captioned OP was filed by the petitioners, for declaration, declaring them as the legal heirs of late A.Ram Das, who was working in the respondent No.1/Railway Department till he expired on 12.10.2006. The petitioners had also prayed for issuance of directions to the respondent No.1/Railway Department to release his pensionary and other service benefits in their favour. Petitioner No.1 described herself as the wife and the petitioners No.2 and 3 as the children of late A.Ram Das. The petitioners F.C.A.No.127 of 2015 Page 1 of 12 averred in the petition that the marriage of the petitioner No.1 had taken place with late A.Ram Das on 25.05.1972, at Yadagirigutta, as per Hindu rituals and traditions. A.Ram Das was working in the respondent No.1/Railway Department on the post of a Senior Technician, Diesel Shed, Kazipet. He expired on 12.10.2006, leaving behind the petitioners as his sole legal heirs. The petitioners submitted a letter dated 29.11.2006 to the respondent No.1/Railway Department along with supportive documents, for release of family pension and settlement of the dues of late A.Ram Das. Respondents No.2 and 3 also lodged a claim with the respondent No.1/Railway Department on the family pension of the deceased on a plea that she was the wife of late A. Ram Das and the respondent No.3 was born from the wedlock and both of them were entitled to family pension. Respondent No.1/Railway Department conducted an enquiry whereafter they addressed a letter dated 28.09.2007 to the petitioner No.1 and the respondent No.2 intimating them that the marriage of the respondent No.2 with late A.Ram Das, performed on 08.08.1976, cannot be recognized and it was a nullity, since the marriage of the petitioner No.1 with late A.Ram Das, was performed earlier, on 25.05.1972, and it was still valid and subsisting at the time of the demise of the employee. However after a month, the respondent No.1 addressed another letter dated 02.11.2007 to the petitioner No.1 and the respondent No.2 informing them that after receiving a representation dated F.C.A.No.127 of 2015 Page 2 of 12 11.10.2017 from the respondent No.2, the Department had re- examined the matter and this time arrived at the conclusion that it was the respondent No.2 who was the legally wedded wife of late A.Ram Das and not the petitioner No.1. As such, the pensionary benefits of late A.Ram Das would be payable to the respondent No.2.
4. Aggrieved by the aforesaid decision of the respondent No.1/Railway Department, the petitioners filed O.S.No.1037 of 2007, wherein it was averred that having held that the petitioners were the legal heirs of late A. Ram Das, during the first round of scrutiny, there was no occasion for the respondent No.1/Railway Department to have reopened the matter and resiled from the earlier letter dated 02.11.2007, declaring them as the legal heirs of the deceased. The learned trial court declined to entertain the said suit and directed the petitioners to approach the appropriate court for relief. The petitioners then filed F.C.O.P.No.331 of 2001 before the learned Judge, Family Court, Secunderabad praying inter alia that they be declared as the legal heirs of late A.Ram Das and sought issuance of a direction to the respondent No.1/Railway Department to release/pay the pensionary and other benefits exclusively to them. The respondents No.2 and 3 contested the claim of the petitioners and filed a reply wherein they submitted that the petitioner No.1 was employed as a teacher; she had retired from F.C.A.No.127 of 2015 Page 3 of 12 service and received her service benefits and is getting a monthly pension; that the petitioners No.2 and 3 are also married and settled in their respective positions. It was averred that late A.Ram Das had contracted several debts and his lenders were pressing the respondent No.2 to return the amounts. Respondent No.2 further stated that her name had been entered in the official records of the respondent No.1/Railway Department as the wife of the deceased and that of respondent No.3, as his son and they are the only legal heirs of late A.Ram Das. Respondents No.2 and 3 also denied the marriage of the petitioner No.1 with late A.Ram Das on 25.05.1972 and asserted that the marriage of the respondent No.2 with late A.Ram Das had been performed on 08.03.1976 and the same was a lawful marriage having been registered with the Marriage Registrar, Nanded. They were blessed with two sons. But, unfortunately, one son had expired after the demise of A. Ram Das.
5. After the pleadings were complete, the following two issues were framed:-
"1. Whether the petitioners 1 to 3 are the legal heirs of late A. Ram Das who expired on 12.10.2006?
2. Whether petitioners are entitled to the pensionary and educational and other service benefits of late A. Ram Das?
3. To what relief?"
F.C.A.No.127 of 2015 Page 4 of 12
6. To prove their case, petitioner No.1 examined herself and produced three other witnesses. She stepped into the witness box as P.W.1 and reiterated the averments made by her in the petition. She deposed that her marriage had taken place with Sri A.Ram Das on 25.05.1972 at Yadagirigutta, in the presence of relatives. She produced the marriage invitation card (Ex.A9), Marriage Certificate issued by Laxmi Narasimha Swamy Devasthanam, Yadagirigutta (Ex.A8) and the photographs taken during the wedding (Exs.A2 and A3). She stated that the petitioners No.2 and 3 were born from the said wedlock and their father, A. Ram Das had got them admitted in educational institutions. To prove that his name was recorded in the school certificates of the petitioners No.2 and 3, their SSC Certificates were also filed (Exs.A6 and A7).
7. P.W.2, S.E. Susheela, deposed that she is a retired teacher and had known the petitioner No.1 for the past forty years; that she had attended the marriage of the petitioner No.1 with A. Ram Das and the said marriage had taken place in the presence of the elders of both sides. P.W.3, Naga Narsamma, deposed that she knew the petitioner No.1 from her childhood days and that she had attended her marriage with A. Ram Das. She stated that after their marriage, petitioner No.1 and her husband used to reside near her house and frequently visited her. P.W.4, T. Gouri Shanker, a Finger Print Expert in the Fingerprint Bureau, Hyderabad, was produced by the F.C.A.No.127 of 2015 Page 5 of 12 petitioners to prove the thumb impression of the petitioner No.1 affixed at page No.98 of the Marriage Register maintained by the Temple, by comparing the same with her thumb impression as was obtained before the court. He proved his Report (Ex.X4) and stated that the disputed thumb impression was identical to the specimen thumb impression of the petitioner No.1. Pertinently, the respondents elected not to cross examine P.W.4.
8. On their part, respondent No.2 entered the witness box as R.W.1 and deposed that she was married to A.Ram Das on 08.03.1976 and that her marriage was recorded in the Register of the Marriages, Nanded; that she is the only legally wedded wife of the deceased; that the respondent No.3 is their son; that the name of the respondent No.2 was mentioned in the records of the respondent No.1/Railway Department as a legal heir of A. Ram Das; that upon the demise of A.Ram Das, it was she and her son who had performed his last rites and that the petitioners do not have any claim on his retrial benefits.
9. The respondents produced V.Komaraiah as R.W.2 who deposed that he was instrumental in getting the respondent No.1 and A.Ram Das to marry and the marriage was performed on 08.03.1976, at Nanded, Maharashtra as per Hindu rights and customs; that it was an arranged marriage and the same was duly registered. The said marriage was consummated and the F.C.A.No.127 of 2015 Page 6 of 12 respondent No.2 and A.Ram Das were blessed with two sons, but one son had expired; that A.Ram Das was a bachelor at the time of his marriage and on his demise, his last rites were performed by the respondent No.2 and the respondent No.3. R.W.2 also deposed that he had never seen the petitioner No.1 earlier or even at the time of the demise of A.Ram Das. Ex.B4, a photocopy of the Marriage Certificate issued by the Marriage Registrar, Nanded was filed by the respondents but no witness was summoned to prove the original records.
10. After analysing the ocular and documentary evidence produced by the parties and on considering the arguments advanced by learned counsel for the parties, the learned Family Court arrived at the conclusion that overwhelming evidence had been filed by the petitioners to demonstrate that the petitioner No.1 is the legally wedded wife of A.Ram Das and that she has two children from the said marriage, namely the petitioners No.2 and 3. The Family Court discounted the confusion sought to be created by the respondents around the name of the petitioner No.1, as recorded in the Marriage Register maintained by Laxmi Narasimha Swamy Devasthanam, Yadagirigutta, by referring to the other weighty evidence brought on record and concluded that the petitioner No.1 is the same person who was referred to as 'Sarojini' in the Marriage Register and the wedding card. As a result, issue No.1 was answered in favour of F.C.A.No.127 of 2015 Page 7 of 12 the petitioners and they were declared to be the legal heirs of late A. Ram Das.
11. As for the second issue, the learned Family Court held that there was a subsisting marriage between the petitioner No.1 and A.Ram Das as on the date of the alleged marriage of the respondent No.2 with A. Ram Das that was solemnised on 08.03.1976. Referring to the photocopy of the Marriage Certificate purportedly issued by the Marriage Registrar, Nanded (Ex.B4) and filed by the respondents No.2 and 3, the impugned order records that the said respondents had failed to summon any witness with the records of the Registrar of Marriages, Nanded, to prove the Marriage Certificate in respect of the respondent No.2 with A.Ram Das. Holding that the petitioner No.1 had successfully proved that her marriage with A.Ram Das was solemnised on 25.05.1972, the learned Family Court held that the marriage of the respondent No.2 with the same person cannot be treated as a legal and valid marriage. But, in view of the educational records filed by the respondents No.2 and 3 and the evidence brought on record, the respondent No.3 was also held to be the legitimate son of A.Ram Das.
12. The second issue was accordingly answered by the Family Court by holding that besides the petitioners No.1, 2 and 3, the respondent No.3 (the son born from the alliance of the respondent F.C.A.No.127 of 2015 Page 8 of 12 No.2 with A.Ram Das) is also his legal heir, being his legitimate child and therefore, he would be entitled to the pensionary and other service benefits of late A.Ram Das at par with the petitioners No.2 and 3 who were born from the wedlock of the petitioner No.1 and A. Ram Das. Resultantly, petitioners No.1, 2 and 3 and the respondent No.3 were declared as the legal heirs of late A.Ram Das.
13. The aforesaid judgment has been assailed by Mr. Gouri Shankar Sanghi, learned counsel appearing for the respondents No.2 and 3 on the ground that the learned Family Court has erred in giving precedence to the Marriage Certificate issued by the Yadagirigutta Temple, over the Marriage Certificate issued by a statutory body, namely the Registrar of Marriages; that the learned Family Court failed to appreciate the fact that the name of the respondents No.2 and 3 had been duly recorded in the service records of the deceased, as his nominees and therefore, they ought to have been declared as his sole legal heirs and entitled to all his pensionary benefits and lastly, that the respondents No.2 and 3 had been residing with A.Ram Das in the Railway Quarters allotted to him during his lifetime, which fact was ignored by the Family Court.
14. We have carefully perused the records and given our thoughtful consideration to the submissions made by Mr. Yadaiah, F.C.A.No.127 of 2015 Page 9 of 12 learned counsel for the petitioners and Mr. Gouri Shankar Sanghi, learned counsel for the respondents.
15. In the light of the oral and documentary evidence produced by the petitioners and the respondent No.2, as has been discussed above, the respondents No.2 and 3 have undoubtedly failed to rebut the presumption that the petitioner No.1 is the legally wedded wife of late A.Ram Das and the petitioners No.2 and 3 were born from the said wedlock. It has to be seen that the original of Ex.B4, copy of the marriage certificate, filed by the respondents No.2 and 3 was neither filed in the Court, nor was the concerned officer from the office of the Registrar of Marriages, Nanded, summoned with the records to prove the said document, as per law. The evidence of R.W.3 and R.W.4 also discloses that R.W.1 had got married to late A.Ram Das on 08.03.1976. Given the said position, the learned Family Court has rightly held that the petitioner No.1 is the legally wedded wife of late A.Ram Das, their marriage having been performed on 25.05.1972, at a much earlier point in time than the marriage of the respondent No.2 with late A.Ram Das that was solemnised after almost four years, on 08.03.1976. That being the sequence of events, the marriage of the respondent No.2 with late A.Ram Das, even though registered, cannot be held to be a legal and valid marriage as the marriage between the petitioner No.1 and late A.Ram Das was subsisting as on 08.03.1976 and no evidence F.C.A.No.127 of 2015 Page 10 of 12 has been brought on record to demonstrate that A. Ram Das and the petitioner No.1 had got divorced before he had contracted a second marriage with the respondent No.2. Since the marriage of the respondent No.2 is not a valid marriage, she cannot stake a claim on the pensionary benefits as the legal heir of late A.Ram Das as his lawfully wedded wife. We therefore accept the findings of the learned Family Court that the petitioner No.1 was the legally wedded wife of A. Ram Das and the respondent No.1 cannot claim the said status.
16. At the same time, the Family Court has gone on to observe that the respondent No.3, who was born from the wedlock of the respondent No.2 and late A.Ram Das, being his legitimate son, would also be entitled to a share in the estate of the deceased. The said finding has been predicated on Section 16 of the Hindu Marriage Act that bestows legitimacy on children, not withstanding the fact that the marriage between their parents is void. As per the settled legal proposition, a child born from an invalid or void marriage is entitled to get a share from the personal estate of his/her deceased father. In Rameshwari Devi v. State of Bihar reported as (2000) 2 SCC 431, the Supreme Court has held that even if a Government servant has contracted a second marriage during the subsistence of his first marriage, the children born out of such a second marriage would still be legitimate, though the second F.C.A.No.127 of 2015 Page 11 of 12 marriage itself would be void. The said decision has been endorsed by the Supreme Court in Vidhyadhari and others v. Sukhrana Bai and others reported as (2008) 2 SCC 238. (Also refer:- Jinia Keotin v. Kumar Sitaram Manjhi, reported as (2003) 1 SCC 730 and Neelamma v. Sarojamma, reported as (2006) 9 SCC 612).
17. In the light of the above discussion, this court does not find any patent error, illegality or perversity in the impugned order that deserves interference. The appeal is accordingly dismissed along with the pending applications, if any, while leaving the parties to bear their own costs.
_________________ HIMA KOHLI, CJ ______________________ B. VIJAYSEN REDDY, J 05.05.2021 Dsk/pln/vs Note: LR Copy be marked.
(By order) Dsk/pln/vs F.C.A.No.127 of 2015 Page 12 of 12