Sarojben Dashrathbhai Ramjibhai ... vs State Of Gujarat
2022 Latest Caselaw 2677 Guj

     C/SCA/13500/2021                             JUDGMENT DATED: 09/03/2022




        IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 13500 of 2021

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE BIREN VAISHNAV
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1     Whether Reporters of Local Papers may be allowed
      to see the judgment ?

2     To be referred to the Reporter or not ?

3     Whether their Lordships wish to see the fair copy
      of the judgment ?

4     Whether this case involves a substantial question
      of law as to the interpretation of the Constitution
      of India or any order made thereunder ?

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SAROJBEN DASHRATHBHAI RAMJIBHAI PATEL (WD/O DASHRATHBHAI
                   RAMJIBHAI PATEL)
                        Versus
                  STATE OF GUJARAT
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Appearance:
MR SIDHHARTH DAVE, ADVOCATE for MR CHINTAN V ACHARYA(10558)
for the Petitioner(s) No. 1
MR HARSHESH R KAKKAD(7813) for the Respondent(s) No. 2
MS SURBHI BHATI, AGP for the Respondent(s) No. 1
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     CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV

                              Date : 09/03/2022

                             ORAL JUDGMENT

1. Rule returnable forthwith. Ms. Surbhi Bhati, learned

Assistant Government Pleader waives service of notice of

Rule for the respondent - State while Mr. H.R. Kakkad,

learned counsel waives service of notice of Rule for the

C/SCA/13500/2021 JUDGMENT DATED: 09/03/2022

respondent - Nagarpalika.

2. With the consent of the learned advocates for the

respective parties, the petition is taken up for final

hearing today.

3. Heard Mr. Siddharth Dave, learned counsel assisted by

Mr. Chintan V. Acharya, learned advocate for the

petitioner, Ms. Surbhi Bhati, learned AGP for the

respondent - State as well as Mr. H.R. Kakkad, learned

advocate for the respondent - Nagarpalika.

4. Widow of the deceased Dashrathbhai Ramjibhai Patel has

prayed for resumption of Family Pension which was being

paid to her on her husband's death on 21.8.2010. It is

the case of the petitioner that the petitioner's husband

was working as a Peon and died on 21.8.2010. The

petitioner was paid family pension for a period of two

years upto 9.11.2012 when the petitioner's family

pension was stopped. The pension was stopped

purportedly on the ground that the petitioner had in the

C/SCA/13500/2021 JUDGMENT DATED: 09/03/2022

year 2012 i.e. 28.1.2012 married one Savjibhai Pathubhai

Rajgor, which marriage was registered on 29.2.2012.

5. Mr. Dave, learned counsel for the petitioner would submit

that the petitioner's marriage was declared void in the

proceedings before the competent Civil Court. It appears

that the petitioner had filed Hindu Marriage Petition

No.42 of 2012 before the Taluka Court, Deesa, District

Banaskantha with a prayer that her marriage be declared

null and void under the provisions of Sections 11 and 12

of the Hindu Marriage Act, 1955. It was her case that the

act of marriage was as an instigation and it was under

undue influence. The trial Court, based on the

assessment of evidence by a final order dated 24.8.2015

dismissed the Hindu Marriage Petition of the petitioner.

The petitioner challenged the same by filing a Regular

Civil Appeal No.28 of 2015 before the 2 nd Additional

District Judge, Deesa @ Banaskantha. The appellate

Court, on assessment of evidence found that the

marriage which had taken place between the petitioner

and Savjibhai Pathubhai Rajgor was void. The declaration

C/SCA/13500/2021 JUDGMENT DATED: 09/03/2022

was accordingly issued on 20.1.2020. On such

declaration, the petitioner made a representation to the

Nagarpalika that her family pension be restored as the

2nd marriage, based on which, the family pension stopped

had been so declared void. By the order under challenge

11.9.2020, the respondent - Nagarpalika relying on Rule

91 of the Gujarat Civil Services (Pension) Rules, 2002

held that since the petitioner had remarried, the family

pension was rightly discontinued.

6. In short, the submission therefore of the learned counsel

Mr. Dave for the petitioner was that once the appellate

Court had declared the marriage as void, there was no

reason for the Nagarpalika not to restart pension as the

bar under Rule 91 of the Rules, 2002 no longer existed.

7. Mr. Harshesh R. Kakkad, learned counsel for the

Nagarpalika would vehemently argue that the impugned

order of 11.9.2020 was just and proper. The petitioner's

marriage with Savjibhai Pathubhai Rajgor subsist. He

would draw the attention of the Court to the affidavit at

C/SCA/13500/2021 JUDGMENT DATED: 09/03/2022

Exh.42 by Jahuben, the first wife of Savjibhai Pathubhai

Rajgor who before the trial Court had deposed that she

obtained customary divorce from him on 15.3.2011. She

further deposed that after the sad demise of the

petitioner's husband, Sarojben compelled him to marry

her and the customary divorce was on the pursuation of

the petitioner. The trial Court had, therefore, observed

that the respondent had proved by cogent oral evidence

that on the date of his marriage on 28.2.2012, he was an

eligible bachelor and ready for marriage. It was in view of

these facts emerging on record, that the trial Court

discarded the stand of the petitioner and dismissed the

Hindu Marriage Petition.

8. While the submission made by the learned counsel for

the respondent - Nagarpalika and also an affidavit

affirmed on 12.6.2012 of the petitioner is relied upon to

support the case of the Nagarpalika, wherein, the

petitioner had deposed in the affidavit that on the death

of her husband, she had married Savjibhai Pathubhai

Rajgor and the sons of the earlier husband were taken

C/SCA/13500/2021 JUDGMENT DATED: 09/03/2022

care of by Savjibhai Pathubhai Rajgor.

9. At the outset, Mr. Kakkad has requested for time to place

this affidavit on record, which the Court did not entertain

and has taken into consideration the affidavit.

10. What therefore is evident from the facts narrated

hereinabove is that the stand of the Nagarpalika appears

to be that Rule 91 will be triggered, inasmuch as, the

petitioner has entered into a 2nd marriage. That is the

defence even as is evident from the affidavit-in-reply

filed by the Chief Officer of the Nagarpalika. Rule 91 of

the Rules would indicate that the period for which family

pension is payable, shall be in case of a widow or a

widower until the death or remarriage, whichever is

earlier. The affidavit further indicates that in view of the

order of the trial Court, the Rules squarely applied and,

therefore, family pension was rightly discontinued. The

submission of the learned counsel for the respondent -

Nagarpalika cannot be accepted in view of the fact that

the deposition of Jahuben, the first wife of Savjibhai

C/SCA/13500/2021 JUDGMENT DATED: 09/03/2022

Pathubhai Rajgor, which the learned counsel for the

respondent - Nagarpalika wants the Court to rely upon

was discussed by the Appellate Court and the Appellate

Court observed that it was an admitted fact by the

deponent (Savjibhai Pathubhai Rajgor) that he had firstly

entered into a marriage with Jahuben and, therefore, it is

the duty on the part of the deponent to prove the fact

that, he has taken legal divorce with Jahuben when he

married the petitioner and even under the Evidence Act

such burden lies upon the opponent. Observations of the

Appellate Court and the operative portion of the order

would indicate that the Court declared the marriage of

the petitioner with Savjibhai Pathubhai Rajgor as void.

11. In view of this position, it is no longer open for the

respondent - Nagarpalika to rely on the evidence,

observations and the findings of the trial Court to deny

the benefits of family pension to the petitioner.

12. The affidavit dated 12.6.2012 produced before this Court

for perusal of the petitioner also becomes insignificant in

C/SCA/13500/2021 JUDGMENT DATED: 09/03/2022

view of the order of the Appellate Court dated 20.1.2020.

13. For the foregoing reasons, the petition is allowed. The

respondents are directed to resume paying the benefit of

family pension to the petitioner in view of the marriage

having been declared void, in the submission of Mr.

Siddharth Dave, learned counsel for the petitioner, the

marriage never seems to have been solemnized and the

pension should not have been discontinued. Since the

marriage has been declared void, the petitioner shall be

entitled to family pension with effect from 1.1.2013.

Compliance of the orders be done together with payment

of arrears within a period of twelve weeks from the date

of receipt of copy of this judgment.

14. Rule is made absolute to the aforesaid extent. Direct

Service is permitted. No costs.

[ BIREN VAISHNAV, J. ] VATSAL S. KOTECHA