ORDER 1. This Appeal under section 2(1) of Madhya Pradesh Uchcha Nyayalaya (Khand Nyayapeeth Ko Appeal) Adhiniyam, 2005, is directed against the order dated 22.1.2018 passed in Writ Petition No. 1428/2015(S) wherein, the grievance raised by the respondent was against non-grant of family pension. 2. Husband of the respondent late Pooran Chand Dehuri, a Head Constable, Border Security Force (hereinafter referred to as “BSF”) sustained multiple injuries due to IED blast by the militant during course of duty in Srinagar on 13.8.2000. He succumbed to those injuries on 30.3.2003 during course of treatment. After the death of her husband, as borne out from the the averments on record, the petitioner was taken away to her matrimonial home at Village Gotamara, District Angul, Orissa where she was detained by her father-in-law and other family members of her late husband who made her signatures on various documents, on the basis of whereof, the family pension and the terminal dues of her husband were settled in favour of her daughters. Later, the respondent escaped from the custody of her in-laws. Whereafter, on reaching Tekanpur, she filed a representation for grant of pension from the date it was stopped for her daughters after their marriage. As the request was not acceded to, the respondent filed Writ Petition No. 7459/2012 wherein, the appellants took the plea that, on 21.5.2002, the respondent executed a notarized marriage contract with one Shri Lavkush Soni during life time of her husband. Accordingly, denied her entitlement for family pension in the term of rule 54(6)(iii) of the Central Civil Services (Pension) Rules, 1972 (hereinafter referred to as “Rules 1972”). Learned Single Judge by order dated 27.3.2014 while formulating the issue as to the marriage adverted to by the Department, could be said to be legal marriage in the eyes of law and whether such marriage will deprive her of the family pension in lieu of the death of her husband, disposed of the writ petition with the following directions: “(i) Petitioner shall prefer a detailed representation stating relevant facts and grounds. (ii) Along with said representation, the petitioner shall produce the relevant documents before the employer as desired in document dated 14.8.2012 (Annexure P-5). (iii) In turn, respondents shall consider and decide the following questions: (a) Whether Annexures R-1 and R-2 are correct and genuine documents? (ii) Along with said representation, the petitioner shall produce the relevant documents before the employer as desired in document dated 14.8.2012 (Annexure P-5). (iii) In turn, respondents shall consider and decide the following questions: (a) Whether Annexures R-1 and R-2 are correct and genuine documents? (b) If Annexures R-1 and R-2 are genuine documents, whether the marriage of the petitioner with Lovekush Soni can be said to be a valid marriage? Whether such marriage can deprive her from the benefit of family pension? (iv) Respondents shall consider these aspects in accordance with law and pass appropriate speaking order within 90 days. For the purpose of undertaking aforesaid exercise, it will be open for the respondents to conduct necessary fact finding enquiry in accordance with law. The speaking order be communicated to the petitioner within aforesaid time.” 3. The representation preferred by the respondent led to constituting Court of Inquiry vide O/No. Estt./COI/95 Bn/2014/9314-15 dated 9.6.2014 which returned following findings : “(i) Annexure R-1 (to the writ petition filed by the petitioner) i.e. Marriage agreement contract executed on the Affidavit on Rs. 50/- non judicial stamp by the petitioner in presence of Notary Sh P C Swamy, Dabra on 21.5.2002, is genuine document. Mr. P C Swamy, the Notary, accepted that the document (Annexure R-1) was made by him in presence of 02 witnesses namely Gyan Singh and Dinesh Soni. (ii) Annexure R-2 (to the WP filed by the petitioner) i.e. affidavit wherein petitioner relinquished family pension and other benefits in favour of her daughters, was made on Rs. 10/- non judicial stamp before Sh J D Gupta, Notary, Dabra, on 3.4.2003, in presence of petitioner’s younger sister Sumrita’s Sahu D/O R K Sahu and Sumitra’s husband. The same was also checked and verified from Mr. J D Gupta, Notary Dabra, and found to be correct and genuine. (iii) Though, Annexures R-1 and R-2 are genuine documents, the marriage of Smt. Padmini alias Doli Dehury with Lavkush Soni cannot be said to be a valid marriage. However, the petitioner is still living with Shri Lavkush Soni at Gwalior (MP) as his wife whereas the native place of late HC P C Dehury and Smt. Padmini Dehury is Anugul in Orissa.” 4. On the basis whereof, the claim of the respondent for family pension has been declined holding that : “8. However, the petitioner is still living with Shri Lavkush Soni at Gwalior (MP) as his wife whereas the native place of late HC P C Dehury and Smt. Padmini Dehury is Anugul in Orissa.” 4. On the basis whereof, the claim of the respondent for family pension has been declined holding that : “8. The findings of Court inquiry suggests that the petitioner during the life time of her late husband HC P C Dehury lived in adultery with Shri Lavkush Soni while HC P C Dehury was undergoing treatment at BSF Hospital, Tekanpur (MP). The petitioner is living with Shri Lavkush Soni as his wife since death of HC P C Dehury. Moreover, the petitioner has herself relinquished the family pension benefits in favour of her daughters and remained silent for 09 days. It appears that the petitioner wants to inappropriately claim the family pension as her daughters are going to be debarred from the pension as a result of their marriage or reaching the age limit (25 years) as prescribed by the CCS pension rules. Furthermore, the petitioner has also not submitted the marriage certificates of her daughter as directed by aforesaid order of Hon’ble High Court of MP. Therefore, Smt. Padmini Dehury (petitioner) is not entitled to get family pension under the provision of rule 54(6) of CCS (Pension) 1964. Hence, the representation dated 27.3.2014 submitted by Smt. Padmini Dehury (petitioner) is rejected being devoid of merit.” 5. On its challenge in the writ petition, learned Single Judge has quashed the order on the finding that, there is no evidence of marriage of respondent with the said Shri Lavkush Soni. It further held that, the documents relied upon by the Authorities are not valid documents to establish the factum of marriage. The present Appellants were, accordingly, directed to grant family pension as per law with an interest @ 8% per annum, if not paid within thirty days. 6. The order is being challenged on the ground that, learned Single Judge committed grave error in nullifying the findings arrived at by the Court of Inquiry. 7. Though in the appeal, various other grounds have been raised such as that the petitioner had failed to establish that, her daughters are married and that, the mother of the deceased being Class-I heir has a first right of the pension. 7. Though in the appeal, various other grounds have been raised such as that the petitioner had failed to establish that, her daughters are married and that, the mother of the deceased being Class-I heir has a first right of the pension. It is also contended that, the Pension and Account Department is not made a party. That, the dispute between mother and daughters can be decided only by a Competent Court. However, these grounds are taken note of and are rejected at the outset. The appellants having stopped the pension to the daughters is sufficient ground that, they are now ineligible either having crossed the age of 25 years or are married. The burden is thus on the Department to establish that, either of the two are not the reasons for which their family pension is stopped. The appellants having stopped the pension to the daughters is sufficient ground that, they are now ineligible either having crossed the age of 25 years or are married. The burden is thus on the Department to establish that, either of the two are not the reasons for which their family pension is stopped. Clause (iii) of Sub-rule (6) of rule 54 of 1972 Rules read with the 2nd and 3rd proviso thereof stipulates : “(6) The period for which family pension is payable shall be as follows : (iii) subject to second and third provisos, in the case of an unmarried or widowed or divorced daughter, until she gets married or remarried or until she starts earning her livelihood, whichever is earlier;” Provided further that if the son or daughter of a Government servant is suffering from any disorder or disability of mind including the mentailly retarded or is physically crippled or disabled so as to render him or her unable to earn a living even after attaining the age of twenty-five years, the family penson shall be payable to such son or daughter for life subject to the following conditions, namely : (i) if such son or daughter is one among two or more children of the Government servant, the family pension shall be initially payable to the minor children (mentioned in Clause (ii) or Clause (iii) of this subrule) in the order set out in Clause (iii) of sub-rule (8) of this rule until the last child attains the age of twenty-five years and thereafter the family pension shall be resumed in favour of the son or daughter suffering from disorder or disability of mind, including the mentally retarded,or who is physically crippled or disabled and shall be payable to him or her, for life; Provided also that the grant or continuance of family pension to an unmarried or widowed or divorced daughter beyond the age of twenty-five years or until she gets married or re-married or until she starts earning her livelihood, whichever is the earlier, shall be subject to the following conditions, namely : (i) the family pension shall be initially payable to the minor children (mentioned in Clause (ii) or Clause (iii) of sub-rule (8) of this rule until the last minor child attains the age of twentyfive years; and (ii) there is no disabled child eligible to receive family pension in accordance with the second proviso of this sub-rule;” 8. Thus the onus is on the Department to establish that, the pension of the daughters is stopped for the reasons other than as stipulated in the Rules. On the contrary, and in absence of any reasons, the presumption would be that, the daughters’ pension is stopped as they are ineligible under Rules. 9. As regard to the contention that the deceased’s mother being alive, she has a priority right, learned counsel for the Appellants has failed to commend to any such Rule which substantiate the contention that, the mother has a peremptory right to family pension. The only right, which the parents have for the family pension, is under Clause (iv) of sub-rule (6) read with sub-rule (10-A) of rule 54 which stipulates : “(6) The period for which family pension is payable shall be as follows;- (iv) subject to sub-rule (10-A), in the case of parents, who were wholly dependent on the Government servant immediately before the death of the Government servant, for life; [(10-A) (a) Family pension to the parents shall be payable if the parents were wholly dependent on the Government servant immediately before his or her death and the deceased Government servant is not survived by a widow or an eligible child. (b) The family pension, wherever admissible to parents, will be payable to the mother of the deceased Government servant failing which to the father of the deceased Government servant.” 10. There is no material on record as would qualify the mother of deceased for the pension. 11. As regard to the contention that, the Pension and Account Department is not made a party suffice it to say that, the Union of India through Home Secretary, Ministry of Home Affairs, the Director General of Police, BSF and Senior Account Officer, Pension and Account Division, BSF Directorate General, BSF New Delhi, being made parties, the respondent did not commit any folly in not impleading the Pension and Account Department. 12. Now coming to main issue as to entitlement of the respondent for family pension in lieu of the death of her husband. Under rule 54(6) (i), the widow is entitled for family pension upto the date of death or re-marriage, whichever is earlier. 13. 12. Now coming to main issue as to entitlement of the respondent for family pension in lieu of the death of her husband. Under rule 54(6) (i), the widow is entitled for family pension upto the date of death or re-marriage, whichever is earlier. 13. In the case at hand, the reasons which weigh with the Department for denying the family pension are as adverted to by the Court of Inquiry in his finding which is relied upon by the Competent Authority. 14. Thus it is the Notarized Affidavit of marriage and the affidavit to relinquish the family pension in favour of daughters which are the basis for denial. 15. Evidently, in the Court of Inquiry though the Notary has been examined, but said Lavkush Soni is not examined, nor the respondent is examined. No other cogent material evidence such as person who helped the couple to tie the nuptial right. 16. The conditions for a Hindu Marriage is laid down under section 5 of the Hindu Marriage Act, 1955 (hereinafter referred to as “1955 Act”) which envisages: “5. Condition 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 of 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;” 17. In Gullipilli Sowria Raj v. Bandaru Pavani : [2009(1) MPWN 76 = AIR 2009 SC 1085 ], it is held : “21. In Gullipilli Sowria Raj v. Bandaru Pavani : [2009(1) MPWN 76 = AIR 2009 SC 1085 ], it is held : “21. Section 5 of the Act thereafter also makes it clear that a marriage may be solemnized between any two Hindus if the conditions contained in the said section were fulfilled. The usage of the expression ‘may’ in the opening line of the section, in our view, does not make the provision of section 5 optional. On the other hand, it in positive terms, indicates that a marriage can be solemnized between two Hindus if the conditions indicated were fulfilled. In other words, in the event the conditions remain unfulfilled, a marriage between two Hindus could not be solemnized. The expression ‘may’ used in the opening words of section 5 is not directory, as has been sought to be argued, but mandatory and non-fulfilment thereof would not permit a marriage under the Act between two Hindus. Section 7 of the 1955 Act is to be read along with section 5 in that a Hindu marriage, as understood under section 5, could be solemnized according to the ceremonies indicated therein.” 18. Furthermore, section 7 of 1955 Act provides for that : “7. Ceremonies for a Hindu marriage. (1) A Hindu marriage may be solemnized in accordance with the customary rites and ceremonies of either party thereto. (2) Where such rites and ceremonies include the saptapadi (that is, the taking of seven steps by the bridegroom and the bride jointly before the sacred fire), the marriage becomes complete and binding when the seventh step is taken.” 19. Thus among the Hindus, a marriage is a valid marriage only when it is solemnized in accordance with the provisions under section 5 and section 7 of 1955 Act. 20. In Virendra Singh Pal v. Kashibai and others :[ AIR 1998 MP 324 ], it is held : “14. It must be emphasised that presumption in regard to marriage on the basis of evidence of habit and repute referred to hereinabove cannot be raised in a case where no valid marriage is possible or permissible under the law as no amount of evidence in regard to habit and repute could establish it in such a case. In other words, the presumption of legal marriage from cohabitation for long period is not available where it is not possible to have legal marriage.” 21. In other words, the presumption of legal marriage from cohabitation for long period is not available where it is not possible to have legal marriage.” 21. Thus unless requisite conditions of a valid marriage are satisfied in the sense that, such a marriage was not prohibited under the law, presumption in regard to marriage on the basis of evidence of habit and repute cannot be raised in a case where no valid marriage is possible or permissible under the law. In the case at hand, evidently, the Notarized marriage agreement relied by the appellant Department is of 21.5.2002, when the husband of respondent was alive. 22. In view whereof, the order dated 12.7.2014 passed by the appellant denying the family pension is tested on the anvil of the above analysis, it cannot be approved. And, is rightly quashed by learned Single Judge, as would warrant any indulgence. 23. Before parting with the matter, it is observed from the findings in paragraph 8 of the order dated 12.7.2017 that, the Court of Inquiry suggested that, the respondent is living an adulterous life with Lavkush Soni. The observation in absence of any cogent material evidence on record is outrageous. We condemn such an opinion by the Court of Inquiry as it adversely affect the reputation and the modesty of a lady more particularly a widow. 24. In view whereof, besides directing the respondent to pay family pension along-with arrears from the date when the pension to the respondent’s daughters were stopped with interest @ 8% per annum shall also compensate her which we quantify to Rs.5,00,000/-(Rupees Five Lacs) with a letter of apology by the Director General, Border Security Force. 25. Let the compliance be effected within ninety days. 26. The appeal is disposed of finally in above terms. No costs.