Page No.# 1/8 vs The State Of Assam And 5 Ors
2022 Latest Caselaw 3785 Gua

                                                                   Page No.# 1/8

GAHC010129862019




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

                           Case No. : WA/26/2020

         SARBESWARI KALITA AND 3 ORS.
         W/O- LATE PABITRA KALITA, R/O- VILL.- SARU TEZPUR, P.O.
         RAMPUR,DIST.- KAMRUP, ASSAM, PIN- 781132.

         2: MANISHA KALITA
          D/O- LATE PABITRA KALITA
          R/O- VILL.- SARU TEZPUR
          P.O. RAMPUR
          DIST.- KAMRUP
         ASSAM
          PIN- 781132.

         3: JUPITARA KALITA
          D/O- LATE PABITRA KALITA
          R/O- VILL.- SARU TEZPUR
          P.O. RAMPUR
          DIST.- KAMRUP
         ASSAM
          PIN- 781132.

         4: NABAJYOTI KALITA
          S/O- LATE PABITRA KALITA
          R/O- VILL.- SARU TEZPUR
          P.O. RAMPUR
          DIST.- KAMRUP
         ASSAM
          PIN- 781132. (APPELLANTS NO.3 AND 4 IS REP. BY THEIR
         MOTHER/APPELLANT NO. 1NAMELY SMTI.SARBESWARI KALITA)

         VERSUS

         THE STATE OF ASSAM AND 5 ORS
         REP. BY COMMISSIONER AND SECRETARY GOVT. OF ASSAM,
         DEPARTMENT OF INLAND WATER TRANSPORT, DISPUR, GUWAHATI-6.
                                               Page No.# 2/8


2:THE DIRECTOR
 INLAND WATER TRANSPORT COMMERCIAL SERVICES
 ULUBARI
 GUWAHATI-07.

3:THE DY. DIRECTOR

INLAND WATER TRANSPORT COMMERCIAL SERVICES
ULUBARI
GUWAHATI-07.

4:THE DEPUTY COMMISSIONER
 DISTRICT- KAMRUP
AMINGAON
 P.O. AMINGAON
 PIN- 781031.

5:THE CIRCLE OFFICER
 PALASBARI REVENUE CIRCLE
 PALASBARI
DIST.- KAMRUP
 P.O. PALASBARI
 PIN- 781128.

6:SMTI. NIRALA CHOUDHURY
W/O- LATE PABITRA KALITA
VILL.- CHOUDHURY PARA
 P.O. CHAYGAON
 DIST.- KAMRUP
ASSAM
 PIN- 781124.

7:THE ACCOUNTANT GENERAL

A AND E
ASSAM
                                                                           Page No.# 3/8

                                    PRESENT
                  HON'BLE THE CHIEF JUSTICE MR. R.M. CHHAYA
                    HON'BLE MR. JUSTICE SOUMITRA SAIKIA


      For the appellants        :     Mr. K. Bhuyan,
                                           Advocate

      For the respondents      :     Ms. M.D. Borah,

Standing Counsel, Transport Department

Ms. R.B. Bora, Junior Government Advocate Assam

Ms. K. Deka, Advocate for Respondent No.6

Mr. R.K. Talukdar, Standing Counsel, Accountant General (A&E) Assam

Date of hearing : 01.09.2022

Date of judgment : 26.09.2022

JUDGMENT & ORDER (CAV) R.M. Chhaya, CJ

Feeling aggrieved and dissatisfied with the judgment and order dated 07.05.2019 passed by the learned Single Judge in WP(C) No. 1010/2017, whereby the learned Single Judge was pleased to allow the writ petition filed by the original petitioner/respondent No.6 herein directing the respondent authorities to work out the pensionary benefits in favour of the original petitioner/respondent No.6 herein on account of the services rendered by her husband late Pabitra Kalita in the Inland Water Transport Department, the original respondent No.4, who claims to be the Page No.# 4/8

second wife of late Pabitra Kalita, along with her two daughters and one son have preferred this intra-Court appeal.

2. The following facts emerge from the records of the appeal:

It was the case of the original petitioner/respondent No.6 herein that she married late Pabitra Kalita, who was working in the Inland Water Transport Department, on 26.01.1994 at Kamakya Temple according to Hindu rites and rituals. It was also the case of the original petitioner/ respondent No.6 herein that out of such wedlock she gave birth to twin daughters on 16.11.94, named Himasri and Banasri. As the record shows, it was the case of the original petitioner/respondent No.6 herein that her husband late Pabitra Kalita filed a divorce suit against the original petitioner/respondent No.6 herein in the Family Court, Kamrup at Guwahati, which was registered as F.C.(C) Case No. 16/1996 which came to be dismissed for default on 29.11.1997. The record also indicates that during the pendency of the said divorce petition, the original petitioner/ respondent No.6 herein also filed a miscellaneous petition being No. 17/1996 praying for restraining her husband i.e., Pabitra Kalita from solemnizing marriage with the appellant No.1. However, the original petitioner/respondent No.6 herein did not pursue the said application. The record indicates that the original petitioner/respondent No.6 herein also filed an application for maintenance as provided under Section 125 Cr.P.C. for herself and for her minor daughters. The said application came to be registered as F.C. (Crl.) No. 312/1996 and vide order dated 14.09.1999, the Principal Judge, Family Court, Kamrup at Guwahati granted Rs. 800/- per month to the petitioner's twin daughters aged five years only at the relevant time. It is also a matter of record that vide order dated 22.01.2014, the learned Principal Judge, Family Court, Kamrup, Guwahati enhanced the maintenance amount to Rs. 500/- to each daughter on a petition filed by the original petitioner/ respondent No.6 herein under Section 127 Cr.P.C. The husband of the original petitioner/respondent No.6 herein died on 18.01.2017 at Guwahati Medical College. It was the case of the original petitioner/respondent No.6 herein that the death Page No.# 5/8

certificate in respect of her husband was taken away by the appellant No.1. On the apprehension that the appellant No.1 herein would produce the death certificate before the concerned authority and claim family pension, group insurance, leave salary, GPF Fund, pension gratuity etc. in respect of late Pabitra Kalita, the original petitioner/respondent No.6 herein approached the respondent authorities by means of an application dated 06.02.2017. It was the case of the original petitioner/respondent No.6 herein that she being the legally wedded wife of late Pabitra Kalita, she is entitled to receive family pension, group insurance, leave salary, GPF Fund, pension gratuity etc. on the death of Pabitra Kalita. It was also the case of the original petitioner/ respondent No.6 herein that the present appellant No.1 has no right to receive such amount as she is not the legally wedded wife of late Pabitra Kalita. The said petition was contested by the appellant No.1. However, by the judgment order dated 07.05.2019, the learned Single Judge allowed the writ petition with a direction to the respondent authorities to work out the pensionary benefits in favour of the original petitioner/ respondent No.6 herein against which the present appeal has been filed.

3. We have heard Mr. K. Bhuyan, learned counsel for the appellants. Also heard Ms. M.D. Borah, learned Standing Counsel, Transport Department for the respondent Nos. 1,2 and 3; Ms. R.B. Bora, learned junior Government Advocate, Assam for the respondent Nos. 4 and 5; Ms. K. Deka, learned counsel for the respondent No.6 and Mr. R.K. Talukdar, learned counsel for the respondent No.7.

4. Mr. K. Bhuyan, learned counsel for the appellant has contended that the appellant married late Pabitra Kalita on 18.05.1996 and both of them stayed as husband and wife for 21 years. It was contended by Mr. Bhuyan that the original petitioner/respondent No.6 claims to be the wife of late Pabitra Kalita without there being any proof and no witness or any proof was brought on record to prove that the original petitioner/ respondent No.6 married late Pabitra Kalita. It was thus contended that the claim of the original petitioner/respondent No.6 that she is the legally wedded Page No.# 6/8

wife of late Pabitra Kalita is without any basis. It was further contended by Mr. Bhuyan that it is an established fact of desertion from the life of late Pabitra Kalita and in fact the marriage of the original petitioner/respondent No.6 was hidden from the society and, therefore, it was contended that the appellant No.1 would be entitled to the retiral benefits. It was contended that divorce petition or order of maintenance cannot be considered to be an instrument of valid marriage until and unless the marriage is celebrated with proper ceremony. It was also contended that on the contrary marriage between the appellant No.1 and late Pabitra Kalita came to be performed by observing the essential ceremony of Homo and Saptapadi. It was also contended that the next of kin certificate dated 26.05.2017 issued by the respondent authority was totally ignored by the learned Single Judge. It was also contended that the original petitioner/respondent No.6 did not file any bigamy case against her husband or any suit for restitution of conjugal rights and this goes to show that her marriage with late Pabitra Kalita was a void marriage and therefore it was contended that the original petitioner/ respondent No.6 would not be entitled to any retiral benefit. Mr. Bhuyan has relied upon the judgment of the Apex Court in A. Subash Babu -vs- State of Andhra Pradesh & Anr., reported (2011) 7 SCC 616; Dwarika Prasad Satpathy -vs- Bidyut Prava Dixit & Anr., reported in (1999) 7 SCC 675; Badshah -vs- Urmila Badshah Godse & Anr., reported in (2014) 1 SCC 188 and the judgment dated 13.11.2017 of the Andhra High Court in Union of India -vs- Lakshmi Suri (Writ Appeal No. 1020 of 2016) to buttress his argument. On the basis of the aforesaid contentions, it was prayed that the appeal be allowed.

5. As against this, Ms. M.D. Borah, learned counsel for the respondent Nos. 1,2 and 3 as well as Ms. K. Deka, learned counsel or the respondent No.6 have supported the impugned order and have submitted that the appeal being meritless, deserves to be dismissed.

6. Having heard the learned counsels for the parties, the record indicates that the original petitioner/respondent No.6 herein married Pabitra Kalita and has twin Page No.# 7/8

daughters. The record further indicates that the Family Court directed payment of maintenance allowance in respect of the two daughters born out of the said wedlock. The said judicial pronouncement has not been challenged by the present appellant No.1 who, as per the record, was also a party to those proceedings. The very case of the appellant No.1 herein is that she married Pabitra Kalita on 18.05.1996 and it was the second marriage of Pabitra Kalita, that too, without any divorce from the first wife and during the lifetime of the first wife. Though this Court is not called upon to decide the validity of the marriage, the facts ipso facto prove that the original petitioner/respondent No.6 herein is the first wife of late Pabitra Kalita. Maintenance under Section 125 Cr.P.C. in the divorce petition filed is a matter of contemporaneous record of the Family Court which cannot be ignored and merely because late Pabitra Kalita and the original petitioner/respondent No.6 herein separated in the year 1996 without there being a decree of divorce, it cannot be proved that their marriage stood annulled on the ground of desertion. On the contrary, we find that the learned Single Judge had called for the original record of the Family Court at Guwahati and after examining the same, has come to the conclusion that the original petitioner/respondent No.6 married Pabitra Kalita first and that she was the legally wedded first wife of Pabitra Kalita. Mere issuance of a kin certificate would not amount to succession certificate in favour of the appellant No.1. The judgment in A. Subash Babu (supra) and in Dwarika Prasad Satpathy (supra) would not be applicable to the case on hand.

7. The original petitioner/ respondent No.6 herein being the first wedded wife of late Pabitra Kalita and as the record reveals that no divorce took place between late Pabitra Kalita and the original petitioner/respondent No.6 herein, even if it is presumed that the appellant No.1 married late Pabitra Kalita in the year 1996, the same would be a second marriage during the lifetime of the first wife and, therefore, the conclusion arrived at by the learned Single Judge cannot be faulted with. We are in total agreement with the observations made by the learned Single Judge and we Page No.# 8/8

are of the view that no interference with the impugned judgment and order is called for.

8. The appeal being bereft of merit deserves to be dismissed and is hereby dismissed. There shall, however, be no order as to costs.

9. The respondent authorities shall carry out the directions of the learned Single Judge as expeditiously as possible.

                JUDGE                                  CHIEF JUSTICE




Comparing Assistant