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2019 DIGILAW 562 (GAU)

Nirala Choudhury v. State of Assam

2019-05-07

N.KOTISWAR SINGH

body2019
ORDER : N. Kotiswar Singh, J. 1. Heard Ms. K. Deka, learned senior counsel for the petitioner. Also heard Mr. Y. Doloi, learned standing counsel for the Inland Water Transport Department. 2. By this petition the petitioner claiming to be the legally married wife of one Late Pabitra Kalita, who was earlier serving in the post of Greaser in Inland Water Transport Department, Govt. of Assam, is seeking terminal and pensionary benefits on account of the service rendered by the aforesaid Late Pabitra Kalita. 3. Bereft of other attending facts and issues, this Court is of the view the core issue to be decided in this petition is whether the claim of petitioner that she is the wife of aforesaid Pabitra Kalita and the counter claim of the respondent No. 4 that she is the legally wedded wife of the petitioner is correct or not. 4. The main protagonist in this episode namely, late Pabitra Kalita around whom the disputes revolves, is not before this Court, whose presence would have been decisive as to whether he married the petitioner or the respondent No. 4. or which one of them was his first wife, if both of them were married to him, as the said relationship would have a consequence as regards the claim for pensionary benefits accruing out of the service rendered by the said Pabitra Kalita. 5. As per law, only the validly married women can claim to be wife and would be entitled to the pensionary benefits and if a person has married more than once, the first wife would have better claim as far as pensionary benefits are concerned. 6. The petitioner claims that she was married to the aforesaid Pabitra Kalita on 26.01.1994. The said claim is based on the statements and averments made by the said Pabitra Kalita during his life time in an earlier proceeding initiated him as the petitioner by filing a divorce petition against the present petitioner as the respondent before the Court of Family Court at Bharulumuk, Guwahati which was registered as case FC (Civil) 60/1996. 7. The relevant portions of the claim filed by the said Pabitra Kalita in the aforesaid divorce petition read as follows: "2. That the petitioner and respondent have above named were married at Kamakhya temple on 26.01.1994. 3. That the parties to the marriage aforesaid lived and cohabited peacefully after marriage till 11.05.1994. ................................................. ................................................. 7. The relevant portions of the claim filed by the said Pabitra Kalita in the aforesaid divorce petition read as follows: "2. That the petitioner and respondent have above named were married at Kamakhya temple on 26.01.1994. 3. That the parties to the marriage aforesaid lived and cohabited peacefully after marriage till 11.05.1994. ................................................. ................................................. ................................................. 7. That on 12.05.1994 the respondent left the house of the petitioner and since then she is staying with her parents. 8. That on 03.11.1994 the respondent had given birth twin female child at her parent's house. 9. That in between this times the petitioner went to respondent several times and requested to come back to his house with two babies, but the respondent flatly refused all the times and not behaving properly even she had not shown her daughter to the petitioner and told him not to see her future. ................................................. ................................................. ................................................. 13. That more than ½ years the respondent had deserted the petitioner and there is no cohabitation between the parties and petitioner had suffered lot of family problem and mental agony. 14. That this Hon'ble Court has jurisdiction to entertain and adjudicate this petition became the parties were married in Kamakhya Temple. It is therefore prayed that your honour would be pleased to dissolved the marriage of the petitioner with the respondent by a decree of divorce, on the ground of desertion or adultery with unknown person and for this act of your kindness the petitioner shall ever pray." 8. The said divorce petition was filed on 02.05.1996 against the present petitioner who was respondent therein. The respondent therein, the petitioner herein filed a written statement contesting the allegations of the said Pabitra Kalita that the present petitioner had deserted him. 9. The claim of the aforesaid plaintiff, late Pabitra Kalita that he was married to the present petitioner on 26.01.1994 was not disputed by the petitioner in the said proceeding, though the petitioner as respondent therein disputed that she had deserted him and other allegations made in the said divorce petition. 10. The petitioner as respondent therein denied the various allegations of negligence heaped upon her by the said Pabitra Kalita and asserted that the said plaintiff was keeping a second wife at his residence and accordingly, contested the said petition for divorce contending that no grounds had been made out for grant of divorce. 11. 10. The petitioner as respondent therein denied the various allegations of negligence heaped upon her by the said Pabitra Kalita and asserted that the said plaintiff was keeping a second wife at his residence and accordingly, contested the said petition for divorce contending that no grounds had been made out for grant of divorce. 11. It is a different matter that the said divorce petition did not come to its logical conclusion as the plaintiff did not pursue his claim, which resulted in the dismissal on default of the said petition, vide order dated 29.11.1997. The said dismissal order passed by the Family Court reads as follows: "29.11.1997. Petitioner is absent. Respondent is present. Case is dismissed for default with cost of Rs. 100/-." 12. The legal consequence of the aforesaid dismal order is that the claim of the Pabitra Kalita that the present petitioner who was the respondent therein had deserted him had not been proved. 13. It may also be mentioned that there was a miscellaneous case pending before the Family Court, in which the present petitioner filed an application for grant of maintenance for her twin daughters under Section 127 Cr.P.C., which was allowed by the Family Court and subsequently by an order dated 18.02.2012 passed by the Court in Misc. (J) Case No. 597/2010, the maintenance allowance was enhanced to Rs. 2,000/- each per month for the twin daughters. 14. In view of the above, the petitioner submits that the late husband of the petitioner, Pabitra Kalita had himself stated before the Family Court that they were married on 26.01.1994 in a suit initiated by him and the respondent had never taken the plea that in the said proceeding that she was not married to him and in fact on the basis of the materials on record the Family Court granted maintenance allowance in favour of her two minor daughters as mentioned above. 15. The said direction for grant of maintenance allowance was also never challenged by the said Pabitra Kalita. The aforesaid judicial proceedings would clearly vindicate the stand of the petitioner that the petitioner was the legally married wife of the said Pabitra Kalita as, otherwise, neither Pabitra Kalita would have filed the said application for divorce nor he would have been directed to pay the maintenance allowance. 16. The aforesaid judicial proceedings would clearly vindicate the stand of the petitioner that the petitioner was the legally married wife of the said Pabitra Kalita as, otherwise, neither Pabitra Kalita would have filed the said application for divorce nor he would have been directed to pay the maintenance allowance. 16. The petitioner further contends that the respondent No. 4 is the lady with whom her husband was cohabiting after she had left him under the circumstances mentioned in the aforesaid proceeding. But the fact remains that the petitioner was not divorced and hence she remained the wife of the said Pabitra Kalita as also admitted by him in the said proceeding initiated by him. 17. Accordingly, it has been submitted that the respondent No. 4 can have no claim over the pensionary benefits out of death of the said Pabitra Kalita. 18. Respondent No. 4 has filed her affidavit-in-opposition in this petition claiming that she was married to the aforesaid Pabitra Kalita on 18.05.1996 and the said marriage was solemnized socially with the said late Pabitra Kalita as per Hindu rites and customs and during their conjugal life, she gave birth to three children. 19. Respondent No. 4 also had asserted that even if the petitioner claims to be wife of the said Pabitra Kalita, it cannot be said to be valid in the eyes of law, for to constitute a valid marriage under the Hindu Law, the customary rites and practices including completion of Saptapadi have to be performed, which were not done in the case of the petitioner's alleged marriage with late Pabitra Kalita. 20. It has been contended that in the present case, as the claimed by the petitioner herself, she was married to Pabitra Kalita in the Kamakhya Temple, which cannot be said to be a valid marriage under Hindu law, as it did not involve the rites of Saptapadi, that is, going round the sacred fire seven times together. 21. If that is so, even if the petitioner claims to have married to the said Pabitra Kalita on 26.01.1994 in Kamakhya Temple, the said marriage cannot be said to be valid in the eyes of law. 22. In this regard, learned counsel for the respondent No. 4 has relied on the decision of this Court in Upendra Sarma Vs. 21. If that is so, even if the petitioner claims to have married to the said Pabitra Kalita on 26.01.1994 in Kamakhya Temple, the said marriage cannot be said to be valid in the eyes of law. 22. In this regard, learned counsel for the respondent No. 4 has relied on the decision of this Court in Upendra Sarma Vs. Smti Pranati Baishya reported in 2013 (1) GLJ 342 in which this Court had held that: "............................ Accordingly to section 7 of the Hindu Marriage Act, 1955, a Hindu marriage may be solemnized in accordance with the customary rites and ceremonies of either party thereto and, 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." 23. Accordingly, it has been submitted that if the said essential ceremonial part of Saptapadi had not been performed, no valid marriage can be said to have been solemnized between the petitioner and late Pabitra Kalita. 24. Learned counsel for the respondent No. 4 has also relied on the decision of the Hon'ble Supreme Court in Smt. Priya Bala Ghosh Vs. Suresh Chandra Ghosh reported in 1971 (1) SCC 864 , in which the Hon'ble Court had held that: "25. To conclude, we have already referred to the fact that both the learned Sessions Judge and the High Court have categorically found that the Homo and Saptapadi are the essential rites-for a marriage according to the law governing the parties and that there is no evidence that these two essential ceremonies have been performed when the respondent is stated to have married Sandhya Rani. No reliance can be placed on the admissions stated to be contained in Ex. 2. For all the above reasons the contentions of Mr. Majumdar have to be rejected." 25. Accordingly, it has been submitted that in the present case, there is nothing to show that the aforesaid rite of Saptapadi was performed when the petitioner and the said Pabitra Kalita claimed to have got married at Kamakhya Temple on 26.01.1994. If that is so, the said proclaimed marriage of the petitioner with Pabitra Kalita will not be valid in the eyes of law. Thus, the respondent No. 4 will be legal wife of the said Pabitra Kalita and not the petitioner. If that is so, the said proclaimed marriage of the petitioner with Pabitra Kalita will not be valid in the eyes of law. Thus, the respondent No. 4 will be legal wife of the said Pabitra Kalita and not the petitioner. 26. It has been submitted by the learned counsel for the respondent No. 4 that the authorities have also duly acknowledged the respondent No. 4 to be the wife of the said Pabitra Kalita as evident from next of kin certificate issued by Deputy Commissioner, where the names of the petitioner and her two daughters and one son have been shown as his wife and children respectively. 27. Learned counsel for the respondent No. 4 accordingly submits that respondent No. 4 is indeed the legally valid wife of the Pabitra Kalita and as such, she is the genuine claimant of the pensionary benefits in respect of the service rendered by the said Pabitra Kalita. 28. It has been further contended by learned counsel for the respondent No. 4 that at no point of time the petitioner had ever raised any claim either before the authority or informed her that the petitioner is the first wife of the Pabitra Kalita. It is contended that in fact, the petitioner is a total stranger in the life of the respondent No. 4 and the said Pabitra Kalita. 29. From the above, it is clearly evident that the issue to be decided by this Court is, which of the claimants, the petitioner or the respondent No. 4, is the legal wife of the said Pabitra Kalita who will be entitled to the family pension. 30. Decision on this issue obviously would depend on evidences. 31. Normally, this Court in exercise of jurisdiction under Article 226 does not enter upon such disputed questions of fact, and as such, under normal circumstances, matter would have been relegated to the competent forum or authority for a decision on this issue. However, that is a matter of prudent approach adopted by the Courts and is not an inflexible law and if there are sufficient materials available before this Court, perhaps the Court can proceed to decide the factual disputes also. 32. In this regard, this Court had requisitioned the original records from the Family Court, Guwahati to examine as to whether this Court can decide such a disputed question of fact. 33. 32. In this regard, this Court had requisitioned the original records from the Family Court, Guwahati to examine as to whether this Court can decide such a disputed question of fact. 33. The original records received from the concerned Family Court clearly indicate as mentioned above, that the aforesaid Pabitra Kalita had made a categorical claim before the Family Court that he had married the present petitioner, who was the respondent therein, at Kamakhya Temple on 26.01.1994. The said assertion made by the said Pabitra Kalita was never denied by the present petitioner therein in the written statement or in any document The real dispute between them in the said proceeding was the circumstances in which they became separated and were living away from each other. Because of the said separation, the aforesaid Pabitra Kalita sought divorce from the petitioner alleging that after marriage she had deserted him. 34. Thus, the said Pabitra Kalita had certain marital issues with the present petitioner without questioning the marital status as wife and husband, because of which he filed the suit for divorce, which clearly indicates that the said Pabitra Kalita had acknowledged that he had contracted marriage with the present petitioner. Had it been not so, the question of filing a divorce petition by Pabitra Kalita would not have arisen. The question of divorce will arise only when there had been a valid marriage. 35. This Court also has gone through the orders passed by Family Court directing payment of maintenance allowance in respect of the two daughters, born out of the wedlock of the present petitioner with said Pabitra Kalita, which also clearly indicates the fact that the said Pabitra Kalita never disclaimed the petitioner as his wife, rather on the contrary, sought divorce from her on the ground of desertion. 36. This Court is of the view that the aforesaid relationship between the present petitioner and the said Pabitra Kalita as wife and husband, having been judicially noted by the competent Court is an important material or evidence to decide the issue at hand. Of course, one may contend that the said divorce suit having ended in dismissal due to default of appearance by the plaintiff, did not decide about the marital status of the petitioner and the said Pabitra Kalita. Of course, one may contend that the said divorce suit having ended in dismissal due to default of appearance by the plaintiff, did not decide about the marital status of the petitioner and the said Pabitra Kalita. But the fact remains that this relationship of wife and husband between Pabitra Kalita and the petitioner was never an issue before the Family Court and hence, the Court would not have been called upon to decide it. 37. Further, the Family Court had directed payment of maintenance allowance, which was a separate cause of action, yet intrinsically linked to the undisputed fact that the said Pabitra Kalita was married to the petitioner. The order passed by the Family Court for payment of maintenance was never challenged by the said Pabitra Kalita during his life time and he also complied with the same for sometime. In fact, there was not even a whisper in the entire judicial proceeding questioning the marriage of the petitioner with the aforesaid Pabitra Kalita 38. The claim of the present respondent No. 4 that she is the legally wedded wife is only on the basis of her own assertion made at para 4 of affidavit-in-opposition, in which she claimed that she was married to the said Pabitra Kalita by solemnizing the marriage socially on 18.05.1996 by following Hindu rites and customs. No other material or evidence have been brought to the notice of this Court to substantiate her claim. The only material evidences which have been placed on record are the certificate issued by the office of the Deputy Commissioner as mentioned above and certain school certificates issued in favour of the children showing Pabitra Kalita as their father. The said certificates are issued only on the claim made by the applicant and not because the issuing authorities had direct knowledge of such marital status of the persons concerned. 39. There cannot be any dispute about the legal position as submitted by the learned counsel for the respondent No. 4 that unless the essential customary and religious rites attending a Hindu marriages are performed, any such claim for marriage cannot be said to be valid in the eyes of law. 40. However, it may be noted that the aforesaid decisions by this Court as well as the Hon'ble Supreme Court were rendered in the context of the dispute between the husband and wife. 40. However, it may be noted that the aforesaid decisions by this Court as well as the Hon'ble Supreme Court were rendered in the context of the dispute between the husband and wife. While one party, either the woman or the man asserted that there was a valid marriage, the other partner contested the same. It was in that context that the aforesaid decisions were rendered. 41. In the present case, there was no dispute at all between the present petitioner and the aforesaid Pabitra Kalita that they were married. The relationship of wife and husband between them was never in issue, nor was disputed by either of them. 42. The dispute has been raised by the respondent No. 4 who is admittedly a third party as far as the petitioner and her relationship with the said Pabitra Kalita is concerned and now that the aforesaid Pabitra Kalita is no more, in absence of his statement/evidence, the best evidence available could be acted upon, viz., his own application before the Family Court asserting that he got married to the petitioner on 26.01.1994. 43. As mentioned above, no material evidence has been produced before this Court on the basis of which the respondent No. 4 can claim to be the validly married wife of the said Pabitra Kalita except by making an assertion in para No. 4 of the affidavit-in-opposition, thereof and certificates referred to above. Though, she also claimed that she was validly married to Pabitra Kalita, she never stated that the ritual of Saptapadi had been performed even though it was the ground on which she challenged the validity of the marriage of the petitioner to Pabitra Kalita. 44. Obviously, if there are no materials placed before this Court of the solemnization of marriage between the respondent No. 4 and Pabitra Kalita, and if the assertion made in affidavit-in-opposition is the basis for claiming that the respondent No. 4 is the legally wedded wife of Pabitra Kalita, remanding this matter to any other competent forum would not improve the case of the respondent No. 4. 45. Learned counsel for the respondent No. 4, however, has placed reliance on the kith and kin certificate issued by Deputy Commissioner as well as the school certificates of her children, which the petitioner contests to be false. 45. Learned counsel for the respondent No. 4, however, has placed reliance on the kith and kin certificate issued by Deputy Commissioner as well as the school certificates of her children, which the petitioner contests to be false. However, this Court is not entering into the said issue for the reason that those certificates cannot be decisive as to the marital status of the petitioner with the aforesaid Pabitra Kalita for the reasons discussed above, and all these certificates were issued later on. 46. As mentioned above, the said marriage claimed by the respondent No. 4 with Pabitra Kalita took place only in 1996 after the petitioner got married to Pabitra Kalita in 1994. Thus, even if it is assumed that the respondent No. 4 got married to Pabitra Kalita on 18.05.1996, that is admittedly after the petitioner got married to Pabitra Kalita on 26.01.1994. 47. Accordingly, on the basis of the materials available before this Court, this Court would unhesitatingly hold that the petitioner was married to the said Pabitra Kalita and the validity of this marriage cannot be questioned by the respondent No. 4 when there was never a dispute between two consenting adults i.e., the present petitioner and the aforesaid Pabitra Kalita about their marriage. Even if the claim of the respondent No. 4 that she was validly married to the aforesaid Pabitra Kalita is accepted, this will not help her cause, in as much, she claims to have married the said Pabitra Kalita on 18.05.1996, which is after the marriage of the present petitioner with the said Pabitra Kalita 26.01.1994 and the respondent No. 4 would at best can be said to be the second wife of the said Pabitra Kalita 48. Accordingly, this Court would hold that the petitioner, being the first wife, and not the respondent No. 4, would be entitled to pensionary benefits accruing out of the service rendered by the said Pabitra Kalita. 49. For the reasons discussed above, the present petition is allowed and is disposed of with the direction to respondent authorities to work out the pensionary benefits in favour of the petitioner on account of the service rendered by her husband late Pabitra Kalita in the Inland Water Transport Department, Govt. of Assam. 49. For the reasons discussed above, the present petition is allowed and is disposed of with the direction to respondent authorities to work out the pensionary benefits in favour of the petitioner on account of the service rendered by her husband late Pabitra Kalita in the Inland Water Transport Department, Govt. of Assam. It is a different matter if the petitioner wishes to share any of her pensionary benefits with the said respondent No. 4 on her own volition, which this Court would also commend because of the peculiar facts and circumstances. 50. With the above observations and directions, the present petition stands allowed. 51. Original records be sent back to the Family Court, Guwahati.