Sunday, November 2, 2014

2nd wife gets Army family pension even IF dissolution of 1st marriage not clear, NOT court ordered. Madras HC



Key observations
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*  "... Whether the man and woman or proved to have lived together as man and wife, the law will presume, unless the contrary be clearly proved that they were living together in consequence of a valid marriage and not in a state of concubinage.." :  Andrahennedige Dinohamy And Another Vs. Wijetunge Liyanapatabendige Balahamy And Others
*  it is well settled that a presumption of a valid marriage is a rebuttable one, it is for the other party to establish the same. Such a presumption can be validly raised having regard to Section 50 of the Evidence Act.


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This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon or High court websites. Some notes are made by Vinayak. This is a free service provided by Vinayak (pen name). Vinayak is a member of SIF - Save Indian Family movement. SIF as a concept is committed to fighting FALSE dowry cases and elder abuse. SIF supports gender equality and a fair treatment of law abiding Indian men. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog and if you are reading this on tumblr please post responses as comments at vinayak.wordpress.com . Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.
 
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CASE FROM JUDIS / INDIAN KANOON WEB SITE
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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 24/6/2014

CORAM

THE HONOURABLE Mrs.JUSTICE PUSHPA SATHYANARAYANA

Second Appeal (MD) No.1068 of 2009


S. Muthulakshmi            ...        Appellant

Vs

1.  The Record officer
     The Madras Regiment
     Post Box No.1
     Wellington
     Nilgiris.

2.  The Secretary
     The Defence Ministry
     Union Government of India
     New Delhi.                ...        Defendants

PRAYER

Second Appeal filed under Section 100 of Civil Procedure Code against the judgment and decree passed in A.S.No.153 of 2007 on the file of Subordinate Judge, Thoothukudi dated 28/8/2009 reversing the judgment and decree passed in O.S.No.125 of 2006 on the file of Principal District Munsif Court, Thoothukudi dated 12/1/2007.


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For Appellant        ...    Mr.M.P.Senthil
For Respondents    ...    Mr.K.K.Senthilvelan
                ASGI for R.R.1 and 2.
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:JUDGMENT

The plaintiff, who filed a suit for declaration that she is the legally wedded wife of one deceased Swamidoss and for mandatory injunction, directing the defendants to pay the family pension amount and other benefits to her has filed the above Second Appeal.

2. The brief facts which are necessary for the disposal of the Second Appeal are as follows:-

The plaintiff one Muthulakshmi claims that her husband Swamidoss was working as Havildhar from 1/4/1967 in Madras Regiment at Wellington, Nilgiris. He retired from service on 16/1/1970. From the date of retirement, he had been receiving the pension from the first defendant. The said Swamidoss was earlier married to one Thangapackiam and divorced her on 3/4/1976 under the customary divorce.

3. It is also stated by the plaintiff that the said Thangapackiam had executed a deed of dissolution of marriage. After the said dissolution, on 7/5/1976, the plaintiff married Swamidoss according to Hindu Rites and Customs. Out of the wedlock, they also begot a female child by name Thangakani Adhisaya Kumari. The divorced wife Thangapackiam also died on 20/4/1997. The deceased Swamidoss, the plaintiff and her daughter were living together till the date of death of Swamidoss. The first defendant also had sent a sum of Rs.3,000/- for funeral expenses of Swamidoss to the plaintiff. After the death of Swamidoss, the first defendant stopped sending the family pension amount. Therefore, the plaintiff sent a request on 4/5/2005 for which there was a reply on 24/5/2005 by the first defendant stating that the marriage between the plaintiff with Swamidoss was not legal and that Swamidoss had not divorced his wife Thangapackiam in a Court of Law. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

4. The plaintiff also placed reliance on the ration card from 1998  2003 and the Voters Identity Card wherein, the said Swamidoss is mentioned as the husband of the plaintiff. The birth certificate of the daughter of the plaintiff also shows only Swamidoss's name as father. As the first defendant was not responsive for the representations and did not release the family pension in favour of the plaintiff, the suit was filed by the plaintiff.

5. In the written statement filed by the first defendant, it is contended that the deceased Swamidoss was a Havildhar in the erstwhile Mysore force on 8/5/1948 and transferred to the Madras Regiment with effect from 16/4/1953. He was discharged from service with effect from 17/1/1970 after rendering 21 years and 8 months service in Army Rule 13 (3) III (i). He was also granted service pension for life Vide PPO No.S/4863/70.

6. As per the service documents, the deceased had married one Thangam on 3/6/1955 as per Hindu Rites. She died on 14/7/1956. After that the deceased converted himself into Christianity and married Thangapackiam Ammal on 11/12/1959. At the time of retirement also, he had nominated only Thangapackiam to receive arrears of pension in the event of his death. He had also applied for endorsement of family pension in favour of the plaintiff duly counter signed by his Pension Disbursing Authority (PDA) viz., Syndicate Bank, Tuticorin. Since her name was not recorded in the service documents, he was advised to forward divorce document in respect of his second wife Thangapackiam Ammal. However, the pensioner did not take any action during his life time till his death.

7. The plaintiff had intimated the defendants on 5/5/2003 about the death of Swamidoss and requested for grant of family pension in her favour. As only the name of Thangapackiam Ammal was recorded in the office of the first defendant, the first defendant informed the plaintiff about her ineligibility to family pension on 26/9/2003. However, the funeral expenses was paid to her by the first defendant. The plaintiff had served a legal notice on 17/10/2005 contending that Thangapackiam Ammal was divorced customarily and a deed was also executed dissolving the marriage. It was contended by the defendant that when the marriage of Thangapackiam Ammal with Swamidoss was not dissolved by a decree of divorce by a Court of Law, the plaintiff is not entitled to grant of family pension. It was also mentioned that Thangapackiam Ammal died on 20/4/1997 even during the life time of the deceased Swamidoss. Hence it was contended by the defendants that the plaintiff is not entitled to family pension as claimed by her.

8. Before the trial Court, on the side of the plaintiff, Exs.A.1 to A.12 had been marked and P.W.1 had been examined. On the side of the defendants, D.W.1 had been examined and Exs.B.1 to B.8 had been marked.

9. The trial Court decreed the suit declaring the plaintiff as the wife of the deceased Swamidoss and directed the defendants to extend the pension and other benefits to the plaintiff. On an appeal by the defendants, the Appellate Court reversed the same. Aggrieved by the same, the above Second Appeal is filed.

10. At the time of admission, the following questions of law are formulated for consideration:-

(i). Whether the lower Appellate Court is right in holding that the appellant is not the legally wedded wife of deceased Swamidoss on the ground that at the time of marriage of the appellant and Swamidoss, the first wife of Swamidoss was alive?

(ii). Whether the lower Appellate Court is correct in rejecting the claim of the appellant claiming pension holding that she is not the widow of Swamidoss without considering that she has been nominated by the deceased Swamidoss to receive all the pensionary benefits?

11. Heard Mr.M.P.Senthil for the appellant and Mr.K.K.Senthilvelan, Assistant Solicitor General of India for the respondents.

12. To decide the question whether the plaintiff is the legally wedded wife of the deceased Swamidoss and whether she is entitled to the family pension and other benefits, a few dates are relevant.

* The deceased Swamidoss was originally known as M.S.Karuppasamy. On 8/5/1948, Swamidoss joined Mysore force.

* On 16/4/1953, he was transferred to Madras Regiment on integration of State force with regular army.

* On 17/1/1970, he was discharged from service (retired).

* On 3/6/1955, he married one P.M.Thangam as per Hindu rites.

* On 11/12/1959, Karuppasamy converted to Christian and changed his name as Swamidoss.

* On 20/4/1997, Thangapackiam died.

* On 11/12/1959, Swamidoss married Thankapackiam Ammal.

* On 8/10/1969, a photo copy of IAFY  1948 A (discharge roll) Thangapackiam was nominated to receive the arrears of pension in the event of death of Swamidoss.


13. On receipt of Government Orders for endorsement of family pension and other benefits in Pension Payment Order (PPO) of living pensioners, the deceased Swamidoss was advised to submit an application for the same. He applied for endorsement of family pension in favour of the plaintiff duly counter signed by his Pension Disbursing Authority (PDA) i.e, Syndicate Bank, Tuticorin. As the said Swamidoss had not forwarded the divorce certificate of Thanga Packiam Ammal, the plaintiff's name was not recorded in the service documents. However, the pensioner Swamidoss did not take any action during his life time. http://evinayak.tumblr.com/ ; http://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

14. On 5/5/2003, the said Swamidoss died and the plaintiff informed the defendants of the same. The plaintiff was also informed about the ineligibility to family pension on 26/9/2003. However, she was paid sum of Rs.2,000/- as funeral expenses. As she was not extended the benefit of the family pension, the suit has been laid. Though it was claimed by the plaintiff that the marriage between Thangapackiam Ammal and Swamidoss dated 3/4/1976 was dissolved by a customary divorce, the lower Appellate Court has held that the same has not been proved. In support of the contention, the plaintiff had produced Ex.A.3 which is a deed of dissolution of marriage signed by Thangapackiam. The lower Appellate Court has rejected the same on the ground that the same was not attested by any witness.

15. Ironically, in this case, there is no rival claim. The second wife Thangapackiam whose name has been included in the pension papers by the deceased Swamidoss is said to have signed Ex.A.3 consenting for the marriage of the plaintiff with the deceased. The lower Appellate Court has rejected it only on the ground that the said Thangapackiam being the Teacher ought to have signed it before any witness. As the document was not attested by or witnessed by either the relatives viz., the brothers/parents of the Thangapackiam Ammal or even the colleagues of Thangapackiam, the lower Appellate Court has discredited the same. I am afraid that such a conclusion may not be correct. No doubt, Ex.A.3 has to be proved by the plaintiff. But when there is no denial of the signature of Thangapackiam or any rebuttal evidence adduced by the defendants, there is no other reason to discredit Ex.A.3.

16. As stated earlier, the said Thangapackiam died on 20/4/1997 and the deceased Swamidoss died on 5/5/2003. Besides producing Ex.A.3, the plaintiff also produced Ex.A.1 which is her wedding invitation with Swamidoss dated 7/5/1976. Ex.A.2 is the birth certificate the daughter born out of the wed lock of one Swamidoss and plaintiff. The plaintiff also had produced Ex.A.6 which is the copy of the ration card in which Swamidoss name is shown as the head of the family. Ex.A.7 is the Voters Identity Card wherein Muthulakshmi has been identified as the wife of Swamidoss. The lower Appellate Court has rejected Ex.A.2 wedding invitation on the ground that it is the cooked up document created for the purpose of this case. The reasoning given by the lower Appellate Court is that the auspicious time mentioned in that was between 10 and 11 on a Friday which is not an auspicious time according to Hindu almanac. However, there is no contra evidence to reject the ration card and the Voters identity card which cannot be created for the purpose of the case.

17. Admittedly, Thangapackiam died in the year 1997. No doubt, the deceased Swamidoss had negatived the name of Thanga packiam in the official records as his nominee. But that was before his retirement in 1970. However, from the retirement in 1970, Swamidoss was only receiving the pension benefits till his death. Therefore, there was no occasion for Thangapackiam at any point of time to receive the pension benefits.

18. It is the case of the plaintiff that Thangapackiam was divorced on 3/4/1976 customarily and the plaintiff was married on 7/5/1976. If really Thangapackiam, who was a Teacher was aggrieved by the said marriage of the plaintiff with the deceased Swamidoss, there would have been some kind of an objection or litigation from her side. However, there is no such record being produced by the defendant. A girl child was also born out of the wed lock between plaintiff and Swamidoss which is evidenced by Ex.A.2. In the absence of any contra evidence, it can be stated that the factum of marriage of the plaintiff with Swamidoss is deemed to be proved.

19. The next question that may crop up is if the marriage is proved whether the same is valid and legal in the eye of Law. The lower Appellate Court had rejected Ex.A.3 and disbelieved the version of customary divorce of Thangapackiam by Swamidoss. If that be so, during the subsistence of the first marriage, the second marriage with the plaintiff is undoubtedly not legal. But in this case, Thangapackiam died in the year 1997. Thereafter, till the death of Swamidoss, he had only lived with the plaintiff. The defendants also have given the funeral expenses recognising the plaintiff as the next kin of the deceased. No doubt, even if the marriage between the plaintiff and Swamidoss is proved, the death of Thangapackiam will not validate the marriage. Then, what is the status of the plaintiff. As early as in 1927, the Privy Council had held in ANDRAHENNEDIGE DINOHAMY AND ANOTHER Vs. WIJETUNGE LIYANAPATABENDIGE BALAHAMY AND OTHERS reported in AIR 1927 PC 185 as follows:-

"... Whether the man and woman or proved to have lived together as man and wife, the law will presume, unless the contrary be clearly proved that they were living together in consequence of a valid marriage and not in a state of concubinage.."

20. Again in MOHABBAT ALI KHAN Vs. MUHAMMAD IBRAHIM KHAN AND OTHERS reported in AIR 1929 Privy Council 135, Their Lordships had laid down that The law presumes in favour of marriage and against concubinage when a man and a woman have cohabited continuously for a number of years.

21. From the above, one can understand that though it is well settled that a presumption of a valid marriage is a rebuttable one, it is for the other party to establish the same. Such a presumption can be validly raised having regard to Section 50 of the Evidence Act. Section 50 of the Indian Evidence Act reads as follows:-

"........When the Court has to form an opinion as to the relationship of one person to another, the opinion, expressed by conduct, as to the existence of such relationship, of any person knowledge on the subject, is a relevant fact :

Provided that such opinion shall not be sufficient to prove a marriage in proceedings under the Indian Divorce Act, 1869 (4 of 1869), or in prosecutions under Sections 494, 495, 497 or 498 of the Indian Penal Code (45 of 1860)....."


Therefore, heavy burden lies on the person, who seeks to prove that no marriage has taken place. The concept of marriage to constitute the relationship of husband and wife may require strict interpretation were claims for civil rights, right to property etc., may follow or flow and a liberal approach and different perception cannot be an anathema when the question of curbing the social evil is concerned.

In RAMESH CHANDRA RAMPRATHAPJI DAGA Vs. RAMESHWARI RAMESH CHANDRA DAGA reported in AIR 2005 SC 422, wherein it is held that the Hindu Marriages continued to be bigamous in spite of the enactment of Hindu Marriage Act, 1995. No doubt, those marriages are illegal as per the provision of the Act, they are not immoral and hence a financially dependent woman cannot be denied the benefits on that ground.

22. After the death of Thangapackiam Ammal in 1997, admittedly, the plaintiff and the deceased Swamidoss were living together. Even if the factum of marriage is proved but held to be illegal, the long cohabitation would draw the presumption that they are living as man and wife. On that score, if the plaintiff is deemed to be the wife of deceased Swamidoss, she would be entitled to receive the pension benefits as claimed for.

23. There are no other counter claim or rival claim made by any person to deny or defeat the rights of the plaintiff. In such circumstances, the plaintiff is entitled to get the relief as prayed for. In view of the above, the questions of law have to be answered in favour of the plaintiff and the suit has to be decreed and the judgment of the lower Appellate Court is set aside.

24. In the result, this Second Appeal is allowed and the judgment and decree passed in A.S.No.153 of 2007 on the file of the learned Subordinate Judge, Thoothukudi is set aside. The judgment and decree passed in O.S.No.125 of 2006 on the file of Principal District Munsif Court, Thoothukudi dated 12/1/2007 is restored. No costs.

To

1. The Subordinate Judge, Thoothukudi

2. The Principal District Munsif Court, Thoothukudi


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Vinayak
Father of a lovely daughter, criminal in the eyes of a wife, son of an compassionate elderly mother, old timer who hasn't given up, Male, activist