Karnataka High Court
The Assistant Executive Engineer vs Vijayalakshmi on 16 June, 2023
Bench: Jyoti Mulimani
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RSA No. 437 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF JUNE, 2023
BEFORE
THE HON'BLE MS. JUSTICE JYOTI MULIMANI
REGULAR SECOND APPEAL NO.437 OF 2016 (DEC)
BETWEEN:
THE ASSISTANT EXECUTIVE ENGINEER,
NATIONAL HIGHWAY SUB-DIVISION,
CHITRADURGA - 577 501.
...APPELLANT
(BY SRI. H.K.BASAVARAJ, AGA)
AND:
1. VIJAYALAKSHMI
W/O LATE A.D.SHAMBULINGAPPA,
AGED ABOUT 40 YEARS,
HOUSE HOLD WORK,
R/O OPPOSITE TO G.I.I.P. SCHOOL,
PILEKARANAHALLI,
NATIONAL HIGHWAY NO.13,
Digitally signed by CHITRADURGA - 577 501.
THEJASKUMAR N
Location: HIGH
COURT OF 2. SENIOR ACCOUNTANT OFFICER & A & D,
KARNATAKA
KARNATAKA PENSION SECTION,
BENGALURU,
P.B.NO.5329, PARK HOUSE ROAD,
BENGALURU - 560 001.
...RESPONDENTS
[(BY SRI. D B SATISH., ADVOCATE FOR R1 (ABSENT);
R2 -SERVED)]
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THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF THE CPC., SEEKING CERTAIN RELEIFS.
THIS APPEAL IS COMING ON FOR FURTHER HEARING,
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Sri.H.K.Basavaraj., learned AGA for the appellant has
appeared in person.
2. There is no representation on behalf of respondent
No.1.
3. The captioned appeal was listed before the Court on
12.06.2023. On that day, there was no representation on
behalf of respondent No.1, hence, it was ordered to be listed on
15.06.2023. The appeal was listed on 15.06.2023 and even on
that day also, there was no representation on behalf of
respondent No.1. This Court heard learned AGA for the
appellant and ordered that the appeal be listed on 16.06.2023
to hear counsel for respondent No.1.
4. The appeal is listed today for further hearing. Today
also, there is no representation on behalf of respondent No.1.
5. Heard, the learned AGA.
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6. This is an appeal from the Court of I Addl. Senior
Civil Judge, Chitradurga.
7. For the sake of convenience, the parties shall be
referred to as per their status and rankings before the Trial
Court.
8. The plaint averments are these:
It is the case of the plaintiff that she is married to one
Sri.A.D.Shambulingappa S/o Garudappa and he is her husband.
It is said that he was working as a Driver in the office of the
Assistant Executive Engineer, National Highway Sub-division,
Chitradurga. He was drawing the monthly salary. During his
lifetime, he took VRS. It is stated that he had a first wife
namely Smt.Jayamma and she did not beget any children.
Hence, with her consent, Sri.A.D.Shambulingappa married
Vijayalakshmi - the plaintiff. They were living jointly under a
common roof. The first wife Smt.Jayamma died on 16.05.2008.
9. It is averred that at the time of taking the VRS, the
plaintiff had filed a suit in O.S.No.315/2010 on the file of II
Addl. Civil Judge (Jr.Dn), Chitradurga against the defendants to
pay all the VRS amount and other benefits of
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Sri.A.D.Shambulingappa to her. The said suit was compromised
between the plaintiff and her husband Sri.A.D.Shambulingappa.
As per the compromise, Sri.A.D.Shambulingappa paid the part
of VRS amount to her. It is averred that the name of the
plaintiff was entered in the service register, pension payment
orders and other relevant documents belonged to
Sri.A.D.Shambulingappa. The plaintiff contended that,
Sri.A.D.Shambulingappa died on 10.11.2011. After his demise,
she is entitled to get all the death benefits like family pension
and all service benefits and arrears as she is the only surviving
legal heir of deceased A.D.Shambulingappa.
10. The plaintiff as per the instructions of the office of
the second defendant, gave all the relevant documents to the
office of the Senior Accountant Officer - the first defendant
through the Assistant Executive Engineer - the second
defendant. For that, the first defendant issued notice to the
plaintiff that, during the lifetime of the first wife the plaintiff
married Sri.A.D.Shambulingappa hence she cannot claim any
benefits and informed that she is not entitled to any family
pension. Hence, the first defendant rejected to pay the family
pension to the plaintiff, and it was ordered to return all the
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relevant documents submitted by the plaintiff to the custody of
the second defendant.
11. As things stood thus, the plaintiff got issued a legal
notice to the defendants through her counsel and it was served
upon the defendants, but they did not reply. Hence, the plaintiff
was constrained to take shelter under the Court of law and filed
a suit to declare that she is the legally wedded wife of
Sri.A.D.Shambulingappa and she is also entitled to get the
family pension of Sri.A.D.Shambulingappa also sought a
direction to pay family pension to her.
12. After the service of the suit summons, the
defendants appeared through DGP and the second defendant
filed a detailed written statement and denied the plaint
averments. The second defendant contended that,
Sri.A.D.Shambulingappa during his lifetime nominated his wife
Smt.Jayamma as a nominee in the D.C.R.G and GPF
nominations maintained in the office of the Assistant Executive
Engineer. Nowhere the name of the plaintiff is mentioned in the
records. It is also specifically contended that as per Karnataka
Civil Service (Conduct) Rules, 1966, under Rule 28 the
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marriage of the plaintiff with Sri.A.D.Shambulingappa is illegal
and unlawful and hence she is not entitled to claim any family
benefits. It is also contended that the nomination of
Smt.Jayamma made by Sri.A.D.Shambulingappa in his office
records is not at all canceled by him in writing, which is
required under the provisions of Karnataka Civil Services Rules.
It is also contended that, Sri.A.D.Shambulingappa has not
canceled the nomination of his wife Smt.Jayamma as required
under Rule 302(vi)(b) of Karnataka Civil Service Rules. Among
other grounds, they prayed for the dismissal of the suit.
13. Based on the above pleadings, the Trial Court
framed Issues and the parties - led evidence and documents
were exhibited.
14. On the trial of the action, the suit came to be
decreed and it was declared that the plaintiff is the legally
wedded wife of Sri.A.D.Shambhulingappa and it was also
ordered & decreed that the plaintiff is entitled to get a family
pension due to the death of her husband
Sri.A.D.Shambulingappa and directed defendants 1 & 2 to pay
family pension to the plaintiff and other arrears of family
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pension. Aggrieved by the Judgment & Decree of the Trial
Court, the second defendant preferred an appeal before the
First Appellate Court. On appeal, the First Appellate Court
confirmed the Judgment & Decree of the Trial Court. Hence,
this Regular Second Appeal is filed under Section 100 of CPC.
15. Sri.H.K.Basavaraj., learned AGA for the appellant
submits that the Judgments & Decrees of the Trial Court & the
First Appellate Court are illegal and erroneous and the same is
liable to be set aside.
16. Next, he submits that the Trial Court erred in not
considering the fact that A.D.Shambulingappa was married to
Smt.Jayamma. It is also submitted that A.D.Shambulingappa
being a Government servant could not have contracted a
second marriage during the lifetime of the first wife.
17. A further submission is made that the plaintiff had
filed a maintenance petition in O.S.No.315/2010 against
Sri.A.D.Shambulingappa and she had received a sum of
Rs.2,00,000/- (Rupees Two Lakhs only) from
A.D.Shambulingappa as full and final settlement and she had
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also consented that she will not have any claim of whatsoever
nature against Sri.A.D.Shambulingappa.
18. Learned counsel vehemently contended that both
Courts have failed to understand the real issue and have
erroneously gone ahead to declare that the plaintiff is the
legally wedded wife of Sri.A.D.Shambulingappa.
19. Learned AGA further submits that the wife of
Sri.A.D.Shambulingappa i.e., Smt.Jayamma died in the year
2008 and Sri.A.D.Shambulingappa died in the year 2011. The
plaintiff has sought a direction that she is the legally wedded
wife of Sri.A.D.Shambulingappa. He drew the attention of the
Court to Section 5 of the Hindu Marriage Act, 1955.
20. Lastly, he submits that viewed from any angle the
findings recorded by the Trial Court & the First Appellate Court
are erroneous and lack judicial reasoning. Therefore, he prayed
that this Second Appeal may be allowed.
21. Heard, the contentions urged on behalf of the
appellant and perused the records with utmost care.
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22. The facts have been sufficiently stated and the
same does not require any reiteration.
23. First, the argument, in this case, has centered
around the factum of the marriage of the plaintiff with
Sri.A.D.Shambulingappa and the second is about the
entitlement of the family pension.
24. The plaintiff is seeking a declaration to declare that
she is the legally wedded wife of Sri.A.D.Shambulingappa and
she is entitled to get a family pension upon the death of
Sri.A.D.Shambulingappa. It is not in dispute that
Sri.A.D.Shambulingappa was working as a Driver in the office
of the Assistant Executive Engineer, National Highway Sub-
division, Chitradurga. It is also not in dispute that he had a wife
namely Smt.Jayamma.
25. To substantiate the claim, the plaintiff examined
herself as PW1. She produced the death certificate of
Sri.A.D.Shambulingappa and the order sheet in
O.S.No.315/2010. During the course of oral evidence, she
admitted that she married Sri.A.D.Shambulingappa during the
lifetime of the first wife. It is also admitted by her that
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Sri.A.D.Shambulingappa has given a sum of Rs.2,00,000/-
(Rupees Two Lakh only) for her maintenance in
O.S.No.315/2010.
26. Learned AGA in presenting his argument
strenuously urged that, Sri.A.D.Shambulingappa was married
to Jayamma and she is the only legally wedded wife of
Sri.A.D.Shambulingappa. He argued by saying that there is a
bar for the Government servant under Rule 28 of Karnataka
Civil Service (Conduct) Rules to contract a second marriage
during the lifetime of the first wife. Learned AGA drew the
attention of the Court to Ex.P.3 Pension Payment Order and
also Ex.D.3 Nomination papers to contend that the name of the
plaintiff is not reflected as the wife of Sri.A.D.Shambulingappa.
27. A good deal of argument is addressed about Rule
28 of Karnataka Civil Service (Conduct) Rules, 1966 and
Section 5 of the Hindu Marriage Act. I find extracting Rule 28
and Section 5 of the Hindu Marriage Act 1955 Act is helpful in
indicating the right approach Rule 28 reads as under:
"28. Bigamous Marriage. - (1) No
Government Servant who has a wife living shall
contract another marriage without first obtaining
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permission of the Government notwithstanding that
such subsequent Marriage is permissible under the
personal law for the time being applicable to him.
(2) No Female Government Servant shall marry
any person who has a wife living without first
obtaining the permission of the Government."
"5. Conditions for a Hindu marriage. - A
marriage may be solemnized between any two Hindus,
if the following conditions are fulfilled, namely: -
(i) Neither party has a spouse living at the time
of the marriage.
(ii) at the time of the marriage, neither party-
(a) is incapable of giving valid consent
to it in consequence of unsoundness of mind; or
(b) though capable of giving a valid
consent, has been suffering from mental
disorder of such a kind or to such an extent as
to be unfit for marriage and the procreation of
children; or
(c) has been subject to recurrent
attacks of insanity 2 ***].
(iii) the bridegroom has completed the age of
[twenty-one years] and the bride, the age of
[eighteen years] at the time of the marriage.
(iv) the parties are not within the degrees of
prohibited relationship unless the custom or usage
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governing each of them permits of a marriage
between the two.
(v) The parties are not sapindas of each other
unless the custom or usage governing each of them
permits a marriage between the two."
28. This section lays down the conditions for a Hindu
marriage which must be fulfilled in case of any marriage
between two Hindus which may be solemnized following the
requirements of the Act. Clause (i) of Section 5 introduces
monogamy which is essentially the voluntary union for the life
of one man with one woman to the exclusion of all others. It
enacts that neither party must have a spouse living at the time
of marriage. The expression spouse means a lawfully married
husband or wife. Suffice it to note that before a valid marriage
can be solemnized, both parties to such marriage must be
either single or divorced or a widow or a widower, and only
then they are competent to enter into a valid marriage. If at
the time of performance of the marriage rites and ceremonies,
one or other of the parties had a spouse living and the earlier
marriage had not already been set aside, the later marriage is
no marriage at all. Being in contravention of the conditions laid
down in this clause, it is void ab initio.
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29. Reverting to the facts of the case,
Sri.A.D.Shambulingappa had a spouse living at the time of his
alleged marriage with the plaintiff. He was not single or
divorced or was a widower. If at all the plaintiff is married to
A.D.Shambulingappa, the same is in contravention of the
conditions laid down in Section 5 of the Hindu Marriage Act,
1955 and it is void ab initio. Furthermore, A.D.Shambulingappa
being a Government servant could not have contracted a
second marriage.
30. I may venture to say that the Trial Court & the First
Appellate Court failed to have regard to relevant considerations
and disregarded relevant matters. In my considered opinion,
the judgments and decrees passed by both courts are
unsustainable in law.
31. The substantial questions of law framed by this
court are answered accordingly.
32. The Judgment & Decree dated 25.09.2014 passed
by the Court of I Addl. Civil Judge & JMFC, Chitradurga in
O.S.No.463/2012 and also the Judgment & Decree dated
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05.10.2015 passed by the Court of I Addl. Senior Civil Judge,
Chitradurga in R.A.No.64/2014 is set-aside.
33. Resultantly, the Regular Second Appeal is allowed.
34. In view of the disposal of the appeal, all pending
interlocutory applications stands disposed of.
Sd/-
JUDGE
TKN
