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2017 DIGILAW 388 (UTT)

ARUNA DHIRAJ v. STATE OF UTTARAKHAND

2017-07-17

ALOK SINGH, K.M.JOSEPH

body2017
JUDGMENT K.M. Joseph, C.J. (Oral) Petitioner has approached this Court challenging order dated 17.10.2015 issued by Accounts Officer (Head Quarter), Uttarakhand Pey Jal Sansadhan Development and Construction Corporation, Dehradun. A further direction is sought for commanding respondent Nos. 1 to 5 to pay family pension to the petitioner with effect from September, 2015 along with arrears with interest @ 18% per annum and also to release Medical claim/reimbursement which is unpaid till date. 2. Briefly put, the case of the petitioner is as follows: One Bhim Sen Dhiraj was earlier married to respondent No. 6 (Smt. Savitri Devi) sometime in the year 1974. Thereafter, it is the petitioner’s case that the relations between the two were not cordial and Annexure No. 2 divorce deed dated 03.01.1981 was executed. We may notice paragraph 7 of the writ petition, which reads as follows: “7. That as per the custom prevalent in the Jatav caste as also in deference to the panch of Village elder no separate judicial proceedings were initiated and for all purposes the said agreement of Divorce by mutual consent was acted upon and after late Sri Bhim Sen Dhiraj married the petitioner in 1982 and since then Smt. Savitri did not object to the same nor had any contact thereafter and the petitioner and her husband lived thereafter as husband and wife.” Mr. Bhim Sen Dhiraj retired on 31.05.2015. Thereafter, he expired on 09.08.2015. Annexure No. 3 purports to be the death certificate. Thereafter, paragraph 10 of the writ petition reads as follows: “10. That in view of the fact that the petitioner was the legally wedded wife of the late Sri Bhim Sen Dhiraj and also in view of the fact that at the time of entry in service the name of Smt. Savitri Devi as wife was recorded in the pension papers Late Sri Bhim Sen Dhiraj recorded the name of the petitioner as nominee to receive the pensionary benefit being his legally wedded wife. Copy of the pension paper submitted by the husband of petitioner indicated the petitioner as wife and declaring entitlement of family pension and gratuity is being annexed herewith as Annexure No. 4 to this writ petition.” It is, thereafter, stated that the petitioner completed the formalities; pension papers were processed; and the petitioner was paid the arrears of family pension. Copy of the pension paper submitted by the husband of petitioner indicated the petitioner as wife and declaring entitlement of family pension and gratuity is being annexed herewith as Annexure No. 4 to this writ petition.” It is, thereafter, stated that the petitioner completed the formalities; pension papers were processed; and the petitioner was paid the arrears of family pension. It is, thereafter, it seems that a notice was sent under Section 80 C.P.C. to the General Manager of Uttarakhand Pey Jal Sansadhan Vikas Evam Nirman Nigam, as Annexure No. 6. This led to the passing of the impugned order (Annexure No. 1). It is the case of the petitioner that pension papers were submitted on 28.05.2012, wherein it was mandatory for the employee to file a photograph along with his / her spouse, in which Sri Bhim Sen Dhiraj had submitted a joint photograph of himself along with the petitioner. Petitioner submitted Annexure No. 9 representation and sent Annexure No. 10 reminder and is before us. 3. Counter affidavit is filed on behalf of respondent No. 6 to which, again, petitioner has filed a rejoinder affidavit. 4. We heard Mr. Shyam Mohan, learned counsel appearing on behalf of the petitioner; Mr. Suresh Chandra Bhatt, learned counsel appearing on behalf of respondent No. 6; Mr. D.S. Patni, learned counsel appearing for the Uttarakhand Pey Jal Nigam; and Mr. C.S. Rawat, learned Addl. Chief Standing Counsel appearing for the State. 5. English translation of the impugned order dated 17.10.2015 reads as follows: “UTTARAKHAND PEYJAL SANSADHAN VIKAS EVAM NIRMAN NIGAM Pradhan Karyalaya:- 11 Mohini Road, Dehradun – 248001 Letter No. 472/CR.No.-113/Vi.Anu./ dated 17.10.2015 To, Executive Engineer, Construction Division, Uttarakhand Pey Jal Nigam, Haldwani. Sub.: Regarding drawing the pension by the legal heir of Late Shri Bhimsain Dheeraj, Retired Superintending Engineer. Sir, In the aforesaid matter in compliance of the legal notice of Smt. Sawitri Devi, W/o late Shri Bheemsain Dheeraj, Resident of Village – Papalsana Chaudhari, P.O.-Bhojipura, Tehsil and District Bareilly delivered through Sarad Kumar Yadav, Advocate, 49 Bara Vakalatkhana, Second Floor, District Court, Bareilly, copy of which also endorsed to you, the pension may be withdrawn only subject to the decision of the competent court regarding the actual legal heir / wife of late Shri Bheemsain Dheeraj, till then the proceeding may be stayed. Your sincerely, (K.P. Dhimri) Account Officer (M)” 6. Mr. Your sincerely, (K.P. Dhimri) Account Officer (M)” 6. Mr. Shyam Mohan, learned counsel for the petitioner would contend before us that there is, actually, a custom in the caste to which the parties belong, which permitted dissolution of marriage by consent. In this regard, he drew our attention to Section 29(2) of the Hindu Marriage Act, 1955 (hereinafter referred to as the “1955 Act”). The same reads as follows: “(2) Nothing contained in this Act shall be deemed to affect any right recognised by custom or conferred by any special enactment to obtain the dissolution of a Hindu marriage, whether solemnized before or after the commencement of this Act.” 7. He would submit that, after 1981, there is no relationship between the sixth respondent and Late Sri Bhim Sen Dhiraj. It turns out that there are three children from the marriage alleged between the petitioner and late Sri Bhim Sen Dhiraj. On the other hand, Mr. Suresh Chandra Bhatt, learned counsel for respondent No. 6, would point out that there are four children from the marriage between the sixth respondent and late Sri Bhim Sen Dhiraj. No doubt, the answer to the allegation contained in paragraph 7 of the writ petition is given in the following paragraph of the counter affidavit filed by the sixth respondent: “9. That the contents of paragraph no. 7 of the writ petition are vehemently denied and prima facie it shows that the petitioner played fraud with the answering respondent as the petitioner stated there is no need of any order of the competent court, it means petitioner well known to the legal position of that so called stamp paper and petitioner could not took any legal action on the said stamp paper while petitioner is literate lady and answering respondent is totally illiterate lady.” 8. Petitioner has also filed a rejoinder affidavit. In short, the case of the petitioner appears to be based on custom with reference to Section 29(2) of the 1955 Act. By the impugned order, in view of the dispute raised by the sixth respondent, the authority has only insisted for production of document from the competent court. 9. One thing is clear and is beyond dispute that there was a marriage between the sixth respondent and late Sri Bhim Sen Dhiraj. By the impugned order, in view of the dispute raised by the sixth respondent, the authority has only insisted for production of document from the competent court. 9. One thing is clear and is beyond dispute that there was a marriage between the sixth respondent and late Sri Bhim Sen Dhiraj. It is without obtaining any dissolution of the first marriage that, admittedly, the petitioner is alleged to have married late Sri Bhim Sen Dhiraj. Shelter is taken only under the provision of Section 29(2) of the 1955 Act. Section 29(2), apparently, relates to a custom. Custom is not a matter, which can be gone into in proceedings under Article 226. As far as the impugned decision, itself, of the authority is concerned, we find that the authority certainly cannot be blamed if, on the notice given by the party respondent, who is admittedly the first wife of late Sri Bhim Sen Dhiraj, pension has been ordered to be paid only on production of proper document from the court. We feel that the petitioner is not entitled to any relief under Article 226. 10. Without prejudice to any right the petitioner has to approach any competent forum for establishing her right and reserving the said right to her, the writ petition will stand dismissed. No order as to costs.