JUDGMENT Rajiv Sharma, Judge. Since common questions of law and facts are involved in the regular second appeal, cross-objections and contempt petition, the same were taken up together for hearing and are being disposed of by a common judgment. 2. “Pertinent facts” necessary for the adjudication of the regular second appeal, cross-objections and contempt petition are that the respondent/plaintiff, Rajeev Kumar (hereinafter referred to as the “plaintiff” for the sake of convenience) filed a suit for declaration along with consequential relief of injunctions. It was averred that father of the plaintiff and proforma defendants, Kanta and Nisha,, namely, Mangat Ram was government employee. He was posted as Peon in Primary Health Centre Himri, Tehsil Kotkhai, District Shimla, H.P.. He died on 26.5.2008. According to the plaintiff, Mangat Ram was co-owner in possession of the land comprised in Khewat No.75, Khatauni No.129, Khasra Nos.98, 434, Kita-2, area measuring 00-51-25 hectares and the land comprised in Khewat No.79, Khatauni No.133, Khasra No.370, area measuring 00-18-08 hectares, situated in Chak Gunda, Tehsil Kotkhai, District Shimla, as per jamabandi for the year 2002-03. After the death of Mangat Ram, the plaintiff and proforma defendants were the only legal heirs to inherit his estate in equal shares and they were entitled to his service benefits, i.e. GPG, gratuity, pension etc.. Draupdi alias Fishi, wife of Mangat Ram, died in the year 2004. According to the plaintiff, Mangat Ram never contracted any second marriage. However, appellant/defendant No.1, Indra Devi (hereinafter referred to as “defendant No.1” for the sake convenience) claimed herself to be the wife of Mangat Ram, in collusion with some officials of the Hospital, where Mangat Ram was serving. She was trying to grab GPF, pension and other service benefits. In fact, defendant No.1 was legally wedded wife of one Tikam Ram, resident of Urtu/Rahnu, Tehsil Nirmand, District Kullu. 3. The suit was contested by defendant No.1 and defendant No.2-State. The proforma defendants were proceeded ex-parte. 4 According to defendant No.1, she was also legal heir of Mangat Ram being his legally wedded wife. She was married to Mangat Ram on 5.11.2006 as per Hindu custom and rites prevalent in the area. The marriage was registered in Gram Panchayat Himri vide registration No.16/2006 and name of defendant No.1 was shown in Pariwar Register of Mangat Ram. Her name was also figured in ration card and electoral record. She was married to Mangat Ram on 5.11.2006 as per Hindu custom and rites prevalent in the area. The marriage was registered in Gram Panchayat Himri vide registration No.16/2006 and name of defendant No.1 was shown in Pariwar Register of Mangat Ram. Her name was also figured in ration card and electoral record. The Executive Magistrate, Kotkhai issued a legal heir certificate to defendant No.1 after conducting thorough enquiry from Panchayat record, Pariwar register and ration card. She cohabited with Mangat Ram as wife and was residing in her matrimonial house, i.e. village Ghunda, P.O. Himri, Tehsil Kotkhai, District Shimla, H.P.. Mutation No.63, dated 4.3.2009 was also attested and sanctioned in her favour along the plaintiff and proforma defendants. 5. Defendant No.2-State filed separate written statement. According to defendant No.2-State, Mangat Ram was posted as Peon in Primary Health Centre, Himri, Tehsil Kotkhai, District Shimla, H.P.. It admitted that Mangat Ram died on 26.5.2008. The Executive Magistrate, Kotkhai issued a legal heir certificate on 16.7.2008, showing Rajeev Kumar, Kanta, Nisha and Indra Devi to be legal heirs of Mangat Ram. Mangat Ram was having one son and two daughters. It was denied that Indra Devi was legally wedded wife of Tikkam Ram. 6 Learned trial court framed the issues on 19.5.2009 and dismissed the suit vide judgment and decree dated 30.8.2010. 7 Plaintiff feeling aggrieved by judgment and decree dated 30.8.2010 filed an appeal before learned lower appellate court, who vide judgment and decree dated 4.1.2012 partly allowed the appeal after determining the following points:- 1. Whether defendant No.1 is the legally wedded wife of Sh. Tikkam Ram and her marriage with Sh. Mangat Ram, if any, is null and void as alleged? 2. Whether the impugned judgment and decree passed by the trial court are sustainable in the eyes of law? 8. Learned lower appellate court answered first point in affirmative and second point in negative. The suit filed by the plaintiff qua the estate and pensionary benefits of Mangat Ram was decreed and the suit qua family pension was dismissed. The plaintiff and proforma defendants were held to be class-I legal heirs of deceased Mangat Ram. The entries in favour of defendant No.1 qua estate of Mangat ram were held to be null and void. Defendant No.1 was not held to be wife of Mangat Ram, however, she was held entitled for family pension. The plaintiff and proforma defendants were held to be class-I legal heirs of deceased Mangat Ram. The entries in favour of defendant No.1 qua estate of Mangat ram were held to be null and void. Defendant No.1 was not held to be wife of Mangat Ram, however, she was held entitled for family pension. Hence, the regular second appeal. It was admitted on following substantial question of law on 11.6.2012:- “Whether the judgment and decree of the learned First Appellate Court reversing the judgment and decree of the learned trial court can be sustained on the findings that Indra Devi was legally wedded wife of Mangat Ram without there being any evidence on record? 9 The plaintiff filed cross-objections No.332/2012 in regular second appeal. These were also admitted on following substantial questions of law:- “1. Whether the cross-objector being the Class-I heir along with proforma defendants is entitled to get benefit of family pension on account of death of Mangat Ram? 2. Whether the learned Lower Appelalte Court has erred by passing the findings in favour of Smt. Indra Devi, whereby benefit of family pension has been granted to her despite of the fact that she is not the legally wedded wife of late Shri Mangat Ram.” 10 Mr. Rakesh Manta, learned Advocate, has supported the judgment and decree dated 30.8.2010 passed by the learned trial court. 11 Mr. G.D. Verma, learned Senior Advocate, has vehemently argued that the once the learned lower appellate court has come to the conclusion that defendant No.1 was not legally wedded wife of Mangat Ram and was not his Class-I legal heir, she could not be held entitled for family pension. 12 I have heard learned counsel for the parties and have also gone through the record carefully. 13 Since all the substantial questions of law are interconnected and interlinked, the same are taken up together for determination to avoid repetition of discussion of evidence. 14 PW1 Rajiv Kumar, deposed that his father, Mangat Ram was working as Peon in PHC, Himri. He died on 26.5.2008. He was the only son of Mangat Ram. He had two daughters, namely, Kanta and Nisha. The name of his mother was Dropadi alias Fishi Devi. She died about 4 ½ years back. His father had not contracted any second marriage. Defendant No.1 used to live in their neighbourhood at Rampur. She was married to Tikkam Ram. He was the only son of Mangat Ram. He had two daughters, namely, Kanta and Nisha. The name of his mother was Dropadi alias Fishi Devi. She died about 4 ½ years back. His father had not contracted any second marriage. Defendant No.1 used to live in their neighbourhood at Rampur. She was married to Tikkam Ram. She never stayed with his father as wife. 15 PW2, Dassi Devi, testified that she knew Mangat Ram. He was her elder brother. He was employed as Peon in Hospital. Name of his wife was Dropdi, who died on 10.12.2004. Mangat Ram had one son, Rajiv and two daughters, Nisha and Kanta. Mangat Ram never contracted second marriage after death of Dropadi Devi. Indra Devi used to call Mangat Ram as uncle. 16 DW1, Suresh Kumar, proved certificate, Ext. DW1/A. 17 DW2, Lokinder Singh, proved voter list, Ext.DW2/A. 18 DW3, Kali Ram, proved legal heir certificate Ext.DW3/A. He also admitted in his cross-examination that he neither issued notice to general public nor Rajiv, Kanta and Nisha. He issued the certificate at the instance of Indra Devi. 19 DW4, Indra Devi, deposed that her marriage was solemnized with Mangat Ram on 5.11.2006 as per Hindu rites and custom. Entry to this effect was made in the Panchayat record. Her name was shown in the electoral roll. Mangat Ram was government employee. He died on 26.5.2008. She used to stay at the ancestral village of Mangat Ram at Ghunda. Mangat Ram earlier contracted marriage with Dropdi alias Fishi Devi. She died in the year 2004. She got the legal heir certificate prepared after death of Mangat Ram. She had applied for service benefits of Mangat Ram after his death. These were duly sanctioned in her favour. She knew Tikkam Ram. He was residing in village Urtu, District Kullu. Tikkam Ram was married to one Menka about 12-13 years back according to Hindu rites and custom. She eloped with Tikkam Ram. She did not perform marriage with Tikkam Ram as per Hindu rites and custom. She stayed with Tikkam Ram for some time. Thereafter, a compromise known as “Reet” was arrived at between them in the month of July 2006 before the elder members of the family and Panchayat as per custom. Her name was struck off from the Pariwar Register of Tikkam Ram. Thereafter, her marriage was solemnized with Mangat Ram. She stayed with Tikkam Ram for some time. Thereafter, a compromise known as “Reet” was arrived at between them in the month of July 2006 before the elder members of the family and Panchayat as per custom. Her name was struck off from the Pariwar Register of Tikkam Ram. Thereafter, her marriage was solemnized with Mangat Ram. Entry to this effect was made in Gram Panchayat, Himri. In cross-examination, she deposed that she had no connection with Tikkam Ram. “Reet” was reduced into writing on a paper. Both the parties had signed the paper. She did not know the date of “Reet”. She volunteered that it was arrived at in the month of July 2006. She did not produce any witness from the Gram Panchayat. No photography and videography was done at the time of marriage. 20 DW5, Inder Dutt, led his evidence by way of filing an affidavit, Ext.DW5/A. According to the contents of affidavit, Mangat Ram had one son Rajiv Kumar and two daughters Nisha and Kanta. Mangat Ram had not nominated any person in his service book. He denied that Indra was legally wedded wife of Tikkam Ram. 21 The plaintiff produced PW3 Prem Chand in rebuttal. He stated that Mangat Ram had not contracted any second marriage. Defendant No.1 never stayed in the house of Mangat Ram. 22 What emerges from the statements of the witnesses produced by the parties is that the plaintiff is son of Mangat Ram. Mangat Ram was working as Peon. He died no 26.5.2008. PW1 Rajiv had categorically deposed that his father Mangat Ram never contracted second marriage after death of her mother Dropadi alias Fishi Devi. PW2, Dassi Devi, testified that her brother Mangat Ram never contracted second marriage with Indra Devi. DW1, Suresh Kumar proved certificate, Ext. DW1/A. According to certificate, Ext. DW1/A, Indra Devi had contracted marriage with Mangat Ram and it was registered in the Gram Panchayat. Necessary correction was also made in the Pariwar register vide Ext.PW1/D. DW2 Lokinder Singh proved electoral roll, Ext.DW2/A, wherein Indra Devi was shown as wife of Mangat Ram. DW3, Kali Ram, issued legal heir certificate, Ext.DW3/A on 8.7.2008 and also attested mutation No.63, Ext. DW3/B on 4.3.2009. 23 According to Ext.PA, name of Indra Devi was struck off from Pariwar register of Tikkam Ram on the basis of some compromise. DW3, Kali Ram, issued legal heir certificate, Ext.DW3/A on 8.7.2008 and also attested mutation No.63, Ext. DW3/B on 4.3.2009. 23 According to Ext.PA, name of Indra Devi was struck off from Pariwar register of Tikkam Ram on the basis of some compromise. However, defendant No.1 had not placed on record any compromise on the basis of which her name was struck off from the Pariwar register of Tikkam Ram. According to DW4, Indra Devi, compromise known as “Reet” was arrived at in the month of July 2006 before the elder members and Gram Panchayat. According to her, it was also signed by both the parties. Defendant No.1 has failed to prove existence of custom known as “Reet” in the area. Moreover, a Hindu marriage can be dissolved only in accordance with the provisions of Hindu Marriage Act by obtaining a decree of divorce from the competent court of law and not before any Gram Panchayat. It has come in the evidence that defendant No.1, Indra Devi was married to one Tikkam Ram as per Hindu rites and customs. She also admitted that she stayed with him. According to her, Tikkam Ram was married to one Menka. However, she has not produced any document to substantiate this averment. Since the marriage of Indra Devi with Tikkam Ram was not dissolved in accordance with law, she cannot take advantage of Ext. DW1/A and Ext. DW1/B. DW3, Kali Ram admitted in his cross-examination that neither he issued notice to general public nor plaintiff and proforma defendants while issuing certificate, Ext. DW3/A. He issued the certificate at the instance of Indra Devi. On the basis of certificate, Ext. DW3/A, mutation, Ext. DW3/B was also attested. Learned lower appellate court has rightly come to the conclusion that Indra Devi was not legally wedded wife of Mangat Ram and therefore, she cannot be treated as Class-I heir or widow of Mangat Ram for purpose of succession. 24 Now, the court will advert to the manner in which family pension was granted to defendant No.1 Indra Devi. 25 Mr. G.D. Verma, learned Senior Advocate, has vehemently argued that since Indra Devi was not held to be legally wedded wife of Mangat Ram by the learned lower appellate court, she was not entitled to family pension. 24 Now, the court will advert to the manner in which family pension was granted to defendant No.1 Indra Devi. 25 Mr. G.D. Verma, learned Senior Advocate, has vehemently argued that since Indra Devi was not held to be legally wedded wife of Mangat Ram by the learned lower appellate court, she was not entitled to family pension. According to him, learned Single Judge in CWP No.3590 of 2009, decided on 13.9.2011 had taken into consideration the decree of the learned Civil Judge, Theog and the certificate issued by the Gram Panchayat and held that there was prima facie evidence to show that Indra Devi was married to Mangat Ram. According to him, learned first Appellate Court has declared only the plaintiff and proforma defendants as Class-I legal heirs of Mangat Ram. Thus, Indra Devi could not be granted family pension. 26 Mr. Rakesh Manta, learned Advocate, on the basis of judgment dated 13.9.2011, has vehemently argued that the learned Single Judge has rightly issued direction to release family pension in favour of his client. 27 The Court is of the considered view that the learned first appellate court has erred in law by allowing family pension to Indra Devi after holding her not to be legally wedded wife of Mangat Ram. Indra Devi was not entitled to family pension because she was not married to Mangat Ram and she is not Class-I legal heir. These findings of the learned first appellate court are liable to be reversed. Learned Single Judge of this Court while disposing of CWP No. 3590 of 2009 directed the State to calculate the entire retiral benefits payable in respect of death of Mangat Ram and the same was ordered to be deposited in the Court of learned Additional District Judge (Fast Track Court), Shimla by 30.11.2011. Learned Additional District Judge (Fast Track Court), Shimla, was also directed to dispose of the appeal latest by 31.12.2011. 28 Indra Devi also filed COPC No.576 of 2012 for implementation of judgment dated 13.9.2011 rendered in CWP No.3590 of 2009. This Court on 4.4.2013 granted permission to the contemners to deposit the amount as directed by this Court on 13.9.2011 in CWP No.3590 of 2009. Consequently, a sum of Rs.3,14,720/- was deposited in the registry of this Court vide letter dated 2.5.2013. This Court on 4.4.2013 granted permission to the contemners to deposit the amount as directed by this Court on 13.9.2011 in CWP No.3590 of 2009. Consequently, a sum of Rs.3,14,720/- was deposited in the registry of this Court vide letter dated 2.5.2013. On 19.6.2013, this Court directed the State to calculate arrears of family pension to be paid to Indra Devi. The arrears were calculated at Rs.4,80,174/- as on 30.6.2013 as per CMP No.2596 of 2014. According to the averments contained in CMP no.2596 of 2014, the amount could not be disbursed due to loan raised by Mangat Ram, which was Rs.3,67,249/- payable upto April 2013. As held above, since Indra Devi was not legally wedded wife of Mangat Ram, she was not entitled to family pension. Learned Single Judge while disposing of CWP No.3590 of 2009 had taken into consideration the judgment and decree passed by the learned Civil Judge and the entries made in the Panchayat record. However, judgment and decree dated 30.8.2010 was modified, as discussed hereinabove, by the learned first appellate court on 4.1.2012. It is reiterated that marriage of Indra Devi was never dissolved with Tikkam Ram. Hindu marriage can only be dissolved as per provisions of Hindu Marriage Act and not on the basis of any custom or compromise before the Panchayat. Moreover, in this case, Indra Devi has failed to prove any dissolution of marriage with Tikkam Ram according to local custom. Since Indra Devi has not sought any decree of dissolution of marriage from Tikkam Ram, first marriage between them subsisted and she could not contract second marriage. 29 Their Lordships of Hon’ble Supreme Court in Yamahaji H. Jadhav vs. Nirmala, (2002) 2 Supreme Court Cases 637 have held that prevalence of customary divorce in community to which parties belong, contrary to general law of divorce must be specifically pleaded and established by person propounding such custom and other no submission based on it can be entertained by the Court. Their Lordships have held as under:- “7. Their Lordships have held as under:- “7. In the view that we are inclined to take in this appeal, we do not think it is necessary for us to go into the contentions advanced by the learned counsel for the parties in this case, because we find that the courts below have erroneously proceeded on the basis that the divorce deed relied upon by the parties in question was a document which is acceptable in law. It is to be noted that the deed in question is purported to be a document which is claimed to be in conformity with the customs applicable for divorce in the community to which the parties to this litigation belong to. As per the Hindu law administered by courts in India divorce was not recognised as a means to put an end to marriage, which was always considered to be a sacrament, with only exception where it is recognised by custom. Public policy, good morals and the interests of society were considered to require and ensure that, if at all, severance should be allowed only in the manner and for the reason or cause specified in law. Thus such a custom being an exception to the general law of divorce ought to have been specially pleaded and established by the party propounding such custom since the said custom of divorce is contrary to the law of the land and which, if not proved, will be a practice opposed to public policy. Therefore, there was an obligation on the trial court to have framed an issue whether there was proper pleadings by the party contending the existence of a customary divorce in the community to which the parties belonged and whether such customary divorce and compliance with the manner or formalities attendant thereto was in fact established in the case on hand to the satisfaction of the court. In the instant case, we have perused the pleadings of the parties before the trial court and we do not find any material to show that prevalence of any such customary divorce in the community, based on which the document of divorce was brought into existence was ever pleaded by the defendant as required by law or any evidence was led in this case to substantiate the same. It is true that in the courts below the parties did not specifically join issue in regard to this question and the lawyers appearing for the parties did orally agree that the document in question was in fact in accordance with the customary divorce prevailing in the community to which the parties belonged but this consensus on the part of the counsel or lack of sufficient pleading in the plaint or in the written statement would not, in our opinion, permit the court to countenance the plea of customary divorce unless and until such customary divorce is properly established in a court of law. In our opinion, even though the plaintiff might not have questioned the validity of the customary divorce, the court ought to have appreciated the consequences of there not being a customary divorce based on which the document of divorce has come into existence bearing in mind that a divorce by consent is also not recognisable by a court unless specifically permitted by law. Therefore, we are of the opinion to do complete justice in this case it is necessary that the trial court be directed to frame a specific issue in regard to customary divorce based on which the divorce deed dated 26-6-1982 has come into existence and which is the subject-matter of the suit in question. In this regard, we permit the parties to amend the pleadings, if they so desire and also to lead evidence to the limited extent of proving the existence of a provision for customary divorce (otherwise through the process of or outside court) in their community and then test the validity of the divorce deed dated 26-6-1982 based on the finding arrived at in deciding the new issue. 8. With the above directions, we set aside the judgment and decree of the courts below and remand the matter back to the trial court to frame an appropriate issue in regard to the existence of a provision for customary divorce in the community of the parties to these proceedings to get a marriage dissolved except through the process of or outside the court. The trial court will consider afresh the case of the parties set up in the suit after deciding the issue now directed to be framed by us, without in any manner, being influenced by the earlier finding given by the courts below including the High Court.” 30 Their Lordships of Hon’ble Supreme Court in Ramesh Chandra Rampratapji Daga vs. Rameshwari Ramesh Chandra Daga, JT 2004 (10) SC 366 have held that a Hindu marriage can be dissolved only in accordance with the provisions of the Act by obtaining a decree of divorce from the Court. In the absence of any decree of dissolution of marriage from the court, it has to be held that in law the first marriage of the wife subsisted when she went through the second marriage with the present husband. 31 Accordingly, in view of the observations and analysis made hereinabove, there is no merit in the Regular Second Appeal and the same is dismissed. Consequently, cross-objections are allowed and COPC is dismissed. The judgment dated 4.1.2012 passed by the learned lower appellate court is modified to the extent by ordering release of retiral/pensionery benefits in favour of plaintiff and proforma defendants. Pending application(s), if any, also stands dismissed. There shall, however, be no order as to costs.