WP(C)/533/2018
2021 Latest Caselaw 603 Gua

                                                                       Page No.# 1/14

GAHC010019682018




                                 THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                    Case No. : WP(C) No. 533/2018

       Sabita Kalita,
       W/o Late Parbananda Kalita,
       R/o- Village- Rehabari,
       P.O.- Pub Rehabari, Pin- 781329,
       District:- Barpeta, Assam.
                                                                    ...... PETITIONER.
                              -Versus-


  1.    Assam Power Distribution Company Limited
       Represented by the Chairman, Bijulee Bhawan,
       Paltanbazar, Guwahati - 1.


  2.    The Managing Director,
       Assam Power Distribution Company Limited
       Bijulee Bhawan, Paltanbazar, Guwahati - 1.


  3.    The Chief General Manager,,
       Assam Power Distribution Company Limited (LAR)
       Bijulee Bhawan, Paltanbazar, Guwahati - 1.


  4.    The Deputy Personnel Manager,
       O/o the Chief General Manager (D),
       APDCL (LAR), Bijulee Bhawan, 5th floor,
       Paltanbazar, Guwahati - 781001.
                                                                                        Page No.# 2/14


     5.    The Assistant General Manager,
          (F & A) Pension,
          Assam Electricity Grid Corporation Limited,
          Bijulee Bhawan, Paltanbazar, Guwahati - 1.


     6.    The Assistant General Manager,
          Barpeta Electrical Division,
          Assam Power Distribution Company Limited (LAR),
          Barpeta, Bijulee Bhawan,
          Paltanbazar, Guwahati - 1.


     7.    Hiran Kalita,
          Father- Late Haro Gobindo Nath,
          C/o Surendra Nath,
          Village - Howly, P.O.- Howly,
          District - Barpeta, Pin- 781316.
                                                                                  ...... RESPONDENTS.

      Advocate appeared for the petitioner              :     Ms S G Baruah
      Advocates appeared for the respondents            :     Ms R Deka (R-1 to
6)
                                                   BEFORE
                             HON'BLE MRS. JUSTICE RUMI KUMARI PHUKAN


Date of Hearing                                : 11.02.2021


Date of Judgment                               : 22.02.2021


                                         JUDGEMENT AND ORDER (CAV)

Heard Ms S G Baruah, learned counsel for the petitioner. Also heard Ms R Deka, learned

counsel, appearing on behalf of respondent Nos. 1 to 6. None appears for and on behalf of Page No.# 3/14

respondent No. 7.

2. The case of the petitioner is that her husband/ Late Parbananda Kalita retired as

Vehicle Driver working under Barpeta Road Electrical Sub-Division under Barpeta Electrical

Division and thereafter, expired on 02.07.2016, in his residence. According to the petitioner,

she is the legally married wife of Late Parbananda Kalita with whom the petitioner solemnized

social marriage in the year 1983, i.e., about 33 years back and out of their wedlock, three

daughters were born to them but because of differences between them in their relation, since

1993, they started living separately. The petitioner started living in her paternal home along

with her youngest daughter since 1993 and the other two daughters of the petitioner stayed

along with their father, i.e., Late Parbananda Kalita.

3. Further, it is submitted that after living separately from the house of her husband, the

petitioner filed a petition before the learned Court of CJM, Pathshala at Barpeta, bearing Case

No. MR No. 8/1997, under Section 125 CrPC, claiming maintenance for the petitioner and her

youngest daughter, wherein the late husband of the petitioner appeared before the Hon'ble

Court and given his deposition before the Court on 02.04.1998, clearly admitting the

petitioner as his wife and about three daughters and the eldest daughter Mousumi Kalita is

stated to be 14 years, and that the marriage with the petitioner was solemnized on

16.10.1983. In his deposition before the Hon'ble Court, the late husband of the petitioner

nowhere stated about second marriage with respondent No. 7, which itself reflects that the

petitioner is the first legal wife. The petitioner is known to the whole family as well as the

locality as the first wife of Late Parbananda Kalita. Further, it is contended that by order dated

26.05.1998, the Court granted maintenance allowance to the petitioner and her youngest Page No.# 4/14

daughter by declaring the petitioner to be a legitimate wife of Late Parbananda Kalita.

Moreover, Late Parbananda Kalita was issued the family identity card by the Government of

Assam, Food and Civil Supplies Department in which the names of all the family members of

the petitioner are present till the year 2012.

4. The petitioner submits that though the relation between the petitioner and her late

husband was not in good terms but the relation between the daughters of the petitioner with

their father was cordial for which the husband of the petitioner used to visit the petitioner

and their youngest daughter sometimes and the petitioner along with her youngest daughter

too used to visit the other two daughters along with the petitioner sometimes. After the

death of the petitioner's husband, i.e., Late Parbananda Kalita, the petitioner came to know

from different sources that the respondent No. 7 claimed herself to be the first wife of the

petitioner's husband. When the petitioner applied for family pension of her late husband, she

came to know from the office of the respondent authorities that already another application

claiming similar benefits was filed by respondent No. 7 and then, the petitioner informed the

authorities about her status and that she is the only legitimate wife of Late Parbananda

Kalita. Thereafter, a letter dated 18.01.2017 was issued from the office of the respondent No.

3, bearing letter No. AGM/BPED/APDCL/LAR/ A_53(II)/2017/89, informing the petitioner

along with the respondent No. 7, to submit the valid/lawful documents of marriage in support

of their claim of being the first wife of Late Parbananda Kalita. However, the petitioner could

not receive the first letter issued by the respondents within time and only after receiving the

2nd letter from the office of the respondent authorities, dated 20.03.2017, the petitioner

replied about the verification alongwith all the documents that were in her possession.

Page No.# 5/14

5. It is contended that the Government Gaonbura (Head man) of the village has also

issued a certificate dated 31.03.2017, stating that the petitioner is the wife of Late

Parbananda Kalita and they married each other socially. But, in some of the documents of the

petitioner, the name of her late husband was written wrongly written as Sarbananda Kalita in

place of his real name Parbananda and in this regard the petitioner has sworn an affidavit

dated 19.07.2016 before the Notary Barpeta, Assam stating herself to be the legally married

wife of Late Parbananda Kalita and that Sarbananda Kalita and Parbananda Kalita was the

one and the same person and that he was the husband of the petitioner. In the meantime,

petitioner was issued another letter bearing No. CGM (D)/APDCL(LAR)/PEN/BEC/21/Part-II/4

dated 14.09.2017, regarding sanction of the family pension of the late husband of the

petitioner in which the respondent authorities has stated that after observing and verifying

the records of the petitioner and the respondent No. 7, it was found that respondent No. 7

was the first wife of the late Parbananda Kalita as per marriage record/agreement. After

receipt of the letter dated 14.09.2017, the petitioner approached the respondent authorities

producing all her documents and has also prayed before the authorities to show the

petitioner, the documents submitted by respondent No. 7, but the petitioner was not granted

the opportunity of either viewing the documents of the respondent No. 7, neither any

reasonable opportunity was granted for hearing the claim of the petitioner.

6. The petitioner later on, came to know from reliable sources that a marriage agreement

was submitted before the authorities by respondent No. 7 and on the basis of that

documents, the impugned letter dated 14.09.2017 was issued declaring the respondent No. 7

to be the first wife of Late Parbananda Kalita. The late husband of the petitioner had some Page No.# 6/14

relations lately with the respondent No. 7, but she was not married to Late Parbananda Kalita,

prior to the petitioner. Thus, the petitioner contends that the respondents, without giving her

opportunity to submit her documents, have willfully and deliberately deprived the petitioner

from her right to get the family pension of her deceased husband, which is arbitrary and

illegal.

7. Respondent No. 7 in her affidavit-in-opposition has stated that while it is true that the

petitioner gave birth to three daughters, one of whom used to stay with her until her

marriage. As a matter of fact, the writ petitioner never lived with her husband from the year

1993, and the petitioner is not the legally married wife of Late Parbananda Kalita. She further

submits that she is the first wife of Late parbananda Kalita and this fact is well known to the

writ petition ever since 1983, but she has carefully concealed the same not only in the writ

petition, but elsewhere also, including the proceeding in MR No. 8/1997, under Section 125

CrPC. The local Gaonburah, who is a 97 years old person, on request, has issued a certificate

dated 11.03.2018, stating that the respondent No. 7 is married to Parbananda Kalita on

08.03.1982, thus, the first wife of Late Parbananda Kalita. It is submitted that the petitioner is

not the first legal wife of Late Parbananda Kalita and the writ petitioner obtained the order of

maintenance by misrepresentation of facts and concealing the marriage of respondent No. 7

with the said Parbananda Kalita.

She further submits that the late husband of the respondent No. 7 failed to mention the

existence of a valid marriage with her in the Court below, does not ipso facto lead to the

conclusion that the writ petitioner is the first legal wife of Parbananda Kalita. The writ

petitioner is taking undue advantage of some lapses on the part of Late Parbananda Kalita in Page No.# 7/14

deposing before the Court below, particularly, the existence of a valid marriage of the

respondent No. 7 with him. The petitioner had the knowledge that the respondent No. 7 is

the first wife of Late Parbananda Kalita, who, however, could not live with him due to

estrangement between the spouses. In fact, the two elder daughters referred to above were

raised by respondent No. 7 only with the help and support from Late Parbananda Kalita and it

was the respondent No. 7 only who arranged the marriage of those two elder daughters

without even any help or support from the petitioner. Their mother, the writ petitioner, did not

even know how her two elder daughters grew up till their marriage. She never bothered to

come and meet them or to show any love or concern towards her own daughters practically

disowned by her.

According to her, the petitioner participated in a hearing before the authorities and it

was only after hearing both sides and perusal of documents submitted by the parties that

order dated 14.09.2017 was passed and, therefore, no fault can be found in the said order.

Moreover, the matter was settled with the APDCL authority passing the final order on

16.12.2017, whereby the family pension was decided to be disbursed to respondent No. 7.

Admittedly, the petitioner was away from the deceased Parbananda Kalita ever since 1993

and it is after about 23 years that she appears from nowhere with her eyes on the retiral

benefit of the deceased employee obviously with dishonest intention. It is also stated that the

respondent No. 7 entered into wedlock with Late Parbananda Kalita on 08.03.1982, vide the

Deed No. 722 dated 08.03.1982 of the of the Office of the Registration Officer, Barpeta,

Patacharkuchi.

8. Respondent Nos. 2 and 3 in their affidavit have stated that Late Parbananda Kalita Page No.# 8/14

retired from service on 31.05.2012 as vehicle driver and accordingly he submitted an

application for sanction of pension/DCR gratuity before the AGM, Barpeta Electrical Division,

mentioning Smti Hiran Kalita (respondent No. 7) as his wife. Accordingly, the AGM, Barpeta

Electrical Division (respondent No. 6) forwarded all the pension papers to the Chief General

Manager (D), APDCL, LAZ, Bijulee Bhawan, Paltan Bazar, Guwahati, for necessary action. It is

mentioned that in Form No. 14, i.e., Form of application for the grant of FP, on the death of

Board's employee/pensioner, Smt Hiran Kalita (respondent No. 7) had furnished all her

particulars as the wife of Late Parbananda Kalita in the month of January, 2013. Considering

all the particulars submitted by Parbananda Kalita and respondent No. 7, the authority

sanctioned the pension in favour of Parbananda Kalita on 03.05.2013. It is further stated that

after expiry of the deceased employee on 02.07.2016, both Smti Hiran Kalita (respondent No.

7) and Smt Sabita Kalita (petitioner) had claimed for family pension. Thereafter, Assistant

General Manager, Barpeta Electrical Division, APDCL, LAR, Barpeta (respondent No. 6) issued

letter to both petitioner and respondent No. 7 for submission of documents relating to their

marriage with Late Parbananda Kalita. The Deputy Personeel Manager, O/O the Chief General

Manager (D), APDCL, LAR (respondent No. 4), Bijulee Bhawan, Guwahati - 1, after

verification of all the records submitted by both the petitioner and respondent No. 7, passed

an office order bearing No. CGM(D)/APDCL (LAR)/PEN/BEC/21/Part II/4 dated 14.09.2017,

whereby, on the basis of the marriage deed dated 08.03.1982 submitted by respondent No. 7,

considered her as first wife of Late Parabananda Kalita. Further, it is contended that the

petitioner is not entitled for family pension as second wife, which was duly communicated to

her by the Deputy Personnel Manager, O/o the Chief General Manager (D) APDCL (LAR)

(Respondent No. 4), vide his letter dated 14.09.2017.

Page No.# 9/14

9. In the additional affidavit filed by the petitioner, she has stated that in the year 2012, a

criminal revision petition was filed by Late Parbananda Kalita before the Hon'ble Court of

District and Sessions Court, Barpeta, which was numbered as Criminal Revision Petition No.

14/2012, for revision of the order and judgment passed under Section 125 of the CrPC by the

learned JMFC, Bajali (Pathshala) in MR Case No. 35/2010, where a petition has been filed by

the petitioner/applicant under Section 127 of CrPC, claiming enhancement of monthly

maintenance. The petitioner was directed to appear on 10.09.2012, as per the order of the

Hon'ble Court and as per her knowledge the said criminal revision petition was dismissed by

the Hon'ble Court.

10. Further, it is stated that the petitioner being the legally married wife, her name was

also enrolled in the voter list of 1997 along with her late husband, Parbananda Kalita of 43

No. Barpeta Lok Sabha Constituency and she has submitted the voter list before the Court.

She also states that if this Court deems necessary, she can produce the voter list of other

years also.

11. The petitioner in her additional affidavit has also submitted that the brother of the her

late husband, Munindra Kalita and the sister of her husband, Jublee Kalita has sworn

affidavits before the Notary, Bajali at Pathshala, stating on oath that the petitioner is the

legally married wife of their elder brother Late Parbananda Kalita and the petitioner's

youngest daughter has also sworn an affidavit before the Notary, Bajali, Pathshala, stating on

oath that Late Parbananda Kalita is her father and the petitioner is her mother. As the

deceased husband of the petitioner was not paying the maintenance amount regularly, the

petitioner filed a petition before the Hon'ble Court and warrant of arrest was issued against Page No.# 10/14

him and thereafter, on 10.07.2015, the deceased husband vide petition No. 1399/2015,

prayed for recall of the warrant of arrest and also deposited Rs. 25,000/- as arrear amount of

the maintenance allowance to the petitioner.

12. Going by the pleadings of the parties, particularly the respondent No. 7, it reveals that

respondent No. 7 cannot resist the claim of petitioner that she is the wife of the deceased

employee and they have three children out of the wedlock, nor she can refute that petitioner

is not the legally married wife of the deceased. The simple assertion of respondent No. 7 is

that she is the first wife and she was married to Parbananda Kalita on 08.03.1982, i.e., prior

to the petitioner's marriage on 16.10.1983. The claim of the respondent No. 7 rest upon the

document, vide Annexure-C, is a simple marriage deed dated 08.03.1982. Obviously, there

was no legal marriage between the respondent No. 7 and the deceased employee, as per

Sections 5 and 7 of the Hindu Marriage Act. As per the Hindu Law, marriage is sacrament and

not an agreement. The said document cannot confer any status of marriage to either party.

On the other hand, it is peculiar to note that the respondent/the Department, solely on the

basis of above documents, has considered the respondent No. 7 as the wife of the deceased

employee, which has no force of law. Only because the date of marriage agreement was prior

to the date of marriage of the petitioner, the Department has come to such findings that the

respondent No. 7 is the first wife and the same cannot be allowed to prevail. Although the

respondent/Department asked both the parties to appear before them, but as it appears that

proper opportunity was not given to the writ petitioner to prove her status along with relevant

documents.

13. After examining the documents filed by the respondent/ Department, it reveals that Page No.# 11/14

they did not obtain any nomination from the employee concerned during his service period,

and only after his retirement, on the application filed by the employee for release of pension

benefits, has processed the pension and granted the same to respondent No. 7. Now,

admittedly, by their own pleadings, the deceased employee retired on 31.05.2012 and he

preferred the application on 31.12.2012 and the authority processed the same on 22.01.2013

and finally pension order was released on 03.05.2013, in favour of respondent No. 7. Such an

exercise by the Department, only after the retirement of the incumbent, is totally

impermissible. On the next, after the death of the employee on 02.07.2016, when the writ

petitioner approached to the authority to prove her case, the same was although processed

for hearing, but no adequate opportunity was given for hearing of both the parties and the

respondent/Department choose to grant the pension to the respondent No. 7, solely relying

upon the marriage deed, by the impugned order, whereas, the said marriage deed has no

sanctity in law.

14. We may take note of the pleadings of the writ petitioner and the respondent No. 7,

which clearly indicates that it was the writ petitioner, who is the legally married first wife of

the deceased employee. The writ petitioner has submitted various relevant documents, like

ration card, voter list of 1997, order in the maintenance case, affidavit by daughter, brother

and sister-in-law of the deceased to submit that petitioner was the married wife of the

deceased employee and her name was reflected as wife in all the public documents. The

respondent No. 7 failed to challenge the aforesaid documents and this Court can take judicial

notice of all the documents that deceased employee during his life time, never challenged the

status of the writ petitioner as his wife and about their three children and he never disclosed

about the marriage with respondent No. 7. The plea of the respondent No. 7 that due to Page No.# 12/14

lapse on the part of deceased Parbananda Kalita, the maintenance order was passed in

favour of the writ petitioner, is wholly misconceived and unsustainable. Equally, deceased

husband by suppressing all above, filed the application for pension, showing the respondent

No. 7 as his wife, is wholly malafide and clear suppression of facts.

15. The law is settled that only the first wife is entitled to get the pension being the legally

wedded widow and the second marriage is void ab initio, as has been held in Rameshwari

Devi -Vs- State of Bihar; AIR SC 735 and 2003 (3) GLT 400.

16. Further, it has been held in Suraiya Sultana -Vs- State of Assam & Others; 2008 (3)

GLR 589, that second wife, whom the deceased employee of the Government had married

during the validity of first marriage and her children, is not entitled to family pension for

violation of the Section 5 (1) of the Hindu Marriage Act. It has been elaborately laid down

that as per Section 5 (1) of the Act, neither party must have a spouse living at the time of

marriage. Under the codified Hindu Law, no Hindu can have more than one wife and no

woman can have more than one husband. If that be so, second marriage entered into by the

deceased employee is of no consequence and she cannot claim to be the legally married wife

of the deceased employee, being the second marriage is void and not recognized in law.

Further, as per Rule 26 (1) of the Civil Service Conduct Rules, no Government servant who

has a wife living shall contact marriage without first obtaining the permission of the

Government, notwithstanding that such subsequent marriage is permissible under personal

law for the time being applicable to him.

17. The same principle has been reiterated in the subsequent decision of Miss Fazila Page No.# 13/14

Begum -Vs- State of Assam & Others; 2009 (3) GLR 201, wherein it has been held that Rule

26 (1) of the Civil Service Conduct Rules prohibits polygamy.

18. Rule 143 of Assam Services Pension Rules, provides as under:-

143. (i) Family for the purpose of rules in this Section will include the following relatives of the officer─

(a) wife, in the case of a male officer;

(b) husband, in the case of a female officer;

(c) minor sons; and

(d) unmarried minor daughters.

Note 1.─ (c) and (d) will include children adopted legally before retirement.

Note 2.─ Marriage after retirement will not be recognised for the purposes of rules in this Section.

(ii) The pension will be admissible─

(a) in the case of widow/widower up to the date of her/his death or re-marriage whichever is earlier.

(b) In the case of a minor son, until he attains the age of 18 years.

(c) In the case of an unmarried daughter, until she attains the age of 21 years or marriage whichever is earlier.

Note.─ In case where there are two or more widows, pension will be payable to the next surviving widow, if any. The term "eldest" would mean seniority with reference to the date of marriage.

19. In terms of the provisions indicated above, only the legally married wife is entitled for retirement benefit and in view of the findings and discussions above, the respondent No. 7 has no legal status to get the pensionary benefit under the law, being the second wife and Page No.# 14/14

she cannot be given the benefit of pension under the law. Second marriage of a Hindu person is a nullity and hence, the second wife cannot accrue any legal right to get the pension. In Deokinandan Prasad -Vs- State of Bihar & Others; AIR 1971 SC 1409, it has been held that the State cannot by an executive order, curtail or abolish the right of public servant to receive pension, whereas, pension is also a property within the meaning of Article 31 (1) of the Constitution of India.

20. In view of all above, this Court constrain to hold that the impugned order dated 14.09.2017 and other subsequent order(s), including the order dated 16.12.2017, passed by the respondent/Department is bad in law, accordingly, it is quashed and set aside. The petitioner, being the first wife of the deceased employee, Parbananda Kalita, is entitled to receive the family pension and other benefits under the law and the respondent authority will now sanction the family pension in favour of the writ petitioner, as per law, without any further delay.

21. Writ petition stands allowed.

JUDGE

Comparing Assistant