Gauhati High Court
Page No.# 1/5 vs The Union Of India And 11 Ors on 8 June, 2023
Page No.# 1/51
GAHC010262272017
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/5189/2017
PURNIMA MALAKAR @ PURNIMA MALI @ PURNIMA PAUL @ PURNIMA
LAXMI PAUL
W/O. LT. SANJIT MALAKAR @ SANJIT MALI, R/O. VILL. INSTITUTE
COLONY, LUMDING, PO. and P.S. LUMDING, DIST. HOJAI, ASSAM, PIN-
782447.
VERSUS
THE UNION OF INDIA and 11 ORS.
REP. BY THE GENERAL MANAGER, N.F. RAILWAY, MALIGAON,
GUWAHATI-11, PIN-782447.
2:THE GENERAL MANAGER
N.F. RAILWAY
MALIGAON
GUWAHATI
PIN-781011.
3:THE CHIEF PERSONNEL OFFICER
N.F. RLY.
MALIGAON
GUWAHATI
PIN-781011.
4:THE GENERAL MANAGER P
N.F. RLY.
MALIGAON
GUWAHATI
PIN-781011
Page No.# 2/51
5:THE DIVISIONAL SUPERINTENDENT P
N.F. RLY.
LUMDING DIVISION
LUMDING
DIST. HOJAI
ASSAM
PIN-782447.
6:THE DIVISIONAL ACCOUNTS OFFICER
N.F. RLY.
LUMDING DIVISION
LUMDING
DIST. HOJAI
ASSAM
PIN-782447.
7:THE DIVISIONAL RAILWAY MANAGER
N.F.RLY
LUMDING DIVISION
LUMDING
DIST. HOJAI
ASSAM
PIN-782447.
8:THE DIVISIONAL RAILWAY MANAGER P
N.F. RLY.
LUMDING DIVISION
LUMDING
DIST. HOJAI
ASSAM
PIN-782447.
9:R.R.P. SARMA
CHIEF HEALTH INSPECTOR
N.F. RLY.
LUMDING DIVISION
DIST. HOJAI
ASSAM
PIN-782447.
10:MRS. P ROY
DPO-11
Page No.# 3/51
LMG
O/O. THE DRM P
N.F. RLY.
LUMDING DIVISION
LUMDING
DIST. HOJAI
ASSAM
PIN-782447.
11:SMTI. SIPPO KHAN @ SIPPO MALAKAR
WIDOW OF LT. SANJIT MALAKAR
EX SFW/2
N.F. RAILWAY
LUMDING
R/O. RELIEF YARD COLONY
LUMDING
P.O. and P.S. LUMDING
DIST. HOJAI
ASSAM
PIN-782447.
12:SMTI. MANJU MALAKAR
W/O. SRI. NARAYAN CHANDRA MALAKAR
R/O. FOREST TILLA
LUMDING
P.O. and P.S. LUMDING
DIST. HOJAI
ASSAM
PIN-782447
Advocate for the Petitioner : MR.A K PURKAYASTHA
Advocate for the Respondent : SC, NF RLY
Linked Case : WP(C)/3400/2017
UNION OF INDIA and 9 ORS.
REP. BY THE GENERAL MANAGER
N.F. RLY.
MALIGAON
GUWAHATI-781011
Page No.# 4/51
2: THE GENERAL MANAGER
NF RLY
MALIGAON
GUWAHATI-781011
3: THE GENERAL MANAGER P
N.F. RLY.
MALIGAON
GUWAHATI-781011
4: THE CHIEF PERSONNEL OFFICER
N.F. RAILWAY
MALIGAON
GUWAHATI-781001
5: THE DIVISIONAL SUPERINTENDENT P
N.F. RLY.
LUMDING DIVISION
LUMDING
DIST. HOJAI
ASSAM
PIN-782447
6: DIVISIONAL ACCOUNTS OFFICER
N.F. RLY LUMDING DIVISION
LUMDING
DIST. HOJAI
ASSM
PIN-782447
7: THE DIVISIONAL RAILWAY MANAGER
N.F. RLY
LUMDING DIVISION
LUMDING
DIST. HOJAI
ASSAM
PIN-782447
8: THE DIVISIONAL RAILWAY MANAGER P
N.F. RLY
LUMDING DIVISION
LUMDING
DIST. HOJAI
ASSAM
PIN-782447
9: SRI R.R.P. SHARMA
Page No.# 5/51
CHIEF HEALTH INSPECTOR
N.F. RLY. LUMDING DIVISION
LUMDING
DIST. HOJAI
ASSAM
PIN-782447
10: MRS. P ROY
DPO-II LMG
OFFICE FO THE DRM P
N.F. RLY
LUMDING DIVISION
LUMDING
DIST. HOJAI
ASSAM
PIN-782447
VERSUS
SMT. SIPPO KHAN @ SIPPO MALAKAR and 2 ORS.
WIDOW OF LATE SANJIT MALAKAR
EX SFW/2
N.F. RAILWAY
LUMDING
R/O RELIEF YARD COLONY
LUMDING
PO and PS LUMDING
DIST. HOJAI
ASSAM
2:SMT. PURNIMA MALAKAR
2ND WIDOW OF LATE SANJIT MALAKAR
C/O CH and ML/LUMDING
PO-LUMDING
DIST. HOJAI ASSAM
PIN-782447
------------
Advocate for : MR.D K DEYRly.Adv.
Advocate for : MR.R C PAULR-2 appearing for SMT. SIPPO KHAN @ SIPPO
MALAKAR and 2 ORS.
Page No.# 6/51
-Before-
HON'BLE THE CHIEF JUSTICE
Hon'ble Mr. Justice SOUMITRA SAIKIA
For the Petitioner(s) :Mr. A.K. Purkayastha, Adv
Mr. R.C. Paul, Adv.
Mr. S. Sharma, Adv.
Mr. D.K. Dey, Advocate for Railways
For the Respondents :Mr. P. Mahanta, Adv.
Mr. R.B. Gohain, Adv.
Date of Hearing : 28.03.2023
Date of Judgment : 08.06.2023
Judgment & Order(CAV)
(Soumitra saikia, j)
Petitioner in W.P(C) No. 5189/2017 is the opposite party No. 11 before the
CAT, Guwahati in O.A. No. 040/00329/2015 and petitioners in W.P.(C) No.
3400/2017 are the Railway Authorities who were arrayed as Petitioners No. 1 to
10 in O.A. No. 040/00329/2015. Since both these writ petitions are directed
against the order dated 21.02.2017 passed by the CAT, Guwahati in O.A. No.
040/00329/2015, the matters are heard and taken up for disposal together. The
respondent in the writ petition filed the Original Application before the CAT,
Page No.# 7/51
Guwahati claiming to be the widow of one late Sanjit Malakar who was working
as SFW/2 N.F. Railway, Lumding and was a resident of Relief Yard Colony,
Lumding, District: Hojai, Assam challenging the orders passed by the
respondent-Railways dated 11.09.2015. By the said order, the Railway
authorities disposed of the application received from the writ petitioner and the
respondent, both claiming to be legally wedded wife of the deceased Railway
employee late Sanjit Malakar holding that the writ petitioner-Purnima Malakar
was the 'legal wife' of late Sanjit Malakar and that she was eligible for payment
of funeral assistance and family pension, GIS, leave salary and DCRG as well as
compassionate ground appointment as per Pension Manual Rules. The Railway
authorities further held that the status of Sippo Malakar namely the respondent
No. 11 (Applicant before the CAT, Guwahati) was as the second wife of the
deceased. Since the said deceased, Railway employee late Sanjit Malakar, did
not take any prior permission for second marriage as per the Rules, the second
marriage with Sippo Malakar was void and as a consequence, she was not
entitled for settlement of dues of late Sanjit Malakar. It was further held that
Miss Champa Malakar who claims to be the daughter borne out of the wedlock
of late Sanjit Malakar and Sippo Malakar is entitled to her share of settlement
dues of pension on production of guardianship certificate from the Hon'ble Court
of Law.
Page No.# 8/51
2. The CAT, Guwahati, vide the impugned order dated 21.02.2017 came to a
finding that the Railway Authorities committed an error in declaring Purnima
Malakar, namely the writ petitioner, to be the first wife of late Sanjit Malakar.
The CAT, Guwahati further held that the children borne out of the wedlock, even
if they are illegitimate, will have their share of the dues payable to the
dependents of the deceased under the relevant rules till they are major and in
case of daughters till their marriage. The Railway Authorities were directed to
make payment to the applicant before the CAT namely Sippo Malakar of all the
dues payable as the dependent of the deceased employee late Sanjit Malakar
within a period of three months. It was further directed that in the event of any
delay beyond as directed, the Railway Authorities would be bound to pay
interest at the rate of 9% per annum for the period of delay. Being aggrieved
the opposite party before the CAT, Guwahati namely Purnima Malakar has filed
the present writ petition assailing the order dated 21.02.2017 passed by the
CAT, Guwahati. The impugned order dated 21.02.2017 has been assailed in the
present writ petition on the following grounds:
"A. For that the L'd. Tribunal below having failed to appreciate the
relevant records on the basis of which the Rly. Department arrived at the
impugned decisions and consequent order can be said to inconformity
with the relevant provision of Section 18 Special Marriage Act, 1954 so as
Page No.# 9/51
to conclusively declared the Respondent No. 11 to be the lawful and valid
wife of deceased husband of the present petitioner Sanjit Malakar w.e.f.
27/11/1997 and the impugned finding on account of being vitiated by
vice of perversity or erroneous conception perse rendered the impugned
order of the Respondent Rly Department to be without any authority in
law and non appreciate of the aforesaid legal aspect of the matter, also
rendered the impugned Judgment/Order to be unascertainable in law and
the same is consequently liable to be set aside and quashed.
B. For that the Ld. Tribunal below having acted beyond authority and
adjudicated the issues pertaining to the respective marital status of the
present petition as well as Respondent No. 11 by declaring the
Respondent No.11 to be the legally married wife of deceased Sanjit
Malakar in terms the Marriage solemnized between them on 27/11/1997
without taking into account that the Marriage even if any was performed
by the Parties, the said Marriage under all circumstances has to be
accepted to be a Marriage w.e.f. 08/02/2010 the day on which the
Marriage was registered as per the requirements as provided under
Special Marriage Act, 1954 and /or the day on which the marriage
certificate was issued by the marriage registered in terms of Section 18
of Special Marriage Act, 1954 and not otherwise and the impugned
Judgment and Order passed Ld. Tribunal below in view such apparent
error in law vis-a-vis, the misconception as apparent on the face of the
record, is untenable in law as nonest.
C. For that even assuming that the Ld. Tribunal is otherwise competent
to adjudicate the issue pertaining to the marital status of the parties
which is in fact exclusively vested with competent Civil Court to
adjudicate and decide but the Ld. Tribunal apparently seem to have
committed a gross error and illegality in accepting the Respondent No. 11
to be the 1 wife of deceased Sanjit Malakar w.e.f 27/11/1997 solely on
basis of marriage agreement and too without any taking into
consideration the far reaching legal impact of Section 18 Special Marriage
Page No.# 10/51
Act,1954 and the impugned judgment and order in view of such manifest
error and mis-conception on a most material point of law, in ipso facto,
unsustainable in law and the same is liable to be set aside and quashed
for want of legal authority and lack of jurisdiction.
D. For that the Ld. Tribunal below having failed to appreciate the most
legal aspect of the matter once the Marriage performed between the
parties followed by the Registration of their Marriage under the Special
Marriage Act, 1954, the said Marriage has to be and/or shall have to be
accepted or treated to be a Marriage only w.e.f. the date Registration of
the Marriage as per the provisions of Section 18 of the Act and since the
marriage solemnized between the petitioner and the deceased Sanjit
Malakar as per the provisions as provided under Hindu Marriage Act,
1955 was undisputedly and admittedly accepted by Criminal Court while
adjudications the maintenance case instituted w/s 125 Cr. P.C and as
accepted by the Rly authorities on basis of aforesaid uncontroverted
judicial decision of the Court, the Ld. Tribunal below committed a serious
error and illegality in declaring the Respondent No. 11 to be the 1 st wife
of deceased Sanjit Malakar on the basis of mere marriage agreement and
the said decision of the Ld Tribunal below and the order passed thereon
perse appears to be contrary to Section 18 of Special Marriage Act,1954
and the same is consequently liable to set aside and quashed."
3. The case of the writ petitioner as projected before the CAT, Guwahati was
that her marriage was solemnized with one Sanjit Malakar (since deceased)
which was an arranged marriage and it took place on 01.10.1999 as per Hindu
Rites and Rituals and also by performing the ceremony of Saptapadi at
Lumding. From the wedlock, one female child namely Smti Preeti Malakar and
also one male child namely Shri Rohit Malakar were born on 11.06.2001 and
Page No.# 11/51
03.08.2004 respectively. Subsequently, one more male child namely Shri Angat
Malakar was born on 01.12.2005. It is contended that the petitioner and her
late husband initially led a peaceful conjugal married life. However, after a few
years of marriage, problems arose between them and she was subjected to
various forms of cruelty and mental agony at the hands of her husband. During
this period, she came to know about an illicit affair between her late husband
Sanjit Malakar and the respondent No. 11-Sippo Malakar, who was the applicant
before the CAT, Guwahati. This led to her filing a maintenance case against her
late husband before the court of SDJM, Hojai being MR Case No. 70/2012. The
Court of SDJM, Hojai vide Judgment and Order dated 16.12.2013 gave a specific
finding that the petitioner is the legally married wife of late Sanjit Malakar and
accordingly directed her late husband to pay monthly maintenance of Rs. 2000/-
to her and Rs. 1000/- to each of the minor children. The appeal filed by the late
husband against the Judgment of the SDJM, Hojai came to be dismissed and
the Judgment of the SDJM, Hojai was upheld by Judgment dated 25.08.2014
passed by the Addl. District and Sessions Judge, Hojai. Late Sanjit Malakar
carried the matter to the High Court and filed a Criminal Petition seeking
quashment of the Judgment dated 25.08.2014 of the Addl. District and Sessions
Judge, Hojai as well as Judgment dated 16.12.2013 passed by the SDJM, Hojai.
During the pendency of the criminal petition, the petitioner, Shri Sanjit Malakar
Page No.# 12/51
expired and accordingly the criminal petition was closed.
4. Pursuant to the death of Shri Sanjit Malakar, the petitioner laid a claim to
the Railway Authorities for release of the death-cum-retirement benefits and
other family pension dues payable to her. A similar application was preferred
before the Railway Authorities by the respondent No. 11-Sippo Malakar. The
Railway Authorities conducted an enquiry and upon consideration of the entire
matter by communication dated 11.09.2015 came to a finding that the
petitioner is the legally wedded wife of late Sanjit Malakar and accordingly, she
was entitled for all pensionary benefits including family pension as well as DCRG
and leave salary etc. The respondent No. 11-Sippo Malakar was held to be the
second wife and therefore, was held disentitled for the said benefits. Being
aggrieved, the respondent No. 11-Sippo Malakar challenged the order of the
Railways before the CAT, Guwahati by filing OA No.040/00329/2015. The
petitioner was arrayed as a party and she contested the case by filing her
written statement. The Railway Authorities also filed their written statement.
The CAT, Guwahati by the impugned Order dated 21.02.2017 held that the
Railway Authorities committed an error in declaring the petitioner as the first
wife as the same was considered to be contrary to the findings of the SDJM,
Hojai in the order granting maintenance dated 16.12.2013. The CAT, Guwahati
Page No.# 13/51
held that the marriage agreement dated 27.11.1997 along with the marriage
certificate dated 08.02.2010 as well as the birth certificate of Champa Malakar
dated 19.09.2013 were sufficient to arrive at a conclusion that the respondent
No. 11-Smt. Sippo Malakar was the first wife of late Sanjit Malakar and
accordingly, it was ordered that all pensionary dues and consequential benefits
should be paid to the applicant and the OA was allowed to that extent by the
impugned order dated 21.02.2017 which is under challenge in this writ petition.
5. The learned counsel for the petitioner strenuously urged that CAT,
Guwahati exceeded its jurisdiction while venturing to decide the marital status
of the parties contrary to the provisions of the Rules for pension as well as the
materials available on record. It was urged that as per the nomination furnished
by Late Sanjit Malakar, it is the name of the petitioner-Purnima Malakar, which is
available on the records of the Railway Authorities as the legally wedded wife of
late Sanjit Malakar and therefore, the decision of CAT, Guwahati by interfering
with the communication dated 11.09.2015 issued by the Railways Authorities
declaring that the pensionary benefits would be payable to the petitioner
namely-Purnima Malakar, is contrary to the facts available on records as well as
the provisions of the Railway Pension Rules. The same therefore is nonest in law
and needs to interfered with and set aside and quashed.
Page No.# 14/51
6. It was submitted that the employer/Department is the appropriate
authority to decide entitlement of pensionary benefits of the employee on the
basis of the records available and as per the details submitted by the deceased
employee. Late Sanjit Malakar had nominated the petitioner, namely Purnima
Malakar, as his legally wedded wife and the Railway Authorities, upon due
enquiry and verification having come to the conclusion that the petitioner is
entitled to the pensionary benefits, unless it was shown that the conclusions
arrived at by the Railways Authorities are perverse or contrary to the facts
available on the records, the CAT, Guwahati could not have disregarded the
findings of the Railways Authorities and passed an order interfering with the
findings of the Railway Authority in favour of the petitioner. Under the provisions
of the Administrative Tribunals Act, 1985, the CAT, Guwahati neither had the
jurisdiction to decide any family matter nor could it adjudicate upon the marital
status of a public servant.
7. It was further submitted that in the proceedings before the CAT, Guwahati
material facts were suppressed by the applicant namely the respondent No. 11-
Sippo Malakar in the present proceedings. It was pointed out that the
respondent No. 11-Sippo Malakar had filed a title suit seeking a declaration that
Page No.# 15/51
she was the legally wedded wife of late Sanjit Malakar and a further declaration
that she is entitled to receive the pensionary benefits. The learned counsel for
the petitioner has categorically submitted that the petitioner was never
intimated about the filing of the suit by respondent No. 11 against late Sanjit
Malakar nor was any notice issued by the Court on the petitioner. This fact was
not divulged in the O.A. filed before the CAT, Guwahati by respondent No. 11
and therefore, this writ petition should be dismissed as there was suppression of
material facts before the CAT, Guwahati.
8. The learned counsel appearing for the petitioner has produced a copy of
the title suit which was filed by the respondent No. 11- Sippo Malakar seeking a
declaration that the plaintiff namely, Sippo Malakar was the legally wedded wife
of the defendant namely Shri Sanjit Malakar. It was numbered as title suit No.
94/2014 before the Court of Munsiff (presently Civil Judge), Hojai Sankardev
Nagar. Pursuant to the death of Sanjit Malakar, he was substituted by one
Champa Malakar as his legal heir. The learned counsel for the petitioner
submitted that as the respondent No. 11-Sippo Malakar had filed a suit seeking
declaration that she was the legally wedded wife of late Sanjit Malakar, then the
claim of the respondent No. 11-Sippo Malakar that she is the legally wedded
wife of late Sanjit Malakar is an issue which required declaration by Civil Court in
Page No.# 16/51
the suit instituted by Smti Sippo Malakar herself. It was submitted that the very
fact that she had approached the Civil Court seeking a declaration goes to show
that she was not the legally wedded wife of Sanjit Malakar. The learned counsel
for the petitioner urged that the communication dated 11.09.2015 issued by the
Railway Authorities whereby the petitioner was held to be the legally wedded
wife and entitled for payment of funeral assistance, family pension, GIS, Leave
Salary, DCRG as well as compassionate ground appointment as per Pension
Manual Rules, has been issued by the Railway Authorities after thorough enquiry
on the basis of the available records. Once the authorities have rendered this
finding on the basis of a proper fact finding enquiry, the CAT, Guwahati ought
not to have interfered with the said findings and taken a contrary view to hold
that the respondent No. 11-Sippo Malakar and not the petitioner was the legally
wedded wife of late Sanjit Malakar. As such, the impugned order dated
21.02.2017 passed by the CAT Guwahati was rendered on wrong appreciation of
the records available with the Railway Authorities and as material facts were
suppressed by the respondent No. 11 as the applicant, the same should be
declared as non est in law and should be accordingly, interfered with, set aside
and quashed and the communication dated 11.09.2015 be sustained and
declared to be correct.
Page No.# 17/51
9. The learned counsel for the petitioner contended that reliance placed by
the CAT, Guwahati on the evidences adduced in maintenance case filed by the
petitioner in MR Case No. 70/2012 decided by the Court of SDJM, Hojai, cannot
be the sole basis for the Tribunal to arrive at a finding that the respondent No.
11 is the legally wedded wife of late Sanjit Malakar and not the petitioner
inasmuch as the said proceedings were initiated by the present petitioner
against her late husband under Section 125 Cr.P.C. seeking maintenance. The
findings arrived at by the CAT, Guwahati was on the basis of a fraction of the
evidences adduced in the maintenance case filed by the petitioner in W.P(C) No.
5189/2017. The conclusions arrived at by CAT, Guwahati that the respondent
No. 11 was the legally wedded wife of Late Sanjit Malakar and not the present
petitioner and thereby proceeding to interfere with the order dated 11.09.2015
passed by the Railway Authorities, is contrary to the procedure prescribed in
law. The order dated 11.09.2015 which the proceedings before the CAT,
Guwahati initiated by the respondent No. 11 and the proceedings before the
Court of SDJM, Hojai in MR Case No. 70/2012 initiated by the present petitioner
were separate and independent proceedings. Accordingly, the evidences
adduced before the Court of SDJM, Hojai to decide whether maintenance was
required to be paid by late Sanjit Malakar to the present petitioner could not
have been used or relied upon by the CAT, Guwahati so as to arrive at a finding
Page No.# 18/51
that the order dated 11.09.2015 passed by the Railway Authorities was contrary
to records or evidence adduced before the Court of SDJM, Hojai. The said
impugned order dated 11.09.2015 passed by the Railway Authorities was never
under consideration before the Court of SDJM, Hojai or at any point in time
earlier till being assailed by the respondent No. 11 before the Tribunal. The
Tribunal had no reliable material before it save and except the inadmissible
evidences which were adduced before the Court of SDJM, Hojai in MR Case No.
70/2012 so as to record that the order dated 11.09.2015 passed by the Railway
Authorities was contrary to provisions of law.
10. The learned counsel for the petitioner submits that the late Sanjit Malakar
had submitted his family declaration and nomination during the period 2001-
2007 whereby her name was nominated as the legally wedded wife of late
Sanjit Malakar. On these submissions, it was urged that the order passed by the
CAT, GUwahati is unsustainable in the eyes of law.
11. Mr. P. Mahanta, learned counsel for the respondent No. 11 disputes the
contentions of the learned counsel for the petitioner and urged that the CAT,
Guwahati had correctly decided the issue and arrived at a just conclusion that
the respondent No. 11-Sippo Malakar is the legally wedded wife of late Sanjit
Page No.# 19/51
Malakar and not the petitioner. Therefore, the order dated 11.09.2015 ought
not to be interfered with. On the contrary, the writ petition should be dismissed
as being devoid of any merit.
12. The learned counsel for the respondent No. 11 urged that the respondent
No. 11 was the first wife of late Sanjit Malakar and they had contracted
marriage by way of a Deed of Marriage agreement executed on 27.11.1997
between the two of them. That apart, they had applied for and had been
granted a certificate of marriage under Section 16 of the Special Marriage Act,
1954 which was dated 08.02.2010. Referring to page 71 of the writ petition, the
learned counsel for the respondent No. 11 contended that in the said certificate,
it is clearly mentioned that late Sanjit Malakar and respondent 11-Sippo Malakar
had been married on 27.11.1997 and they had been living together as husband
and wife and that this marriage certificate had been applied for by both parties
and that the certificate had been issued on 08.02.2010 which will have effect
from the said day onwards. The learned counsel for the respondent No. 11 has
also referred to the order dated 17.05.2012 passed by the Court of SDJM, Hojai
at Sankardev Nagar in M.R. Case No. 53/2010 and contends that a maintenance
case was also filed by the respondent No. 11 against late Sanjit Malakar
claiming maintenance. However, subsequently, the parties had amicably settled
Page No.# 20/51
the matter and the case was disposed of on compromise. It is submitted that by
order dated 17.05.2012 while disposing of the maintenance case on
compromise, the learned Court of SDJM, Hojai recorded a finding that the first
party, namely Sippo Khan @ Sippo Malakar and the second party-Sanjit Malakar
had filed a joint petition supported by an affidavit stating therein they have
already amicably settled the matter and now they are living as husband and
wife peacefully. On such submissions, the maintenance case was disposed of.
13. The learned counsel for the respondent No. 11 also referred to a copy of
the particulars of the passbook of a bank account opened jointly by late Sanjit
Malakar and Sippo Malakar to the contend that they were husband and wife. It
was submitted by the learned counsel for the respondents that a child was born
out of the wedlock of late Sanjit Malakar and respondent 11-Sippo Malakar.
Attention was drawn to page-81 of the paper book, being a birth certificate
issued on 13.09.2013 to certify that a girl child namely Champa Malakar was
born on 20.01.1999 and the name of her parents as shown in the certificate are
that of Sanjit Malakar and Sippo Malakar respectively. The learned counsel for
the respondent urged that pursuant to the death of Sanjit Malakar, she had
applied to the Railway Authorities seeking service benefits as the legally married
Page No.# 21/51
wife and nominee of late Sanjit Malakar. It is submitted that Sanjit Malakar had
submitted details of the family members and particulars of nomination before
the Railway Authorities wherein name of the respondent No. 11-Sippo Malakar
was shown as the wife of late Sanjit Malakar. However, Railway Authorities did
not take appropriate steps to incorporate the same at the relevant point in time
because of which late Sanjit Malakar, during his lifetime by the letter dated
25.03.2014 issued a reminder letter for the declaration of family members in the
service record. In the said reminder, it was clearly mentioned that late Sanjit
Malakar's wife was Sippo Malakar and daughter was Champa Malakar. It was
further submitted by the learned counsel for the respondent No. 11 that a
photocopy of the extract of the particulars pertaining to the nomination and
details of family members is available with the respondent No. 11 and the same
is enclosed to the paper book at Page 86A and a typed copy of the same is at
Page-86. Referring to the said document, learned counsel for the respondent
No. 11 submitted that as on 27.04.2012, the name of the respondent No. 11
had been incorporated as the wife of late Sanjit Malakar, which however was
never communicated to her or to late Sanjit Malakar. She had even approached
the Competent Civil Court for such a declaration by filing a Title Suit. However,
because of the expiry of her husband late Sanjit Malakar, the suit was abated. It
is submitted that since the suit had abated due to the expiry of the defendant
Page No.# 22/51
namely her husband Late Sanjit Malakar and as no finding was arrived at by the
competent Court, the respondent No. 11 was of the view that it was not a
relevant/ a material fact which was required to be brought before the Court. The
learned counsel for the respondent No. 11 contended that it is only those facts
which will have a material bearing in the outcome of a proceeding which can be
considered to be material facts for that proceeding. The learned counsel for the
respondent No. 11 argued that since the suit was abated and no finding was
rendered by the Civil Court, the said proceedings were not at all relevant for the
purposes of the issues raised before CAT Guwahati. Therefore, it cannot be said
that there was suppression of any relevant or material facts in so far as the
proceedings before CAT Guwahati were concerned.
14. The learned counsel for the respondent No. 11 relied on the following
Judgments in support of his contentions:
(i) Smt. Violet Issaac and Ors. Vs. Union of India and Ors., reported in (1991)
1 SCC 725 (Family pension to devolve as per family pension Rules (Para-4, 5, 6
and 7)
(ii) Rameshwari Devi Vs. State of Bihar and Ors., reported in (2000) 2 SCC 431
(Pension cannot wait till a pronouncement by a civil Court. Authorities can
decide entitlement inter-se two wives (Para 12 and 13)
(iii) Yamunabai Anantrao Adhav Vs. Anantra Shivram Adhav, reported in (1988)
1 SCC 530 (Void marriages void ipso jure from the very inception. Not essential
to obtain advance declaration from a Court (Para 3)}
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(iv) MCD Vs State of Delhi, reported in (2005) 4 SCC 605 (Suppression of
material facts. Facts suppressed shall be in order to gain advantage on the
other side (Para-2)
15. In rejoinder, the learned counsel for the petitioner in W.P.(C) No.
5189/2017 submits that the deed of marriage agreement stated to have been
executed on 27.11.1997 is no document in the eye of law having any legal
sanctity and therefore, the same cannot be relied upon for any useful purpose
before any Court of law. The learned counsel for the petitioner submits that the
deed of agreement executed by and between the respondent No. 11 and Late
Sanjit Malakar before the Sub-Divisional Magistrate, Karbi Anglong, Diphu does
not have any evidentiary value for the purposes of being used in support of the
claims made by respondent No. 11. In so far as the certificate of marriage
issued under Special Marriage Act, 1954 is concerned, learned counsel for the
petitioner-Purnima Malakar, submits that a perusal of the same reveals that the
certificate of marriage specifies that the marriage between late Sanjit Malakar
and respondent No. 11-Sippo Malakar was stated to have been performed on
27.11.1997 "according to Hindu Rites". The learned counsel for the petitioner
submits that Special Marriage Act, 1954 is a beneficial legislation in order to
enable people belonging to different communities to enter into marriage. It is
submitted by the learned counsel for the petitioner that as per Section 7 of the
Page No.# 24/51
Hindu Marriage Act, 1955 a Hindu Marriage is considered to have been
performed only upon completion of the 'Saptapadi'. It is submitted that during
the proceedings before the CAT Guwahati as well as in the present proceedings,
no evidence was brought before the Court by the learned counsel for the
respondent No. 11 to suggest that such ' Saptapadi' as mandated under the
Hindu Marriage Act, 1955 has been performed by late Sanjit Malakar and Sippo
Malakar during their marriage. As such, it is submitted that unless the provisions
of Hindu Marriage Act, 1955 are scrupulously shown to have been followed, no
marriage can be said to have been performed under the Hindu Marriage Act,
1955 between any parties. That apart, there is no dispute that Sippo Malakar is
a person who is not a Hindu by religion and therefore, as per the provisions of
Hindu Marriage Act, it can only be performed between two persons who profess
the same faith namely the faith of Hinduism. It is in order to overcome these
circumstances that the legislature has come out with the legislation of Special
Marriage Act, 1954 which permits marriages to be performed between parties
belonging to different faith and different communities. The learned counsel for
the petitioner submits that since the Special Marriage Act certificate dated
08.02.2010 mentions that the marriage was conducted between the parties as
per Hindu Rites, the same is not a reliable document in support of the marriage
stated to have performed between respondent No. 11 and Late Sanjit Malakar
Page No.# 25/51
as the same certifies conduct of marriage which on the face of it appears to be
contrary to the provisions of Hindu Marriage Act itself. The learned counsel for
the petitioner submits that in view of all the submissions made, the writ petition
be allowed and the impugned order dated 11.09.2015 passed by the Tribunal,
Guwahati be interfered with, set aside and quashed and the order dated
11.09.2015 passed by the railway authorities granting pensionary benefits to the
petitioner be sustained and upheld.
16. The learned counsel for the railways submitted that as per the records of
the railways and as per the service records of late Sanjit Malakar maintained by
the railways, name of Purnima Malakar was included as the wife of late Sanjit
Malakar. The learned counsel for the railways submitted that the application
referred to by the learned counsel for respondent No. 11 which was claimed to
have been filed for cancellation of earlier nomination and requesting for
nominating the name of Sippo Malakar and Champa Malakar as the wife and the
daughter respectively of late Sanjit Malakar, is not available in the records of the
railway Authorities. There is further no record available pertaining to late Sanjit
Malakar to suggest that there was any request made for cancellation of
nomination in favour of Purnima Malakar and/or change of nomination in favour
of Sippo Malakar. The respondent No. 11-Sippo Malakar, after the expiry of the
Page No.# 26/51
Sanjit Malakar, filed an application claiming funeral benefits as well as family
pension benefits. Similar application was also filed by Purnima Malakar. The
railway authorities had undertaken an elaborate enquiry and exercise into the
matter and thereafter, had come to the conclusion that the marriage of Sippo
Malakar as per the marriage certificate was valid with effect from 08.02.2010
only whereas the date of marriage of Purnima Malakar wife of Sanjit Malakar as
per the records available is shown as 01.10.1999. Accordingly, the railway
authorities had accepted Purnima Malakar namely the petitioner as the first
wife. As per the service rules of railways, in so far as any second marriage is
concerned, prior permission is required to be obtained by the concerned
employee from the competent railway authorities. From the records available
with the railways, no prior permission was found to have been applied for by
late Sanjit Malakar and granted by the Railway Authorities prior to the marriage
with respondent No.11-Sippo Malakar. Under such circumstances, the marriage
of late Sanjit Malakar with Sippo Malakar was treated to be his second marriage
and the second marriage having found to be contrary to the provisions of the
Service Rules, the railway authorities declined to accept the claims of
respondent No. 11-Sippo Malakar. The pensionary benefits were therefore
granted to the petitioner in W.P(C) No. 5189/2017 namely Purnima Malakar.
Since this order was issued after the detailed enquiry and only on the basis of
Page No.# 27/51
relevant documents available as per records and in consonance with the Service
Rules, the findings of the Tribunal by the impugned order interfering with the
order dated 11.09.2015 issued by the Railway Authorities, is contrary to the
records as well as the provisions of the Rules and therefore, the same cannot be
sustained and needs to be interfered with and set aside and quashed.
17. The learned counsel for the railways submits that in W.P(C) No.
5189/2017, the railways are arrayed as respondents No. 1 to 10. The railways
have also preferred a separate writ petition being W.P.(C) No. 3400/2017 where
Sippo Malakar is the respondent and Purnima Malakar is the proforma
respondent. The learned counsel for the railways submits that the submissions
made by him are in respect of both the writ petitions.
18. The learned counsel for the Railways has relied upon the Judgment of the
Apex Court in Khursheed Ahmed Khan Vs. State of Uttar Pradesh and Ors,
reported in (2015) 8 SCC 439 to contend that where the Rules prescribe prior
permission is required to be obtained before entering into a second marriage
and where no such prior permission was obtained by an employee, it can be
considered to be a misconduct if the Rules so prescribe. The learned counsel for
Page No.# 28/51
the railways has also referred to the Judgment of the Apex Court in Rameshwari
Devi (Supra) to submit that the parties can always approach the Civil Court for
determination regarding the entitlement of the claims made by the rival parties.
So far as the railways are concerned, no such order of any Civil Court has been
furnished before the Railway Authorities to support the claim of the respondent
No. 11 that she has been declared to be the legally wedded wife of late Sanjit
Malakar by any competent Civil Court. Accordingly the findings arrived at by the
Tribunal interfering with the order dated 11.09.2015 of the Railway Authorities
declaring Purnima Malakar to be the lawfully wedded wife of late Sanjit Malakar
and the beneficiary of family pension and other retiral benefits is grossly
improper and not based on records. The impugned order dated 11.09.2015
passed by CAT, Guwahati, is therefore, required to be interfered with set aside
and quashed.
19. The learned counsels for the parties have been heard. Pleadings on record
have been carefully perused.
20. It is seen that the Railway Authorities upon receipt of application both
from the petitioner as well as the respondent No. 11 undertook an enquiry in
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the department. The findings of the said enquiry which is available in the paper
book are extracted as under:
"Sri Sanjit Malakar was appointed in Railway service w.e.f.
31.12.1995 as SFLA. While going through the service record, it is
seen that he submitted his family declaration and nomination during
the period 2001 to 2007 in his lifetime. It is pertinent to mention
herein that these declaration and nominations were duly forwarded
by his office H&MI/LMG, From the Family declaration it is observed
that Sri Sanjit Malakar declared Smt. Purnima Malakar as his legal
wife to whom he legally married on 01.10.1999.
In the year 2014, Sri Sanjit Malakar again submitted his family
declaration, whereby the name of Sippo Khan alias Sippo Malakar
and her daughter Champa Malakar were mentioned but he did not
nominate Smt. Sippo Malakar by giving notice for cancellation his
previous nomination and declaration against Smt. Purnima Malakar."
21. From the detailed enquiry undertaken by the Railway Authorities, it was
revealed from the records available with the Railways in respect of Late Sanjit
Malakar, that in the nomination filed by Sri Sanjit Malakar, the name of the
petitioner Purnima Malakar was incorporated as the wife. The subsequent
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application stated to have been filed by late Sanjit Malakar vide letter dated
25.03.2014 requesting for including the names of Sippo Malakar and Champa
Malakar as his wife and daughter respectively is stated to be not available in the
records of the railways. Consequently, the railways have not admitted that such
a document was ever filed by late Sanjit Malakar and received by the railways.
22. That apart, during the course of the hearing, it transpires that respondent
No. 11 had approached the competent Civil Court by filing a title suit seeking a
declaration that she is the legally wedded wife of the defendant therein namely
Sanjit Malakar. The title suit was numbered as TS No. 94/2014 before the Court
of learned Munsiff, Hojai. The defendant Sanjit Malakar filed a written statement
admitting to the claims made by the plaintiff Sippo Malakar. However, as
submitted by the learned counsel for the respondent No. 11 because of the
demise of Sanjit Malakar, the suit was abandoned and presently the counsel is
not posted with instructions as to the status of the said suit.
23. The impugned order passed by the Tribunal has been carefully perused
and it is seen that the Tribunal had extensively relied upon the findings of the
Court of SDJM, Hojai in its Judgment dated 16.12.2013 in MR Case No.
Page No.# 31/51
70/2012. From perusal of the Judgment dated 16.12.2013 passed by the Court
of SDJM, Hojai in MR 70/2013, it is seen that the same was a proceeding for
grant of maintenance under Section 125 CrPC. The petitioner before that Court
is the present petitioner in W.P(C) No. 5189/2017 namely Purnima Malakar, who
had filed the said case seeking maintenance from her late husband Sanjit
Malakar as he then was. The points for determination that had been framed by
the Court of SDJM, Hojai in the proceedings are as under:
"(1) Whether the petitioner is the legally married wife of the O.P?
(2) Whether the petitioner and the minor children are entitled to
monthly maintenance from the O.P.?"
24. In so far as the first point is concerned, namely, " whether the petitioner is
the legally married wife of the O.P", the Court of SDJM, Hojai on the evidences
adduced before the Court as well as judgments referred to at the bar, held that
the petitioner namely Purnima Malakar is the legally married wife of Sanjit
Malakar and the petitioner prima facie succeeded in satisfying the court that she
and the OP namely Sanjit Malakar lived as husband and wife after their
marriage. The said point accordingly was answered in affirmative in favour of
the petitioner namely Purnima Malakar and against the OP namely Sanjit
Page No.# 32/51
Malakar.
25. In so as the point No. 2 is concerned, namely " whether the petitioner and
the minor children are entitled to monthly maintenance from the O.P", the Court
of SDJM, Hojai after taking into account the entire evidences adduced, held that
the petitioner namely Purnima Malakar was entitled to maintenance of Rs.
2000/- (Rupees Two Thousand Only) and their Children were entitled to
maintenance of Rs. 1000/- (Rupees One Thousand Only) each and to be paid by
the Opposite Party namely Sanjit Malakar. The said point for determination No. 2
accordingly was also decided in favour of the petitioner and against the opposite
party. It is trite to mention here that in the evidences adduced before the Court
of SDJM, Hojai, it was revealed that the opposite party Sanjit Malakar was in
relationship with another woman namely Sippo Malakar who is respondent No.
11 herein. It was held by the Court of SDJM, Hojai that from the deposition of
the PW1 namely Purnima Malakar, it is evident that there was a relationship
between the Second party, namely Sanjit Malakar and another woman. The
Court of SDJM, Hojai held that the said deposition of PW1 remained
"uncontroverted in material particulars". The Court of SDJM, Hojai held that the
second party namely Sanjit Malakar had failed to discharge the onus of proof by
leading any cogent evidence. In the face of such evidences adduced, the Court
Page No.# 33/51
of SDJM, Hojai answered both the points of determination in favour of the
petitioner namely Purnima Malakar and against opposite party- Sanjit Malakar.
Accordingly, the maintenance of Rs. 2000/-(Rupees Two Thousand Only) to the
petitioner and Rs. 1000/- (Rupees One Thousand only) each to the three minor
children were directed to be granted by the Court of SDJM, Hojai. A cost of Rs.
1000/- was also directed to be paid to the petitioner namely Purnima Malakar.
26. There was no point/question of determination raised before the Court of
SDJM, Hojai as to, between Purnima Malakar and Sippo Malakar, namely the
petitioner and respondent No 11 herein, who was the first wife or the legally
wedded wife. Consequently, there was no occasion for the Court of SDJM, Hojai
to render any finding on the aspect of determination as to who between the
petitioner and the respondent No. 11 was the first wife of late Sanjit Malakar.
While determining the second point namely the issue regarding entitlement of
maintenance, the Court of SDJM, Hojai on the basis of the evidences adduced
had accepted the marriages of both the petitioner as well as the respondent No.
11. It is also seen that at Para 41 in the said Judgment, the term "first" was
used before the word "wife" to refer to respondent No. 11, namely Sippo
Malakar. The said Judgment of the Court of SDJM, Hojai was assailed by Sanjit
Malakar before the Court of Addl. District and Session Judge, Sankardev Nagar
Page No.# 34/51
in Cr. Rev No. 13/2014. The Court of Addl. District and Sessions Judge vide the
Judgment delivered on 25.08.2014 dismissed the petition and declined to
interfere with findings of the Court of SDJM, Hojai. The order of the Addl.
District and Sessions Judge, Hojai was assailed before the High Court by way of
Criminal Petition No. 805/2014. However by order dated 25.05.2015 the said
Criminal Petition was closed upon the expiry of the petitioner namely Sanjit
Malakar.
27. In the opinion of this Court, the same cannot be accepted to be a judicial
finding arrived at on the basis of evidences adduced in that regard. In the
preceding paragraphs of the said Judgment while appreciating the evidence, the
Court of SDJM, Hojai had clearly held that on the basis of the evidences
adduced before the Court, a marriage certificate issued under Section 13 of the
Special Marriage Act, 1954 in support of the claim of first marriage of the
Second Party namely, Sanjit Malakar with Sippo Malakar is not sufficient to
render complete and effective decision with regard to the maritial status of the
parties and that to in a collateral proceeding. The Court of SDJM, Hojai relied
upon the Judgment of the Apex court in Deoki Panjhiyara Vs. Shashi Bhushan
Narayan Azad & Another, reported in (2013) 2 SCC 137. The Court of SDJM,
Hojai held that there was no disclosure by the opposite party namely Sanjit
Page No.# 35/51
Malakar regarding the marriage of Sanjit Malakar between Sippo Malakar. The
evidence adduced by Sippo Malakar and her sister as D.W-2 and D.W.-3 was
found to be not reliable and trustworthy. Consequently, the Court of SDJM, Hojai
doubted the claim of first marriage of the Opposite Party- Sanjit Malakar with
Sippo Malakar and/or Margina Begum @ Sippo Malakar. The relevant Paragraphs
of the Judgment rendered by the Court of SDJM, Hojai is extracted below:
"(23) On the contrary, the D.W.-1's evidence discloses that he is already
married with one Shipu Malakar. D.W. 2 Shipu Malakar herself corroborated
the said fact and also added that she was earlier known as Marjina Begum.
But D.W.3, who is the sister of D.W.2, deposed that his sister's name is Shipu
Khan and not Marjina Begum. Hence, I find the evidence of D.W.2 and D.W.3
not reliable and trustworthy.
(24) The P.W.s have categorically corroborated each other as regards to
marriage between Sanjit Malakar with Purnima Malakar. Contrarily, the
evidence of D.W.s are not in a chord of corroboration as regards to the
marriage between Shipu Malakar and Sanjit Malakar. Because D.W.2 herself
never revealed that her earlier name was Shipu Khan. The Exhibit A3
marriage certificate reveals the name of the bride as Shippu Khan @ Shipu
Malakar. Hence, it can be inferred that Sippu Khan @ Shipu Malakar and
Marjina Begum @ Shipu Malakar are not the one and same person. Moreover,
the O.P. in his written statement had vever divulged his wife's name though
he all along contended that he was already married. Moreover, Sanjit Malakar
as D.W.1 das never disclosed, during his evidence, that Shipu Malakar was
earlier known by Shipu Khan. What prevented the D.W.1 from disclosing the
said fact during his evidence is nothing but suppression of truth. Thus, a
doubt creeps in as regards to the first marriage of Sanjit Malakar with Shipu
Khan @ Shipu Malakar and/or Marjina Begum @ Shipu Malakar.
Page No.# 36/51
(28) The documentary as well as the oral evidence of D.Ws do not , in any
way show that the O.P has been able to establish his first marriage with
either (D.W.2) Marjina Begum @ Shipu Malakar or Shipu Khan @ Shipu
Malakar. The O.P. cannot dispense with the proof of subsisting valid first
marriage in light of the decision of the Hon'ble Supreme Court in Vimala's
case (supra).
(29) Mere production of Exhibit A3 a marriage certificate issued under
Section 13 of the Special Marriage Act, 1954 in support of the claimed first
marriage of the O.P. with one Shipu Malakar is not sufficient to render a
complete and effective decision with regard to the marital status of the
parties and that too, in a collateral proceeding for maintenance. (relied on
(2013) 2 SCC 137 Deoki Panjhiyara vs. Shashi Bhushan Narayan Azan &
Another).
(30) Situated thus, it is revealed from the testimonies of the witnesses of
both the parties that the balance of evidence of petitioner far outweighs the
evidence of O.P. The latter has only denied the marriage with the petitioner,
But the P.W.s have clearly shown that there was a marriage between the
petitioner and the 0.P, out of which, three children were born. The fact of no-
marriage between the petitioner and the O.P. as stated by the D.W.s is
further nullified by the fact that the 0.P., for the . said no-marriage with
petitioner, has never filed any declaration suit against the petitioner The OP,
ought, to have obtained the necessary declaration from the competent Court
in view of the highly contentious question raised by him on the aforesaid
score. This goes on to show that there was a marriage between the
petitioner and the O.P. but the latter is trying to deny the said marriage for
reasons best known to him only.
(31) Exposit, it is that the O.P., in all probability, lived and co-habited with
the petitioner by suppressing his first marriage to the petitioner, thereby, the
O.P gave a false representation to the petitioner that he was single. In these
circumstances, can the O.P, be allowed to take advantage of his own wrong
Page No.# 37/51
and turn around to say that the petitioner is not entitled to maintenance u/s
125 Cr.P.C as she is not the legally married wife'? (32) The answer is in
negative. It has come to light from the written-statement that the O.P.,
though already married, has been living With the petitioner with due consent
and also co-habited with her but also claimed that they are not husband and
wife and that she is not his wife according to law. However, a presumption
arises that when the O.P. himself co-habited with the petitioner for a
considerable period of time and out of such cohabitation, even without a
valid marriage, three children were begotten, then, the term of valid
marriage entitling such a woman to maintenance should be drawn and a
woman in such a case should be entitled to maintain application under
Section 125 Cr.P.C. I am fortified by a decision of our Hon'ble Supreme Court
as reported in (2011) 1 SCC 141 Chanmuniya us. Virendra Kumar Singh
Kushwaha and Another wherein it was held that the term "wife" occurring in
Section 125 Cr.P.C. is to be" given very wide interpretation. This is so stated
in the following manner:
"A broad and expansive interpretation should be given to the term
"wife" to include' even those cases where a man and woman have
been living together as husband and wife for reasonably long period
of time, and strict proof of marriage should not be pre-condition for
maintenance under Section 125 of the Code of Criminal Procedure so
as to fulfil the true spirit and essence of the beneficial provision of
maintenance under Section 125 Cr.P.C."
(33) As far as the submission of learned counsel for the O.P is
concerned as regards to fact that there was no valid marriage between
petitioner and OP as there was no ritual followed by the parties at the time of
marriage as per Hindu Law, the law is no longer res integra in view of a
decision of Hon'ble Supreme Court as reported (1999) 7 SCC 675 Dwarika
Prasad Satpathy vs. Bidyut Prava Dixit & Another wherein it has been held at
para no. 13 that-
Page No.# 38/51
"13 Hence, in our view from the evidence which is led if the Magistrate is
prima facie satisfied with regard to the performance of marriage in
proceedings under Section 125 Cr.P.C. which are of summary nature, strict
proof of performance of essential rites is not required. Either of the parties
aggrieved by the order of maintenance under Section 125 Cr.P.C. can
approach the civil Court for declaration of status as the order passed under
Section 125 does not finally determine the rights and obligations of the
parties."
(34) For all the foregoing discussion, it is highly probable that there was
marriage between Purnima Malakar and Sanjit Malakar, though, it was may
be, during the subsistence of the first marriage of Sanjit Malakar. Prima facie,
it appears from the evidence-on-record that the petitioner and the O.P., after
their marriage, lived as husband and wife out of which wedlock, three
children were born to them.
(35) Situated thus, it can be inferred from the presents facts and
circumstances of the case that the petitioner is the legally married wife of the
O.P. and the petitioner, prima facie, succeeded to satisfy this Court that she
and the O.P. lived as husband and wife after their marriage.
(37) In this case, the petitioner has shown, while deposing as P.W.1 that she
found her husband/O.P in a compromising position with another woman and
for which reason, later, she left the O.P's house and took shelter at her
mother's house. P.W.3 corroborated the testimony of P.W.1 in this regard. On
the other hand, D.W.1's evidence reveals that he is already married with one
Shipu Malakar. D.W.2 and D.W.3 corroborated it but the D.W.s are not in
chord of corroboration for the rationale set out in paragraph 23 hereinabove
mentioned,
(38) Section 125(4) Cr.P.C clearly enjoys upon a wife that she shall not be
entitled to receive any allowance for the maintenance from her husband if
she is living in adultery, or if she refuses to live with her husband without any
Page No.# 39/51
sufficient reason or if they are living separately by mutual consent. The
burden lies on 1st party to prove her case. It appears the P.W.1 clearly
deposed about the relationship of O.P. with another woman. The cross-
examination of P.W.1 too, has remained uncontroverted in material
particulars. Now the onus shifts on 2nd party in the facts of the case to prove
that it was not so. But it appears that the 2 nd party failed to shift the onus
back to the 1st party in this regard by leading any cogent evidence.
(41) The OP's evidence reveals that he has to maintain his (first) wife and his
daughter Thus, it is to be understood that out of the monthly salary of the
O.P., he has to maintain himself, his (first) wife, daughter as well as the
petitioner and his three children. In ordinary course, the parents are also
legally entitled to get maintenance; and the wives (and the minor children)
are also equally entitled to a, share of the income of their husband as
maintenance. But since the OP stays with his (first) wife, thus it is apparent
that the OP and his (first) wife reside together in the same mess, Needless to
add, as Purnima Malakar (petitioner) and the three minor children live with
the petitioner, she and the said three children ought to be given a bit higher
share towards their maintenance.
(42) Thus, taking into account the status of the parties and the income of the
2nd party as well as the fact that the petitioner is an adult female as such and
considering the standard of living and the status enjoyed in the society. I
recon, Rs. 2000/- per month should suffice as monthly maintenance for the
petitioner and Rs. 1000/- each to the three minor children, which is neither
sumptuous nor impecunious, in the facts and circumstances of the case.
(43) This point is decided in the affirmative and against the O.P.
ORDER
(44) In view of the above discussions and the decision so reached in the
Point Nos. 1 and 2, it is ordered that the O.P. do pay monthly maintenance of
Page No.# 40/51
Rs. 2000/- (Rupees Two Thousand Only) to the petitioner and Rs. 1000/-
(Rupees One Thousand Only) each to the three minor children.
(45) The maintenance is made effective from the date of this order and is to
be paid within the first seven days of each succeeding English calendar
month. The minor daughter Priti Malakar is entitled to such monthly
maintenance till her marriage. The two minor sons Ruhit Malakar and Angad
Malakar are entitled to such monthly maintenance till they attain the age of
majority.
(46) The O.P. is also directed to pay Rs. 1000/- as costs to the petitioner u/s
126(3) Cr.P.C."
28. The said Judgment of the Court of SDJM, Hojai was assailed by Sanjit
Malakar before the Court of Addl. District and Session Judge, Sankardev Nagar
in Crl. Revision No. 13/2014. The Court of Addl. District and Sessions Judge vide
the Judgment delivered on 25.08.2014 dismissed the petition and declined to
interfere with findings of the Court of SDJM, Hojai. The order of the Addl.
District and Sessions Judge, Hojai was assailed before the High Court by way of
Criminal Petition No. 805/2014. However, by order dated 25.05.2015, the said
Criminal Petition was closed upon expiry of the petitioner namely, Sanjit Malakar.
29. Consequently, the findings of the Court of SDJM, Hojai in favour of the
petitioner namely Purnima Malakar remained and was not interfered with by any
superior court. From the findings of the Court of SDJM, Hojai, it is evident that
Page No.# 41/51
Purnima Malakar was the held to be entitled to maintenance as wife of late
Sanjit Malakar and that she and their children was directed to be paid
maintenance by Sanjit Malakar. However, as discussed above, the question as to
whether Sippo Malakar was married to Sanjit Malakar or if married whether she
was the first wife of Sanjit Malakar was not conclusively determined by the
Court of SDJM, Hojai as the same was not a question for determination before
the said Court.
30. The Tribunal in the impugned order has extensively relied upon the
evidences adduced before the Court of SDJM, Hojai. The Tribunal referred to the
evidences adduced before the court of SDJM, Hojai. It was held that in the
evidence adduced by late Sanjit Malakar, there was a denial of marriage with
the petitioner Purnima Malakar. The Tribunal relied extensively upon Paragraphs
No. 33, 34 and 41 more particularly on Paragraph-34 of the Judgment of the
Court of SDJM, Hojai. It is also seen that the Tribunal had relied upon the
marriage certificate issued under Special Marriage Act, 1954 and has interpreted
the said certificate to conclusively come to a finding that the marriage between
late Sanjit Malakar and Sippo Malakar was solemnized on 27.11.1997 as is
reflected in the said certificate. The said date is on the basis of a deed of
marriage agreement executed by and between late Sanjit Malakar and Sippo
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Malakar on 27.11.1997. The Tribunal upon perusal of the said deed of
agreement as well as the certificate came to the conclusion that on the date of
marriage as both parties were adults, the said statements made in the
agreement has to be accepted to be correct. Furthermore, the tribunal accepted
the arguments of the respondent No. 11 that the date of birth of petitioner was
shown as 09.08.1985 and that if she was married to late Sanjit Malakar on
01.10.1999 then the age of Purnima Malakar would be about 14 years 1 month
22 days.
31. The Tribunal relied particularly on the findings of the Court of SDJM, Hojai
in Paragraph-34 of the said Judgment that the marriage between the petitioner
Purnima Malakar and late Sanjit Malakar prima facie appears to be correct even
though it may have been during the "subsistence of the first marriage" of Sanjit
Malakar. That apart, the Tribunal also referred to the order dated 17.05.2012
passed in M.R. Case No. 53/2010 which was a maintenance case filed by the
respondent No. 11-Sippo Malakar as the applicant against late Sanjit Malakar. By
the said order, the Court of SDJM, Hojai in M.R Case No. 53/2010 disposed of
the case on compromise wherein the parties declared themselves to be living as
husband and wife. The Tribunal relying on such findings of the Court of SDJM,
Hojai and also considering the fact that on the date of marriage, the petitioner-
Purnima Malakar was about 14 years 1 month and 22 days old, came to the
Page No.# 43/51
conclusion that late Sanjit Malakar had married with Sippo Malakar prior to the
marriage with Purnima Malakar and their daughter-Champa Malakar was born
on 20.01.1999 i.e. before the marriage with Purnima Malakar. The Tribunal
accordingly came to the conclusion that the Railway Authorities have committed
an error in declaring Purnima Malakar as the first wife as it is against the
observation made in Paragraph-34 by the Court of SDJM, Hojai in the order of
maintenance dated 16.12.2013. The Tribunal concluded that the agreement
dated 27.11.1997, Marriage Certificate dated 08.02.2010 and the Birth
Certificate of Champa Malakar dated 13.09.2013 are sufficient to come to the
conclusion that respondent No. 11- Smt. Sippo Malakar is the first wife of late
Sanjit Malakar and accordingly, all pensionary dues and consequential benefits
were directed to be paid to the applicant, namely, Sippo Malakar. The Tribunal
held that the children of both the wives even if they are considered to be
illegitimate will have their share of dues payable to the dependents of the
deceased under the relevant Rules till they attain their age of majority. The
railway authorities were accordingly directed to make payment to the applicant
namely Sippo Malakar of all dues to the dependent of the deceased employee
late Sanjit Malakar within a period of three months.
32. Upon careful perusal of the Judgment dated 16.12.2013 of the Court of
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SDJM, Hojai it cannot be said that the conclusions arrived at by CAT, Guwahati,
relying on the evidences adduced before the Court of SDJM, Hojai in a
proceeding under Section 125 Cr.PC for maintenance, are correct to return a
finding that the respondent No. 11 is the first wife and not the petitioner. Such
finding arrived at by the CAT Guwahati is bereft of required evidences and quite
contrary to the provisions of law of evidence. The Tribunal under the provisions
of Central Administrative Tribunal Act and Rules is not empowered to entertain
and consequently render any findings in family matters. It is a Civil Court alone
which can give a declaration to that effect. Even the order dated 17.05.2012
passed in M.R. Case No. 53/2010 by the Court of SDJM, Hojai disposing of the
maintenance case filed by the respondent No. 11 as an applicant cannot be
accepted to have declared a finding the Respondent No. 11 was the first wife of
Sanjit Malakar. The references made to respondent No. 11 and Sanjit Malakar as
husband and wife, in the said order, is on the basis of the joint petition
supported by an affidavit filed by both Respondent No. 11-Sippo Malakar and
Sanjit Malakar.
33. The core issue which confronts this Court is whether the CAT Guwahati on
the basis of evidences adduced before the Court of SDJM, Hojai in a proceeding
initiated under Section 125 Cr.P.C on the two questions of determination namely
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1) Whether the petitioner is the legally married wife of the O.P? and (2)
Whether the petitioner and the minor children are entitled to monthly
maintenance from the O.P, can return a finding to conclude that respondent No.
11 is the first wife and not the petitioner, when the Court of SDJM, Hojai itself
was not called upon to decide the issue in the said proceedings. The Paragraph
No. 34 of the Judgment of the Court of SDJM, Hojai relied upon by the CAT
Guwahati cannot be read in isolation. The Judgment of Court of SDJM, Hojai has
to be read in its entirety keeping in view the questions which were presented
before the Court of SDJM, Hojai for determination. The CAT Guwahati
misdirected itself in deciding the question as to who was the first wife between
the petitioner and respondent No. 11 in the absence of proper evidence led by
the parties before the Tribunal. This Court is of the view that under the
provisions of the Act and Rules of CAT, no power has been specifically vested
upon the CAT to entertain and render any finding or any declaration in respect
of family matters that too in the absence of any specific evidences led by the
contesting parties.
34. This Court is of the view that the competent Court to render such a finding
would be the Civil Court. There is no dispute at the bar that at the relevant
point in time the respondent No. 11 had approached the Competent Civil Court
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by filing Title Suit No. 94/2014 which on a bare perusal of the plaint produced
before the Court reveals that it was a suit filed by the respondent No. 11 as the
plaintiff against late Sanjit Malakar as the defendant seeking a declaration that
the plaintiff (respondent No. 11 herein) was the first wife of the defendant late
Sanjit Malakar. A copy of the written statement filed by late Sanjit Malakar which
is also presented before the Court reveals that the said defendant namely Sanjit
Malakar admitted to all the claims made by the plaintiff. It is further evident that
the present petitioner namely Purnima Malakar was not arrayed as a party
respondent in the said proceedings. However, the suit did not proceed further as
the sole defendant Sanjit Malakar expired in the meantime. The present status
of the suit is also not known to the learned counsel for the respondent No 11. In
view of such undisputed facts it is clear that there appears to be a doubt with
regard to the marriage of respondent No. 11 with late Sanjit Malakar because
of which she had approached the civil court seeking a declaration that she is the
legally wedded wife of Sanjit Malakar . However, in the absence of any such
declaration being rendered by a Competent Civil Court, it will have to be
accepted that there is no clear finding as on date by any Court of Competent
Jurisdiction that the respondent No. 11 is the first and/or the only legally
wedded wife of Sanjit Malakar.
Page No.# 47/51
35. In Deoki Panjhiyara Vs. Shashi Bhushan Narayan Azad , reported in
(2013) 2 SCC 137 , the Apex Court held as under:
"23. We would also like to emphasis that any determination of the
validaty of the marriage between the parties could have been made only by
a competent court in an appropriate proceeding by and between the parties
and in compliance with all other requirements of law. Mere production of a
marriage certificate issued under Section 13 of the Special Marriage Act,
1954 in support of the claimed first marriage of the appellant with Rohit
Kumar Mishra was not sufficient for any of the courts. Including the High
Court, to render a complete and effective decision with regard to the
marital status of the parties and that too in a collateral proceeding for
maintenance. Consequently, we hold that in the present case until the
invalidation of the marriage between the appellant and the respondent is
made by a competent court it would only be correct to proceed on the
basis that the appellant continues to be the wife of the respondent so as to
entitle her to claim all benefits and protection available under the DV Act,
2005."
36. On the basis of the Principle culled out by the Apex Court in Deoki
Panjhiyara (Supra), this Court holds that the marriage certificate by itself is not
sufficient to render a complete and effective finding as to the marital status of
the parties by referring to the evidences adduced before the Court of SDJM,
Hojai in a proceeding initiated under Section 125 CRPC. The proceedings under
Section 125 Cr.P.C before the Court of SDJM, Hojai are collateral proceedings
and in which proceedings the question of correctness of Special Marriage
certificate between the respondent No. 11 and late Sanjit Malakar is concerned
Page No.# 48/51
was not a point of determination. Even if the said special marriage certificate is
accepted on a face value it only means that the respondent No 11 was married
to late Sanjit Malakar on the date mentioned in the said certificate. However,
that certificate by itself cannot be relied upon to conclusively arrive at any
finding that Sippo Malakar-respondent No. 11 was the first wife or only legally
wedded wife of late Sanjit Malakar.
37. As discussed above, in the absence of any effective finding or declaration
by any Court of Competent Jurisdiction as to the question of the marriage of
Sippo Malakar with Sanjit Malakar and/or as to whether Sippo Malakar was the
first and the legally wedded wife of Sanjit Malakar, recourse will have to be
taken to the records as available with the railway authorities. The railway
authorities have undertaken an elaborate enquiry as is evident from the enquiry
report itself dated 14.08.2015. In the said enquiry the railway authorities have
not discarded the special marriage certificate furnished by Sippo Malakar-
respondent No. 11 herein. The railway authorities have accepted the fact that
the special marriage certificate implies that the marriage between respondent
No 11 Sippo Malakar and Sanjit Malakar was legally registered on 08.02.2010
and the marriage will therefore have to be accepted w.e.f 08.02.2010, whereas
the family declaration and nomination submitted by Sanjit Malakar available in
Page No.# 49/51
the Railway records show Purnima Malakar as his legal wife who he married on
01.10.1999. The Railway Authorities also relied upon the findings of the Court of
SDJM, Hojai that Purnima Malakar was married to Sanjit Malakar and is
therefore entitled to be granted maintenance under Section 125 Cr.P.C. The said
order was not interfered with by any superior court and therefore reliance
placed by the railway authorities on the findings arrived at by the Court of
SDJM, Hojai with regard to the question No. 1 namely whether Purnima Malakar
is the legally married wife of opposite party and which question having been
answered by the court of SDJM, Hojai in affirmative in favour of Purnima
Malakar and against Sanjit Malakar, cannot be faulted with. The findings of the
Court of SDJM, Hojai with regard to the said question have been arrived at by
due process of law in a judicial proceeding and the same having not been
interfered with by any superior Court, the findings in respect of the said
questions remains and will have to be accepted as correct. The Judgments
pressed into service by the learned Counsel for the respondent No. 11 will have
no application in the facts of the case and the discussions made herein above.
38. Under such circumstances, we find no infirmity in the conclusions arrived
at by the railway authorities in recording a finding that the petitioner-Purnima
Malakar is the legally wedded wife and is entitled to the pensionary benefits of
Page No.# 50/51
late Sanjit Malakar. It is also pertinent to mention here that as per the Railway
Service Rules, it is prescribed that railway employees are required to obtain
prior permission from the authorities concerned before entering into any second
marriage. In view of the findings upon enquiry from the records available with
the Railways read together with the findings of the Court of SDJM, Hojai and
also taking note of the fact that respondent No. 11 Sippo Malakar had
approached the Competent Civil Court filing a title suit seeking a declaration
that she is the legally wedded wife of Sanjit Malakar, this Court is unequivocal
on the aspect that the materials available on record before the Railways, which
are relied on by the Railway Authorities for determining the rival claims for
family pension, will have to be accepted in favour of the petitioner in W.P.(C)
No. 5189/2017-Smt. Purnima Malakar as has been done by the Railways in the
enquiry. Consequently the order dated 11.09.2015 passed by the Railway
Authorities pursuant to the enquiry initiated by the Railways cannot be declared
to be incorrect. The CAT, Guwahati did not correctly appreciate the evidences
which were adduced before the Court of SDJM, Hojai in the maintenance case
filed by the petitioner and had erroneously arrived at its conclusion by referring
to only a portion of the Judgment rendered by the Court of SDJM, Hojai and
consequently interfering with the order dated 11.09.2015 issued by the Railways
and further directing the Railways to release the pensionary benefits to the
Page No.# 51/51
respondent No. 11-Sippo Malakar.
39. In view of all the discussions above, this Court is of the considered view
that the findings arrived at by the CAT, Guwahati are not based on a correct
appreciation of the evidences adduced before the Court of SDJM, Hojai and has
wrongly interfered with the findings of the Railway Authorities. The impugned
order dated 21.02.2017 is hereby reversed and set aside. The order dated
11.09.2015 issued by the railways is sustained. The authorities are directed to
take necessary steps for release of pensionary benefits to the petitioner. The
children of both the petitioner and respondent No. 11 are entitled to their share
of benefits as permissible under the pension rules of Railways. The Railway
authority will examine this issue and accordingly pass necessary orders
expeditiously.
40. The writ petitions are accordingly allowed and disposed of. No order as to
cost.
JUDGE CHIEF JUSTICE
Comparing Assistant
