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2019 Supreme(MP) 124
HIGH COURT OF MADHYA PRADESH
(DIVISION BENCH)
Sanjay Yadav and Rajeev Kumar Shrivastava, JJ.
Union of India & others v. Padmini Dehuri
Writ Appeal No. 777 of 2018 (Gwalior);
against the order dated 22.1.2018 passed in Writ Petition No. 1428/2015 (S); Decided on 26.4.2019
Subject
Family Law - Family Pension
Act Referred
HINDU MARRIAGE ACT : S.5, S.7
Headnote
(2) Central Civil Services (Pension) Rules, 1972 -- R.54(6) --family pension -- stopped for daughters -- onus is on department to establish that pension is stopped for reasons other than as stipulated in Rules -- in absence of any reasons, presumption would be that pension is stopped as they are ineligible under rules. [Paras 7 & 8
(3) Hindu Marriage Act, 1955 -- Ss.5 and 7 -- marriage is a valid marriage only when it is solemnized in accordance with provisions under S.5 and S.7. 2009(1) MPWN 76 followed. [Para 19
(4) Hindu Marriage Act, 1955 -- Ss.5 and 7 -- unless requisite conditions of valid marriage are satisfied -- such marriage was not prohibited under law -- presumption in regard to marriage on basis of evidence of habit and repute -- cannot be raised in a case where no valid marriage is possible or permissible under law. AIR 1998 MP 324 relied on. [Para 21
(5) Practice -- Court of Inquiry suggested that respondent is living an adulterous life -- in absence of any cogent material evidence on record, such observation is outrageous -- such an opinion condemned as it adversely affects reputation and modesty of lady, more particularly a widow. [Para 23
¼1½ dsanzh; flfoy lsok ¼isU'ku½ fu;e] 1972 && fu-54¼6½ && izR;FkhZ foèkok dqVqac isU'ku ls oafpr && ifr ds thoudky esa fdlh vU; O;fä ds lkFk uksVjh fookg lafonk rFkk iqf=;ksa ds i{k esa dqVqac isU'ku yxkus dk 'kiFki= bl opu ds vk/kkj && ;|fi tk¡p U;k;ky; }kjk uksVjh dh ijh{kk dh xbZ rFkkfi] u f}rh; ifr dh vkSj u izR;FkhZ dh gh ijh{kk dh xbZ && vU; dksbZ rdZiw.kZ rkfRod lk{; ugha && tc rd fof/kekU; fookg dh vko';d 'kr±s iwjh ugha gksa] fuokl vkSj [;kfr ds lk{; ds vk/kkj ij fookg dh mi/kkj.kk ugha dh tk ldrh && izR;FkhZ dks funsf'kr fd;k x;k fd og egkfuns'kd] lhek lqj{kk cy ds {keki= ds lkFk ml fnukad ls cdk;k lfgr tc iqf=;ksa dh isU'ku jksd nh xbZ] dqVaaqc isU'ku lanÙk djs && 8 izfr'kr izfro"kZ dh nj ls C;kt dk ifjek.k #- 5]00]000@& fuf'pr dh xbZ && ,dy U;k;k/kh'k dk vkns'k vfHkiq"VA , vkb vkj 1998 e-iz- voyafcrA ¼iSjk 15] 21 ,oa 24
¼2½ dsanzh; flfoy lsok ¼isU'ku½ fu;e] 1972 && fu- 54¼6½ && dqVaaqc isU'ku && iqf=;ksa ds fy, jksd nh xbZ && ;g LFkkfir djus dk Hkkj foHkkx ij gS fd fu;eksa esa vuqcaf/kr dkj.kksa ls brj dkj.k ls isU'ku jksdh xbZ gS && dkj.kksa ds vHkko esa mi/kkj.kk ;g gksxh fd isU'ku blfy, jksdh xbZ gS fd og fu;eksa ds vèkhu vik= gSaA ¼iSjk 7 ,oa 8
¼3½ fganw fookg vf/kfu;e] 1955 && /kkjk 5 rFkk 7 && fookg fof/kekU; fookg rc gh gksrk gS tc og /kkjk 5 rFkk /kkjk 7 ds v/khu mica/kksa ds vuqlkj vuq"Bkfir fd;k x;k gksA 2009¼1½ e-iz- ohDyh uksV~l 76 vuqlfjrA ¼iSjk 19
¼4½ fganw fookg vf/kfu;e] 1955 && /kkjk 5 rFkk 7 && tc rd fof/kekU; fookg dh 'krs± iwjh ugha gksa && ,slk fookg fof/k ds v/khu izfrfl) ugha gks && fuokl rFkk [;kfr ds lk{; ds vk/kkj ij fookg ds laca/k esa mi/kkj.kk && ,sls ekeys esa ugha dh tk ldrh tgk¡ fof/k ds v/khu fookg laHko ;k vuqKs; ugha gSA , vkb vkj 1998 e-iz- voyafcrA ¼iSjk 21
¼5½ izFkk && tk¡p U;k;ky; us bafxr fd;k fd izR;FkhZ tkjrk dk thou O;rhr dj jgh gS && vfHkys[k ij rdZiw.kZ rkfRod lkexzh ds vHkko esa ,slh leqfä viekutud gS && ,slh jk; dh fuUnk dh xbZ D;kasfd blls efgyk dh [;kfr vkSj yTtk izfrdwyr% izHkkfor gksrh gS] fo'ks"kr% fo/kok dhA ¼iSjk 23
Vivek Khedkar for appellants; Jai Singh for respondents.
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?
(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 Gup
