JUDGMENT : Sharad Kumar Sharma, J. 1. This is plaintiff’s First Appeal, challenging judgment and decree as rendered by the Civil Judge (Senior Division)/1st F.T.C., Haridwar, in Original Suit No. 116 of 2005, Smt. Bani Fatima Sajida and another Vs. C.F.F.P/BHEL and others. 2. Briefly put, the case of the plaintiff before the learned Trial Court was to the effect that since she happens to be the married wife of late Mr. Noor Aalam, who was an employee of the defendant respondent BHEL, she would be entitled for the grant of retiral service benefits, which was otherwise payable to the late husband of the respondent. As a matter of fact, in the Suit, she has prayed for a decree of permanent injunction in the nature of a negative permanent injunction, i.e. decree to the effect that the defendant may be restrained from disbursing any retiral or any other financial benefits to defendant No.2. It is pertinent to mention that she has not sought any decree of declaration to the effect as to be the legally wedded wife of late Noor Aalam, nor has she sought a decree for payment of his retiral dues to her, which were payable to late Noor Aalam. 3. The case of the plaintiff in the plaint was that she claimed that she was married with late Mr. Noor Aalam on 23rd November, 2000, in accordance with the Muslim rights and rituals and, out of the wedlock, a daughter was born, who was minor at the time of the institution of the Suit. It was also contended in the plaint that the husband of the plaintiff No. 1, i.e. late Mr. Noor Aalam, during his life time, had orally divorced the defendant No. 2, his first wife on 01.01.2000, and thereafter, he has solemnized second marriage along with the plaintiff and, after the marriage, she contends that she has discharged all her matrimonial obligations till the death of her husband, i.e. till 4th May, 2005. She contended that after the death of her husband on 4th May, 2005, she became helpless destitute lady with no source of earning and she is unable to maintain herself. She contended that after the death of her husband on 4th May, 2005, she became helpless destitute lady with no source of earning and she is unable to maintain herself. But, surprisingly, in the relief clause of the plaint, she had never sought any decree for the disbursement of the retiral financial benefits payable to her alleged late husband to her rather there was a relief sought for only a decree of injunction which was sought for by the plaintiff to the following effects:- ^^vr% oknhx.k ÁkFkhZ gS fd %& ¼v½ }kjk fMØh LFkk;h fu"ks/kkKk cgd oknhx.k cj f[kykQ Áfroknhx.k bl vej ls lkfnj QjekbZ tkos fd Áfroknh la[;k 2 e`rd uwj vkye dh vius laLFkku esa tek dqy /kujkf'k Áfroknh la[;k 2 dks vnk u djs uk djkosA ¼c½ ;g fd [kpkZ eqdnek e; Qhl vf/koDrk oknhx.k dks Áfroknhx.k ls fnyk;k tkosA ¼l½ vU; vuqrks"k tks jk; vnkyr esa mfpr gks oknhx.k dks Áfroknhx.k ls fnyk;k tkosA** 4. The suit was contested by the defendant by filing written statement, paper No. 28-Ka (1), wherein, the defendant had specifically denied the factum of marriage of the plaintiff with late Mr. Noor Aalam, as claimed by her and also she denied the fact that the story which has been developed by her pertaining to the divorce being granted to her is absolutely concocted and a false story as Mr. Noor Aalam had never divorced her nor she solemnized second marriage with the plaintiff, and apart from it, there is no proof of marriage of plaintiff No.1 with late Mr. Noor Aalam. In the additional plea taken in the written statement, it was contended by the defendant that as a matter of fact, there is no cause of action, which has accrued to the plaintiff to seek the relief for the decree of permanent injunction of the nature sought for in the suit. There was a specific denial by the defendant No. 2 with regard to the theory of divorce and the payment of Mehar Kharcha and Idad. She further contended that it was rather she, who stayed with late Noor Aalam and had discharged her matrimonial obligations and she continued to reside with late Mr. Noor Aalam till be breath his last. 5. She submitted that out of the marriage with late Mr. She further contended that it was rather she, who stayed with late Noor Aalam and had discharged her matrimonial obligations and she continued to reside with late Mr. Noor Aalam till be breath his last. 5. She submitted that out of the marriage with late Mr. Noor Aalam, the defendant No. 2 had one son, namely, Aftab Alam, and two daughters, namely Tabasum and Khursida. She has specifically pleaded in the written statement that late Mr. Noor Aalam had never solemnized the marriage with the plaintiff and all throughout his life time, he was married only once with defendant No.2. She further submitted that in the entire service records, which was maintained by the BHEL, who was the employer of her late husband, the defendant No. 2 and her children were and are shown as to be the heirs, who had succeeded late Mr. Noor Aalam and the plaintiff was never ever recorded even in the service records as maintained by the BHEL as his wife and hence, she would not be entitled for the nature of decree which she has sought for in the suit, in question. 6. In response to the written statement, the plaintiff has filed her replication on 12.02.2008. 7. The suit proceeded and after the exchange of the pleadings, the learned Trial Court had framed as many as eight issues for the settlement of the controversy. The same are quoted hereunder:- ^^1- D;k e`rd uwj vkye dh e`R;q ds mijkUr oknhx.k muds gksus tk;t dkuwuh okfjl o mRrjkf/kdkjh e`rd dh Áfroknh la[;k 1 o 3 ds Áfr"Bku esa tek /kujkf'k ÁkIr djus ds vf/kdkjh gS \ 2- D;k LoŒ Jh uwjvkye us vius thoudky esa gh Áfroknh la[;k 2 dks rykd ns fn;k Fkk] ;fn gka rks ÁHkko \ 3- D;k okfnuh la[;k 1 dk fudkg uwjvkye ds lkFk fof/kd :i ls gqvk gS \ 4- D;k oknhx.k dks e`rd uwjvkye dh lEifRr esa fglk ÁkIr djus dk dksbZ dkuwuh vf/kdkjh gS \ 5- D;k oknhx.k }kjk e`rd uwjvkye ds cPpksa dks vko';d i{kdkj u cuk;s tkus ds dkj.k okn dkuwuu esUVhusfcy gS \ 6- D;k oknhx.k ds okn dk ewY;kadu de fd;k gS rFkk U;k;'kqYd vi;kZIr :i ls vnk fd;k x;k gS \ 7- D;k okn oknhx.k /kkjk 80 tkCrk nhokuh ls ckf/kr gS \ 8- vuqrks"kA** 8. But looking to the pleadings and the counter pleadings, which have been raised by the parties for sustaining their rival claim, the basic concern which would facilitate in adjudicating of the First Appeal would be, the determination of the question as to whether, the plaintiff had ever solemnized marriage with late Mr. Noor Aalam after giving divorce to his first wife surviving, if yes, that would be its effect on rights of defendant No.2 and that is why the learned Trial Court had specifically framed issue No. 1 to the effect that as to whether the plaintiff was the actual married wife of late Mr. Noor Aalam and as to whether the plaintiff would be entitled to receive the amount due to be paid by the defendant No. 1 or to the heirs of late Mr. Noor Aalam, i.e. defendant No. 2. 9. In support of her contention, the plaintiff has placed on record paper No.9Ga-1, which was claimed by her as to be the nikahnama and its hindi translation as paper No.10-A and 11-Ga to support her contention that she was married with late Mr. Noor Aalam. Whereas, on the other hand, the defendant No.2, in support of her contention to show that she was the only married wife of late Mr. Noor Aalam had placed on record, list of documents, i.e. paper No.30-Ga-1, the original documents pertaining to that effect that she being recorded in the service records maintained by the BHEL as well as paper No.31-Ka-1, the attestment of the accounts and other such documents as issued by BHEL, i.e. paper No. 66-Ga, wherein, the BHEL, the employer of late Mr. Noor Aalam in its communication had shown the defendant No. 2 as to be the legally married wife of late Mr. Noor Aalam and it was because of that reason that defendant No.2 is shown as to be heir, who would be succeeding the assets relating to all retiral dues of late Mr. Noor Aalam. Thus, in a nutshell, defendant No. 1, based on the service records maintained by them had supported the case of heirship of defendant No.2. 10. Further, in support of the contention, the plaintiff has adduced oral evidence by way of producing herself in the witness box and also by filing an affidavit in examination-in-chief 68-Ka-2 to support her version. She produced PW2 Mr. 10. Further, in support of the contention, the plaintiff has adduced oral evidence by way of producing herself in the witness box and also by filing an affidavit in examination-in-chief 68-Ka-2 to support her version. She produced PW2 Mr. Surendra Pal Tyagi to show that he was the eyewitness of marriage and hence, in accordance to the statement of PW2, she ought to be treated as a married wife of late Mr. Noor Aalam. 11. The learned Trial Court, on considering the rival contentions and evidences which was produced by parties, rightly held so, so that so as to conclude for deciding the controversy at hand, it could be most appropriate to answer if two issues, i.e. issue Nos. 1 and 4 with regard to subsistence of relationship of husband and wife between the plaintiff and late Mr. Noor Aalam which was required to be established beyond doubt. The learned Trial Court, while dealing with the aforesaid issue Nos. 1 to 4 had considered the statement of the witnesses produced by the defendant No. 1, i.e., the Chief Technician, who had denied the factum of marriage of plaintiff with late Mr. Noor Aalam allegedly said to have been held on 23rd November, 2000. Rather to the contrary, the witness, which was produced by the plaintiff herself, he, himself in his statement as PW2 has recorded that he had never visited the house of late Mr. Noor Aalam nor he was a witness to the marriage and of the nikahnama as produced by the plaintiff in support of her contention. 12. The defendant No. 2, who happens to be the principal witness about the factum of marriage of her with late Mr. Noor Aalam had specifically contended that in order to substantiate the theory of marriage by the plaintiff, the burden of proof as contemplated under Section 103 of the Indian Evidence Act was to be discharged by the plaintiff herself, who has claimed a decree of permanent injunction. The plaintiff, in support of her contention and the document, which was produced by her itself runs contrary to the pleadings raised by her and the only witness which was adduced by her in support of her contention, has stated in his cross examination that he had never attended the alleged marriage of the plaintiff with late Mr. Noor Aalam nor he was ever invited for the marriage. Noor Aalam nor he was ever invited for the marriage. PW2 in his cross examination has made statement to the effect that for the first time he could gather the information about the theory of marriage as developed by the plaintiff from the Suit itself, otherwise, he was not aware that ever marriage was solemnized between the plaintiff and late Mr. Noor Aalam. Thus, on perusal of the testimony of PW2 produced by plaintiff in support of her case, had made statements against the plaintiff herself. 13. Another important significant factor which has been considered by the Trial Court was to the effect that normally in the marriages, may be of any caste and by adopting any customary procedure, there are other witnesses also who must have attended the marriage and could have proved the solemnization of marriage between the plaintiff and late Mr. Noor Aalam, but, unfortunately, the plaintiff apart from PW2 has not produced any other independent witness to show their participation in the marriage which according to her was solemnized with late Mr. Noor Aalam on 23rd November, 2000 and there was no other evidence adduced by her to prove the marriage. Not only that, PW2 in his statement has categorically stated that he had never visited the home of late Mr. Noor Aalam nor he was a frequent visitor of his home. In such circumstances, he cannot be treated as to the reliable witness of the factum of marriage, because of the statement of PW2 with regard to his affinity with the family, would rather show that when he has not been able to prove the fact of marriage. The aspect remained unproved which the plaintiff was to discharge as per the provisions of Section 103 of Evidence Act, it was to be discharged by plaintiff herself. Once as per the evidence which was produced by the plaintiff, she has utterly failed to prove that the marriage was ever solemnized with late Mr. Noor Aalam, she would not entitled for the nature of decree which was sought, in fact, it was a negative decree to the effect that the BHEL may be restrained from disbursing the amount of retiral dues to defendant No. 2. There was no independent claim raised by the plaintiff in the suit or otherwise, that since according to her claim, when she was claiming herself to be wife of late Mr. There was no independent claim raised by the plaintiff in the suit or otherwise, that since according to her claim, when she was claiming herself to be wife of late Mr. Noor Aalam, she should be remitted with the service benefits payable to heir of late Mr. Noor Aalam who was shown in the service records, which was maintained by the BHEL. If the statement of PW2 is further scrutinized in precision, he has specifically made a statement that apart from the fact that he was never invited for the marriage, he had never visited or attended the marriage party as alleged by the plaintiff to have been organized after the marriage with late Mr. Noor Aalam. 14. Shri V.K. Kohli, learned Senior Counsel for the BHEL had even made a statement that in accordance with the record which was maintained by the BHEL and produced before the Trial Court, in which, the defendant No.2 has been shown to be heir and only that BHEL had remitted the amount payable, i.e. towards gratuity and LIC to defendant No.2. Apart from the above fact, the fact that the defendant No. 2 stands recorded as heir of late Mr. Noor Aalam in the account maintained in the Bank of India was also proved by records, this would also be a supportive evidence to show that as a matter of fact the defendant No. 2 was the actual legally wedded wife of late Mr. Noor Aalam, who would be entitled for the retiral dues. 15. In view of the fact and evidence on record, the plaintiff has miserably failed to show that she was ever married with late Mr. Noor Aalam, hence, she would not be entitled for the nature of decree which she has sought for in the suit. Because in order to avail the service benefit as per the service record, which has been maintained by the BHEL, the burden to prove that she was a married wife was to be discharged by her. 16. Accordingly, this Court after having heard the learned counsel for the parties and going through the entire records, holds that there is no error committed by the learned Trial Court in its judgment dated 10th July, 2009 by dismissing the Suit of the plaintiff. Consequently, there is no merit in the First Appeal and the same is accordingly dismissed. 17. Accordingly, this Court after having heard the learned counsel for the parties and going through the entire records, holds that there is no error committed by the learned Trial Court in its judgment dated 10th July, 2009 by dismissing the Suit of the plaintiff. Consequently, there is no merit in the First Appeal and the same is accordingly dismissed. 17. Thus the First Appeal fails and is hereby dismissed. The judgment and decree dated 10.07.2009, as passed by the Trial Court in Original Suit No. 116 of 2005, Smt. Bani Fatima Sajida and another Vs. C.F.F.P/BHEL and others are affirmed. 18. However, there would be no order as to costs. 19. Registry is directed to formulate the decree accordingly.