Madhya Pradesh High Court
Tara Bai Singh vs The State Of Madhya Pradesh on 27 April, 2023
Author: Vivek Agarwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
ON THE 27 th OF APRIL, 2023
WRIT PETITION No. 17837 of 2021
BETWEEN:-
TARA BAI SINGH W/O LATE SHRI MADAN CHAND
SINGH, AGED ABOUT 64 YEARS, OCCUPATION:
UNEMPLOYED, R/O PURANI BASTI, KAYLANPUR ROAD,
DISTRICT SHAHDOL (MADHYA PRADESH)
.....PETITIONER
(BY SHRI RAJESH KUMAR SONI - ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH THROUGH ITS
CHIEF SECRETARY VALLABH BHAWAN BHOPAL
(MADHYA PRADESH)
2. PRINCIPAL SECRETARY STATE OF M.P., HOME
D EPARTM EN T, VALLABH BHAWAN BHOPAL
(MADHYA PRADESH)
3. JOINT DIRECTOR DIRECTORATE OF TREASURY
AND ACCOUNTS, PENSION BILASPUR DIVISION,
BILASPUR (CHHATTISGARH)
4. DISTRICT TREASURY OFFICER, SHAHDOL,
DISTRICT SHAHDOL (MADHYA PRADESH)
5. BRANCH MANAGER, ALLAHABAD BANK IN THE
CAMPUS OF ANIMAL HOSPITAL, NEARBY
GANDHI CHOWK, SHAHDOL (MADHYA PRADESH)
.....RESPONDENTS
(SHRI MANAS MANI VERMA - GOVERNMENT ADVOCATE FOR THE
RESPONDENTS NO.1, 2 AND 4-STATE)
Signature Not Verified
SAN This petition coming on for admission this day, th e court passed the
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following:
ORDER
This writ petition is filed by the widow of Late Shri Madan Chand Singh
being aggrieved of impugned orders Annexure P-1, Annexure P-2 and Annexure
P-3, which are respectively dated 27.06.2019, 28.09.2007 and 24.09.2007,
issued by the Treasury Officer, Shahdol (M.P.) denying claim of the petitioner
towards family pension on death of her husband Late Shri Madan Chand Singh
Chouhan.
2. Petitioner's contention is that admittedly marriage between the petitioner
and Shri Madan Chand Singh was performed on 28.02.1979. There is no
dispute to this fact also as admitted by the learned counsel for the petitioner that
present petitioner herself had filed Civil case No.46-A/99 under Section 13 of
the Hindu Marriage Act, 1955 in the Court of First Additional District Judge,
Shahdol, District Shahdol, seeking dissolution of her marriage dated
28.02.1979.
3. It is also not in dispute that thereafter, a decree of divorce at the instance
of the present petitioner was passed by the learned First Additional District
Judge, Shahdol on 09.05.2000, copy of which is available on record as
Annexure P-9. It is also an admitted fact that Shri Madan Chand Singh died on
25.05.2002 as is evident from his Death Certificate available on record as
Annexure P-8.
4. Petitioner's case is that her name was already mentioned as a beneficiary
for family pension once Shri Madan Chand Singh had obtained voluntary
retirement in the year 1997 from the post of Assistant Sub Inspector (ASI) and
after dissolution of the marriage vide judgment and decree dated 09.05.2000,
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they had performed a remarriage on 07.01.2002, in support of which, a marriage
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agreement is enclosed as Annexure P-10.
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5. Placing reliance on this marriage agreement and in support of which
petitioner has enclosed affidavit of one Shri Narayan Mishra S/o Ram Vilas
Mishra as contained in Annexure P-16, so also an affidavit sworn by the so-
called Pandit, who had performed the marriage ceremony, namely Shri Laxmi
Prasad Tiwari as contained in Annexure P-21, it is submitted that since Laxmi
Prasad Tiwari had solemnized marriage of the petitioner with her erstwhile
husband Shri Madan Chand Singh and there being no prohibition on such
remarriage under Section 5 of the Hindu Marriage Act, 1955 (hereinafter
referred to as the ''Act of 1955''), was a valid subsisting marriage on the date of
death of Shri Madan Chand Singh on 25.05.2002, therefore, petitioner is entitled
to grant of family pension. In support of the contention, petitioner has also
placed reliance on order of succession dated 25.01.2019 passed by the learned
First Civil Judge, Class-I, Shahdol, District Shahdol in MJC (SUC)/05/2013 and
submits that there is no hindrance in grant of family pension.
6. Placing reliance on some other documents annexed with the petition, it is
submitted that in fact State of Chhatisgarh has not raised any objection in regard
to grant of pension but it is only the Treasury Office at Shahdol, who is
unnecessarily raising objections in regard to maintainability of the claim of the
petitioner.
7. It is submitted that this issue is already dealt with by a Division Bench of
this High Court in Union of India and others Vs. Padmini Dehuri, 2019 (3)
MPLJ 215. Reading exhaustively from this judgment, specifically paragraphs
19, 20, 21, 22 and 23, it is submitted that amongst the Hindus, a marriage is a
valid marriage only when it is solemnized in accordance with the provisions
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SAN under section 5 and section 7 of the Act of 1955. Thus, there being evidence of
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Date: 2023.05.02 10:39:01 IST solemnization of remarriage, pension should be allowed and the impugned
orders be quashed.
8. Shri Manas Mani Verma, learned Government Advocate, in his turn,
submits that the claim of the petitioner is bogus. Firstly, there is no mention of
earlier divorce decree dated 09.05.2000 in the order of succession placed on
record as Annexure P-4. In the said order, there is no mention of the fact of
solemnization of second marriage after obtaining decree of divorce on
09.05.2000. In fact, it is mentioned in paragraph 6 of the said order that in 1997
when Shri Madan Chand Singh had taken voluntary retirement, he had
mentioned name of his wife Tara Bai as his nominee and that Tara Bai lived with
Shri Madan Chand Singh as his wife during the subsistence of his life. It is also
mentioned that name of the petitioner is already mentioned in the pension papers
from a date prior to the death of Shri Madan Chand Singh, therefore, on such
premise Succession Certificate was issued but cleverly petitioner suppressed
the fact of decree of divorce dated 09.05.2000 and alleged remarriage dated
07.01.2002.
9. Shri Manas Mani Verma further submits that in the decree of divorce
dated 09.05.2000 (Annexure P-9) one of the grounds for taking divorce, as was
canvassed by the petitioner, was cruelty. Reading from paragaph 4 of the said
judgment and decree, it is pointed out that after taking voluntary retirement, it
was alleged by the present petitioner, who was applicant before the learned First
Additional District Judge, Shahdol that deceased had started drinking alcohol
and had started beating her and threatening her with life and had also started
causing aspersions on her character on which she had lodged a report in the
police station, as a result, non-applicant Madan Chand Singh had to go to jail
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also. In support of this cruel behaviour of non-applicant Madan Chand Singh,
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she had adduced evidence of one Aziz Khan, residing at a distance of 100 steps
from the house of the applicant-present petitioner. As a result, decree of
divorce was granted on the ground of cruelty. It is also submitted that there is
no valid marriage in the eyes of law and impugned orders do not call for
interference.
10. After hearing learned counsel for the parties and going through the
record, this Court had put three questions to the learned counsel for the
petitioner, namely:-
1. Whether a notary is authorized to perform marriage?
2. When Pension Officer was given intimation in regard to remarriage dated
07.01.2002?
3. Where in the notarized agreement contained in Annexure P-10, there is
mention of performance of remarriage as per Hindu rites and customs?
11. In reply to question No.2 that when Pension Officer was given
intimation in regard to remarriage dated 07.01.2002, petitioner has drawn
attention of this Court to Annexure P-11, in which two dates are mentioned
namely 27.04.2000 and 28.04.2001, as is evident from the entries made on Page
No. 49. These entries are prior to the date of remarriage of deceased Shri
Madan Chand Singh. Thus, it is evident that Treasury Officer was neither
informed about divorce nor about remarriage and there is no document on
record to substantiate intimation about divorce and remarriage. Thus, second
question has not been answered properly by the learned counsel for the
petitioner.
12. There is no answer to the authority of a notary to perform marriage.
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Thus, even first question is not answered properly by the learned counsel for
SAN
the petitioner.
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Date: 2023.05.02 10:39:01 IST
13. Though reliance is placed on the judgment of a Division Bench of this
High Court in case of Union of India and others Vs. Padmini Dehuri (supra)
but facts of that case are different. In that case, husband of the respondent late
Pooran Chand Dehuri, a Head Constable, Border Security Force sustained
multiple injuries due to IED blast by the militants during course of duty in
Srinagar and he succumbed to those injuries on 30.03.2003. After the death of
her husband, respondent in the cited decision i.e. Padmini Dehuri was taken to
her matrimonial home at Village Gotamara, District Angul, Orissa where she was
detained by her father-in-law and other family members of her late husband who
made her signatures on various documents, on the basis of whereof, the family
pension and the terminal dues of her husband were settled in favour of her
daughters. Later, the respondent escaped from the custody of her in-laws.
Whereafter, on reaching Tekanpur, she filed a representation for grant of
pension from the date it was stopped for her daughters after their marriage. As
the request was not acceded to, the respondent filed Writ Petition No.
7459/2012 wherein, the Appellants took the plea that, on 21.05.2002, the
respondent executed a notarized marriage contract with one Shri Lavkush Soni
during life time of her husband. Accordingly, denied her entitlement for family
pension in term of Rule 54(6)(iii) of the Central Civil Services (Pension) Rules,
1972.
14. Thus, facts in case of Union of India and others Vs. Padmini
Dehuri (supra) cited by Shri Rajesh Kumar Soni were different. In that case,
widow was denied pension on the strength of a so-called notarized agreement
which she had executed during the life-time of her husband Pooran Chand
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Dehuri with one Shri Luvkush Soni. Discarding that so-called notarized
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agreement, Court held that when there is no other dispute in regard to existence
of a valid marriage between the respondent therein i.e. Padmini Dehuri and
Pooran Chand Dehuri then, family pension could not have been stopped in her
favour and thus, it is held in paragraph 21 that unless requisite conditions of a
valid marriage are satisfied in the sense that, such a marriage was not prohibited
under the law, presumption in regard to marriage on the basis of evidence of
habit and repute cannot be raised in a case where no valid marriage is possible
or permissible under the law. In that case, therefore, the so-called notarized
marriage contract was disbelieved by the Court. However, on the basis of a
similar notarized contract, petitioner is claiming that she had performed
remarriage with the deceased Madan Chand Singh.
15. A careful reading of the marriage agreement contained in Annexure P-
10 which learned counsel for the petitioner was also requested to read to point
out as to where it is mentioned in the said agreement that on performance of
remarriage as per Hindu customs and rites, petitioner and her husband Madan
Chand Singh started living together, Shri Soni could not point out even a single
word from the said marriage agreement to show that there is mention of any fact
of performance of Hindu remarriage.
16. There is no doubt that there is no prohibition for remarriage under the
Hindu Marriage Act, 1955. But in paragraph 6 of the Marriage contract
(Annexure P-10) it is mentioned that second party and the first party have
restituted their earlier relationship of husband and wife and are leading married
life and, thereafter, there is mention of the fact that second party i.e. Tara Bai
will be entitled to family pension in terms of earlier nomination and also to the
property which was received by the deceased from his father-in-law Shri Ram
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Chandra Agrawal at Purani Basti, Kalyanpur road, District Shahdol. However,
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there is no iota of mention in regard to performance of remarriage.
17. Even when the affidavit of Narayan Mishra is taken into consideration
as is enclosed by the petitioner as Annexure P-16, it appears to be a document
which will not inspire confidence. In paragraph 2, Narayan Mishra has
mentioned that earlier marriage of Tara Bai with Madan Chand Singh was
performed on 28.02.1989. This date is contrary to the date mentioned in the
decree of divorce vide which marriage which was solemnized between the
petitioner and her husband on 28.02.1979 was dissolved. Thus, this witness is
not a witness deposing the correct facts. In paragraph 4, there is over-writing on
the date of the marriage. Again this Narayan Mishra is not a witness to the
marriage agreement contained in Annexure P-10. Witnesses to the marriage
agreement are Ramgopal and Uday Chandra Patel. None of them have filed
affidavit or any other evidence in support of the claim of the petitioner that she
had performed remarriage with Madan Chand Singh on 07.01.2002. Though it is
mentioned in paragraph 4 that marriage was performed as per Hindu customs
and rites and, thereafter, marriage agreement was executed in front of the notary
but when this fact of performance of remarriage as per Hindu Rites and
customs is not mentioned in the marriage agreement contained in Annexure P-10
then, mention of this fact by a person, who is not a witness to the marriage
agreement, is superfluous.
18. Similarly, the so-called Pandit Laxmi Prasad Tiwari has mentioned that
marriage was performed under his guidance on 07.01.2002 by performing
ceremonies of Maang Bharai, Mangal Sutra, Chudi Pehnai, etc. and he had tied
the nuptial knot (Gathbandhan) of husband and wife and, thereafter, they both
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started living as husband and wife. There is no mention of the place where this
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ceremony was performed. Even in the affidavit of Narayan Mishra, there is no
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mention of the place where so-called remarriage was performed.
19. At the cost of repetition, it is reiterated that there is no mention of
remarriage in the marriage agreement contained in Annexure P-10. Moreover,
when Shri Rajesh Kumar Soni has placed reliance on Sections 5 and 7 of the
Hindu Marriage Act, 1955, then Section 5 deals with conditions for a Hindu
marriage and Section 7 deals with the ceremonies for a Hindu marriage. As far
as Section 5 is concerned, it is nobody's case that conditions for a Hindu
marriage were not subsisting but as far as Section 7 is concerned, which deals
with ceremonies for a Hindu marriage, sub-Section (1) provides that a Hindu
marriage may be solemnized in accordance with the customary rites and
ceremonies of either party thereto. Therefore, it was required to prove that what
were the customs of either parties to the remarriage and how they were fulfilled
as per the affidavit of the Pandit. Sub-Section (2) provides that where such rites
and ceremonies include the saptpadi (that is, the taking of seven steps by the
bridegroom and the bride jointly before the sacred fire), the marriage becomes
complete and binding when the seventh step is taken. However, in the present
case, there is no mention of Saptpadi in the affidavit of Pandit Laxmi Prasad
Tiwari as contained in Annexure P-21. Therefore, in absence of Saptpadi, how
marriage was complete between two adult Hindus is a point which remains
unanswered. Thus, this affidavit when examined in the light of Section 7 of the
Hindu Marriage Act, will not certify subsistence of a valid marriage or
performance of a valid marriage between the present petitioner and Late Shri
Madan Chand Singh.
20. As mentioned above, divorce was obtained on the ground of cruelty.
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What changed within a period of one and a half years, necessitating remarriage,
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is also not a circumstance brought by the petitioner before this Court.
21. As discussed above, the certificate of succession is a sham document.
It deserves to be quashed, inasmuch as, it was obtained by keeping the court in
dark. It was not disclosed to the court that party seeking that succession
certificate had obtained a decree of divorce from a competent Court on
09.05.2000 and, thereafter, was seeking succession certificate on the strength of
so-called remarriage on 07.01.2002. Narration in that certificate reveals that it
was sought and obtained on the basis of documents which were given by the
deceased while filing his pension papers upon taking voluntary retirement in the
year 1997. There is no whisper of divorce or remarriage in the said certificate.
Thus, a certificate obtained by a party by suppressing material facts has no
value in the eyes of law and it is hereby quashed having been obtained by
resorting to supression of facts.
22. Thus, when whole gamut of facts are examined then, it is settled law
and which is not disputed by Shri Rajesh Kumar Soni that a divorced wife has
no right to claim family pension. Since petitioner has failed to prove her
remarriage, decision of the authorities as contained in Annexure P-1, Annexure
P-2 and Annexure P-3, cannot be said to be illegal or arbitrary.
Recommendations of some other authorities are only recommendations and
they will not take away the responsibility of the Sanctioning and Disbursement
Officer, namely, Treasury Officer, Shahdol from performing of his duties.
Therefore, on the strength of some recommendations, which were not accepted
and followed by the Treasury Officer, Shahdol while passing impugned orders
Annexure P-1, Annexure P-2 and Annexure P-3, cannot be faulted with.
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23. Thus, petition fails and is dismissed.
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(VIVEK AGARWAL)
JUDGE
pp
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SAN
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Date: 2023.05.02 10:39:01 IST
