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2016 DIGILAW 2014 (MAD)

K. Pasupathy v. Shiyamala Devi

2016-06-28

R.MALA

body2016
JUDGMENT : The appellant/fifth defendant has come forward with this Second Appeal challenging the Decree and Judgment passed in A.S.No.88 of 2010, dated 22.08.2011, by the Subordinate Court, Pudukkottai by modifying the judgment and decree passed in O.S.No.128 of 2005, dated 30.06.2010, by the District Munsif Court, Pudukkottai for granting declaration that the first respondent/plaintiff is the legally wedded wife of the deceased Govindan and the first respondent/plaintiff is entitled to family pension and the plaintiff and the defendants 4 and 5 are entitled to other gratuity and retirement benefits. 2. Heard the learned counsel for the appellant, the learned Counsel for the respondents and perused the materials available on record. 3. The first respondent/plaintiff filed a suit for declaration that she is the legally wedded wife of the deceased Govindan, who worked as Live-Stock Inspector in Animal Husbandry Department, Pudukkottai. He died on 22.08.2004, while he was in service. The marriage between the plaintiff and Govindan has been performed on 19.11.1972. Due to lawful wedlock, she gave birth to four daughters viz., Latha @ Gomathi, Seetha @ Gokila, Sudha and Parasakthi and they were given marriage. While Govindan died, except this plaintiff, no one is the wife. Govindan filed a divorce application in H.M.O.P.No.104 of 1988, on the file of the Subordinate Court, Thanjavur and that has been dismissed and he preferred an appeal in C.M.A.No.15 of 1991, before the District Court, Thanjavur and it was also dismissed. The plaintiff also filed an application for claiming maintenance before the Judicial Magistrate Court No.IV, Trichirappalli and maintenance has been awarded. She has received a notice from the first defendant stating that she is the wife of the deceased Govindan and herself and her two children are entitled to + share in the pensionary benefits and his pension and death-cum- retirement benefits. Hence, the plaintiff is constrained to file the suit for declaration that she is the legally wedded wife of the deceased Govindan and she alone entitled to all the terminal benefits and pension due from the second defendant and also costs. 4. Resisting the same, the appellant/fifth defendant filed a written statement stating that Govindan's second wife is his mother, who is the first defendant and the defendants 4 and 5 are their children. So, both the plaintiff and the first defendant entitled to each + share in all the amount due from the Government. 4. Resisting the same, the appellant/fifth defendant filed a written statement stating that Govindan's second wife is his mother, who is the first defendant and the defendants 4 and 5 are their children. So, both the plaintiff and the first defendant entitled to each + share in all the amount due from the Government. Hence, he prayed for dismissal of the suit. 5. The trial Court, after considering the averments both in the plaint and written statement and the arguments of both sides, has framed the necessary issues and decreed the suit as the plaintiff is the legally wedded wife of the deceased Govindan and also directed the defendants 2 and 3 to pay all the amount due to Govindan to the plaintiff. Against which, the defendants 4 and 5 as appellants preferred an appeal in A.S.No.88 of 2010, in which the first Appellate Court has held that the plaintiff is the legally wedded wife, but the defendants 4 and 5/appellants are illegitimate children of Govindan and they are entitled to share in the Govindan's death-cum- retirement benefits and on that basis, the first appeal has been partly allowed. Against which, the appellant/5th defendant preferred this Second Appeal. 6. At the time of admission of the Second Appeal, the following Substantial Question of Law has been framed: Whether the Courts below are correct in law in not considering Ex.B.8.? 7. The learned Counsel appearing for the appellant/5th defendant would put forth his arguments by stating that admittedly, the first respondent/plaintiff is the legally wedded wife of Govindan, but the first defendant is the second wife, as per Rule 45(5) (i) of the Tamil Nadu Pension Rules, 1978, where it was stated as wife or wives. So, if Govindan died leaving behind two wives, each entitled to Govindan's family pension and retirement benefits. That factum was not considered by both the Courts below. Hence he prayed that the second wife viz., Devika is entitled to family pension and other terminal benefits also and hence, he prayed for an order. 8. So, if Govindan died leaving behind two wives, each entitled to Govindan's family pension and retirement benefits. That factum was not considered by both the Courts below. Hence he prayed that the second wife viz., Devika is entitled to family pension and other terminal benefits also and hence, he prayed for an order. 8. Resisting the same, the learned Counsel appearing for the first respondent/plaintiff would submit that both the Courts below have rightly held that once the marriage between the first respondent/plaintiff and the deceased Govindan is subsisting, the second marriage between the second respondent/first defendant and the deceased Govindan is void and so, the children born through them are only illegitimate children and they are entitled to share in their father's properties and benefits. The status of their mother is not as wife and only as concubine. So, both the Courts below have rightly held and granted decree. Hence, he prayed for dismissal of the Second Appeal. 9. Considering the rival submissions made on either side and on a perusal of the typed set of papers and documents, it would clearly show that the Substantial Question of Law has been arisen on the basis of Ex.B.8. Ex.B.8 is nothing but a communication sent by the Office of the Principal Accountant General, Tamil Nadu, Chennai, in which they sought for certain documents for grant of family pension to Devika/first defendant alleged to be the second wife of the deceased Govindan. In that communication, the following documents have been sought for: (i) The final Court order or Release Deed issued by the Court in bringing the wedlock of the Government servant with Smt.Shiyamala Devi (I wife) to an end. (ii) Proof for his II marriage with Smt.G.Devika (II wife) (iii) Children through I wife, marital status etc., of the children may also be clearly stated for necessary action. 10. But admittedly the marriage between the plaintiff and the deceased Govindan is not in dispute and the fact that four daughters born through the plaintiff and the deceased Govindan is also not in dispute and they were given marriage too. The plaintiff sent a notice viz., Ex.A.1, to the Office of the Accountant General of Tamil Nadu, Chennai stating that herself and her four daughters are alone the legal heirs of her husband Govindan. The plaintiff sent a notice viz., Ex.A.1, to the Office of the Accountant General of Tamil Nadu, Chennai stating that herself and her four daughters are alone the legal heirs of her husband Govindan. Ex.A.4 is an order passed by the Judicial Magistrate No.IV, Trichirappalli, for granting maintenance to Shiyamala Devi and her minor daughter Geetha @ Gokila, dated 24.08.1993. One document viz., Ex.A.5 has been filed to show that the first defendant has got married one Rasu on 21.06.1985. So, the marriage between the first respondent/plaintiff and the deceased Govindan has been subsisting on the date of death of Govindan. On the side of the defendants, Ex.B.7, a marriage ivitation, has been marked and in that Govindan has mentioned the name of Shiyamala Devi and also Devika and the defendants 4 and 5. It is an admitted fact that first respondent/plaintiff Shiyamaladevi is the wife of the deceased Govindan. But there is no document to show that the first defendant has married the deceased Govindan. After the suit has been decreed, neither she preferred an appeal along with her children, nor she filed a separate appeal. In such circumstances, the finding of the trial Court that the first respondent/plaintiff is the legally wedded wife of the deceased Govindan is sustainable. So she is entitled to pension. 11. The first condition of Section 5 of the Hindu Marriage Act, 1955 is neither party has a spouse living at the time of the marriage. So in that event, at the time of marriage with the first defendant and Devika, the marriage between the first respondent/plaintiff and Govindan is subsisting. So the marriage between the first defendant and the deceased Govindan is void. Furthermore, the first defendant has not proved her marriage with Govindan. So the argument advanced by the learned Counsel for the appellant as per Rule 45(5)(i) of the Tamil Nadu Pension Rules, 1978 is not applicable, since the factum of marriage between the deceased Govindan and the first defendant. Devika has not been proved. But both the Courts below have correctly held that the defendants 4 and 5 are the children born to Devika through the deceased Govindan and they are illegitimate children and they are entitled to share in the benefits and granted the decree. 12. While considering Ex.B.8, in that it was not stated that Devika is the second wife of the deceased Govindan. 12. While considering Ex.B.8, in that it was not stated that Devika is the second wife of the deceased Govindan. Per contra, they sought for some documents which were mentioned already stating that the marriage between the deceased Govindan and Shiyamaladevi is subsisting on the date of death of Govindan. As already held by this Court that there is no evidence to show that Devika is the second wife of Govindan. In such circumstances, I am of the view that the Substantial Question of Law is answered against the appellant/5th defendant. The decree and the judgment passed by the first Appellate Court is hereby confirmed. 13. Accordingly, this Second Appeal is dismissed. Both parties are directed to bear their own costs.