Smt. Pramila Bai vs E. Rukmini Bai
2022 Latest Caselaw 4322 Tel

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                                                          PNR, J & DR.GRR,J
                                                               as_674_2003


       HONOURABLE SRI JUSTICE P.NAVEEN RAO

                                   AND

       HONOURABLE DR. JUSTICE G.RADHA RANI

                  APPEAL SUIT NO.674 of 2003


                           Date:      .08.2022

Between:

Smt. Pramila Bai, W/o.Late E. Lakshman Rao,
(Ex.TTE/Railway-SC), aged about : 58 years,
Occ : House-wife, R/o.12-8-228/A, Mettuguda,
Secunderabad-17.

                                                    ... Appellant / Petitioner


And

1.     E. Rukmini Bai, W/o.Late E. Lakshman Rao,
       Aged about : 60 years, Occ : House-hold,
       R/o.9-3-723, Regimental Bazar,
       Secunderabad.

2.     The Divisional Railway Manager (Personal),
       Hyderabad Division,
       South Central Railway,
       Secunderabad.

                                               ... Respondents / Defendants

This Court made the following:

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PNR, J & DR.GRR,J as_674_2003

HONOURABLE SRI JUSTICE P.NAVEEN RAO

AND

HONOURABLE DR. JUSTICE G.RADHA RANI

APPEAL SUIT NO.674 of 2003

JUDGMENT : (per Hon'ble Dr. Justice G. Radha Rani)

This appeal is preferred by the appellant aggrieved by the

Judgment and Decree passed by the Judge, Family Court,

Secunderabad in O.S.No.25 of 2001, dated 31.05.2002.

2. The appellant herein was plaintiff in O.S.No.25 of 2001.

3. The appellant filed the above suit to declare her as legally

wedded wife of Late Lakshman Rao and to direct the 2nd

respondent to pay the remaining monthly pension, after making

payment to 1st respondent Rs.700/- per month, as per the

compromise decree passed in O.S.No.509 of 1993.

4. The parties herein are referred to as per their array before the

trial court.

5. As per the case of the plaintiff, Late E. Lakshman Rao

worked as TTE in South Central Railways and retired from service

on attaining the age of superannuation with effect from ::3::

PNR, J & DR.GRR,J as_674_2003

13-06-1993. His first wife Rukmini Bai (1st respondent) deserted

him and had not shown any interest towards him, and failed to take

care of him, as such, the parents of Lakshman Rao performed his

marriage with the plaintiff as per Hindu rites and customs at

Yadagirigutta 35 years ago, and since then they lived as husband

and wife till his death on 10-05-2000. Lakshman Rao, in his

service record, had shown the name of the plaintiff as wife-

nominee, and after retirement of Lakshman Rao, the 2nd defendant

issued a medical card to Lakshman Rao showing the name of the

plaintiff as his wife, wherein a joint photograph of the plaintiff and

Lakshman Rao was also affixed. In the pension passbook also,

their photos were affixed, and the plaintiff's name was mentioned

in the relevant column of the service record.

6. She further submitted that during the life time of her

husband, 1st defendant filed a suit against her husband claiming to

be his wife vide O.S.No.509 of 1993 on the file of 1st Junior Civil

Judge, Secunderabad, and the said suit ended in a compromise, and

a decree was also passed in terms of the compromise on

14-09-1994. As per the compromise, 1st defendant was entitled to

receive a sum of Rs.700/- per month towards her maintenance from ::4::

PNR, J & DR.GRR,J as_674_2003

the monthly pension of E. Lakshman Rao till her life time and

Lakshman Rao used to pay the remaining monthly pension to the

plaintiff for maintaining the family. After the death of her

husband, the plaintiff made a representation to 2nd defendant

enclosing all relevant documents, but 2nd defendant refused to pay

the pension.

7. The 1st defendant filed written statement submitting that she

was the legally wedded wife of E. Lakshman Rao. During the

subsistence of her marriage with Lakshman Rao, there could not

have been any valid marriage between Lakshman Rao and the

plaintiff. Till the death of Lakshman Rao, the marriage between

her and Lakshman Rao was subsisting. The plaintiff herself

accepted that she was the first wife, therefore there could not be

any lawful marriage between Lakshman Rao and the plaintiff. The

entries in the service register were not binding upon her. Issuance

of medical identity card with the photograph of the plaintiff and the

deceased would not give her the status of his wife. The plaintiff

was not entitled for family pension nor for any declaration that she

was the legally wedded wife of Lakshman Rao, and prayed to

dismiss the suit.

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PNR, J & DR.GRR,J as_674_2003

8. The 2nd defendant remained ex parte.

9. The trial court framed the following issues:-

1. Whether the plaintiff is the legal heir of late E. Lakshman Rao?

2. Whether the plaintiff is entitled for a direction to D2 to pay remaining monthly pension of late E. Lakshman Rao? and

3. to what relief?

10. The plaintiff examined herself as PW.1 and got examined

two other witnesses as PWs.2 & 3. Exs.A1 to A7 were marked on

her behalf. The 1st defendant examined herself as DW.1. No

documents were marked by 1st defendant.

11. On considering the material on record, the trial court

dismissed the suit.

12. Aggrieved by such dismissal, the plaintiff preferred this

appeal contending that the trial court failed to look into the facts

and evidence on record. The trial court failed to see that 1st

defendant had deserted late Lakshman Rao long back and her in-

laws performed her marriage with Lakshman Rao, and that it was

not a void or voidable marriage. As per the custom, late Lakshman

Rao married her. Her marriage with late Lakshman Rao was not ::6::

PNR, J & DR.GRR,J as_674_2003

hit by Section 5 of the Hindu Marriage of Act 1955, and prayed to

allow the appeal.

13. Heard the learned counsel for the appellant. None appeared

for the 1st respondent.

14. The learned counsel for the appellant submitted that late

Lakshman Rao married the appellant 36 years ago as per Hindu

rites and customs at Yadagirigutta, and since the day of marriage

they lived together as husband and wife. In the service record of

late Lakshman Rao, the name of the appellant was shown as his

'wife' and 'nominee' of late Lakshman Rao. After retirement of

Lakshman Rao, the 2nd respondent issued a medical card in favor of

Lakshman Rao showing the appellant as his wife. In the pension

passbook, the photo of the appellant along with late Lakshman Rao

was affixed and the name of the appellant was recorded as his wife

in the relevant column. The suit filed by 1st respondent against late

Lakshman Rao ended in compromise. In pursuance of the said

compromise decree, the 1st respondent received a sum of Rs.700/-

per month towards maintenance during the life time of late

Lakshman Rao, as such, the appellant was entitled for the ::7::

PNR, J & DR.GRR,J as_674_2003

remaining amount of family pension, and the trial court erred in

dismissing the suit; and prayed to allow the appeal.

15. Perused the record.

16. The trial court, on considering the evidence of the parties on

record, observed that there was a categorical admission by all the

parties that during subsistence of the first marriage of Lakshman

Rao with 1st defendant, plaintiff married Lakshman Rao, and hence

the same was void ab initio as per section 5(i) of Hindu Marriage

Act, 1955. She failed to show that the marriage between 1st

defendant with Lakshman Rao was dissolved by any competent

court. The marriage between 1st defendant and Lakshman Rao

would not dissolve automatically even if both were not living

together or leading lives of their own with some other man or

woman, and the 1st defendant would still continue to be the wife of

late Lakshman Rao. Nomination by late Lakshman Rao in favor of

the plaintiff during the subsistence of his marriage with 1st

defendant was not valid. Living with a person for more than 35

years would not validate the marriage which was void ab initio.

No presumption could be drawn in favor of the plaintiff when the

marriage was subsisting between late Lakshman Rao and 1st ::8::

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defendant. There was no proof of marriage between plaintiff and

late Lakshman Rao as per Hindu rites and customs.

17. In view of above, and in the facts and circumstances of the

case, we do not find any illegality in the observations of the trial

court. Moreover, the Trial Court made the above observations by

duly considering the provisions of Section 5 and Section 11 of the

Hindu Marriage Act, 19551, relevant portions of which are

reproduced as under :

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 a 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

(iii) the bridegroom has completed the age of 21 years and the bride, the age of 18 years at the time of the marriage;

(iv) the parties are not within the degrees of prohibited relationship unless the custom or usage 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 of a marriage between the two.

.........

11. Void marriages.--Any marriage solemnised after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto against the other party, be so declared by a decree of nullity if it contravenes any one of the conditions specified in clauses (i), (iv) and (v) of section 5.

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18. Admittedly, the marriage was subsisting between late

Lakshman Rao and 1st defendant till his death, and it was not

dissolved by any competent court. The Trial Court relied on the

judgment of the Hon'ble Apex Court in Smt. Yamuna Bai

Anantha Rao Yadav vs. Anantha Rao Shivram Yadav2 wherein

on considering Section 5(i) of the Hindu Marriage Act and Section

12(2) of the Hindu Marriage Act, it was held that Section 12 is

confined to other categories of marriages and is not applicable to

one solemnized in violation of Section 5(i) of the Act. The cases

covered by Section 12(2) are not void ab initio. Unless all the

conditions mentioned therein are fulfilled and the aggrieved party

exercises the right to avoid it, the same continues to be effective.

But the marriages covered by Section 11 are void ipso jure, i.e.,

void from the very inception and have to be ignored as not existing

in law at all.

19. In view of the law laid down under Section 5(i) and Section

11 of Hindu Marriage Act, 1955 and, as seen from the above

judgment of the Hon'ble Apex Court in Smt. Yamuna Bai

AIR 1998 SC 644 ::10::

PNR, J & DR.GRR,J as_674_2003

Anantha Rao Yadav (2 supra), the marriage between the plaintiff

and late Lakshman Rao is void ab initio as the plaintiff failed to file

any documentary evidence to show that the marriage between 1st

defendant and late Lakshman Rao was dissolved by any competent

court decree.

20. With regard to the contention of the learned counsel for the

appellant about the name of the plaintiff being shown in the service

records of late Lakshman Rao as her nominee, a decision of the

Division Bench of the Andhra Pradesh High Court in Gettam

Israil Vs Gettam Siromani & Ors.3, answers the said contention.

It says that only after taking steps to get the first marriage

dissolved, the employee can make such a nomination and he cannot

nominate a woman who was not his wife or a family member to

receive the death or retirement benefits.

21. As per the evidence of PW.1, three years after her marriage

with Lakshman Rao, 1st defendant came to Lakshman Rao and

herself and they all stayed together under the same roof. The 1st

defendant filed a suit for declaration three months prior to the

retirement of her husband, and the said suit ended in compromise.

AIR 2002 AP 279 ::11::

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The plaintiff was not a party to the said suit. Hence, the said

compromise was also not binding upon the plaintiff.

22. Hence, the Trial Court dismissing the suit filed by the

plaintiff is considered as proper and valid as it is in accordance

with the settled proposition of law. Therefore, we do not find any

illegality or infirmity in the order of the Trial Court which needs

any interference by this court.

23. In the result, the appeal is dismissed confirming the

judgment of the trial court. No costs.

24. As a sequel, miscellaneous applications pending if any in

this Appeal, shall stand closed.

_____________________ P.NAVEEN RAO, J

__________________________ DR. G.RADHA RANI, J

Date : 26.08.2022 Ktl / Ndr ::12::

PNR, J & DR.GRR,J as_674_2003

HONOURABLE SRI JUSTICE P.NAVEEN RAO

AND

HONOURABLE DR. JUSTICE G.RADHA RANI

APPEAL SUIT NO.674 of 2003

(Pre-delivery judgment prepared by Hon'ble Dr. Justice G. Radha Rani)

Date : .08.2022 Ndr