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2023 DIGILAW 529 (AP)

Kamunuri Golla Suseela v. State of Andhra Pradesh

2023-03-14

TARLADA RAJASEKHAR RAO

body2023
ORDER : The present Writ Petition is filed under Article 226 of Constitution of India for the following relief/s: “…to issue any Writ, Order or Direction more particularly one in the nature of Writ of Mandamus declaring the action on the Respondent No.3 in rejecting the applications of the Petitioner for the Family Member Certificate vide Endorsement Rc.No.199/2021-B dated 18.09.2021 solely basing on the Written objection of the Unofficial Respondent as illegal, arbitrary, and is in violation of Article 14, 19, 21 and 300-A of the Constitution of India and consequently direct the Respondents to set aside the impugned Endorsement vide Rc.No.199/2021-B dated 18.09.2021 rejecting the application of the Petitioner for Family Member Certificate and pass such other order or orders….” 2. It is asserted in the affidavit filed in support of the Writ Petition that the petitioner is legally wedded wife of late Golla Ravi Kumar who worked as School Assistant (Telugu) at Zilla Parishad High School, Pedavadlapudi Village, Mangalagiri Mandal, Guntur District, since 1995 and succumbed to death due to Covid-19 in the Hospital on 19.05.2021. 3. It is the case of the petitioner herein that she got married with the deceased employee on 29.05.2004 and during their wedlock she has given birth to two children namely Niswitha and Jeswant Kumar. Prior to the marriage with her, Golla Ravi Kumar was married one Vasa Grace Ratna Kumari, who got divorced by dissolving the marriage under the Indian Divorce, vide I.D.O.P. No. 92 of 2003 dated 26.12.2006. Since, the date of the divorce, the petitioner and her husband Golla Ravi Kumar together raised daughter of 1st wife of the deceased who is 4th respondent herein, and performed her marriage with one Chavala Prakash of Prakasam District in December, 2017. After the death of late husband the petitioner herein obtained death certificate on 08.06.2021 and she is entitled to get death benefits namely Provident Fund, Gratuity, Pension and to that effect she applied for Family Member Certificate on 28.06.2021 and 10.07.2021 with all requisite documents vide application Nos.FAMC012102764210 and FAMC012102792475 and the petitioner is also indeed needed the Family Member Certificate for getting compassionate appointment under the Breadwinner Scheme. On making such application as indicated above, the 3rd respondent herein issued notice vide RC No.199/2021-B, dated 24.08.2021 to the unofficial 4th respondent herein to attend before his office on 31.08.2021 and the unofficial respondent herein has submitted written objections on 17.09.2021. On the basis of the written objections submitted by the unofficial respondent, the 3rd respondent Tahsildar, without any prior enquiry and upon considering the objections submitted by the unofficial respondent, rejected the application of the writ petitioner made for issuance of the Family Member Certificate vide endorsement in RC No.199/2021-B, dated 18.09.2021. The said order has been assailed before this Court in the present writ petition. 4. It is asserted in the affidavit that the rejection of the issuance of the Family Member Certificate is solely on the basis of written objections of unofficial respondent, is illegal, arbitrary and contrary to law and it is against principles of natural justice and violation of fundamental rights guaranteed under Article 14, 19, 21 and 300A of the Constitution of India. 5. On issuing notice by this Court, the unofficial 4th respondent made her appearance through her counsel. The Unofficial 4th respondent herein admitted that her Father obtained Divorce Decree from her mother vide I.D.O.P. No.92/2003 dated 26.01.2006. However, she would contend that the divorce obtained by her father is exparte and he obtained the said divorce fraudulently. Further contended that there is no such marriage between the writ petitioner and her deceased father and the relationship is only a live-in relationship. Further, asserted that the second marriage becomes valid unless the first marriage is dissolved and relied on the judgment of Smt. Prabha Debey and others v. Smt. Santoshi Dubey, 2012 (1) MPHT 2015 for the proposition that the second wife is not entitled for a succession certificate as the husband had remarried during the subsisting of the first marriage and is also relied on the judgment of the Hon’ble Apex Court in State Bank of India and others v. Jaspal Kaur, 2007 (9) SCC 571 for the proposition that the public post is not heritable. Therefore, the right to Compassionate appointment is not heritable property. Hence, the petitioner cannot claim any compassionate appointment as heritable property and prayed to dismiss the Writ Petition. 6. Therefore, the right to Compassionate appointment is not heritable property. Hence, the petitioner cannot claim any compassionate appointment as heritable property and prayed to dismiss the Writ Petition. 6. Learned counsel for the 4th unofficial respondent relied on the provisions of the Section 5 of the Hindu Marriage Act and orally contended that the marriage may be solemnized between any two Hindus under the following conditions which are fulfilled namely (1) neither party has a spouse living at the time of marriage. Other conditions are not relevant for the present case. And also relied on Section 11 of the said Act that any marriage solemnized after commencement of this Act shall be null and void and may, on a petition presented by either party there to (against the other party) by so declared by a decree of nullity if it contravenes any of the conditions specified in clause 1, 4 and 5 of Section 7. Unofficial 4th respondent and the Writ Petitioner are Christians, hence the provisions relied by the petitioner are not applicable to the present facts of the case. 8. Under sub clause 2 of Section 60 of the Indian Christian Marriage Act, neither of the persons intending to be married, shall have a wife or husband still living. 9. In the present case, the marriage of the writ petitioner with the deceased husband was performed on 29.05.2004 and exparte divorce granted by the I Additional District Judge, Guntur is on 26.12.2006. Therefore, the contention of the unofficial respondent herein that during the subsistence of the first marriage, the petitioner got married with deceased Golla Ravi Kumar. Hence, the said marriage is null and void in view of the sub clause 2 of Section 60 of the Indian Christian Marriage Act and therefore prayed to dismiss the Writ Petition as the petitioner herein is not a family member. And he also relied on the judgment of the Hon’ble Supreme Court in Anurag Mittal v. Shaily Mishra Mittal, (2018) 9 SCC 691 . 10. In the said judgment of the Hon’ble Apex Court, wife filed petition for divorce and the same was allowed, husband filed appeal before the High Court, during the pendency of the appeal wife contacted second marriage on entering into settlement. However the High Court has dismissed the appeal filed by the husband and he filed Special Leave Petition before Hon’ble Apex Court. However the High Court has dismissed the appeal filed by the husband and he filed Special Leave Petition before Hon’ble Apex Court. Hon’ble Apex Court held that the restriction provided u/s 15 of Hindu Marriage Act till dismissal of the appeal, would not apply to a case where the parties have settled and decided not to pursue the appeal. Relying on the judgment, the counsel for 4th respondent would contend that unless a decree of divorce is granted a second marriage cannot be contacted and such marriage would become void. In the present case, there is no such settlement between the husband with his first wife. 11. Per contra, learned counsel for the petitioner would contend that the petitioner herein applied for Family Member Certificate. The 3rd respondent without conducting proper enquiry issued the impugned rejection order. Hence, the rejection order is violation of principles of natural justice. Though the marriage was performed between the petitioner and the deceased husband Golla Ravi Kumar during the subsistence of first marriage, still it is a valid marriage as the unofficial respondent herein has not preferred any appeal and contested the matter. And further orally contended that even assuming that the marriage is void marriage since the date of exparte decree dated 26.12.2006, the petitioner herein is living with the deceased Golla Ravi Kumar for the last 15 years till the death of her husband on 19.05.2021 that the petitioner herein was in live-in relationship with the deceased husband and when the live-in relationship amounts to long cohabitation/long course of living between male and female will rise a presence of marriage between them. And he relied on the judgments of the Hon’ble Supreme Court in Kattukandi Edathil Krishnan v. Kattukandi Edathil Valsan, (2006) 9 SCC 166 and others reported in another judgment. Once the marriage is a void marriage, therefore, living relationship does not arise. Hence, such an argument is absurd. As the marriage is void marriage under clause (2) of Section 60 of Indian Christian Marriage Act between the petitioner and her husband and the petitioner cannot contend that her marriage shall be treated as live-in-relationship. Such submission is made in contrary to the judgment of Hon’ble Apex Court. Hence, such an argument is absurd. As the marriage is void marriage under clause (2) of Section 60 of Indian Christian Marriage Act between the petitioner and her husband and the petitioner cannot contend that her marriage shall be treated as live-in-relationship. Such submission is made in contrary to the judgment of Hon’ble Apex Court. In the event, the second marriage was contracted during the subsistence of the first marriage, then the second wife, in view of the ratio laid down in the judgment of Rameshwari Devi v. State of Bihar and Others, (2000) 2 SCC 431 , is not entitled to family pension as the marriage itself is a void one. Only in the event the second marriage was contracted after the death of the first wife, the petitioner's claim for family pension can be maintained. 12. The definition of the family under service rules “family in relation to government services means wife in the case of male government servant, husband in the case of female government servant provided the marriage took place before retirement of the government servant and unmarried minor children would constitute a family. The said proposition can be drawn from the judgment of Smt. Bhagvanthi and another v. Union of India, AIR 1989 SCC 2088. The Hon’ble Supreme Court in Maharao Sahib Sri Bhim Singhji v. Union of India and others, 1985 AIR 1650 defined family in relation to a person means: the individual, the wife or husband as the case may be of such individual and their unmarried minor children. In the present case the 5th respondent is major and married daughter of the deceased. 13. Under (6) of Rule 50 of the Andhra Pradesh Revised Pension Rules, 1980 (hereafter called as Rules) where the family pension is payable to more widows than one, the family pension shall be paid to the widows equally. Under the said rule a second wife is entitled for family pension. Under clause (b) of sub-rule (12) of Rule 50 of ‘Rules’, the “family” was defined in relation to Government servant as indicated in para No.12. 14. In the present case on hand the daughter of the first wife of deceased filed objection to 3rd respondent not to grant family member certificate, not by the first wife. 15. Learned counsel for the petitioner relied on the order of this court in WP No.646/2022 and also relied on G.O.Ms.No.145 dt. 14. In the present case on hand the daughter of the first wife of deceased filed objection to 3rd respondent not to grant family member certificate, not by the first wife. 15. Learned counsel for the petitioner relied on the order of this court in WP No.646/2022 and also relied on G.O.Ms.No.145 dt. 25.04.2015. As per the said Government Order a Family Member Certificate can be issued to the deceased government servant and to the general public for applying for government schemes but also for other purposes. Initially, the Government Order was intended to issue Family Member Certificate to the Government employees to receive Government dues if any payable to the Government Servants in case of his or her death and later it was extended to the general public to claim Government Schemes. The procedure contemplated for issuance of the Family Member Certificate to the deceased family member or for other general public that one shall make an application through Mee-seva, then the Tahsildar shall issue Family Member Certificate provided that if there is no written objections from any other member of the family. 16. As per the clause (vii) of the conditions enumerated for the procedure for issuance of Family Member Certificate vide G.O.Ms.No.145, dated 25.04.2015, the Tahsildar shall conduct an enquiry and record panchanama, based on which the Tahsildar shall either issue or reject the same. 17. The Petitioner herein contended that the Tahsildar has not conducted any enquiry as contemplated in the G.O. Therefore, the rejection order is liable to be set aside. 18. It is the contention of the unofficial 4th respondent herein that the said Family Member Certificate shall be issued basing on the factual relationship of the deceased with the applicant and other family members and contends that the marriage itself is a void marriage between the petitioner and the deceased Golla Ravi Kumar, therefore there is no factual relationship in between the petitioner and deceased, hence contended that the petitioner is not entitled for Family Member Certificate. And reiterated that under sub clause 2 of Section 60 of the Indian Christian Marriage Act, that the second marriage is void when the first marriage is in subsistence. Hence, learned counsel for the unofficial 4th respondent would contend that the petitioner is not entitled for Family Member Certificate and prayed to dismiss the writ petition. 19. And reiterated that under sub clause 2 of Section 60 of the Indian Christian Marriage Act, that the second marriage is void when the first marriage is in subsistence. Hence, learned counsel for the unofficial 4th respondent would contend that the petitioner is not entitled for Family Member Certificate and prayed to dismiss the writ petition. 19. The Tahsildar has rejected the request of the petitioner for issuance of family member certificate vide endorsement dated 18.09.2021 without assigning any reasons simply by relying on G.O.Ms.No.145 dated 25.04.2015 adverting that “on an application made through Me-seva, the Tahsildar shall issue family member certificate, provided there is no written objections from any other member of the family”. As per the said Government Order, it is an obligation on the part of the Tahsildar to conduct enquiry and record panchanama. In the present case, the Tahsildar has not conducted any enquiry and by relying the objection of the unofficial respondents herein, has rejected the application made by the petitioner herein for issuance of Family Member Certificate. As there is no enquiry was conducted as contemplated under the G.O.Ms.No.145, the order of rejection impugned in present Writ Petition is liable to be rejected. 20. On summing-up of the above facts and law, according to sub clause 2 of section 60 of the Indian Marriage Act and relying on the judgment of the Hon’ble Apex Court in Rameshwari Devi & Khursheed Ahmad Khan cases the marriage of the petitioner along with deceased Golla Ravi Kumar is null and void marriage. However, under clause (6) of Rule 50 of the Andhra Pradesh Revised Pension Rules, 1980, a second wife is equally entitled for family pension and under sub-clause (b) of clause 12 of Rule 50 of Andhra Pradesh Revised Pension Rules, 1980, major children/ married children are not entitled for family pension considering the Rule 50 of the A.P. Revised Pension Rules 1980 and the 3rd respondent without following the procedure as contemplated under clause (vii) of the G.O.Ms.No.145 dated 25.04.2015, has simply rejected the application for issuance of Family Member Certificate taking into consideration of the objections of 4th respondent. Hence the rejection vide endorsement in RC No.199/2021-B, date 18.09.2021 is here by set aside and it is directed to reconsider the issue in accordance with law within a period of six weeks from the date of receipt of the copy of this order. Hence the rejection vide endorsement in RC No.199/2021-B, date 18.09.2021 is here by set aside and it is directed to reconsider the issue in accordance with law within a period of six weeks from the date of receipt of the copy of this order. This order would not be an impediment to the 4th respondent to claim benefits of her deceased father if she is otherwise entitle in accordance with law. 21. With the above direction, the Writ Petition is disposed of. However, no costs. As a sequel, pending miscellaneous applications, if any, shall stand closed.