THE HONOURABLE SMT. JUSTICE M.G.PRIYADARSINI
Civil Miscellaneous Appeal No.394 OF 2011
JUDGMENT:
Aggrieved by the order dated 29.12.2010 in O.P.No.1381 of 2006 (hereinafter will be referred as impugned order) passed by the learned II Additional Chief Judge, City Civil Court, Hyderabad, the respondent No.2 has filed the present Civil Miscellaneous Appeal to set aside the impugned order.
2. For the sake of convenience, hereinafter, the parties will be referred as per their array before the learned trial Court.
3. The brief facts of the case are that the petitioners have filed an application under Section 372 of the Indian Succession Act for issuance of succession certificate in respect of death benefits to a tune of Rs.1,80,000/- payable on account of the death of Sri K.Padmarao (hereinafter will be referred as 'deceased') by the office of the respondent No.1 i.e., The Commissioner, Municipal Corporation of Hyderabad, Hyderabad. In the said application, it was alleged as follows:
a) The first petitioner is the legally wedded wife of deceased by name Sri K. Padma Rao, who died on 19.02.2005 leaving the petitioners as his surviving legal heirs. The deceased was the 2 MGP,J CMA_394_2011 son of petitioner Nos.3 and 4 and father of petitioner No.2. The marriage of the petitioner No.1 was performed with the deceased on 19.02.1995 at Golden Function Hall, Kanchanbagh, Santoshnagar, Hyderabad and out of their wedlock, petitioner No.1 gave birth to petitioner No.2 on 18.10.1998. During the life time of deceased, he worked as Kamatee in the office of the respondent No.1.
b) After his death, the petitioner No.1 approached the office of the respondent No.1 claiming the death benefits of late Padmarao but she was informed by the officials that the name of petitioner No.1 was not mentioned as the wife of deceased in the service records of deceased. When the petitioner No.1 approached the Mandal Revenue officer, Saroornagar Mandal, she came to know that respondent No.2 made similar application for issuance of legal heir certificate claiming her as the legally wedded wife of the deceased.
c) On 27.03.2006, the petitioner No.1 got issued a legal notice to the Mandal Revenue Officer, Saroornagar denying the claim of the respondent No.2 with a request for issuance of legal heir certificate in favour of the petitioner No.1.
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d) On enquiry, for the first time, the petitioner No.1 came to
know through petitioner Nos.3 and 4 as well as some other sources that the deceased was having illicit intimacy with respondent No.2 and used to stay with her in the absence of the petitioner No.1. Except the said illegal relationship, there is no valid relationship between the deceased and the respondent No.2. The allegation of the respondent No.2 that she is the legally wedded wife of the deceased is totally incorrect and baseless. Therefore, the petitioners have filed the present application for succession certificate in respect of Rs.1,80,000/- , which is payable as pension and gratuity of the deceased.
4. The respondent No.1 filed counter, the brief averments of which are as follows:
The respondent No.1 admitted that the deceased was the employee of MCH working as Kamati in Transport Section and the deceased died on 19.02.2005 while he was in service. After the death of the deceased, respondent No.2 claiming herself as wife of deceased, submitted pension papers, legal heir certificate, death certificate and for pensionary benefits of her deceased husband. As per the personal file of the deceased, he already nominated Respondent No.2 as his wife as a nominee and also submitted a joint photograph for the office record. As 4 MGP,J CMA_394_2011 matter stood thus, the petitioner No.1 made representation claiming herself as the legal heir of deceased and requested to grant all pensionary benefits in her favour. Except giving representation, she has not submitted any paper in support of her claim. The petitioner No.1 got issued a legal notice dated 01.07.2005 through her advocate reiterating her claim without any documentary evidence. The MCH had addressed a letter dated 07.10.2005 to the petitioner No.1 directing her to submit documents in support of her claim but the registered letter addressed to the petitioner No.1 was returned with an endorsement ' no such addressee'. Since the petitioner No.1 did not submit any document in support of her claim, they processed the application submitted by the respondent No.2 for family pension and compassionate employment. The respondent No.1 further submitted that as per their record, the respondent No.2 has complied with all formalities required for granting family pension. However, the same could not be sanctioned due to filing of the present case.
5. The respondent No.5 filed counter, the brief averments of which are as follows:
The respondent No.2 denied the allegation in the petition, however, admitted that petitioner Nos.3 and 4 are the parents of 5 MGP,J CMA_394_2011 the deceased. Respondent No.2 submitted that the deceased married her on 11.03.1999 at Ibrahimpatnam in R.R. District as per Hindu customs and traditions. The said marriage was arranged one and the parents, sisters and relatives of the deceased also attended the said marriage. After the said marriage, the deceased put up respondent No.2 at her in laws house, wherein she stayed with them till the death of deceased. The deceased mentioned the name of respondent No.2 as his nominee and her name was also mentioned in the voters list at Sl.No.6331, wherein it is shown the name of her husband as Padma Rao. The respondent No.2 was also issued ration card, which shows the deceased as her husband. On the unexpected death of deceased, respondent No.2 has applied for compassionate appointment as she studied VII class as per the requirement of the Department and she also submitted relevant documents i.e., death certificate, legal heir certificate, election card, transfer certificate, and community certificate etc to the respondent No.1. While the respondent No.1 was about to give order in favour of respondent No.2, the petitioner No.1 came up with the petition. The petitioner No.1 is a stranger to respondent No.2 and petitioner No.1 is no way connected to the family of the deceased but all of a sudden the petitioner No.1 6 MGP,J CMA_394_2011 appeared and claiming benefits of the deceased. Hence, the respondent No.2 prayed to dismiss the petition.
6. Before the trial Court, PWs 1 to 3 were examined and Exs.A1 to A9 were marked on behalf of the petitioners and whereas on behalf of respondents, RWs 1 to 3 were examined and Exs. B1 to B27 were marked. The learned II Additional Chief Judge, City Civil Court, Hyderabad after considering the evidence on record, both oral and documentary, has allowed the petition granting succession certificate in favour of petitioner Nos.1, 2 and 4 only.
7. Dissatisfied by the impugned order, the respondent No.2 has filed the present Civil Miscellaneous Appeal to set aside the impugned order.
8. Heard both sides and perused the record.
9. The first and foremost contention raised by the learned counsel for the respondent No.2 is that petitioner No.1 has not produced any documentary evidence in support of her claim as legal heir of the deceased and whereas the deceased has nominated the respondent No.2 as his nominee to receive the pensionary benefits from respondent No.1, however, trial Court has allowed the petition without considering the oral evidence in 7 MGP,J CMA_394_2011 the form of RW1 and documentary evidence under Exs.B21 to B27 on behalf of respondent No.2.
10. The respondent No.2 relied upon Exs.B1 to B11 photographs and Ex.B26 wedding card to substantiate her marriage with the deceased. Exs.B21 to B24 are the Photostat copy of legal heir certificate, election ID card, ration card, Arogya Sree Health card of respondent No.2, wherein the deceased was shown as husband of respondent No.2. Exs.B12, B20 and B25 are the applications submitted by respondent No.2 seeking compassionate appointment and family pension. Exs.B17 to B19 are personal data of deceased, details of family members and death certificate of deceased. Exs.B13 to B16 are correspondence between respondent No.2 and petitioner No.1.
11. On the other hand, the petitioner No.1 examined herself as PW1 apart from examining her mother-in-law and the priest, who performed the marriage of petitioner No.1 with her husband. Exs.A1 to A3 are the service certificate, death certificate and birth certificate of deceased. Ex.A4 is the application submitted by petitioner No.1 to respondent No.1 seeking pensionary benefits of deceased. Exs.A5 and A6 are the legal notices. Ex.A7 is the photographs pertaining to the marriage of deceased with petitioner No.1. It is the contention 8 MGP,J CMA_394_2011 of learned counsel for the respondent No.2 that petitioner No.1 is totally a stranger and she is no way connected to the family of the deceased. However, PW2, who is the mother of the deceased, deposed that petitioner No.1 is the legally wedded wife of the deceased and that the deceased had illicit intimacy with respondent No.2. Even PW3 the priest, who performed the marriage of the deceased with petitioner No.1 also supported the evidence of PWs 1 and 2. Exs.A8 and A9 are copy of the petition and order in O.P.No.190 of 1998 on the file of learned II Additional Senior Civil Judge, R.R.District, which discloses that the deceased filed petition seeking divorce from petitioner No.1, however, the said petition was dismissed on 08.09.2000. Thus, it is evident from the record that though respondent No.2 placed evidence with regard to her marriage with deceased, her marriage took place during the subsistence of marriage between deceased and his first wife i.e., petitioner No.1. A second marriage contracted by a Hindu during the subsistence of first marriage is, therefore, null and void as per section 11 read with clause (i) of Section 5 of Hindu Marriage Act. Exs.A8 and A9 are themselves self evident to show that a relationship of wife and husband exists between petitioner No.1 and deceased. Thus, the contention of the learned counsel for the respondent No.2 that the petition has not placed any documentary evidence in 9 MGP,J CMA_394_2011 support of her claim as legal heir of the deceased, is unsustainable.
12. Learned counsel for the respondent No.2 relied upon a decision of Single Judge of this Court in Arpula Ganesh v. The State of Telangana and others 1, wherein it was held children born out of second marriage cannot be treated as illegitimate children and the respondents therein were directed to consider the case of the petitioner therein for compassionate appointment by duly taking into consideration the law laid down by the Apex Court in Union of India v. V.R. Tripathi 2. But in the case on hand, it is not the children of second wife but the second wife has approached the Court seeking compassionate appointment, more particularly, when the first wife and her son are surviving. Therefore, the principle laid down in the above said decision is not applicable to the facts of the case on hand.
13. Learned counsel for the petitioners relied upon a decision in Rameshwari Devi v. State of Bihar and others 3, wherein the Apex Court held that minor children of second marriage were 1 W.P.No.26926 of 2019 decided on 19.07.2021 2 2019 (14) SCC 646 3 (2000) 2 Supreme Court Cases 431 10 MGP,J CMA_394_2011 entitled to family pension along with first wife but not the second widow.
14. Learned counsel for the petitioners further relied upon a decision In Raj Kumari and another v. Krishna and others 4, wherein, the Apex Court held as follows:
"Normally, pension is given to the legally wedded wife of a deceased employee. By no stretch of imagination can one say that the plaintiff Smt. Krishna was the legally wedded wife of late Shri Atam Prakash, especially when he had a wife, who was alive when he married another woman in Arya Samaj temple, as submitted by the learned counsel appearing for the appellants. We are, therefore, of the view that the High Court should not have modified the findings arrived at and the decree passed by the trial Court in relation to the pensionary benefits. The pensionary benefits shall be given by the employer of late Shri Atam Prakash to the present appellants in accordance with the rules and regulations governing service conditions of late Shri Atam Prakash."
15. The above preposition of law was reiterated by the High Court of Chattisgarh in Smt.Nanbai Rathore v. Smt. Meena Bai 5.
16. The question to be answered at this juncture is whether second wife can be considered as a family member when the first wife is surviving and if so, whether nomination of second 4 (2015) 14 Supreme Court Cases 511 5 Second Appeal No.373 of 2018 decided on 14.10.2019 11 MGP,J CMA_394_2011 wife to receive retirement benefits of the deceased husband can be considered as a valid nomination. In general a nominee may preferably be a family member, as the nomination form requires the nominator to describe his/her relationship with the nominee. Also, considering the fact that the legal heirs of a person are family members of such person, it only helps further, if the nominee as well is a family member. If a member has a family at the time of making a nomination, it must be in favour of one or more members of his family for EPF/EDLI schemes, and any nomination made by such member in favour of a person, who is not a member of his family, is void. As per the rules of Employees Provident Fund Scheme, if the member is a married Person, he can nominate his wife, children (whether married or unmarried), dependent parents or deceased son's widow and children.
17. In the case on hand, the respondent No.2 was nominated by K.Padmarao to receive his retirement benefits, when his first wife i.e., petitioner No.1 is still surviving. As stated supra, K.Padma Rao filed petition seeking divorce from petitioner No.1 vide Ex.A8, however, the said petition was dismissed vide Ex.A9. Thus, it is clear that the relationship between petitioner No.1 and K. Padma Rao as wife and husband is subsisting until the 12 MGP,J CMA_394_2011 demise of K. Padma Rao. In such circumstances, the nomination made by K. Padma Rao in favour of respondent No.2 becomes void, more particularly when petitioner No.1, who is the wife of K. Padam Rao is surviving. Nominating respondent No.2 to receive the retirement benefits by ignoring the interests of petitioners is unjustified. If the government employee contracted second marriage with permission of the competent authority, such wife would have legal status for all purposes for receiving family pension along with the first wife and the children of the first wife, in terms of sub-rule (6) of Rule 50 of the Andhra Pradesh Revised Pension Rules, 1980. It is not even the case of respondent No.2 that K. Padma Rao has obtained permission of the competent authority to claim the legal status of legally wedded wife on par with petitioner No.1. Non - disclosure of second marriage during the subsistence of first marriage is considered as misconduct and the government employee is liable for dismissal from the service. In Smt. Batasiya Maravi v. The State of Madhya Pradesh through the Secretary, Home Department, Bhopal and others 6, wherein it was held by High Court of Madhya Pradesh that petitioner's contention that she being second wife is entitled to 6 W.P.No. 6948 of 2023 decided on 29-03-2023 13 MGP,J CMA_394_2011 family pension is not made out because contracting second marriage itself is a misconduct and that irrespective of the personal laws, no government servant is entitled to contract a second marriage without first obtaining the permission of the government. In Khursheed Ahmad Khan Vs. State of U.P. and others 7, the Apex Court held as follows:
"9. As regard the charge of misconduct in question, it is patent that there is no material on record to show that the appellant divorced his first wife before the second marriage or he informed the Government about contracting the second marriage. In absence thereof the second marriage is a misconduct under the Conduct Rules. The defence of the appellant that his first marriage had come to an end has been disbelieved by the disciplinary authority and the High Court. Learned counsel for the State has pointed out that not only the appellant admitted that his first marriage was continuing when he performed second marriage, first wife of the appellant herself appeared as a witness during the inquiry proceedings and stated that the first marriage was never dissolved. On that basis, the High Court was justified in holding that the finding of proved misconduct did not call for any interference. Learned counsel for the State also submits that the validity of the impugned Conduct Rule is not open to question on the ground that it violated Article 25 of the Constitution in view of the law laid down by this court in Sarla Mudgal vs. Union of India[1]. He further submitted that the High Court was justified in holding that the punishment of removal could not be held to be shockingly disproportionate to the charge and did not call for any interference."
18. In view of the principle laid down in the above decisions since non-disclosure of second marriage during the subsistence of first marriage is considered as misconduct and for such misconduct the government employee is liable for dismissal from the service and as performing second marriage during the subsistence of first marriage is an offence under the provisions 7 AIR 2015 SC 1429 14 MGP,J CMA_394_2011 of Indian Penal Code, certainly the act of deceased K. Padma Rao, in nominating the second wife to receive retirement benefits by ignoring the interests of his own family members including parents, first wife and his son through first wife is not at all justifiable.
19. It is pertinent to note that petitioner No.2 born out of the wedlock between K. Padma Rao (deceased) and petitioner No.1. On the other hand respondent No.2 was not blessed with any children through K. Padma Rao. Thus, viewed from any angle, if the succession certificate is not issued in favour of petitioner Nos.1 and 2, any amount of hardship is going to be faced by the petitioners.
20. In view of the above discussion, this Court is of the considered opinion that the trial Court has not committed any illegality or irregularity in passing the impugned order. The trial Court after considering all the aspects has rightly granted succession certificate in favour of petitioner Nos.1, 2 and 4. Thus, this Court is not inclined to interfere with the findings of the learned trial Court while passing the impugned order. Therefore, this Civil Miscellaneous Appeal is devoid of merits and liable to be dismissed.
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21. Accordingly, the Civil Miscellaneous Appeal is dismissed confirming the order dated 29.12.2010 in O.P.No.1381 of 2006 (hereinafter will be referred as impugned order) passed by the learned II Additional Chief Judge, City Civil Court, Hyderabad. There shall be no order as to costs.
Pending Miscellaneous applications, if any, shall stand closed.
______________________________
JUSTICE M.G.PRIYADARSINI
Date: .09.2023
AS