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2022 DIGILAW 1146 (GAU)

U Maya Widow Of Late Dhan Singh v. Union Of India

2022-10-14

L.S.JAMIR

body2022
JUDGMENT : Heard Mr. Apok Pongener, learned counsel for the petitioner. Also heard Mr. Z.N. Ngullie, learned C.G.C appearing for the respondent Nos. 1, 2 and 3 and Mr. Y.P. Gupta, learned counsel appearing for the respondent No.4. 2. The petitioner is the widow of Lt. Dhan Singh who was an employee of the Bharat Sanchar Nigam Ltd (BSNL in short) who superannuated on 31.03.2012 while serving as R.M. 3. It is the case of the petitioner that her late husband Dhan Singh initially married one Smti Tulu Devi in the year 1982. Thereafter, the said Tulu Devi eloped with another person in the month of October, 1982. As the said Tulu Devi had deserted her matrimonial home on her own will, her late husband Dhan Singh after waiting for a considerable period of time married another lady, namely, Smti. Deo Kumari and had four issues. The said Smti. Deo Kumari also died on 17.10.2003. The petitioner thereafter, married late Dhan Singh in the year 2004 and lived as husband and wife till his death on 12.10.2014. 4. Further case of the petitioner is that in the “Details of Family” provided by the petitioner to the concerned authority, the name of the petitioner is the only person reflected as the wife of late Dhan Singh. After the retirement of late Dhan Singh on 31.03.2012, he was receiving his pension however, after his death on 12.10.2014, the family pension due to the petitioner was not given. Therefore, the petitioner applied for payment of family pension to the concerned authority. The Accounts Officer (Claims), Office of the GMTD/BSNL, Dimapur by letter dated 15.11.2017 furnished the required documents in respect of the petitioner to the Communication Accounts Officer, Office of the Controller of Communication Accounts, Department of Telecom, NE-1 Telecom circle, Shillong by forwarding letter dated 15.11.2017. In the meantime, petitioner also filed a petition before the Court of the learned Principal Judge, Family Court-II, Kohima praying for settlement of family pension in respect of the petitioner’s late husband. The learned Family Court-II by judgment and order dated 26.08.2019 allowed the petition by holding that the petitioner is entitled to all pension benefits of her late husband’s pension and other benefits arising out of the same as she is the sole widow of late Dhan Singh which is proved beyond reasonable doubt. The learned Family Court-II by judgment and order dated 26.08.2019 allowed the petition by holding that the petitioner is entitled to all pension benefits of her late husband’s pension and other benefits arising out of the same as she is the sole widow of late Dhan Singh which is proved beyond reasonable doubt. The said order of the learned Principal Judge, Family Court-II, Kohima still holds the field as no appeal or review has been filed by the respondents against the said order. 5. In the meantime, the Deputy Controller of Communication of Accounts, Office of the CCA, NE-1 Circle, Shillong by a letter dated 28.09.2020 addressed to the Accounts Officer (Claim), Office of the GMTD, BSNL, Dimapur stated that the family pension with regard to the petitioner has been reviewed and it was observed that the applicant failed to submit any valid document in support of divorce of late Dhan Singh with Smti. Tulu Devi and the subsequent marriage of late Dhan Singh is voidable as per GID-13 below Rule-54 of CCS (Pension)Rules, 1972. Accordingly, the petitioner was found not eligible to get the family pension. 6. Being aggrieved, the petitioner made a representation dated Nil addressed to the Deputy Controller of Communication of Accounts, Office of the CCA, NE-1 Circle, Shillong through the Accounts Officer (Claim), office of the GMTD, BSNL, Dimapur which was received by the Office of the General Manager, BSNL, Dimapur on 12.11.2020. The case of the petitioner is that the representation made by her has also not been forwarded to the concerned authority and that the same has been disposed of by a letter dated 16.11.2020 by the Accounts Officer (Claims), Office of the GMTD/BSNL, Dimapur who is not the competent authority to do so inasmuch as, the representation was addressed to the Deputy Controller of Communication of Accounts, Office of the CCA, NE-1 Circle, Shillong. 7. Mr. Apok Pongener, learned counsel for the petitioner submits that as the 1st wife of the late Dhan Singh had eloped with another person in the month of October, 1982 and as she was not traceable, the said late Dhan Singh married another lady by the name of Deo Kumari. The said Deo Kumari also expired on 17.10.2003 and the petitioner was married to the said Dhan Singh in the year 2004. The said Deo Kumari also expired on 17.10.2003 and the petitioner was married to the said Dhan Singh in the year 2004. He submits that as the husband of the petitioner was illiterate, he did not file any application for divorce with Smti. Tulu Devi under Section 5 (1) of the Hindu Marriage Act, 1955. However, as the whereabouts of the said first wife was not known, late Dhan Singh proceeded to marry another lady by the name of Deo Kumari who also expired on 17.11.2003. It was only thereafter, that the petitioner married late Dhan Singh. It is also submitted that as there is no counter claims with regard to the family pension, the respondents ought to have paid the family pension to the petitioner. However, they have refused to pay the family pension to the petitioner by the impugned letter dated 28.09.2020. He submits that as there are no surviving widow of late Dhan Singh except the petitioner, she should be granted the family pension. 8. Mr. Z.N. Ngullie, learned C.G.C appearing for the respondent Nos. 1, 2 and 3 submits that as late Dhan Singh has not divorced his first wife, the marriage of the petitioner with late Dhan Singh is void in terms of GID-13 below Rule 54 CCS (Pension) Rules, 1972. He also submits that the Office of the respondent No.3 had requested the BSNL authority regarding survival or divorce documents of Smti. Tulu Devi however no records were provided by the BSNL authority. It is also submitted that as per the service record and other records available, there are no documents/records towards marrying Smti. Deo Kumari and the fact came to light only when the Office of the respondent No.3 received a letter dated 12.11.2012 from the BSNL authority wherein, an affidavit dated 19.11.2012 was enclosed. He also submits that in the Pension Payment Order (PPO), there is no mention of any family and joint photograph with the spouse with regard to the said late Dhan Singh. Further, in the revised PPO which was issued on 08.03.2017 the entry with regard to the name of family pensioner, it is recorded as ‘NA’. However, the lifetime arrear pension of late Dhan Singh for the period 01.09.2014 was paid to the petitioner on 26.05.2015 without any approval from the Office of the respondents by the Sub-Treasury Office, EOI, PPO, Pokhara. However, the lifetime arrear pension of late Dhan Singh for the period 01.09.2014 was paid to the petitioner on 26.05.2015 without any approval from the Office of the respondents by the Sub-Treasury Office, EOI, PPO, Pokhara. It is also submitted that the representation made by the petitioner which was received by the respondent No.4 on 12.11.2020 has not been forwarded to the respondent No.3 till date. 9. Mr. Y.P. Gupta, learned C.G.C. appearing for the respondent No.4 while endorsing the submissions made by Mr. Z.N. Ngullie further submits that the respondent No.4 has also received an email dated 13.11.2020 from the Grievance Cell, Embassy of India, Pension Paying Office, Pokhra, Nepal which reveals that Lt. Dhan Singh had married another wife namely, Smti. Lal Kumari BK who died on 03.10.2003 leaving behind her daughter Miss Laxmi BK who claimed herself as a daughter of Lt. Dhan Singh and claimed family pension. He also submits that the divorce granted under local custom is not acceptable in terms of GID-13 below Rule-54 of CCS (Pension)rules 1972. In that view of the matter, he submits that the writ petition requires to be dismissed. 10. I have considered the submission made by the learned counsel for the parties. 11. The first aspect that requires consideration of this Court is with regard to the marriage of the petitioner’s late husband to Smti. Tulu Devi in the year 1982. It is an undisputed fact that the said Tulu Devi eloped with another person in the month of October, 1982 during the subsistence of her marriage with late Dhan Singh. However, after October, 1982, the whereabouts of the said Tulu Devi is not known till date nor is there any claims with regard to family pension of the petitioner’s late husband by the said Tulu Devi before the office of the respondents. In the present case in hand, Section 5 (1) of the Hindu Marriage Act, 1955 is attracted. However, it is to be noted that late Dhan Singh married another lady namely, Smti. Deo Kumari who also expired on 17.10.2003. It was only thereafter, that the petitioner married to the said late Dhan Singh in the year 2004. The petitioner, was married to late Dhan Singh only after about 22 years after the first wife left her matrimonial home on her own will. Deo Kumari who also expired on 17.10.2003. It was only thereafter, that the petitioner married to the said late Dhan Singh in the year 2004. The petitioner, was married to late Dhan Singh only after about 22 years after the first wife left her matrimonial home on her own will. It is also correct that the petitioner’s late husband did not file any petition for annulment of his marriage with the said Tulu Devi however, applying the principle laid down under Section 108 of the Indian Evidence Act, a presumption can be drawn that the said Tulu Devi was not alive when the petitioner married late Dhan Singh. 12. A perusal of the “Details of Family” which is enclosed in the writ petition as Annexure-P Series, clearly indicates that late Dhan Singh had entered the name of the petitioner as his legal wife and which was counter signed by the Office of the BSNL, Kohima under which the petitioner’s late husband was serving. The said entry was made before the retirement of late Dhan Singh while giving his details to the office of the BSNL, Kohima. Another important factor which this Court cannot ignore is the judicial order dated 26.08.2019 passed by the learned Principal Judge Family Court-II, Kohima declaring the petitioner to be entitled to all pension benefits of her late husband’s pension and other benefits arising out of the same as the petitioner is the sole widow of late Dhan Singh and which is also proved beyond reasonable doubt. The order dated 26.08.2019 still holds the field till date. Another important factor is the Pension Payment Order which is annexed as Annexure-P/II to the writ petition. At part II of the said PPO, the joint Photograph of the petitioner and her late husband is affixed. Further the affidavit dated 19.11.2012 sworn by late Dhan Singh declaring the petitioner as the only surviving spouse and his legal heirs is also not disputed before this Court. 13. This Court has also considered the submission of the learned counsel for the respondent No.4 that late Dhan Singh had married another wife namely, Lal Kumar BK and had left behind one daughter by the name of Laxmi BK and the said Laxmi BK is also claiming family pension. The letter written by Laxmi BK is annexed to the counter-affidavit of respondent No.4 as Annexure-3. The letter written by Laxmi BK is annexed to the counter-affidavit of respondent No.4 as Annexure-3. A perusal of the same would indicate that the application made by the Laxmi BK is in favour of the petitioner and not otherwise. 14. Considering the aforesaid factors mentioned hereinabove, this Court is of the considered opinion that the petitioner is the only sole widow of late Dhan Singh and therefore, she is entitled to receive the family pension of late Dhan Singh. Accordingly, respondents are directed to pay the family pension to the petitioner in respect of late Dhan Singh at the earliest but not later than 2 (two) months with effect from the date of receipt of a certified copy of the order of this Court. Consequently, the letter dated 28.09.2020 refusing family pension to the petitioner is set aside. With the above observations and direction, this writ petition is disposed of.