Smt. Kamla Verma vs Smt. Rahi Verma
2021 Latest Caselaw 3463 Chatt

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                                                                    NAFR
             HIGH COURT OF CHHATTISGARH, BILASPUR

                 Reserved for Order on : 05.10.2021

                     Order Passed on : 03/12/2021

                       W.P.(227) No. 249 of 2021

Smt. Kamla Verma, Wd/o. Late Bharat Lal Verma, aged about 61 years,
R/o. Village- Arasnara, Post- Devada, Tahsil-Patan, District- Durg,
Chhattisgarh.

                                                             ---- Appellant

                                 Versus

1.    Smt. Rahi Verma, W/o. Late Bharat Lal Verma, R/o. Village- Borsi,
      Bamleshwari Colony, Near Nar-Narayan Mandir, Tahsil and
      District- Durg, Chhattisgarh.

2.    The Collector Durg, District- Durg, Chhattisgarh.

3.    The Jail Superintendent Central Jail, Durg, Tahsil and District-
      Durg, Chhattisgarh.

4.    The Divisional Joint Director, Treasury, Accounts and Pension,
      Durg, Tahsil and District- Durg, Chhattisgarh.

5.    The Treasuring Officer, District - Treasury Office, Durg, Tahsil and
      District- Durg, Chhattisgarh.

                                                          ---- Respondents

For Petitioner : Mr. Goutam Khetrapal, Advocate

For Respondent No.1 : Mr. Manoj Paranjpe, Advocate

For Respondents/State No.2 to 5 : Mr. Alok Nigam, Govt. Advocate

Hon'ble Shri Justice Rajendra Chandra Singh Samant

C A V Order

1. This petition has been filed being aggrieved by the order dated

22.03.2021, passed in Miscellaneous Civil Appeal No.13/2020,

passed by the Court of Fourth Additional District Judge, Durg

dismissing the appeal of the petitioner and upholding the order of

the trial Court.

2. It is submitted by the learned counsel for the petitioner that the

petitioner is legally wedded wife of the late Bharat Lal Verma. The

marriage of the respondent No.1 with late Bharat Lal Verma is not

valid. After the death of Bharat Lal Verma, the petitioner filed a

Civil Suit No.101A/2020 against the respondent No.1 and others

for relief of service benefits of her deceased husband. The

petitioner filed application under Order 39 Rule 1 and 2 of C.P.C.,

before the trial Court praying to pass restraint order regarding

payment of pension to respondent No.1. The learned trial Court by

order dated 02.11.2020 dismissed the application. The appeal

preferred has also been dismissed by the impugned order.

3. It is submitted by the learned counsel appearing on behalf of the

petitioner that the marriage of the petitioner with the deceased

Bharat Lal Verma was performed on 06.03.1976. The petitioner

was never divorced by the deceased Bharat Lal Verma and during

the continuation of this marriage, B.L. Verma performed second

marriage with respondent No.1, which has no validity. As the

service records of the deceased show the name of the respondent

No.1 as his nominee, therefore, the petitioner was refused grant of

family pension by the respondents authorities. It is submitted that

the respondent No.1 has pleaded in written statement that the

marriage of the petitioner with the deceased Bharat Lal Verma was

dissolved by the customary divorce, which is not acceptable and

further that requires proof. Placing reliance on the judgment of this

Court in case of Nanbai Rathore Vs. Meena Bai and others,

reported in (2020) 3 CGLJ 308, it is submitted that the marriage of

the respondent No.1 with the deceased B.L. Verma is contrary to

the Section 5 of the Hindu Marriage Act, 1995. It is similarly held in

case of Rameshchandra Rampratapji Daga Vs. Rameshari

Rameshchandra Daga, reported in (2005) 2 SCC 33 that without

any decree of divorce from the Court of law, the performance of

second marriage is unlawful, therefore, the respondent No.1 has

no entitlement for pension and the petitioner was entitled for grant

of temporary injunction. The impugned orders are not sustainable.

The petition be allowed and the relief be granted to the petitioner.

4. Learned counsel for the respondent No.1 opposes petition and

the submissions made in this respect. It is submitted that the issue

raised by the petitioner is present, before the trial Court, which can

be decided only after the evidence is produced by both the parties.

The respondent No.1 also challenges the claim of the petitioner

that she is the legal wife of the deceased Bharat Lal Verma. It is

submitted hat the scope of Article 227 of the Constitution of India

is very limited. Relying on the judgment in case of Wander Ltd. &

Anr. Vs. Antox India P. Ltd., reported in 1990 (Supp) SCC 727,

it is submitted that if the discretion has been exercised by the trial

Court reasonably and in a judicial manner the fact that the

appellate Court would have taken different view may not justify the

interference with the trial Court's exercise of discretion. In the

present case, the final decision of the trial Court is yet to come.

5. It is further submitted by the counsel for the respondent No.1 that

B.L. Verma retired from service on 31.05.2017. He continued

residing with respondent No.1. B.L. Verma died on 07.08.2020

and all the times, it was the respondent No.1 and her children,

who were dependent on the deceased B.L. Verma. The petitioner

was not dependent on him. It is submitted that the marriage of the

petitioner with B.L. Verma was customarily dissolved, therefore,

the petitioner and the deceased B.L. Verma both entered into

compromise in the proceeding under Section 125 of Cr.P.C., in

which the deceased transferred some land and house to the

petitioner. B.L. Verma had nominated respondent No.1 as the

person entitled for receiving family pension and the other benefits,

on the basis of which, the respondent No.1 is enjoying the pension

benefits. It is submitted that in case of Champa Devi & Ors. Vs.

Gulabi Devi reported in 2013 (4) MPLJ 535, it was held that the

children from the second wife also have entitlement of family

pension and gratuity and the estate of the deceased. Therefore,

the impugned order does not suffer from any infirmity. No

interference can be made in the same. The petition be dismissed

and disposed off.

6. I have heard the learned counsel for the parties and perused the

documents placed on record.

7. The learned trial Court and the appellate Court both have held that

the respondent No.1 was cohabiting with the deceased B.L. Verma

and having children and the petitioner has never objected to the

nomination in favour of the respondent No.1. It may be a fact that

the petitioner never had any knowledge of the nomination for the

pension, but all the same as the facts are present that B.L. Verma

retired from service in the year 2017 and lived up to the year 2020.

Till then the petitioner did not make any claim from the respondent

No.1. The pensionary benefits to the widow of the deceased

government service is certainly based on the validity of the

marriage of the deceased government servant. The petitioner and

the respondents both are challenging the validity of the marriage

of the each other and this can be resolved only in the trial. Apart

from that the respondent No.1 has started receiving pension from

the authorities, which is continuing, therefore, there appears to be

no reason to stop the pensionary benefit, which is already

available to the respondent No.1. Hence, I do not find any valid

reason to interfere with the impugned order.

8. In view of the aforesaid discussion, this petition is without any

substance, which is dismissed and disposed off.

Sd/-

(Rajendra Chandra Singh Samant) Judge Balram