Telangana High Court

Kondapally Ramulu vs Smt.Kondapally Suguna And 6 Ors on 23 November, 2023

Author: K.Lakshman

Bench: K.Lakshman

            THE HON'BLE SRI JUSTICE K.LAKSHMAN
                                  AND
              THE HON'BLE SMT JUSTICE K. SUJANA


             FAMILY COURT APPEAL NO.211 OF 2012


JUDGMENT:

(per Hon'ble Smt Justice K.Sujana)

This appeal is preferred by the appellant/husband against

order dated 19.03.2012 made in O.P.No.628 of 2009 on the file of the

Additional Family Court, at Hyderabad, whereunder, the Family

Court directed the respondent No.1 therein to mention the name of

petitioner No.1 in place of respondent No.2 therein. The Family Court

further directed the respondent No.1 to show the names of petitioner

Nos.2 to 4 therein as family members in the official records within

one month from the date of order.

2. For the sake of convenience, the parties are referred to as

arrayed in O.P.No.628 of 2009.

3. The brief facts of the case are that O.P.No.628 of 2009 was

filed by wife and children of respondent No.1- Kondapally Ramulu.

Respondent No.2 is the alleged wife of respondent No.1, respondent

No.3 and 4 are District Educational Officer and Correspondent of

Andhra Vidhyala High School, respectively. The said O.P., was filed

with a prayer to direct the respondent No.1 to replace the name of KL,J & SKS,J

respondent No.2, with that of petitioner No.1, as nominee in the

pensionary benefits.

4. The said O.P., was filed stating that petitioner No.1 is the

legally wedded wife of respondent No.1 and their marriage was

performed on 23.05.1974 and they lead their marital life. Out of their

wedlock, they were blessed with three children i.e., petitioner Nos.2

to 4. Petitioner Nos. 1 to 4 alleged that respondent No.1 demanded

petitioner No.1 to sell away the property which she got from her

parents and also demanded her to get money for which she refused.

Under such circumstances, the respondent No.1 continued to live

separately and did not mention the names of petitioner Nos. 1 to 4 in

the official records on the one hand and on the other hand, he

mentioned the name of respondent No.2 - Nirmala as his nominee for

family pensionary benefits. Though respondent No.1 was questioned

about such mention, he did not reply to the same.

5. Before the Family Court, the respondent Nos.2 to 4 were set ex

parte and on behalf of respondent No.1, a counter affidavit was filed

denying the averments of petitioner No.1. He stated in the counter

affidavit that the Family Court has no jurisdiction to entertain the

O.P., and admitted that he retired as Headmaster of Andhra

Vidhyalaya High School, Hyderabad. He further stated that since 25

years, respondent No.2 was rendering services to him by way of KL,J & SKS,J

cooking and doing household work, as such, he mentioned her name

as nominee in his pension papers as beneficiary. He contended that

petitioner No.1 never came to him and she has no manner of right or

interest against him in person or against his property. As such, he

took customary divorce from petitioner No.1 and also filed

O.P.No.783 of 2009 seeking dissolution of marriage.

6. On behalf of petitioners, petitioner No.1 was examined as PW.1

and Exs.P1 to P7 were marked. On behalf of respondents,

respondent No.1 was examined as RW.1 and Exs.R1 to R9 were

marked. After going through the evidence on record and the

documentary evidence, the Family Court directed the respondent

No.1 to "mention the name of petitioner No.1 in place of respondent

No.2 and he shall show the names of petitioner Nos.2 to 4 also as

family members, in the official records within one month from today."

7. Heard both sides.

8. Learned counsel for appellant submitted that O.P.No.628 of

2009 was filed before the Family Court without there being any right

and any jurisdiction. He contended that the Family Court has no

jurisdiction to entertain the said O.P. as the appellant and

respondent No.1 took customary divorce which was admitted by

respondent No.1 herself. Therefore, the impugned order is not KL,J & SKS,J

maintainable and prayed this Court to allow the appeal by setting

aside the said order.

9. On the other hand, the learned counsel for respondent,

submitted that there were no infirmities in the order of the Family

Court and the Family Court has rightly directed the respondent No.1

therein to replace the name of respondent No.2 therein with that of

petitioner No.1 therein as she is the legally wedded wife of

respondent No.1 therein.

10. Now the points for determination are:

1. Whether the respondent No.1 herein - wife is entitled for the

relief, as granted by the Family Court?

2. Whether the judgment of the Family Court needs any

interference?

POINT Nos.1 & 2:

11. There is no dispute of the fact that the respondent No.1/wife is

the legally wedded wife of appellant/husband and respondent Nos. 2

to 4 are their legitimate children. Though the appellant/husband

alleged that he took customary divorce, but the same was not

admitted, as such, it cannot be accepted as there is no validity for

the customary divorce. Further, there is no dispute with regard to KL,J & SKS,J

the employment of appellant. The appellant/husband admitted that

he mentioned the name of Nirmala as nominee in his official

pensionary benefits records since she was serving him for the last 25

years. He also admitted that he has not mentioned the names of

respondent Nos.2 to 4 herein as nominees.

12. As per the Telangana Revised Pension Rules, 1980, Rule 49

(for short 'Rule 49 of Rules, 1980') deals with nominations, which

reads as under:

"49. Nominations :- A Government servant, shall, on his appointment make a nomination in Form 1 or Form 2, as may be appropriate in the circumstances of the case, conferring on one or more persons the right to receive the retirement gratuity payable under Rule 47

Provided that if at the time of making the nomination-

(i) the Government servant has a family, the nomination shall not be in favour of any person or persons other than the members of his family; or

(ii) the Government servant has no family the nomination may be made in favour of a person or persons, or a body of individuals, whether incorporated or not.

(2) If a Government servant nominates more than one person under sub-rule (1), he shall specify in the nomination the amount of share payable to each of the nominees in such manner as to cover the entire amount of gratuity.

KL,J & SKS,J

(3) A Government servant may provide in the nomination-

(i) that in respect of any specified nominee who predeceases the Government servant, or who dies after the death of the Government servant but before receiving the payment of gratuity, the right conferred on that nominee shall pass to such other person as may be specified in the nomination:

Provided that if at the time of making the nomination the Government servant has a family consisting of more than one member, the person so specified shall not be a person other than a member of his family; Provided further that where a Government servant has only one member in his family, and a nomination has been made in his favour, it is open to the Government servant to nominate alternate nominee or nominees in favour of any persons or a body of individuals, whether incorporated or not;

(ii) that the nomination shall become invalid in the event of the happening of the contingency provided therein.

(4) The nomination made by a Government servant who has no family at the time of making it, or the nomination made by a Government servant under the second proviso to clause (i) of sub-rule (3) where he has only one member in his family shall become invalid in the event of the Government servant subsequently acquiring a family, or additional member in the family, as the case may be.

(5) A Government servant may, at any time cancel a nomination by sending a notice in writing to the authority mentioned in sub-rule (7): Provided that he shall, along with such notice, send a fresh nomination made in accordance with this rule.

KL,J & SKS,J

(6) Immediately on the death of a nominee in respect of whom no special provision has been made in the nomination under clause (i) of sub-rule (3) or on the occurrence of any event by reason of which the nomination becomes invalid in pursuance of clause (ii) of that sub-rule, the Government servant shall send to the authority mentioned in sub-rule (7) a notice in writing cancelling the nomination together with a fresh nomination made in accordance with this rule.

(7)(a) Every nomination made (including every notice of cancellation, if any, given) by a Government servant under this rule, shall be sent-

(i) in the case of Gazetted Government servants who are under the payment control of Pay and Accounts Officer to the Pay and Accounts Officer, and

(ii) in the case of Gazetted Government servants who are not under the payment control of Pay and Accounts Officer to the Head of Office.

(b) The Pay and Accounts Officer or the Head of Office, as the case may be, shall, immediately on receipt of the nomination referred to in clause (a), countersign it indicating the date of receipt and keep it under his custody.

(c)(i) the Head of Office may authorise his subordinate gazetted officers to countersign the nomination forms of Gazetted/Non-Gazetted Government servants.

(ii) Suitable entry regarding receipt of nomination shall be made in the service book of the gazetted /non-gazetted Government servant.

(8) Every nomination made, and every notice of cancellation given, by a Government servant shall, KL,J & SKS,J

to the extent that it is valid, take effect from the date on which it is received by the authority mentioned in sub-rule (7).

(9) The service gratuity payable to an official who has retired with less than 10 years qualifying service shall not be paid to the persons nominated by the official for retirement gratuity. If the service gratuity could not be paid to the official himself before his death, the same shall be paid to his legal heirs."

13. As per the above extracted portion, an employee has to

mention the names of family members as nominee, whereas, in the

instant case, respondent No.2 therein - Nirmala is not the family

member of appellant as admitted by him. According to appellant, she

is serving him from last 25 years by cooking food. Further, he denied

that he married Nirmala. However, it is needless to say that the

nomination only indicates the hand which is authorized to receive

the amount on the death.

14. Now it is to be seen that the maintainability of O.P.No.628 of

2009 filed by respondent Nos.1 to 4 seeking a direction to the

appellant herein to replace the name of respondent No.1 as nominee

with the name of respondent No.5 in the pension form.

15. As per the explanation given in sub head (a) of the Section 7 of

the Family Courts Act, 1984 - a suit or proceeding between the KL,J & SKS,J

parties to a marriage for a decree of nullity of marriage or restitution

of conjugal rights or judicial separation or dissolution of marriage

shall be maintainable before Family Court. As per explanation given

under sub head (c), a suit or proceeding between the parties to a

marriage with respect to the property of the parties or of either of

them, shall be maintainable before the Family Court. As per the sub

head (d), it is clear that a suit or proceeding for an order or

injunction in circumstance arising out of a marital relationship

cannot be filed by the children of the parties, as such, except

between the couple, any dispute between the parents and children

shall not be maintainable before the Family Court. In the present

case, the marriage between petitioner No.1 and respondent No.1 was

already dissolved. Therefore, she is no more legally wedded wife of

respondent No.1. Further, in view of the sub head (d) of the Section 7

of the Family Court Act, the children cannot file any suit for

injunction.

16. Apart from that, mere nomination in the service book does not

confer on the nominee any beneficial interest. The nomination only

indicates the hand which is authorized to receive the amount on the

death. The nomination only makes a nominee, a trustee who has a

right to receive the specific benefit for and on behalf of those who are

otherwise entitled to the same in accordance with the personal law KL,J & SKS,J

applicable to them. The said legal position is well settled in catena of

decisions.

17. Further in the judgment rendered in

Adamsaheb Vs. Raziyabegum and Others 1 the Karnataka High

Court observed as under:

"19. The very important aspect which both the

Counsel on either side miss is that Article 309 of the

Constitution of India empowers the Central or State

Government to promulgate the rules governing the

conditions of service and therefore such rules must

necessarily confine to the relationship between the

employer and employee. The rules relied upon by

the Respondent-Plaintiff have to be understood

ordinarily in this background. These rules create a

right in the employer and the corresponding duty in

the employee. In any circumstance, the breach of

such a rule is not intended to give a cause of action

or right of action to a third party like the spouse. In

other words, these rules do not vest a justiciable

right in the spouse so that when there is a breach,

she can knock at the doors of the Court or the

Tribunal for redressed of her grievance."