JUDGMENT : B. Panigrahi, J. - Judgment and decree passed by the Learned Judge, Family Court, Rourkela dated May 15, 1999 and August 2, 1999 respectively declaring Respondent No. 1 to be the legally married wife of late Puranlal Tanti are under challenge in this Appeal. 2. The essential facts leading to this Appeal are as follows: The case has suffered a chequered career. Respondent No. 1 as plaintiff in the Original Suit before the Learned Judge, Family Court, Rourkela claimed to be the wife of late Puranlal Tanti. It has been averred in the plaint that her marriage with Puranlal was solemnised under Hindu Vedic rituals and ceremonies in the year, 1982 at the parental abode of the plaintiff-Respondent No. 1 at Barasad in the district of Sambalpur. Immediately following such marriage it was consummated at Bondamunda in the district of Sundargarh. Out of their lawful wedlock a daughter named Goumi Tanti was born, but unfortunately she expired in the year 1989. Respondent No. 1's husband was working as a Box carrier in the South Eastern Railway at Bondamunda and expired while in service on October 6, 1990. It is further averred by the plaintiff-Respondent No. 1 that Defendant No. 1 who is the Appellant in this case was the widow of Late Kartik Tanti, the younger brother of her husband Puranlal. Kartik Tanti expired in 1990. The Appellant was working as a maid servant in the houses of Railway Officers at Chakradharpur. It is the case of the plaintiff-Respondent No. 1 that immediately after the death of her husband since she could not take any steps to lay claim for the death-cum-retirement benefit of her husband being an illiterate lady, the Appellant in collusion with the Railway staff posing herself to be the widow of Puranlal obtained a succession certificate from a Court at Bihar by impersonating herself to be his widow and received Rs. 10,000/- from out of service benefits of late Puranlal Tanti. When the plaintiff- Respondent No. 1 came to know the mischief played by the Appellant, she filed the suit seeking a declaration that she is the widow of Late Puranlal and, therefore, is entitled to all the benefits accrued to her husband under death-cum-retirement scheme. 3. 10,000/- from out of service benefits of late Puranlal Tanti. When the plaintiff- Respondent No. 1 came to know the mischief played by the Appellant, she filed the suit seeking a declaration that she is the widow of Late Puranlal and, therefore, is entitled to all the benefits accrued to her husband under death-cum-retirement scheme. 3. Defendant No. 1 who is the Appellant in this case, while controverting all the allegations of the plaintiff-Respondent No. 1 has asserted that she had married Late Puranlal Tanti according to Hindu custom and ritual on July 12, 1986 at Chakradharpur and immediately thereafter the marriage was consummated. Out of their wedlock a male child, namely, Kunu Tanti was born in 1989. Late Puranlal Tanti had acknowledged the Appellant to be his wife and Kunu as his son in Medical Card and other related documents maintained by the Railways. Since the plaintiff-Respondent No. 1 was not related to Puranlal Tanti in any manner the Appellant Defendant No. 1 was rightly granted a Succession Certificate by the District Judge, Singhbhum. West at Chainbasa in succession Certificate Case No. 7 of 1992 after inviting due objections from the relatives and the public in general. Since the Appellant was entitled to receive the provident fund dues of her late husband as his widow a part of the amount was paid to her. 4. The suit was once disposed of on merits on July 31, 1995 by the Learned Judge, Family Court by declaring Respondent No. 1 to be the widow of Puranlal. Being aggrieved the Appellant-Defendant No. 1 filed an Appeal in this Court in Civil Appeal No. 14 of 1995 and this Court set aside the said Judgment and decree on August 27, 1998 and remitted the same for a fresh decision. 5. The Learned Judge, Family Court after remand of the suit has reiterated his view that the Respondent No. 1 is the widow of Puranlal. The Appellant-Defendant No. 1 has, therefore, once again filed this appeal challenging the Judgment and decree passed by the Learned Judge, Family Court. 6. Both parties incontrovertibly stated that Puranlal was serving as a Box carrier in the South Eastern Railway and at the time of his death he was posted at Bondamunda. The Appellant-Defendant No. 1 has, therefore, once again filed this appeal challenging the Judgment and decree passed by the Learned Judge, Family Court. 6. Both parties incontrovertibly stated that Puranlal was serving as a Box carrier in the South Eastern Railway and at the time of his death he was posted at Bondamunda. But the only controversy which is sought to be resolved in this case is whether the plaintiff-Respondent No. 1 or the Appellant - Defendant No. 1 is the w/o of Puranlal. Rival claims have been made regarding the status as the wife of Late Puranlal. P.W.6, Arati, a lady is said to have married Puranlal prior to the marriage of either the plaintiff or the Defendant No. 1 Plaintiff -Respondent No. 1 in order to lay claim as the w/o. Puranlal had examined six witnesses whereas Appellant-defendant No. 1 has placed the evidence of 7 witnesses apart from some documents placed by both the parties. 7. While appreciating the Judgment of the Learned Judge, Family Court, certain undisputed facts emerged from the case be stated. Late Puranlal had married P.W.6, Arati, and they lived as husband and wife for some time. Although P.W.6 has claimed herself to be his kept, but from the evidence of P. W.s. 1 to 5 including the plaintiff so also the witnesses of the Defendant No. 1, it has emerged that Puranlal had married Arati first, but after she deserted Puranlal, Defendant No. 1 claimed to be his wife whereas the plaintiff-Respondent No. 1 too claimed the same status. The Learned Judge, Family Court did not advert to the fact-situation that Arati was the married wife of Late Puranlal. There has been no evidence that there was a valid divorce between Puranlal and Arati. Without divorce being granted, Arati could not have been married to some other person. Assuming that she had entered re- marriage, but such re-marriage with another person would be invalid without obtaining a declaration that the marital tie between Puranlal and herself had been snapped. It is to be noted that excepting the death-cum-retirement benefits accrued to Late Puranlal no other property is involved. Arati had nothing to claim from the amount accrued to Puranlal inasmuch as she had illegally entered re-marriage with another during the subsistence of the first marriage with Puranlal. 8. It is to be noted that excepting the death-cum-retirement benefits accrued to Late Puranlal no other property is involved. Arati had nothing to claim from the amount accrued to Puranlal inasmuch as she had illegally entered re-marriage with another during the subsistence of the first marriage with Puranlal. 8. On a careful study of the Judgment of the Learned Judge, Family Court, it appears that he rejected the Appellant's marriage with Puranlal on a very trivial and inconsequential ground. 9. Respondent No. 1 in her evidence has claimed that her marriage with Puranlal was solemnised in a Siva Temple situated in Sector 'A' of Bondamunda. The marriage was performed in summer season, but she was unable to remember even the year of the said marriage. From her testimony it has further emerged that a daughter was born and after five years, that daughter died. During the life time of Puranlal, her name was entered in the Medical Card and in the records of the Railway authorities. She has further claimed to have accompanied Puranlal to different places by availing Railway concession pass. But, no such document has been produced by her in the Court. A lame excuse was offered that those documents were lost somewhere, but it is not known why the plaintiff-Respondent No. 1 did not take steps to summon those documents, even if those were lost, from the Railway Department. A suggestion was given that she was married to Kartik, who was younger brother of Late Puranlal, to which she denied. P.W. 2 was an employee of the Railway, who deposed that the plaintiff's marriage was performed in Siva Temple at Bondamunda. Puranlal had married Arati (P.W.6) at Rajgangpur, P. W. 3 of course could not tell the details of the marriage of the plaintiff with Puranlal, but from his evidence it appears that late Puranlal had married Arati. P.W.4 also deposed in the same line. P.W. 5 was the sister of Respondent No. 1's father. From her evidence it has been clearly established that Puranlal married the plaintiff for the second time. The first marriage was with Arati. But she left him because of his madness. Assuming that Puranlal had suffered from insanity and Arati left him on that ground, how could plaintiff again marry such a person who was suffering from insanity? Therefore, the version of P.W. 5 does not appear to be truthful. 10. The first marriage was with Arati. But she left him because of his madness. Assuming that Puranlal had suffered from insanity and Arati left him on that ground, how could plaintiff again marry such a person who was suffering from insanity? Therefore, the version of P.W. 5 does not appear to be truthful. 10. Now, turning to the evidence of Appellant Chunu Jhunu @ Tanti, it appears that she has claimed to have married Puranlal on July 12, 1986 and out of their wedlock a male child was born on Aswina 23, 1989. The evidence of D.W.I, could not however, persuade the Learned Judge, Family Court on account of she being unable to speak the age difference between herself and her husband. It is to be borne in mind that D. W. I, is an illiterate lady and her marriage with Puranlal had taken place some time in 1986. It would be unrealistic and imaginative to expect that the Defendant No. 1 would present a graphic picture with minute details of such marriage solemnised years before. Photographs had been marked as exhibits in this case. One of such photographs was taken with Puranlal and other relations. Another photograph was taken at the time of death of her father-in-law. A health card had been proved as Ext. A which unmistakably revealed that she was Puranlal's wife at an uncontroversial period. Ext. B is the Succession Certificate. A legal presumption shall arise from such certificate unless it is rebutted by the person questioning it. The local M.L.A. had also granted a certificate. Although he was not examined, but the certificate granted by him would reveal that Defendant No. 1 was known as the wife of Puranlal. D.W.2 is a relation of her husband. From his evidence it has transpired that Defendant No. 1 was accepted as the wife of Puranlal. D.W.3 had acted as priest. His evidence also further established that the marriage between the Appellant and Puranlal was performed by him. D.W.4 is the father of D.W.I who would normally support his daughter's case about the marriage with Puranlal. Defendant No. 1 gave birth to a male child who is now reading in G.M.L.P. School at Chakradharpur. From the evidence of DW. 5 embodied in this case, it has been firmly established that Defendant No. 1 was known as the widow of Puranlal. Defendant No. 1 gave birth to a male child who is now reading in G.M.L.P. School at Chakradharpur. From the evidence of DW. 5 embodied in this case, it has been firmly established that Defendant No. 1 was known as the widow of Puranlal. D. Ws.6 and 7 similarly supported the case of Defendant No. 1. Therefore, on a combined reading of the oral evidence placed by both parties, we found that it is equally balanced, rather it tilts in favour of the appellant as the wife of Puranlal. 11. The fact remains that Defendant No. 1 also gave birth to a male child who is living with her. In such situation, we are inclined to grant them 50% of the death-cum-retirement benefits and the other 50% shall be released in favour of the plaintiff. 12. Be it noted that undisputedly Arati (P.W.6) had married Puranlal first and there has been no evidence of divorce, either granted by the Court or mutual divorce being effected by both parties. Mere desertion by P.W.6 would not render the marriage of both the spouses invalid. As long as such marriage was subsisting no marriage much less with the plaintiff or the Defendant No. 1 is sustainable in law. However, since P.W. 6 has not laid any claim and further she has already given birth to four children through someone else, therefore, it is to be decided as to who between the plaintiff and Defendant No. 1 shall be entitled to the death-cum-retirement benefits of Puranlal. While determining the claims of both the plaintiff and Defendant. No. 1 we rather feel it relevant to refer to Rule 75 of the Railway Service Pension Rules, 1993. Under Sub-rule (7) of the said Rule 75 it has been provided: 7(i)(a). Where the family pension is payable to more widows than one, the family pension shall be paid to the widows in equal shares. (b) On the death of a widow, her share of the family pension, shall become payable to her eligible child: Provided that if the widow is not survived by any child, her share of the family pension shall not lapse but shall be payable to the other widows in equal shares, or if there is only one such other widow in full, to her. (ii) Where the deceased railway servant or pensioner is survived by a widow but has left behind eligible child or children from another wife who is not alive, the eligible child or children shall be entitled to the share of family pension which the mother would have received if she had been alive at the time of the death of the railway servant or pensioner. Provided that on the share or shares of family pension payable to such a child or children or to a widow or widows ceasing to be payable, such share or shares shall not lapse but shall be payable to the other widow or widows or the other child or children otherwise eligible, in equal shares, or if there is only one widow or child, in full, to such widow or child, (iii) Where the deceased railway servant or pensioner is survived by a widow but has left behind child or children from a divorced wife or wives, such child or children if they satisfy other conditions of eligibility for payment of family pension shall be entitled to the share of family pension which the mother would have received at the time of death of the railway servant or pensioner had she not been so divorced: Provided that on the share or shares of family pension payable to such a child or children or to a widow or widows ceasing to be payable, such share or shares shall not lapse but shall be payable to the other widow or widows and or to other child or children otherwise eligible, in equal shares, or if there is only one widow or child, in full, to such widow or child." 13. In the result, the appeal is allowed in part. The death-cum-retirement benefit of Puranlal shall be apportioned equally between the plaintiff and Defendant No. 1 along with her son. Final Result : Partly Allowed