A. Yashoda, Warangal Dist Ano vs A. Rukmini, Hyd 3 Othrs
2021 Latest Caselaw 1444 Tel

     THE HON'BLE THE CHIEF JUSTICE HIMA KOHLI
                                 AND
     THE HON'BLE SRI JUSTICE B. VIJAYSEN REDDY


                       F.C.A. No.127 OF 2015

JUDGMENT: (Per the Hon'ble the Chief Justice Hima Kohli)


1.    This appeal has been preferred against the judgment dated

06.02.2013 passed by the Family Court, Secunderabad in

F.C.O.P.No.331 of 2009, preferred by the respondents No.1 to 3.

2. Before the learned Family Court, the appellants herein were

arrayed as respondents No.2 and 3; respondents No.1 to 3 were the

petitioners and the respondent No.4/Railways Department was

arrayed as the respondent No.1. The parties are hereinafter being

referred to as they were arrayed in the OP filed before the learned

Family Court.

3. The captioned OP was filed by the petitioners, for

declaration, declaring them as the legal heirs of late A.Ram Das,

who was working in the respondent No.1/Railway Department till

he expired on 12.10.2006. The petitioners had also prayed for

issuance of directions to the respondent No.1/Railway Department

to release his pensionary and other service benefits in their favour.

Petitioner No.1 described herself as the wife and the petitioners

No.2 and 3 as the children of late A.Ram Das. The petitioners

averred in the petition that the marriage of the petitioner No.1 had

taken place with late A.Ram Das on 25.05.1972, at Yadagirigutta,

as per Hindu rituals and traditions. A.Ram Das was working in the

respondent No.1/Railway Department on the post of a Senior

Technician, Diesel Shed, Kazipet. He expired on 12.10.2006,

leaving behind the petitioners as his sole legal heirs. The petitioners

submitted a letter dated 29.11.2006 to the respondent No.1/Railway

Department along with supportive documents, for release of family

pension and settlement of the dues of late A.Ram Das.

Respondents No.2 and 3 also lodged a claim with the respondent

No.1/Railway Department on the family pension of the deceased on

a plea that she was the wife of late A. Ram Das and the respondent

No.3 was born from the wedlock and both of them were entitled to

family pension. Respondent No.1/Railway Department conducted

an enquiry whereafter they addressed a letter dated 28.09.2007 to

the petitioner No.1 and the respondent No.2 intimating them that

the marriage of the respondent No.2 with late A.Ram Das,

performed on 08.08.1976, cannot be recognized and it was a

nullity, since the marriage of the petitioner No.1 with late A.Ram

Das, was performed earlier, on 25.05.1972, and it was still valid

and subsisting at the time of the demise of the employee. However

after a month, the respondent No.1 addressed another letter dated

02.11.2007 to the petitioner No.1 and the respondent No.2

informing them that after receiving a representation dated

11.10.2017 from the respondent No.2, the Department had re-

examined the matter and this time arrived at the conclusion that it

was the respondent No.2 who was the legally wedded wife of late

A.Ram Das and not the petitioner No.1. As such, the pensionary

benefits of late A.Ram Das would be payable to the respondent

No.2.

4. Aggrieved by the aforesaid decision of the respondent

No.1/Railway Department, the petitioners filed O.S.No.1037 of

2007, wherein it was averred that having held that the petitioners

were the legal heirs of late A. Ram Das, during the first round of

scrutiny, there was no occasion for the respondent No.1/Railway

Department to have reopened the matter and resiled from the earlier

letter dated 02.11.2007, declaring them as the legal heirs of the

deceased. The learned trial court declined to entertain the said suit

and directed the petitioners to approach the appropriate court for

relief. The petitioners then filed F.C.O.P.No.331 of 2001 before the

learned Judge, Family Court, Secunderabad praying inter alia that

they be declared as the legal heirs of late A.Ram Das and sought

issuance of a direction to the respondent No.1/Railway Department

to release/pay the pensionary and other benefits exclusively to

them. The respondents No.2 and 3 contested the claim of the

petitioners and filed a reply wherein they submitted that the

petitioner No.1 was employed as a teacher; she had retired from

service and received her service benefits and is getting a monthly

pension; that the petitioners No.2 and 3 are also married and settled

in their respective positions. It was averred that late A.Ram Das

had contracted several debts and his lenders were pressing the

respondent No.2 to return the amounts. Respondent No.2 further

stated that her name had been entered in the official records of the

respondent No.1/Railway Department as the wife of the deceased

and that of respondent No.3, as his son and they are the only legal

heirs of late A.Ram Das. Respondents No.2 and 3 also denied the

marriage of the petitioner No.1 with late A.Ram Das on 25.05.1972

and asserted that the marriage of the respondent No.2 with late

A.Ram Das had been performed on 08.03.1976 and the same was a

lawful marriage having been registered with the Marriage Registrar,

Nanded. They were blessed with two sons. But, unfortunately, one

son had expired after the demise of A. Ram Das.

5. After the pleadings were complete, the following two issues

were framed:-

"1. Whether the petitioners 1 to 3 are the legal heirs of

late A. Ram Das who expired on 12.10.2006?

2. Whether petitioners are entitled to the pensionary

and educational and other service benefits of late

A. Ram Das?

3. To what relief?"

6. To prove their case, petitioner No.1 examined herself and

produced three other witnesses. She stepped into the witness box

as P.W.1 and reiterated the averments made by her in the petition.

She deposed that her marriage had taken place with Sri A.Ram Das

on 25.05.1972 at Yadagirigutta, in the presence of relatives. She

produced the marriage invitation card (Ex.A9), Marriage Certificate

issued by Laxmi Narasimha Swamy Devasthanam, Yadagirigutta

(Ex.A8) and the photographs taken during the wedding (Exs.A2

and A3). She stated that the petitioners No.2 and 3 were born from

the said wedlock and their father, A. Ram Das had got them

admitted in educational institutions. To prove that his name was

recorded in the school certificates of the petitioners No.2 and 3,

their SSC Certificates were also filed (Exs.A6 and A7).

7. P.W.2, S.E. Susheela, deposed that she is a retired teacher

and had known the petitioner No.1 for the past forty years; that she

had attended the marriage of the petitioner No.1 with A. Ram Das

and the said marriage had taken place in the presence of the elders

of both sides. P.W.3, Naga Narsamma, deposed that she knew the

petitioner No.1 from her childhood days and that she had attended

her marriage with A. Ram Das. She stated that after their marriage,

petitioner No.1 and her husband used to reside near her house and

frequently visited her. P.W.4, T. Gouri Shanker, a Finger Print

Expert in the Fingerprint Bureau, Hyderabad, was produced by the

petitioners to prove the thumb impression of the petitioner No.1

affixed at page No.98 of the Marriage Register maintained by the

Temple, by comparing the same with her thumb impression as was

obtained before the court. He proved his Report (Ex.X4) and stated

that the disputed thumb impression was identical to the specimen

thumb impression of the petitioner No.1. Pertinently, the

respondents elected not to cross examine P.W.4.

8. On their part, respondent No.2 entered the witness box as

R.W.1 and deposed that she was married to A.Ram Das on

08.03.1976 and that her marriage was recorded in the Register of

the Marriages, Nanded; that she is the only legally wedded wife of

the deceased; that the respondent No.3 is their son; that the name of

the respondent No.2 was mentioned in the records of the respondent

No.1/Railway Department as a legal heir of A. Ram Das; that upon

the demise of A.Ram Das, it was she and her son who had

performed his last rites and that the petitioners do not have any

claim on his retrial benefits.

9. The respondents produced V.Komaraiah as R.W.2 who

deposed that he was instrumental in getting the respondent No.1

and A.Ram Das to marry and the marriage was performed on

08.03.1976, at Nanded, Maharashtra as per Hindu rights and

customs; that it was an arranged marriage and the same was duly

registered. The said marriage was consummated and the

respondent No.2 and A.Ram Das were blessed with two sons, but

one son had expired; that A.Ram Das was a bachelor at the time of

his marriage and on his demise, his last rites were performed by the

respondent No.2 and the respondent No.3. R.W.2 also deposed that

he had never seen the petitioner No.1 earlier or even at the time of

the demise of A.Ram Das. Ex.B4, a photocopy of the Marriage

Certificate issued by the Marriage Registrar, Nanded was filed by

the respondents but no witness was summoned to prove the original

records.

10. After analysing the ocular and documentary evidence

produced by the parties and on considering the arguments advanced

by learned counsel for the parties, the learned Family Court arrived

at the conclusion that overwhelming evidence had been filed by the

petitioners to demonstrate that the petitioner No.1 is the legally

wedded wife of A.Ram Das and that she has two children from the

said marriage, namely the petitioners No.2 and 3. The Family Court

discounted the confusion sought to be created by the respondents

around the name of the petitioner No.1, as recorded in the Marriage

Register maintained by Laxmi Narasimha Swamy Devasthanam,

Yadagirigutta, by referring to the other weighty evidence brought

on record and concluded that the petitioner No.1 is the same person

who was referred to as 'Sarojini' in the Marriage Register and the

wedding card. As a result, issue No.1 was answered in favour of

the petitioners and they were declared to be the legal heirs of late

A. Ram Das.

11. As for the second issue, the learned Family Court held that

there was a subsisting marriage between the petitioner No.1 and

A.Ram Das as on the date of the alleged marriage of the respondent

No.2 with A. Ram Das that was solemnised on 08.03.1976.

Referring to the photocopy of the Marriage Certificate purportedly

issued by the Marriage Registrar, Nanded (Ex.B4) and filed by the

respondents No.2 and 3, the impugned order records that the said

respondents had failed to summon any witness with the records of

the Registrar of Marriages, Nanded, to prove the Marriage

Certificate in respect of the respondent No.2 with A.Ram Das.

Holding that the petitioner No.1 had successfully proved that her

marriage with A.Ram Das was solemnised on 25.05.1972, the

learned Family Court held that the marriage of the respondent No.2

with the same person cannot be treated as a legal and valid

marriage. But, in view of the educational records filed by the

respondents No.2 and 3 and the evidence brought on record, the

respondent No.3 was also held to be the legitimate son of A.Ram

Das.

12. The second issue was accordingly answered by the Family

Court by holding that besides the petitioners No.1, 2 and 3, the

respondent No.3 (the son born from the alliance of the respondent

No.2 with A.Ram Das) is also his legal heir, being his legitimate

child and therefore, he would be entitled to the pensionary and

other service benefits of late A.Ram Das at par with the petitioners

No.2 and 3 who were born from the wedlock of the petitioner No.1

and A. Ram Das. Resultantly, petitioners No.1, 2 and 3 and the

respondent No.3 were declared as the legal heirs of late A.Ram

Das.

13. The aforesaid judgment has been assailed by Mr. Gouri

Shankar Sanghi, learned counsel appearing for the respondents

No.2 and 3 on the ground that the learned Family Court has erred in

giving precedence to the Marriage Certificate issued by the

Yadagirigutta Temple, over the Marriage Certificate issued by a

statutory body, namely the Registrar of Marriages; that the learned

Family Court failed to appreciate the fact that the name of the

respondents No.2 and 3 had been duly recorded in the service

records of the deceased, as his nominees and therefore, they ought

to have been declared as his sole legal heirs and entitled to all his

pensionary benefits and lastly, that the respondents No.2 and 3 had

been residing with A.Ram Das in the Railway Quarters allotted to

him during his lifetime, which fact was ignored by the Family

Court.

14. We have carefully perused the records and given our

thoughtful consideration to the submissions made by Mr. Yadaiah,

learned counsel for the petitioners and Mr. Gouri Shankar Sanghi,

learned counsel for the respondents.

15. In the light of the oral and documentary evidence produced

by the petitioners and the respondent No.2, as has been discussed

above, the respondents No.2 and 3 have undoubtedly failed to rebut

the presumption that the petitioner No.1 is the legally wedded wife

of late A.Ram Das and the petitioners No.2 and 3 were born from

the said wedlock. It has to be seen that the original of Ex.B4, copy

of the marriage certificate, filed by the respondents No.2 and 3 was

neither filed in the Court, nor was the concerned officer from the

office of the Registrar of Marriages, Nanded, summoned with the

records to prove the said document, as per law. The evidence of

R.W.3 and R.W.4 also discloses that R.W.1 had got married to late

A.Ram Das on 08.03.1976. Given the said position, the learned

Family Court has rightly held that the petitioner No.1 is the legally

wedded wife of late A.Ram Das, their marriage having been

performed on 25.05.1972, at a much earlier point in time than the

marriage of the respondent No.2 with late A.Ram Das that was

solemnised after almost four years, on 08.03.1976. That being the

sequence of events, the marriage of the respondent No.2 with late

A.Ram Das, even though registered, cannot be held to be a legal

and valid marriage as the marriage between the petitioner No.1 and

late A.Ram Das was subsisting as on 08.03.1976 and no evidence

has been brought on record to demonstrate that A. Ram Das and the

petitioner No.1 had got divorced before he had contracted a second

marriage with the respondent No.2. Since the marriage of the

respondent No.2 is not a valid marriage, she cannot stake a claim

on the pensionary benefits as the legal heir of late A.Ram Das as

his lawfully wedded wife. We therefore accept the findings of the

learned Family Court that the petitioner No.1 was the legally

wedded wife of A. Ram Das and the respondent No.1 cannot claim

the said status.

16. At the same time, the Family Court has gone on to observe

that the respondent No.3, who was born from the wedlock of the

respondent No.2 and late A.Ram Das, being his legitimate son,

would also be entitled to a share in the estate of the deceased. The

said finding has been predicated on Section 16 of the Hindu

Marriage Act that bestows legitimacy on children, not withstanding

the fact that the marriage between their parents is void. As per the

settled legal proposition, a child born from an invalid or void

marriage is entitled to get a share from the personal estate of his/her

deceased father. In Rameshwari Devi v. State of Bihar reported as

(2000) 2 SCC 431, the Supreme Court has held that even if a

Government servant has contracted a second marriage during the

subsistence of his first marriage, the children born out of such a

second marriage would still be legitimate, though the second

marriage itself would be void. The said decision has been endorsed

by the Supreme Court in Vidhyadhari and others v. Sukhrana Bai

and others reported as (2008) 2 SCC 238. (Also refer:- Jinia

Keotin v. Kumar Sitaram Manjhi, reported as (2003) 1 SCC 730

and Neelamma v. Sarojamma, reported as (2006) 9 SCC 612).

17. In the light of the above discussion, this court does not find

any patent error, illegality or perversity in the impugned order that

deserves interference. The appeal is accordingly dismissed along

with the pending applications, if any, while leaving the parties to

bear their own costs.

_________________ HIMA KOHLI, CJ

______________________ B. VIJAYSEN REDDY, J 05.05.2021 Dsk/pln/vs

Note: LR Copy be marked.

(By order) Dsk/pln/vs