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2016 DIGILAW 2497 (HP)

Kamla Devi v. Union of India

2016-11-28

TARLOK SINGH CHAUHAN

body2016
JUDGMENT : Tarlok Singh Chauhan, J. The plaintiff is the appellant, who aggrieved by the judgments and decrees passed by both the learned courts below, has filed the instant appeal. 2. The plaintiff has filed a suit claiming therein that she was entitled to family pension being legally wedded wife of deceased Havaldar Sohan Singh. It is averred that since the first wife of deceased Sohan Singh did not bear any male child, she persuaded her husband to take Fargati (customary divorce), and thereafter, the plaintiff solemnized Gandharav marriage on 16.1.1974 as per the will of his first wife. The first wife of Sohan Singh died on 6.11.1989 and after Sudhikaran, the plaintiff solemnized Brahm marriage on 15.2.1990 and the necessary Bhoj was given to the Biradri as per the prevailing customs. Out of the wedlock three children were born. The plaintiff being legally wedded wife of Sohan Singh made protracted correspondence with the defendants to release family pension in her favour, but to no avail. Hence, the suit. 3. The defendants filed written statement wherein preliminary objections regarding maintainability, valuation, cause of action, locus standi etc. were taken. On merit, it was averred that deceased Sohan Singh had retired on 4.2.1970 and was getting pension. As per record, he had married one Parwati Devi in the year 1936 and she was the only wife of deceased Sohan Singh. Defendants denied the factum of marriage between the plaintiff and deceased Sohan Singh and on such basis denied her entitlement for family pension. 4. The learned trial court on 20.8.2002 framed the following issues: 1. Whether the plaintiff is legally wedded wife of deceased Hav. Sohan Singh, as alleged? OPP 2. Whether the marriage of the plaintiff with Hav. Sohan Singh was solemnized during the life time of his previous wife Parwati Devi? If so, its effect? OPD 3. Whether the plaintiff is entitled to the relief of declaration, as prayed for? OPD 4. Whether the order No.G4/V/Misc/AMC/2001 dated 15th Feb. 2001 passed by CCDA (P) Allahabad is illegal, as alleged? OPP 5. Whether the plaintiff is entitled to the relief of mandatory injunction, as prayed for? OPP 6. Whether the suit in the present form is not maintainable, as alleged? OPD 7. Whether the suit has not been properly valued for the purposes of court fee and jurisdiction, as alleged? OPD 8. OPP 5. Whether the plaintiff is entitled to the relief of mandatory injunction, as prayed for? OPP 6. Whether the suit in the present form is not maintainable, as alleged? OPD 7. Whether the suit has not been properly valued for the purposes of court fee and jurisdiction, as alleged? OPD 8. Whether the suit is bad for non-joinder and mis-joinder of necessary parties, as alleged? OPD 9. Whether no proper notice under section 80 C.P.C. has been served on the defendants, as alleged? OPD 10. Whether the plaintiff has no locus standi to file the present suit, as alleged? OPD 11. Whether the plaintiff has no cause of action to file the present suit, as alleged? OPD 12. Relief. 5. After recording the evidence and evaluating the same, the suit was dismissed and the appeal preferred against the judgment and decree also met with the same fate constraining the plaintiff to file the instant appeal. 6. The appeal came to be heard on 30.10.2007 and the following substantial questions of law were framed: 1. Whether the married couple can have a divorce as per the customs in the Birdari? 2. Whether the plaintiff not able to prove the relationship of legally wedded wife of Sohan Singh? 3. Whether the learned courts below have misread and mis-appreciated the oral and documentary evidence ion record and findings recorded are perverse and liable to be set aside? 4. Whether the findings are based on mere conjectures and surmises and are liable to be set aside? Substantial Questions of Law No. 1 to 4: 7. Since all the substantial questions of law are intrinsically interlinked and interconnected, therefore, they are taken up together for consideration and are being disposed of by a common reasoning. 8. At the outset, it may be observed that the very premise on which the suit of the plaintiff proceeds is that Sohan Singh was already having a living spouse at the time when he allegedly performed Gandharav marriage with the plaintiff. 9. Admittedly, on the date of performance of so called Gandharav marriage, the Hindu Marriage Act, 1955 (for short ‘Act’) had already come into force on 18.5.1955. The Act codified all the laws relating to marriage amongst the Hindus and has over riding effect, as would be evident from section 4, which reads thus: “4. 9. Admittedly, on the date of performance of so called Gandharav marriage, the Hindu Marriage Act, 1955 (for short ‘Act’) had already come into force on 18.5.1955. The Act codified all the laws relating to marriage amongst the Hindus and has over riding effect, as would be evident from section 4, which reads thus: “4. Overriding effect of Act: Save as otherwise expressly provided in this Act.- (a) Any text rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act; (b) Any other law in force immediately before the commencement of this Act shall cease to have effect in so far as it is inconsistent with any of the provisions contained in this Act.” 10. Now, what would be the status of the marriage of Hindu male with Hindu female when he has already a living spouse, has been taken care of in section 5, which clearly provides that a marriage may be solemnized between any two Hindus, if neither already has spouse living at the time of marriage. Section 5 reads thus: 5. Conditions for a Hindu marriage: A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely-. (i) Neither party has a spouse living at the time of the marriage, [(ii) at the time of the marriage, neither party- (a) Is incapable of giving a valid consent to it in consequence of unsoundness of mind; or (b) Though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or (c) Has been subject to recurrent attacks of insanity (iii) The bridegroom has completed the age of [twenty-one years] and the bride, the age of [eighteen years] at the time of the marriage; (iv) The parties are not within the degrees of prohibited relationship unless the custom or usage governing each of them permits of a marriage between the two; (v) The parties are not Sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two; 11. Section 11 provides for void marriage and reads thus as follows: 11. Section 11 provides for void marriage and reads thus as follows: 11. Void marriages. Any marriage solemnized after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto 1[against the other party], be so declared by a decree of nullity if it contrivances any one of the conditions specified in clauses (i), (iv) and (v) of Section 5. 12. Thus, as per the scheme of the Act, marriage between two Hindus solemnized, one of whom had a living spouse at the time of marriage, after the commencement of the Act would be void and nullity in the eyes of law. Meaning thereby that second wife would have no right of claiming herself to be a legally wedded wife. 13. Once the marriage is nullity, the same would also not be protected under Pension Rules. Therefore, the wife, as referred to under Pension Rules, would only include the first wife and the second wife would only be included in case the marriage is permissible under the personal law. But in the cases of Hindu, second wife has no right whatsoever as the law prohibits second marriage if the spouse is alive. 14. In Yamunabai Anantrao Adhav vs. Anantrao Shivram Adhav and another, (1988) 1 SCC 530 , the Hon’ble Supreme Court held that the marriage of a woman in accordance with the Hindu rites with a man having living spouse is a complete nullity in the eyes of law and she is not entitled to the benefit of section 125 of the Code of Criminal Procedure. 15. In Bakulabai and another vs. Gangaram and another 1988 (1) SCC 537 , the Hon’ble Supreme Court held that marriage of a Hindu woman with a Hindu male having living spouse solemnized after coming into force of the Hindu Marriage Act, 1955 is null and void and the woman is, therefore, not entitled to maintenance under section 125 of the Code of Criminal Procedure. 16. In Rameshwari Devi vs State of Bihar and others, 2000 (2) SCC 431 , the Hon’ble Supreme Court held that where the Government servant being a Hindu having two living wives died, the second marriage was void under the Hindu law and hence the second wife did not have the status of widow and would not be entitled to family pension. The children from the second wife would equally share the benefit of gratuity and family pension as per law. 17. It is vehemently contended by Mr. Adarsh Vashishta that as there was a customary divorce between the first wife and deceased Sohan Singh, therefore, it was the plaintiff only who was the legally wedded wife and therefore entitled to family pension. 18. There is no gainsaying that before a customary divorce is acted upon, the same must be pleaded and thereafter proved in accordance with law. 19. What is custom and how it is required to be proved had been subject matter of decision of the Hon’ble Supreme Court in Laxmibai (Dead) through LRs and another vs. Bhagwantbua (dead) through LRs, (2013) 4 SCC 97 , wherein it was held as under: 12. Custom is an established practice at variance with the general law. A custom varying general law may be a general, local, tribal or family custom. A general custom includes a custom common to any considerable class of persons. A custom which is applicable to a locality, tribe, sect or a family is called a special custom. Custom is a rule, which in a particular family, a particular class, community, or in a particular district, has owing to prolonged use, obtained the force of law. Custom has the effect of modifying general personal law, but it does not override statutory law, unless the custom is expressly saved by it. Such custom must be ancient, uniform, certain, continuous and compulsory. No custom is valid if it is illegal, immoral, un-reasonableor opposed to public policy. He who relies upon custom varying general law, must plead and prove it. Custom must be established by clear and unambiguous evidence. [13] In Dr. Surajmani Stella Kujur v. Durga Charan Hansdah, 2001 AIR (SC) 938, this Court held that custom, being in derogation of a general rule, is required to be construed strictly. A party relying upon a custom, is obliged to establish it by way of clear and unambiguous evidence. (Vide: Salekh Chand (Dead) thr. Lrs. v. Satya Gupta & Ors., 2008 13 SCC 119 . [14] A custom must be proved to be ancient, certain and reasonable. The evidence adduced on behalf of the party concerned must prove the alleged custom and the proof must not be unsatisfactory and conflicting. (Vide: Salekh Chand (Dead) thr. Lrs. v. Satya Gupta & Ors., 2008 13 SCC 119 . [14] A custom must be proved to be ancient, certain and reasonable. The evidence adduced on behalf of the party concerned must prove the alleged custom and the proof must not be unsatisfactory and conflicting. A custom cannot be extended by analogy or logical process and it also cannot be established by a priori method. Nothing that the Courts can take judicial notice of needs to be proved. When a custom has been judicially recognized by the Court, it passes into the law of the land and proof of it becomes unnecessary under Section 57(1) of the Evidence Act, 1872. Material customs must be proved properly and satisfactorily, until the time that such custom has, by way of frequent proof in the Court become so notorious, that the Courts take judicial notice of it. (See also: Effuah Amissah v. Effuah Krabah, 1936 AIR(PC) 147; T. Saraswati Ammal v. Jagadambal & Anr., 1953 AIR(SC) 201; Ujagar Singh v. Mst. Jeo, 1959 AIR(SC) 1041; and Siromani v. Hemkumar & Ors., 1968 AIR(SC) 1299). [15] In Ramalakshmi Ammal v. Sivanatha Perumal Sethuraya, 1872 14 MooIndApp 570, it was held: "It is essential that special usage, which modifies the ordinary law of succession is ancient and invariable; and it is further essential that such special usage is established to be so, by way of clear and unambiguous evidence. It is only by means of such evidence, that courts can be assured of their existence, and it is also essential that they possess the conditions of antiquity and certainty on the basis of which alone, their legal title to recognition depends." [16] In Salekh Chand, this Court held as under: "Where the proof of a custom rests upon a limited number of instances of a comparatively recent date, the court may hold the custom proved so as to bind the parties to the suit and those claiming through and under them. All that is necessary to prove is that the usage has been acted upon in practice for such a long period and with such invariability as to show that it has, by common consent, been submitted to as the established governing rule of a particular locality. All that is necessary to prove is that the usage has been acted upon in practice for such a long period and with such invariability as to show that it has, by common consent, been submitted to as the established governing rule of a particular locality. A custom may be proved by general evidence as to its existence by members of the tribe or family who would naturally be cognizant of its existence, and its exercise without controversy." [17] In Bhimashya & Ors. v. Smt. Janabi @ Janawwa, 2006 13 SCC 627, this Court held: "A custom is a particular rule which has existed either actually or presumptively from time immemorial, and has obtained the force of law in a particular locality, although contrary to or not consistent with the general common law of the realm it must be certain in respect of its nature generally as well as in respect of the locality where it is alleged to obtain and the persons whom it is alleged to affect. xx xx xx xx Custom is authoritative, it stands in the place of law, and regulates the conduct of men in the most important concerns of life; fashion is arbitrary and capricious, it decides in matters of trifling import; manners are rational, they are the expressions of moral feelings. Customs have more force in a simple state of society. Both practice and custom are general or particular but the former is absolute, the latter relative; a practice may be adopted by a number of persons without reference to each other; but a custom is always followed either by limitation or prescription; the practice of gaming has always been followed by the vicious part of society, but it is to be hoped for the honor of man that it will never become a custom." 20. Adverting to the pleadings as also the evidence led, it would be noticed that neither so-called custom has been pleaded nor proved in accordance with law. 21. Adverting to the pleadings as also the evidence led, it would be noticed that neither so-called custom has been pleaded nor proved in accordance with law. 21. In Rameshchandra Rampratapji Daga vs. Rameshwari Rameshchandra Daga, (2005) 2 SCC 33 , the Hon’ble Supreme Court held that the customary divorce of choor chithhi has to be established in accordance with law and it was observed as under: [12] So far as the appeal preferred by the wife is concerned, on reconsideration of the evidence on record, we find no ground to take a view different from the one taken by the High Court and upset the conclusion that the second marriage was null and void. The wife did not deny the fact that her marriage was arranged with Girdhari Lai Lakhotia in the year 1973 and after marriage she lived with the members of the family of her previous husband. It is also an admitted fact that she instituted proceedings for obtaining decree of divorce being Divorce Petition No. 76 of 1978 in the Family Court at Amravati. It is also not denied that no decree of divorce was obtained from the Court and she only obtained a registered document of chhor chithhi from her previous husband on 15-5-1979. Existence of such customary divorce in Vaish community of Maheshwaris has not been established. A Hindu marriage can be dissolved 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 first marriage of the wife subsisted when she went through the second marriage on 11-7-1981 with the present husband. The appeal preferred by the wife, therefore, against grant of decree of declaration of her second marriage as void, has to be rejected whatever may be the circumstances which existed and the hardships that the wife had to undergo, as alleged, at the hands of her second husband. 22. Mr. Adarsh Vashishta, learned counsel for the appellant, would then argue that once the appellant is admittedly, nominee of the deceased, then the respondents had no jurisdiction or authority to deny her the family pension. Even this contention is equally without merit as it is more than settled that if the nomination is made contrary to the statutory provisions, it would be inoperative. 23. Even this contention is equally without merit as it is more than settled that if the nomination is made contrary to the statutory provisions, it would be inoperative. 23. Reference in this regard can conveniently be made to the judgment of the Hon’ble Supreme Court in G.L. Bhatia vs Union of India, 1999 (5) SCC 237 , wherein the husband of the deceased employee claimed family pension while nomination was not in his favour. The authorities had rejected the claim of the husband for the reason that he was staying separately from the wife and thus was not entitled to family pension. The Hon’ble Supreme Court held that the husband was entitled to family pension, where the rights of the parties are governed by statutory provisions and the individual nomination contrary to the statute will not operate. 24. Earlier to this, the Hon’ble Supreme Court in Smt. Sarbati Devi and another vs. Smt. Usha Devi, (1984) 1 SCC 424 held that mere nomination made in the insurance policy does not have the effect of conferring on the nominee any beneficial interest in the amount payable under the policy on the death of the assured. The nomination only indicates the hand which is authorized to receive the amount, on the payment of which the insurer gets a valid discharge of its liability under the policy. The amount, however, can be claimed by the heirs of the assured in accordance with the law of succession governing them. 25. This Court in Smt. Neena and others vs Smt. Sunehru Devi and others 2015 (6) ILR (HP) 20 has elaborately discussed the various pronouncements of the Hon’ble Supreme Court, including the one rendered in Sarbati Devi’s case (supra), and it was observed as under: “11. Insofar as the legal status of nominee is concerned, the same is no longer res integra. The Hon’ble Supreme Court for the first time clarified the issue in case Smt. Sarbati Devi and another vs. Smt. Usha Devi, (1984) 1 SCC 424 and held that in context of Section 39 of the Life Insurance Act, 1938 (in short LIC Act), a mere nomination under Section 39 of the Act did not confer “beneficial interest” in the nominee qua the amount payable under the policy on the death of the assured. The nomination was indicative only of the authority or the person who was to receive the amount, pursuant to which the insurer would get a valid discharge of its liability under the policy. This however, would not belie the claim of the heirs of the assured made in accordance with law of succession. It is apt to reproduce para 4 of the judgment which reads thus: “4. At the out set it should be mentioned that except the decision of the Allahabad High Court in Kesari Devi v. Dharma Devi, AIR 1962 All 355 , on which reliance was placed by the High Court in dismissing the appeal before it and the two decisions of the Delhi High Court in S. Fauza Singh v. Kuldip Singh & Ors., AIR 1978 Del 276 and Mrs. Uma Sehgal & Anr. v. Dwarka Dass Sehgal & Ors AIR 1982 Del 36 in all other decisions cited before us the view taken is that the nominee under section 39 of the Act is nothing more than an agent to receive the money due under a life insurance policy in the circumstances similar to those in the present case and that the money remains the property of the assured during his lifetime and on his death forms part of his estate subject to the law of succession applicable to him. The cases which have taken the above view are Ramballav DhanJhania v. Gangadhar Nathmall AIR 1956 Cal 275 , Life Insurance Corporation of India v. United Bank of India Ltd. & Anr., AIR 1970 Cal 513 , D. Mohanavelu Muldaliar & Anr. v. Indian Insurance and Banking Corporation Ltd. Salem & Anr., AIR 1957 Mad 115 , Sarojini Amma v. Neelakanta Pillai AIR 1961 Ker 126 , Atmaram Mohanlal Panchal v. Gunavantiben & Ors., AIR 1977 Guj 134 , Malli Dei vs. Kanchan Prava Dei, AIR 1973 Ori 83 and Lakshmi Amma v. Sagnna Bhagath & Ors.,ILR 1973 Kant 827 Since there is a conflict of judicial opinion on the question involved in this case it is necessary to examine the above cases at some length. The law in force in England on the above question is summarised in Halsbury's Laws of England (Fourth Edition), Vol. 25, Para 579 thus : "579. Position of third party. The law in force in England on the above question is summarised in Halsbury's Laws of England (Fourth Edition), Vol. 25, Para 579 thus : "579. Position of third party. - The policy money payable on the death of the assured may be expressed to be payable to a third party and the third party is then prima facie merely the agent for the time being of the legal owner and has his authority to receive the policy money and to give a good discharge; but he generally has no right to sue the insurers in his own name. The question has been raised whether the third party's authority to receive the policy money is terminated by the death of the assured; it seems, however, that unless and until they are otherwise directed by the assureds personal representatives the insurers may pay the money to the third party and get a good discharge from him." 12. In Vishin N. Khanchandani and another vs. Vidya Lachmandas Khanchandani and another (2000) 6 SCC 724 , the legal position was reiterated and it was held: “10..…The nomination only indicated the hand which was authorized to receive the amount on the payment of which the insurer got a valid discharge of its liability under the policy. The policy holder continued to have interest in the policy during his lifetime and the nominee acquired no sort of interest in the policy during the lifetime of the policy holder. On the death of the policy holder, the amount payable under the policy became part of his estate which was governed by the law of succession applicable to him. Such succession may be testamentary or intestate. Section 39 did not operate as a third kind of succession which could be styled as a statutory testament. A nominee could not be treated as being equivalent to an heir or legatee. The amount of interest under the policy could, therefore, be claimed by the heirs of the assured in accordance with law of succession governing them.” 13. In Ram Chander Talwar and another vs. Devender Kumar Talwar and others (2010) 10 SCC 671, it was held that nomination merely gives right of depositor to receive money lying in the account, but it does not make nominee owner of money lying in the account and it was held as under: “3. Mr. In Ram Chander Talwar and another vs. Devender Kumar Talwar and others (2010) 10 SCC 671, it was held that nomination merely gives right of depositor to receive money lying in the account, but it does not make nominee owner of money lying in the account and it was held as under: “3. Mr. Swetank Shantanu, counsel appearing for the appellants, strenuously argued that by virtue of sub-section 2 of section 45 ZA, the nominee of the depositor, after the death of the depositor acquires all his/her rights to the express exclusion of all other persons and, therefore, the respondent can not lay any claim to the money in the account or in regard to the articles that might be lying in the bank locker held by their deceased mother. The submission is quite fallacious and is based on a complete misconception of the provision of the Act. 4. Sub-section 2 of the 45-ZA, reads as follows:- “45-ZA xxx xxx xxx xxx (2) Notwithstanding anything contained in any other law for the time being in force or in any disposition, whether testamentary or otherwise, in respect of such deposit, where a nomination made in the prescribed manner purports to confer on any person the right to receive the amount to deposit from the banking company, the nominee shall, on the death of the sole depositor or, as the case may be, on the death of all the depositors, become entitled to all the rights of the sole depositor or, as the case may be, of the depositors, in relation to such deposit to the exclusion of all other persons, unless the nomination is varied or cancelled in the prescribed manner.” (emphasis added) 5. Section 45-ZA(2) merely puts the nominee in the shoes of the depositor after his death and clothes him with the exclusive right to receive the money lying in the account. It gives him all the rights of the depositor so far as the depositor's account is concerned. But it by no stretch of imagination makes the nominee the owner of the money lying in the account. It needs to be remembered that the Banking Regulation Act is enacted to consolidate and amend the law relating to banking. It is in no way concerned with the question of succession. But it by no stretch of imagination makes the nominee the owner of the money lying in the account. It needs to be remembered that the Banking Regulation Act is enacted to consolidate and amend the law relating to banking. It is in no way concerned with the question of succession. All the monies receivable by the nominee by virtue of section 45-ZA(2) would, therefore, form part of the estate of the deceased depositor and devolve according to the rule of succession to which the depositor may be governed. 6. We find that the High Court has rightly rejected the appellant's claim relying upon the decision of this Court in V.N. Khanchandani & Anr. v. V.L. Khanchandani & Anr., (2000) 6 SCC 724 . The provision under Section 6(1) of the Government Saving Certificate Act, 1959 is materially and substantially the same as the provision of Section 45-ZA(2) of the Banking Regulation Act, 1949, and the decision in V.N. Khanchandani applies with full force to the facts of this case.” 14. In view of the aforesaid exposition of law, it is absolutely clear that a mere nomination in itself does not confer any ‘beneficial interest’ in the nominee and the retiral benefits of the deceased would become part of his estate and would be governed by the law of succession. Since the plaintiff is admittedly class-I heir, her entitlement would be 1/4th share, whereas the defendants No. 3 to 5 who alone otherwise were the nominees would be entitled to the remaining 3/4th share, that too, not on account of their being the nominees, but because of their being the class-I heirs of the deceased. This is exactly what has been held by the learned lower Appellate Court while reversing the judgment and decree passed by the learned trial Court.” 26. The net result of the aforesaid discussion is that the appellant has failed to plead and thereafter prove the custom regarding marriage and divorce, therefore, no fault can be found with the findings as rendered by the learned courts below, who have correctly appreciated not only the pleadings but evidence also. 27. Having said so, all the substantial questions of law are answered accordingly. 28. In view of aforesaid discussion, there is no merit in the appeal and the same is dismissed, so also the pending applications, if any, leaving the parties to bear their own costs.