Back
2019 Supreme(Gau) 1069
IN THE HIGH COURT OF GAUHATI
N. Kotiswar Singh, J.
Nirala Choudhury – Appellant
Versus
State of Assam and Ors. – Respondents
W.P.(C) No. 1010 of 2017
Decided On : 07-05-2019
For the Appellant :K. Deka, Advocate
For the Respondent:Y. Doloi, Advocate
Headnote:
Constitution of India – Article 226 – Code of Criminal Procedure – Section 127 – Claim of Women to be Wife of a Person For Pension Benefits – 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 –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 – Held, 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 Temple – 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 – 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 – The said divorce suit having ended in dismissal – 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 – 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 – 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 – 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 – With the above observations and directions, the present petition stands allowed – Petition Allowed
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. 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
