Delhi District Court
Union Of India vs Smt. Sulochana Devi on 15 September, 2018
Union of India & Anr. V. Sulochana Devi
IN THE COURT OF SH. ARUN SUKHIJA,
ADDITIONAL DISTRICT JUDGE - 07, (CENTRAL DISTRICT)
TIS HAZARI COURTS, DELHI.
RCA NO.: 21/2017
UNIQUE CASE ID NO.: 146/2017
IN THE MATTER OF :
1. Union of India,
Through its Secretary,
Ministry of Communication,
Department of Posts,
Dak Bhawan,
New Delhi - 110001.
2. The Chief Post Master General,
Delhi Circle, Meghdoot Bhawan,
Kashmere Gate, New Delhi110006. ....Appellants
VERSUS
Smt. Sulochana Devi,
W/o late Shri Brahaspati Prasad Shukla,
R/o 8/27, Gali No.6,
Brahampuri, XBlock,
Delhi - 110053. ....Respondent
RCA No. 21/2017 Page 1 of 60
Union of India & Anr. V. Sulochana Devi APPEAL UNDER SECTION 96 OF THE CODE OF CIVIL PRO CEDURE, AGAINST THE IMPUGNED JUDGMENT AND DE CREE DATED 06.03.2017 PASSED BY THE COURT OF SHRI DEEPAK WASON, SCJCUMRC, CENTRAL DISTRICT, TIS HAZARI COURTS, DELHI, IN SUIT NO. 1703 OF 2006 (CIS 97351 OF 2016) TITLED AS SMT. SULOCHANA DEVI VERSUS UNION OF INDIA AND ANOTHER, WHEREBY THE SUIT OF THE RESPONDENT WAS DECREED BY THE LD. TRIAL COURT.
Date of institution of the Appeal : 23/05/2017 Date on which Judgment was reserved : 08/08/2018 Date of Judgment : 15/09/2018 :J U D G M E N T:
1. The Appellants were defendants and respondent was plaintiff before the Ld. Trial Court. The appellants and respondent are respectively referred in this Judgment according to the original status before the trial court. The defendants/Appellants are dissatisfied with the Final Judgment and Decree dated 06.03.2017 passed by the Ld. Trial Court in Civil Suit No. 1703/06 and CIS No.97351/16. The Ld. Trial Court has decreed the suit of the Plaintiff and held as follows: "In view of the findings on issues no.1, the suit of the plaintiff is decreed with cost and it is declared that plaintif is the legally wedded wife of Sh. Brahaspati Prasad Shukla S/o Sh. Avadh RCA No. 21/2017 Page 2 of 60 Union of India & Anr. V. Sulochana Devi Saran Shukla and had been residing at X8/27, Gali No.6, Brahampuri, Delhi -110053."
2. Succinctly stated the Plaintiff has filed a Suit for declaration against the defendants interalia on the following facts:
(a) The plaintiff is the legally wedded wife of Sh. Brahaspati Prasad Shukla and marriage between the two was solemnized according to Hindu Rites and Ceremonies at Delhi on 25.07.1988. It is the case of plaintif that husband of plaintiff died on 12.04.2001, leaving behind plaintif and three minor children namely Master Pawan Kumar, Ms. Pooja Shukla and Master Om Shukla and one married daughter namely Smt. Kiran from his predeceased wife (first wife) Smt. Shanti Devi. It is further stated in the plaint that first wife of Sh. Brahaspati Prasad Shukla had died during 1975.
(b) The plaintiff was a government employee who retired from Govt. Service as Sorting Asstt., Delhi Sorting Division, Kashmere Gate, Delhi under the Department of Posts on attaining the age of superannuation on 30.06.1988 AN. It is further stated in the plaint that his monthly pension was sanctioned w.e.f. 01.07.1988 vide PPO No. DH.33541/1432 and he had been drawing his pension from Delhi G.P.O.
(c) After death of her husband, plaintif submitted an application dated 28.06.2001 to the Sr. Supdt. Delhi RCA No. 21/2017 Page 3 of 60 Union of India & Anr. V. Sulochana Devi Sorting Dn., Delhi by which she gave intimation about death of her husband and requested for sanction of family pension in her favour, however, neither any order was passed in her favour granting family pension nor any reply to her representation was given by the department.
(d) The plaintiff filed an application under section 19 of A. T. Act, 1985 before Ld. Central Administrative Tribunal, Principal Bench, New Delhi for appropriate directions to respondent / departmental authorities to grant the family pension to her in accordance with the rules and pay the arrears thereof.
(e) The said application bearing O. A. No. 1762/2002 was decided by Ld. Tribunal, New Delhi who vide its order and judgment dated 10.03.2003 has held : "17. ... whether the applicant is the wife of the Late Government employee cannot be decided by this court. That has to be decided by the appro priate civil court and this issue of marriage is also not covered under the definition of service matters.
18. So I find that at this stage that this O. A. is not maintainable till the applicant is entitled to get a declaration from a competent court to the effect that she is the wife of Late Sh. B. P. Shukla and only then she can claim family pen sion ...."
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(f) The husband of plaintiff had executed a power of attorney in favour of plaintiff with regard to his house situated at Brahampuri, Village Ghonda Gujran Khadar, Shahadra, Delhi and in this document he has shown the plaintiff as his wife. It is further stated in the plaint that in Election Icard and Ration card husband's name is mentioned as Sh. Brahaspati Prasad Shukla.
(g) The representation to Sr. Superintendent, Delhi Sorting Division, Delhi on 28.06.2001 and 09.10.2001 upon which department had held an enquiry through the Asstt. Suptdt RMS to verify the genuineness of marriage of plaintif with Sh. B. P. Shukla and Inquiry Officer has made following observation: "... In the light of the oral and documentary evidence discussed / mentioned in this de tailed enquiry report and enclosed, it can be safely concluded that she is the post re tiral spouse / wife of Sh. Brahaspati Prasad Shukla Ex.S.A. and therefore her claim for grant of family pension to her ap pears to be genuine in my findings"
(h) The observation of inquiry report, the plaintiff has not been granted family pension and plaintiff was asked to produce the declaration as per C.A.T. judgment.
3. That the defendants were served with the notice. The defendants have filed their common written statement and the RCA No. 21/2017 Page 5 of 60 Union of India & Anr. V. Sulochana Devi defendants have taken the following defence in their written statement:
(a) The suit of the plaintiff is not maintainable in the eyes of law as the plaintiff has not come with clean hands in the court and plaintiff has no locus standi to file the present suit as there is neither any evidence / proof that she is legally wedded wife of deceased Brahaspati Prasad Shukla nor any proof of marriage.
(b) Sh. B. P. Shukla after retirement did not give any intimation to the department about his marriage with the plaintif. It is further stated in the written statement that version of plaintiff is not genuine, as no intimation about such marriage after retirement was given to the department by the plaintiff. On careful review, her claim was rejected by department and it was intimated to the plaintiff. In written statement, defendants have also disputed the genuineness of the documents relied upon by the plaintiff.
(c) The department received a notice from Sh. Kishan Shukla i.e. brother of late Sh. Brahaspati Prasad Shukla whereby it was cautioned to grant of family pension to plaintif. It is further stated in the written statement that preliminary inquiry was conducted only to ascertain the facts as well as to collect specific information, if any, however, the outcome of the preliminary enquiry report RCA No. 21/2017 Page 6 of 60 Union of India & Anr. V. Sulochana Devi was not fact finding in nature. It is prayed in the written statement that suit be dismissed with heavy cost.
4. Replication was filed by the plaintiff whereby the contents of plaint were reiterated and those of WS were denied.
5. In view of the aforesaid pleadings of the parties, the following issues were framed on 18.04.2007 by the Ld. Trial Court: ISSUES
1. Whether the plaintiff is entitled for relief of declara tion as claimed in the suit ? OPP
2. Relief.
6. EVIDENCE OF THE PLAINTIFF AND DEFENDANTS AND DOCUMENTS RELIED UPON BY THEM:
The plaintiff has examined three witnesses. PW1 is the plaintiff herself who during her evidence relied upon the documents Ex.PW1/1 to Ex. PW1/27. In her evidence, PW1 has almost reiterated the contents of the plaint. This witness was crossexamined by the defendants.
The Plaintiff has also examined PW2 Shri Trilok Nath Verma who has stated about the marriage of the plaintiff with Sh. Brahaspati Prasad Shukla being attended the same. He has further deposed that they are having three children i.e. RCA No. 21/2017 Page 7 of 60 Union of India & Anr. V. Sulochana Devi two sons and one daughter. This witness was not crossexam ined as this witness had expired.
PW3 is Sh. Devender Singh Bhandari, SubRegis trar (Births & Deaths), Shahadara, North Zone, EDMC. He has deposed about the birth certificates of children of the plaintiff and has relied upon documents from Ex. PW3/1 to Ex. PW3/4. This witness was crossexamined by the defen dants.
Defendants have examined three witnesses. DW1 is Sh. Rajesh Kumar, Medical Record Clerk, Kasturba hospi tal, MCD, Delhi. It is a matter of record that he was partly ex aminedinchief on 02.06.2014 and thereafter, he never turned up. Hence, his statement cannot be read in evidence.
DW2 is Dr. Kishan Gopal and has deposed about one document i.e. Ex. DW2/B. As per this document, no child was delivered by Smt. Sulochana Devi on 21.07.1989. This witness was crossexamined by plaintiff.
DW3 is Sh. Kailash Chandra i.e. Sr. Suptd. Office at Delhi Sorting Division, Ministry of Communication and I.T. Department of Post, Delhi - 6. This witness has reiterated the contents of the written statement and has relied upon Ex. DW3/A1 to Ex. DW3/A4. The document mentioned in the affidavit as DW3/A3 was deexhibited and marked as Mark A. This witness was crossexamined at length by ld. counsel for the plaintiff.RCA No. 21/2017 Page 8 of 60
Union of India & Anr. V. Sulochana Devi
7. After considering the entire material on record the Ld. Trial Court has passed the impugned Judgment and decree dated 06/03/2017 whereby the suit of the plaintiff was decreed. The appellants/defendants aggrieved from the Judgment and decree passed by the Ld. Trial Court has sought to set aside Judgment and decree 06/03/2017 and praying for dismissal of Suit interalia on the following grounds : (A) The Ld. Trial Court failed to appreciate that the family pension payable to the family after the death of the pensioner in his case was not autho rized as at the time of superannuation on 30.06.1988, his wife was not alive and a remark of not eligible had been mentioned in his PPO No. DH33541/1432 issued by D.A. (P), Delhi54, against the column for family pension. The details of family form (Form No. 3) also shows as Nil against the entries for family members which was furnished by late Shri Brahaspati Prasad Shukla at the time of his retirement on 30.06.1988.
(B) The Ld. Trial Court further failed to appreciate that the deceased had never intimated about this al leged marriage with respondent herein or the chil dren born out of the said alleged wedlock. The de ceased retired 13 years prior to his death and he had ample time to intimate this fact to the depart RCA No. 21/2017 Page 9 of 60 Union of India & Anr. V. Sulochana Devi ment which fact was never disclosed by the de ceased. The respondent herein of her own submit ted the affidavits of the date of marriage. In the first affidavit dated 26.11.2001, she had stated the date of marriage as 25.08.1985, whereas in the second affidavit dated 12.02.2002, she had men tioned the date of marriage as 25.07.1988. This it self shows that the respondent had not come to the department or to the Court with clean hands.
(C) The Ld. Trial Court failed to appreciate that for the grant of family pension to the post retired spouses, the pensioner is required to intimate to the Head Office, who processes the pension papers at the time of the retirement about his post retired mar riage in the prescribed form for endorsement of particulars of spouse from Post retired marriage and children born after the retirement in the PPO as per GID 20(i) below rule 54 of CCS (Pension) Rules, 1972, which is reproduced here under: "As and when a pensioner marries or re marries after retirement he shall intimate the event to the Head of office who pro cessed his pension papers at the time of his retirement. He shall also furnish along with his application an attested copy of the marriage certificate from Registrar/ Gram RCA No. 21/2017 Page 10 of 60 Union of India & Anr. V. Sulochana Devi Panchayat/ District Magistrate in respect of his postretirement marriage."
(D) The Ld. Trial Court has failed to appreciate that the details of family form No. 3 which was submit ted by the deceased on 30.06.1988 at the time of his retirement, also shows as Nil against the entry for family members.
(E) The Ld. Trial Court failed to appreciate that in the present case, the deceased neither intimated any thing about his marriage with the applicant or the children born from the said wedlock, nor followed the instructions required under GID 20(i) below rule 54 of CCS (Pension) Rules 1972.
(F) The Ld. Trial Court failed to appreciate that in the entire evidence, the respondent has not produced any record or evidence to show that she was the legally wedded wife of the deceased or that the children were born out of the wedlock of the re spondent and the deceased. The other documents filed by the respondent where the name of the de ceased has been mentioned, the detailed records have also not been called for in order to prove as to who gave the intimation of the birth of the children as well as the names of their father.
RCA No. 21/2017 Page 11 of 60Union of India & Anr. V. Sulochana Devi (G) PW3 was cross examined and during the cross ex amination, it was revealed that the basis of issuing the date of birth certificate by the MCD authori ties, can be collected from the Hon'ble Court within a period of week by paying the prescribed fees but no certified copy is found in the record.
9. In the aforesaid background, the following points for determination arise for the consideration of the present case:
i) Can the order under question be termed as perverse, capricious and arbitrary?
ii) Does the impugned order run against the legal framework operating in and principles enunciated in this sphere?
iii) Does determination of point for determination no.1 or 2 warrants any indulgence or interference of the present Court with the order appealed against?
iv) What order?
POWER OF THE APPELLATE COURT IN FIRST APPEAL: Before adverting into the assessment of the factual aspect emerging from the evidence led on the record and proceedings of the present lis, it is worthwhile to lay bare the powers and jurisdiction that can be exercised by the present Court being First Appellate Court. This Court is being termed as the last court for evaluating, reappreciating and reassessing the factual RCA No. 21/2017 Page 12 of 60 Union of India & Anr. V. Sulochana Devi aspect that may be emerging from the record and proceeding of the lis, popularly known as Court of facts and law. The precinct of the power lies in the court coextensive with the trial court and can exercise all the powers that have been vested in the trial court in respect of evaluation and appreciation of evidence and conclusion be drawn on the basis of the fresh evaluation of the evidence and facts be put in the jacket of laws which may be both adjective and substantial one.
An appeal is continuation of suit. Before more than hundred years, Couch, C.J. In Ratanchand Shrichand Vs. Hanmantrav Shivbak as stated: "A suit is a judicial proceeding, and the word "proceedings" must be taken to include all the proceedings in the suit from the date of its institution to its final disposal, and therefore to include proceedings in appeal."
Appeal is rehearing of the suit. The appellate court possesses the same powers and discharges the same duties as that of the original court. Once an appeal is preferred, the matter becomes subjudice and the appellate court is seisin of the whole case. The hearing of the appeal is thus rehearing of the suit or original proceeding.
As West, J. stated, "The legal pursuit of a remedy, suit, appeal and second appeal are really but steps in a series of proceedings all connected by an intrinsic unity and are to be regarded as one legal proceeding."
RCA No. 21/2017 Page 13 of 60Union of India & Anr. V. Sulochana Devi "Sec.107. Powers of appellate Court(1) Subject to such conditions and limitations as may be prescribed, an Appellate Court shall have power
(a) to determine a case finally;
(b) to remand a case;
(c) to frame issues and refer them for trial;
(d) to take additional evidence or to require such evidence to be taken.
(2) Subject as aforesaid, the Appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Code on Courts of original jurisdiction in respect of suits instituted therein."
POWER TO DECIDE A CASE FINALLY; SECTION 107(1)(a) An Appellate Court can decide a case finally. Where the evidence on record is sufficient to enable the appellate Court to pronounce the judgment, it may finally determine the case notwithstanding that the judgment of the trial court has proceed wholly upon some ground other than that on which the appellate court proceeds. The general rule is that a case should, as far a possible be disposed of on the evidence on record and should not be remanded for fresh evidence, except in rare cases, by drawing a final curtain on the litigation between the parties. "If life like a dome of many coloured glass stains the white radiance of eternity, so do RCA No. 21/2017 Page 14 of 60 Union of India & Anr. V. Sulochana Devi the doings and conflicts of mortal beings till death tramples them down."
POWER TO INTERFERE WITH DISCRETION OF LOWER COURT As a general rule, a court of appeal will not interfere with the exercise of discretion by the court below and substitute its own discretion for the discretion of the lower court. It has been said that where the legislature has left the matter in the discretion of a court and with the same pen and ink has provided an appeal from the decision of the court, the task of the court of appeal is not to consider how it would have exercised the discretion, but to examine whether the court below has exercised the discretion judicially and in accordance with well recognized principles of law. Where the discretion has been exercised in good faith on a consideration of all relevant materials and circumstances and without being swayed by irrelevant matters and no injustice has been done by such exercise of discretion by the court below, the appellate court will not interfere with it even if it does not agree with the exercise of discretion by the trial court.
In certain cases however, it is not only the power but the duty of the appellate court to interfere with exercise of discretion by the Court below. Where the trial court had acted arbitrarily or capriciously or in total disregard of sound judicial principles, or without taking into consideration relevant and germane factors or had proceeded on assumptions not borne out or justified by records, or had applied wrong or incorrect legal principles leading to RCA No. 21/2017 Page 15 of 60 Union of India & Anr. V. Sulochana Devi an unjust order, or where was abuse of power by the court below or if the court below fails to exercise discretion or where there is miscarriage of justice, the appellate court will interfere with the discretion.
The power of interference, however, should be exercised sparingly and with circumspection. Though the power of the appellate court is wide, ample and unrestricted it should not be exercised unless such exercise is necessary to relieve the aggrieved party and in the larger interest of justice.
The possibility of the appellate court coming to a different conclusion does not justify interference with the discretion exercised by the court below. The mere fact that the court below has not recorded cogent or sufficient reasons for exercising discretion in a particular manner is no ground for interference by the appellate court if the facts on which discretion has been exercised are present. The burden is on the appellant to prove that the discretion had not been exercised judicially. POWER TO APPRECIATE EVIDENCE An appeal is a continuation of suit. The appellate court hence, can review the evidence as a whole subject to statutory limitations, if any, and can come to its own conclusion. Once a decree passed by the court of original jurisdiction has been appealed against, the matter becomes subjudice and the appellate court is seisin of the whole case. The hearing of appeal is really re hearing of the suit.
RCA No. 21/2017 Page 16 of 60Union of India & Anr. V. Sulochana Devi POWER TO MODIFY DECREE An appellate court may pass any decree or made any order which ought to have been passed or made and may also pass or make such further or other decree or order as the case may require. The said power may be exercised by the appellate court not only between the appellant and the respondent but also between the respondent interse. The provision enables the appellate court to grant a relief not only to the appellant who has filed an appeal but also to the respondent who has neither filed an appeal nor filed crossobjections.
OTHER POWERS An appellate court may pass any order which could and ought to have been passed by the original court. It can also make such other or further order as the case may require. An appellate court is competent to make any incidental or interlocutory order as could have been made by an original court.
Thus, during the pendency of appeal, if the defaulting tenant pays rent, an appellate court may grant relief against forfeiture. Looking to the conduct of the tenant, however, it may decline to grant relief. The question is not one of jurisdiction but of discretion. Similarly, the appellate court may pass a decree if it is of the view that such a decree ought in law to have been passed by the trial court. In a suit for redemption, an appellate court may investigate into claim for damages for waste by the respondent during the pendency of appeal. It can also hold local inspection. It RCA No. 21/2017 Page 17 of 60 Union of India & Anr. V. Sulochana Devi can record compromise in execution proceedings. It can restore an appeal dismissed for default of appearance, delete or substitute parties in appeal, can permit withdrawal of appeal, can appoint receiver or commissioner, can reconstruct record lost or destroyed, can set aside exparte decree to reject plaint or memorandum of appeal, can reject plaint or memorandum of appeal; can stay execution proceedings etc. ARGUMENTS OF DEFENDANTS/APPELLANT
1. The plaintiff examined three witnesses. She herself appeared as PW1 and filed certain documents Ex.PW1/1 to Ex.PW 1/27 but none of these documents have supported the case of the respondent/ plaintiff since none of these documents were signed at any point of time by the deceased Shri Brahaspati Prasad Shukla nor they were issued under the instructions of late Shri Brahaspati Prasad Shukla. As such, no authenticity could be placed on these documents and were thus irrelevant for the decision of the case.
2. PW2 Shri Trilok Nath Verma appeared but his evidence also could not support the case of the plaintiff/ respondent be cause nothing has been proved by Shri Trilok Nath Verma.
3. The third witness PW3 Shri Davender Singh Bhandari, Sub Registrar, Birth & Deaths, who exhibited the documents Ex.PW3/1 to Ex.PW3/2 and Ex.PW1/2 but during the crossexamination, he did not support the case of the respon RCA No. 21/2017 Page 18 of 60 Union of India & Anr. V. Sulochana Devi dent/ plaintiff and admitted that the entries are made in the Birth Register on the basis of Birth reporting form. The appli cant submitted the birth reporting form. He did not bring the copy of the reporting form since he said that the same has been destroyed. He further admitted that the office does not verify the facts of the birth reporting form. He also does not know the procedure of weedingout of the record nor he is aware that the record is maintained regarding weedingout or not. He also could not say about the verification of the details of the parents of the child, whose registration is sought. He could not admit or deny the documents since the department does not verify anything and there is all possibility of incorrect information. As per the birth certificate, the children were born at home.
4. DW1, DW2 and DW3 appeared on behalf of the defendants. DW1 Sh. Rajesh Kumar, Medical Record Officer, Kasturba Hospital, MCD was partly examined in chief but since he did not turn up, his statement cannot be read. DW2 Dr. Kishan Gopal, who exhibited the document Ex.DW2/8 and as per that document, no child was delivered by Smt. Sulochana Devi on 21/07/1989. The third witness is DW3 Mr. Kailash Chandra, Senior Superintendent Office at Delhi Sorting Divi sion, Ministry of Communication, I.T. Department of Post, who relied upon the documents Ex.DW3/1 to Ex.DW3/A4. The document Ex.DW3/A3 was deexhibited and marked as RCA No. 21/2017 Page 19 of 60 Union of India & Anr. V. Sulochana Devi MarkA. This witness was crossexamined at length but noth ing could come out from him in favour of the respondent.
5. As per the regulation of amount of pension, Rule 18 deals with the endorsement of the family pension, entitlement of post retrial spouses in the PPO and its procedure. The re spondent/ plaintiff have not followed the Rule 18 of Regula tion of Amounts of Pension. The applicant has also not fol lowed the Rule 54 CCS Pension Rules 1972 under which this type of case is not applicable and no pension can be granted. The deceased/ retired pensioner neither intimated the office nor took any action, as required vide G.I.D. 20 (1) Rule 54 CCS Pension Rules, 1972. He was very well alive for 13 years after the alleged marriage. As such, the provisions are not ap plicable. The first application was moved on 28/06/2001 i.e. more than two and half months after the death of the retired pensioner. In view of the same, the respondent/ applicant cannot be accepted as post retrial spouse of late Shri Brahas pati Prasad Shukla and cannot claim for family pension.
6. There is no admission at any point of time within 13 years af ter retirement and before the date of death by Late Shri Bra haspati Prasad Shukla anywhere in the records of the office or at any other place, where he has ever stated the respondent/ plaintiff to be his legally wedded wife and the children to that of his.
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7. The judgment cited by the respondent herein is not applicable to the facts and circumstances of the case since the deceased never admitted anywhere that the deceased applicant had been living with him for so many years. The respondent/ ap plicant have also not proved anything on record to show that she had inherited any estate of Late Shri Brahaspati Prasad Shukla (movable or immovable) nor has obtained any Succes sion Certificate for the same.
8. The defendants/appellants have relied upon the Judgment of Sujeet Kaur Vs. Union of India and Anr. 2003 (60) DRJ 133 ARGUMENTS OF PLAINTIFF/RESPONDENT Section 114 of the Indian Evidence Act reads as under: "The Court may presume the existence of any fact which it things likely to have happened, re gard being had to the common course of natural evidence, human conduct and public and private business, in their relation to the facts of the par ticular case."
1. In a well organized orderly and civilized society like ours which is not of loose and uncertain morals, the institution of marriage occupies an important place and plays a vital role in the process of development of human personality. The law as to presumption in favour of marriage under Section 50 and 114 of Indian Evidence Act is well crystallized. Thus, when a man and woman live together as husband and wife for suffi RCA No. 21/2017 Page 21 of 60 Union of India & Anr. V. Sulochana Devi ciently long time and were treated as husband and wife by friends, relatives and neighbours, there is always a presump tion in favour of their marriage. If children are born to such a couple there is a further presumption in favour of their legiti macy. The presumption in favour of marriage does not get mitigated or weakened merely because there may not be posi tive evidence of any marriage having taken place. The mar riage can be held to be valid by force of habit and repute and the onus of rebutting such a marriage would be on the person who denies the marriage. It has been emphasized strongly that this presumption of law in favour of marriage and legiti macy is not to be repelled lightly by mere balance of probabil ity. The evidence for that should be strong, satisfactory and conclusive. If the presumption if permitted to be rebutted lightly the weaker and vulnerable section of the society i.e. the women and children could be the victims of the vagaries of uncertainty as regards their position and status in life. This would be very much detrimental in the development of their human personality and they would be the worst sufferers in the society.
2. In the light of the above legal preposition, the findings re turned by the Ld. Trial Court on the issue as to whether the respondent was the legally wedded wife of late Shri Brahaspati Prasad Shukla or not are based on cogent and reliable evi dence relying upon the testimony of witnesses and the docu RCA No. 21/2017 Page 22 of 60 Union of India & Anr. V. Sulochana Devi mentary evidence produced and proved on record and by very skillfully separating the grain from the Chaff.
3. It was the contention of the respondent in her suit that she got married to late Shri Brahaspati Prasad Shukla on 25.07.1988 according to Hindu rites and ceremonies and lived with him as husband and wife till his death on 12.04.2001 and that three children were born from the wedlock and that this marriage had taken place after late Shri Brahaspati Prasad Shukla had retired from Govt. service and was a wid ower on the date of his marriage with the respondent as his first wife had expired in 1975. The Plaintiff/ Respondent has filed the comments of the documents exhibited in the course of trial before the Ld. trial court and the same is as under: S.NO. EXHIBIT NO. COMMENTS
1. Ex.PW1/1, PW These three documents were proved on 3/3 and PW3/4 record to establish the parentage of Hariom Shukla: FatherBrahaspati Prasad Shukla and MotherSmt. Sulochana Devi. Ex.PW1/1 is the Birth Certificate proved by the respondent/plaintiff while entering the witness box as PW1. PW3/3 is the same certificate as Ex.PW1/1 and proved through the official witness PW3 from the Office of the SubRegistrar, Birth & Death. Ex.PW3/3 comprises of RCA No. 21/2017 Page 23 of 60 Union of India & Anr. V. Sulochana Devi two pages and the second page mentions the details of the date of birth of the child, sex, father's name, mother's name, address, registration number and the date. Ex.PW3/4 is the entries in the register of Birth & Death maintained in the office of SubRegistrar where the entries related to registration No.1096 records the date of birth and the address and the father and mother's name of the child as well as the date of registration. Ex.PW3/4 also bears the signature of Shri Brahaspati Prasad Shukla on the second page.
2. Ex.PW1/2, PW Ex.PW1/2 is the birth certificate of 3/1 and PW Pooja Shukla, a female child born on 3/2, 15.11.1991 to Smt. Sulochana and Shri B.P.Shukla and the certificate having been issued on 23.11.1991 and this document was proved by respondent/plaintiff while entering the witness as PW1. Ex.PW3/1 is the same certificate which is Ex.PW1/2 produced from the Office of the SubRegistrar, Birth & Death by PW3, the official witness. Ex.PW3/1 comprises of two pages and the second page records the details of the date of birth, sex of the child, name of the mother, name of the father, the address, the registration number as 3954 and the registration date as 23.11.1991 which tallies with RCA No. 21/2017 Page 24 of 60 Union of India & Anr. V. Sulochana Devi the birth certificate. Ex.PW3/2 is the extract of the register from the office of the SubRegistrar, where on the first page against the entry relating to registration No.3954 dated 23.11.1991, the date of birth, sex, address and the name of the mother and father of the child born is recorded and the second page contains the signature of Shri Brahaspati Prasad Shukla.
3. Ex.PW1/11 This document is registered G.P.A. dated 14.06.2000 which was proved by the respondent/plaintiff deposing in the witness box as PW1, the same contains the signatures of Shri Brahaspati Prasad Shukla on the first page below his photograph and on the right side bottom, at two places on the back of the first page and one place on the second page. The writing characteristics is absolutely identical to the writing characteristics on the second page of Ex.PW3/4 and on the second page of Ex.PW3/2 and even examined by naked eye would clearly show that it is of one and the same person. In this General Power of attorney, Shri Brahaspati Prasad Shukla has shown the status of Smt. Sulochana Devi to be that of his wife and residing with him at X8/27, Gali No.6, Shiv Gali, Braham Puri, Delhi. The photograph of Shri RCA No. 21/2017 Page 25 of 60 Union of India & Anr. V. Sulochana Devi Brahaspati Prasad Shukla affixed on the first page of this document has not been disputed by the appellant/defendant. Shri Brahaspati Prasad Shukla whose photograph affixed on the first page of Ex.PW1/11 had retired from service from the office of the appellant/defendant and was drawing pension when he died.
4. Ex.PW1/15 & The document Ex.PW1/15 is the Ration Ex.PW1/16 card executed in the name of Shri Brahaspati Prasad Shukla and the photograph affixed on this ration card of late Shri Brahaspati Prasad Shukla has not been disputed. The details of family members records Shri Brahaspati Prasad Shukla as the head of the family (this name has been deleted obviously upon his death). The entry in the details of family members records the name of Sulochana as the wife of Brahaspati Prasad Shukla and the name of Pooja as daughter and the names of Pawan and Hariom as sons. The entries also record the name of Ms.Kiran as daughter of Shri Brahaspati Prasad Shukla. Kiran is the daughter from the first wife of Shri Brahaspati Prasad Shukla namely Smt. Shanti Devi who has since expired and who expired in the year1975. The respondent/ plaintiff in her affidavit by way of evidence Ex.P1 in para 3 has RCA No. 21/2017 Page 26 of 60 Union of India & Anr. V. Sulochana Devi deposed to this effect.
The document Ex.PW1/16 is the Ration card issued in the name of the respondent/ plaintiff after the death of Shri Brahaspati Prasad Shukla recording her status as wife of late Brahaspati Prasad Shukla and that of Pooja Shukla as daughter of late Brahaspati Prasad Shukla and that of Pawan and Hariom as sons of late Brahaspati Prasad Shukla
5. Ex.PW1/14 This document is the extract of the Electoral register where at S.No.86 against property No.X8/27, the name of Sulochana Shukla has been recorded with the name of her husband as B.P.Shukla with identity number 150606.
6. Ex.DW3/A1 This document is the Form No.3 pertaining to FRSR Rule 54 (12) which has been submitted by late Shri B.P. Shukla under his signatures to the Department prior to his retirement. This document has been relied upon by the appellant/ defendant which is dated 16.01.1988 and the signatures of Shri Brahaspati Prasad Shukla on this document matches completely with his signatures on the second page of Ex.PW 3/2 and the second page of Ex.PW3/4.
Under the heading name of the members RCA No. 21/2017 Page 27 of 60 Union of India & Anr. V. Sulochana Devi of the family, it is recorded as "NIL" as under this column only the name of those family members could have been included who were entitled to Family Pension upon the death of Pensioner.
Since the first wife of late Shri Brahaspati Prasad Shukla had already expired in 1975 and his daughter from his first wife namely Ms.Kiran had already been married, no one as on 16.01.1988 could have fallen under the category of members entitled to Family Pension. Shri Brahaspati Prasad Shukla solemnized his second marriage on 25.07.1988, which was after almost 6 months from the date when he had submitted Form No.3 with the appellant/ respondent.
7. Ex.DW1/A This document was exhibited during the (colly.) course of testimony of DW1, the Official Witness being Medical Record Clerk, Kasturba Hospital, MCD, Darya Ganj, Delhi to prove that on 21.07.1989 no male baby named Pawan was born to Smt. Sulochana Devi Wife of Brahaspati Prasad Shukla. It would be relevant to submit that the examination in chief of this witness was deferred on 02.06.2014 to 08.07.2014 on which date also the examination in chief of DW1 could not be conducted for want of the original of the letter dated 11.07.2011 on which he RCA No. 21/2017 Page 28 of 60 Union of India & Anr. V. Sulochana Devi was relying in his examination in chief recorded on 02.06.2014 and the matter was adjourned to 09.09.2014. On 09.09.2014, the appellant/ defendant did not produce DW1 in the witness box and proceeded to produce DW2 in the witness box to prove only the original letter dated 11.07.2011 as Ex.DW2/B as would be evident from the deposition of the said witness recorded on 09.09.2014.
DW1 therefore did not complete his examination in chief and this witness was given up by the appellant/ defendant as they did not bring him in the witness box after recording partly his examination in chief on 02.06.2014.
Therefore, even the examination in chief of DW1 was not completed and this witness was given up by the appellant/ defendant and therefore, his testimony cannot be read including the document exhibited as Ex.DW1/A (colly) which is the extract from the birth register.
Without prejudice to this submission even otherwise Ex.DW1/A (colly) running into 22 pages on a bare perusal would be clouded with suspicion. The first page of this document starts with S.No.1025 with date on the left side as 19.07.89 and then the entry against RCA No. 21/2017 Page 29 of 60 Union of India & Anr. V. Sulochana Devi S.No.1028 records the date as 12.07.89 which cannot be possible as the number ought to be less than 1025 which is the number assigned to the entry made on 19.07.89. Such discrepancy would also be seen relating to S.No.1042 where the date is 26.07.89 while the date against S.No.1043 is 25.07.89. The discrepancies would also be seen against S.No.4394 which is dated 20.07.89 and then 4397 is also dated 20.07.89 and S.No.4398, 4399, 4401 & 4405 are also dated 20.07.89 but the S.No.4395 and 4396 are dated 21.07.89. DW1 could have been confronted with the said discrepancies had he entered the witness box to complete his examination in chief and subject himself to cross examination which could not happen as the appellant/ defendant brought DW2 in the witness box thereby giving up DW1 and the deposition of DW2 remained confined to the letter dated 11.07.11 Ex.DW2/B. The respondent/plaintiff entering the witness box as PW1 has proved the document Ex.PW1/3 which is the progress report of her son Pawan Kumar studying during the academic year 19961997 in Bal Jyoti Public School, X Block, Gali No.5, Braham Puri, Delhi 110053 where the father's name is RCA No. 21/2017 Page 30 of 60 Union of India & Anr. V. Sulochana Devi recorded as Shri B.P.Shukla and which has been signed by Shri B.P.Shukla in English on 25.09.1996 on the second page of Ex.PW1/3.
8. Ex.DW3/P1 This document was proved on record during the cross examination of DW3 Shri Kailash Chand, Sr. Superintendent, in the office of appellant/ respondent and which is the investigation report prepared after the appellant/ defendant department had conducted a detailed investigation to determine whether the respondent/ plaintiff was the legally wedded of Shri Brahaspati Prasad Shukla. The contents of the investigation report of the appellant/ defendant department Ex.DW3/P1 dated 08.04.2002 submitted by Asst.
Superintendent reporting that the claim of the respondent/ plaintiff appeared to be genuine. DW3 further testified during his cross examination on 26.02.2015 that the department did not consider this report while rejecting the claim of the respondent/ plaintiff.
However, no reason has been assigned for not considering the said report though being a report prepared by the department after carrying out detailed investigation.
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4. The next question required to be examined is as to what ex tent was the omission on the part of late Shri Brahaspati Prasad Shukla suicidal of he having not informed the depart ment about his remarriage and about who is his spouse who would be entitled to family pension after his death. The appel lants however, were made to bite the dust during the course of trial when they were confronted with their own internal en quiry report where in no uncertain terms it stood established that a detailed inquiry was conducted by the department and it was reported that Late Shri Brahaspati Prasad Shukla had married the respondent/ plaintiff and the children born from the wedlock were legitimate. Having been confronted with this position, the appellants chose to adopt an escape route by contending that the said report was not considered while re jecting the claim of respondent for family pension. The appel lants least realized that their such stand would be to their peril as it was their own report which was starting on their face and in itself sufficient to attach illegality to their action of denying the family pension to the respondent. From the con duct so far of the appellant it seems that late Shri Brahaspati Prasad Shukla committed the biggest sin in his life by decid ing to marry after superannuating from Govt. service. Least realizing the consequences of such a sin he committed a fur ther sin by not informing the department about such marriage and the details of his spouse who would be entitled to family RCA No. 21/2017 Page 32 of 60 Union of India & Anr. V. Sulochana Devi pension after his death. Late Shri Brahaspati Prasad Shukla while omitting to do the needful least realized that his such omission would put a question mark on the very sanctity of this second marriage and it would give a tool in the hands of the Govt. i.e. the appellants to abuse and scandalize the sanc tity of marriage and attach illegitimacy to the status and posi tion of his second wife and the children born from the second marriage and punish them for the said sin by denying the family pension to the living spouse i.e. the respondent herein. The Govt. apathy in the present case is writ large and time is ripe to nail down the concerned officers who have abused the sanctity of marriage on technical omissions and have put to disrepute the legal and marital status of the respondent as the legally wedded wife of late Shri Brahaspati Prasad Shukla and given a dirty colour and status to the children born from the wedlock who as per our constitution are legitimate.
5. The Respondent/Plaintiff has relied upon the following Judg ments:
(i) Rangananath Parmeshwar Panditrao Mali and Anr Vs. Eknath Gajanan Kulkarni and Anr.
Manu/SC/0340/1996
(ii) Badri Prasad Vs. Dy. Director of Consolidation and Ors., Manu/SC/0004/1978
(iii) Ashok Kumar Vs. Usha Kumari and Ors.
Manu/DE/0385/1984 RCA No. 21/2017 Page 33 of 60 Union of India & Anr. V. Sulochana Devi
(iv) S.P.S. Balasubramanyam Vs. Suruttayan alias Andali Padayachi and others, Manu/SC/0147/1992
(v) Tulsa and Others Versus Durghatiya and Ors. (2008) 4 SCC 520.
FINDINGS OF THE COURT The Ld. Counsel for the Appellants/Defendants has pointed the discrepancies in the case of Respondent by documents and which has been dealt by this Court by giving its own reasoning after each of such discrepancies.
DETAILS OF DISCREPANCIES IN THE CASE OF THE RESPONDENT
1. Date of marriage in the plaint is mentioned as 25.07.1988, whereas the date of marriage so stated in the affidavit filed by respondent at page No. 337 is 25.08.1985.
REASONING: The defendants have filed the Photocopy of Affi davit alleged to be of Plaintiff at page 337 but failed to prove the same in accordance with law and the same has not been even confronted to PW1 during cross examination. Therefore, the defendants cannot rely upon the document at page No.337 which is not at all been exhibited document and proved in accordance with law.
2. Date of birth of Pawan Shukla mentioned on PW1/8 at page 243 of the paper book is 29.07.1988.
RCA No. 21/2017 Page 34 of 60Union of India & Anr. V. Sulochana Devi REASONING: Although in the said document which is of dated 28.6.2001- Ex. PW1/8 the date of Birth is mentioned as 29.7.88 but the same has been encircled and after encir cling the date of 21.7.89 is mentioned with the pencil. The ty pographical error/mistake in recording 29.7.88 cannot be ruled out while recording the said date in Exhibit PW1/8. The defendants/Appellants have not crossexamined the Plaintiff on the said aspect. The date of birth of other children was also mentioned in the said document and the same clearly matches with their birth certificates as proved on record and there is plethora of documents which the Plaintiff has proved on record showing to be the wife of the deceased Shri B.P. Shukla.
3. Reference of death of first wife of deceased B.P. Shukla namely Smt. Shanti Devi is mentioned but no death certificate has been filed.
REASONING In the written statement the defendants them selves have not disputed the factum regarding the death of Smt. Shanti Devi and therefore failure to file the death certifi cate on the noncontentious issue is not fatal to the case of the Plaintiff.
4. No proof of birth of children filed. PW1/1 to PW1/3 is birth certificates as filed by the respondent but not verified by the RCA No. 21/2017 Page 35 of 60 Union of India & Anr. V. Sulochana Devi department. Even otherwise, PW1/1 and PW1/2 are the birth certificates of Hari Om and Puja but no birth certificate of Pawan Shukla. PW3/2 and PW3/4 are the records of the hospital but clearly states that the hospital does not bear any such record.
REASONING The PW3 has proved Exhibit PW3/1 copy of Birth Certificate of Pooja whose date of birth is 15.11.1991 and copy of the relevant entry in the register of Birth and Death Certificate is Ex.PW3/2. He has also deposed that Ex.PW1/2 is the original birth Certificate issued to baby Pooja. Similarly he has deposed that date of birth of Hari Om is 28.03.1996 as per record and the copy of his Birth Certifi cate is Exhibit PW3/3 and copy of the relevant entry in the register of Birth and Death Certificate is Ex.PW3/4. He has also admitted Exhibit PW1/1 is the original birth certificate of Hari Om. He has denied the suggestions that details of both the children have been given wrongly in the birth certificate Ex. PW3/1 and Ex.PW3/3. He has deposed that as per birth certificates the children took birth at Home. The Court cannot presume the documents which are public document and pro duced from proper custody to be forged and fabricated. The Court also cannot presume that the Plaintiff got manipulated the said records only after the death of deceased Shri B.P. RCA No. 21/2017 Page 36 of 60 Union of India & Anr. V. Sulochana Devi Shukla and only for the sake of claiming the pension. The said records pertain to year 1991 and 1996 and the Court cannot disbelieve them without there being any cogent and convincing evidence contrary to the said documents.
5. DW2/B, record of the Kasturba Gandhi Hospital filed on page No. 399 clearly states that no child was born on the alleged date, month and year.
REASONING The Ld. Trial Court has dealt the above arguments and the findings of Ld. Trial Court are reproduced herein: "30. Defendants have examined three witnesses. As stated above, examination of DW1 cannot be read in evidence. DW2 has deposed that as per record no child was delivered by Smt. Su lochana Devi on 21.07.1989. Even as per this statement, case of plaintiff cannot be thrown as plaintiff has proved various documents on record to support her case."
I am fully agreement with the findings of the Ld. Trial Court. The Plaintiff has relied upon plethora of docu ments and same cannot be disbelieved only on the basis of the aforesaid testimony of DW2.
6. Discrepancies in the signatures Signatures of late B.P. Shukla on last page of PW 1/3 are in running English. Signature on PW1/11 (GPA) of RCA No. 21/2017 Page 37 of 60 Union of India & Anr. V. Sulochana Devi late B.P. Shukla are shown in Hindi and signatures on DW 3/A of late B.P. Shukla are again in Hindi but are different signatures to that of the signatures on PW1/11. All the three signatures do not tally with each other. The signatures of the deceased B.P. Shukla which are put on exhibit PW3/A at page 423 are original and rest all are forged and fabricated documents by the respondent therein. The document PW3/A also does not show the details of the family members which is mandatory by all government officials to provide whether re tired or not as per the CCS Rules.
REASONING The PW1/11 is a registered General Power of At torney dated 14.06.2000 executed by Shri B.P. Shukla in favour of Smt. Sulochna Devi and the said document clearly depicts the name of the husband as Sulochna Devi. The de fendants have not asked any questions regarding the veracity of the signatures on the aforesaid documents during the cross examination of PW1 and now at this stage the defendants cannot be allowed to tow such argument which they have not set up in the cross examination of the PW1. The general sug gestion were put to PW1 that documents filed by PW1 are manipulated documents and with respect to PW1 and PW2 specific suggestions were given that the said documents are forged and fabricated documents. There is no dispute that RCA No. 21/2017 Page 38 of 60 Union of India & Anr. V. Sulochana Devi Late Shri B.P. Shukla was literate person and the possibility of signing in English specifically in the Progress Report Ex hibit PW1/3 cannot be ruled out. It cannot be said that Late Shri B.P. Shukla signs in Hindi Language and therefore he cannot sign in the English. The Court cannot lost the sight of the fact that in the School generally parents wants to show that they have the knowledge of the English and they gener ally signs in the English although they may be less literate in English. Moreover, the defendants have not asked any ques tion in the cross examination which could have given the op portunity to the PW1 to explain signature of deceased Sh. B.P. Shukla in English. At the cost of repetition it is reiterated that no questions regarding signatures of Sh. B.P. Shukla was put during the cross examination of PW1 and now the defen dants cannot be allowed to challenge those documents.
As far the arguments of the Appellants regarding nonmentioning of details of family members in the document PW3/A by the deceased, it is apt to mention here that in case the deceased had mentioned the said details then there was no requirement for the plaintiff to file the present case for dec laration and the said document itself was sufficient for the Plaintiff.
7. At page 63, there is a document purported to have been shown as Smt. Kiran Devi, daughter of late B.P. Shukla from RCA No. 21/2017 Page 39 of 60 Union of India & Anr. V. Sulochana Devi his wife Smt. Shanti Devi which is purported to be the No Ob jection Certificate. The same has not been proved nor Kiran has been made party to the proceedings.
REASONING It is the Plaintiff who has knocked the doors of the Court and Ms. Kiran daughter from the first marriage was having no interest in the Pension of his father as she had been married even prior to the marriage of his father. More over the Plaintiff has sought the declaration that she is legally wedded wife of Late Shri Brahaspati Prasad Shukla. The non impleadment of Ms. Kiran is not fatal to the case of the Plain tiff as the Plaintiff has sought the declaration regarding her status as wife of the Late Shri B.P. Shukla. The defendants could have examined the said Kiran as witness in the present case to dislodge the claim of the Plaintiff that she was not the legally wedded wife of Late Shri B.P. Shukla.
8. Mark A is the notice of an advocate Shri Hridey Narain Mani Tripathi, on behalf of the near relations of the deceased B.P. Shukla who have clearly stated in the said notice that late Shri B.P. Shukla never married to Smt. Sulochna. He could not be produced as a witness because of his old age.
RCA No. 21/2017 Page 40 of 60Union of India & Anr. V. Sulochana Devi REASONING The defendants cannot be allowed to rely upon the document which has not been proved in accordance with law. The defendants were required to prove Mark A in accordance with law. The defendants cannot take the shelter of old age for nonproduction of the said witness.
9. No document and proof of Satpadi as per Section 5 of the Hindu Marriage Act, has been produced on the record, signed or written by late B.P. Shukla, accepting the marriage with the respondent and the birth of the children. No proof of mar riage has been filed by the respondent. Only relied upon long residence and one statement PW2 but PW2 during the evi dence expired and could not be cross examined and hence the same cannot be taken into consideration.
ARGUMENTS OF THE PLAINTIFF:
1. In order to prove the factum of marriage, the respondent besides examining herself as PW1 also examined Shri Trilok Nath Verma as PW2 who was an eye witness to the marriage having attended the same. PW2 however, was not cross examined as he expired in the meantime. He had presented himself for cross examination but an adjourn ment sought on behalf of respondent, he could not be cross examined. However, thereafter he expired.RCA No. 21/2017 Page 41 of 60
Union of India & Anr. V. Sulochana Devi
2. Though the law insists that to accept the testimony of every witness who deposes in court, he/ she should be cross ex amined, however, if it is shown that the witness after de posing in examinationinchief could not present himself/ herself for cross examination for genuine reasons beyond the control of the witness such as death, serious illness or the witness becoming untraceable, the deposition recorded during examinationinchief can be read provided it is com plete and the court is satisfied that there are no elements in that deposition, or the record, which can shake the testi mony. Reliance is placed upon the judgment of the Divi sion Bench of the Hon'ble High Court of Delhi in the case of "Tinku Ram Vs. State" reported in MANU/DE/3698/2011.
3. The respondent by way of primacy evidence was able to place and prove on record the legitimacy of all the three children born from her wedlock with late Shri Brahaspati Prasad Shukla. The documents placed on record were offi cial documents produced through summoned witness from the Office of SubRegistrar, Birth & Death in the form of Birth Certificate of her daughter and one son (Ex.PW1/1 and PW1/2) wherein the parentage was duly recorded as that of the respondent as mother and late Shri Prahaspati Prasad Shukla as the father with the residential address being same as that of late Shri Brahaspati Prasad Shukla RCA No. 21/2017 Page 42 of 60 Union of India & Anr. V. Sulochana Devi recorded in the Govt. records i.e. his pension records. The respondent also proved on record the Progress Report of her other son relating to his schooling Ex.PW1/3 bearing the signature of late Shri Brahaspati Prasad Shukla in his capacity and status as father and the residential address as the same which is available in his pension record. The respondent also proved on record the records from the of fice of the CBSE of her children Ex.PW1/4 and Ex.PW/16 wherein her name stands recorded as mother and the name of late Shri Brahaspati Prasad Shukla as father. The records from CBSE also records the death of birth of the children which is after 25.07.1988 i.e. the date of marriage of the respondent with late Shri Brahaspati Prasad Shukla. The respondent also proved on record the death certificate of her deceased husband Ex.PW1/7. The respondent also proved on record the Election Commission Card i.e. Voter's I. Card Ex.PW1/12 and PW1/13 wherein it is recorded that she is the wife of late Shri Brahaspati Prasad Shukla. The respondent also proved on record the voters list Ex.PW1/14 bearing the name of her husband as Shri Bra haspati Prasad Shukla and the address which is same as available in the pension records in the office of the appel lants. The respondent also proved on record the ration cards Ex.PW1/15 and PW1/16 recording her status as legally wedded wife of late Shri Brahaspati Prasad Shukla RCA No. 21/2017 Page 43 of 60 Union of India & Anr. V. Sulochana Devi at the same address which is available in the pension records of her husband in the office o the appellants. All these documents starting from Ex.PW1/1, PW1/2, PW 1/12 to PW1/16 are all public documents prepared after verification of the credentials and maintained in the same manner in the public domain with authenticity attached to it completely. The respondent also proved on record a reg istered General Power of Attorney executed by late Shri Brahaspati Prasad Shukla in her favour (Ex.PW1/11) where late Shri Brahaspati Prasad Shukla describes the status and position of the respondent as his legally wedded wife. The respondent/ plaintiff also proved on record her representations made before the appellant (Ex.PW1/8 & PW1/9), the order of the Hon'ble Central Administrative Tribunal, Principal Bench, New Delhi Ex.PW1/10, as a consequence of which she had to file the suit. The respon dent also proved the notice u/s 80 of CPC Ex.PW1/23 served upon the appellant before instituting the suit. As such the respondent was able to place cogent and reliable evidence on record to prove the factum of her marriage with late Shri Brahaspati Prasad Shukla. In the light of the unimpeachable documentary evidence placed and proved on record which are all available in public domain, the testimony of PW2 also would be said to acquire signifi RCA No. 21/2017 Page 44 of 60 Union of India & Anr. V. Sulochana Devi cance and capable of being considered despite the fact that PW2 could not be cross examined having expired.
4. Though the factum of marriage of the respondent with late Shri Brahaspati Prasad Shukla stood conclusively estab lished by her during trial, however, even if it is presumed for the sake of argument though denied, that the evidence produced by the respondent led to a presumption of mar riage, it would be required to be seen whether the appel lants/ defendants were able to rebut the said presumption by any strong cogent or convincing evidence.
5. The entire tenor of defence of the appellants/ defendants to counter the claim of the respondent/ plaintiff was that since late Shri Brahaspati Prasad Shukla had not informed the department of having remarried and had not given the particulars of his spouse who would be entitled to family pension in case he predeceases his spouse, this omission was sufficient in itself to negate the theory of marriage and safely conclude that there had been no marriage at all. To add further the appellants/ defendants questioned the va lidity of the public documents placed and proved on record by the respondent/ plaintiff on the premise that they were forged and fabricated. However, no cogent and reliable evi dence was placed on record by them to establish the said RCA No. 21/2017 Page 45 of 60 Union of India & Anr. V. Sulochana Devi forgery since the onus to prove forgery and fabrication rested on the appellants having been asserted by them.
REASONING The provision of Saptapadi is not mentioned in Section 5 of the Hindu Marriage Act and the same finds its existence in Section 7 of the Hindu Marriage Act. Section 7 of the Hindu Marriage Act is reproduced herein for apt understanding: "7. Ceremonies for a Hindu marriage.(1) A Hindu marriage may be solemnized in accor dance with the customary rites and ceremonies of either party thereto.
"(2) 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."
The bare perusal of the aforesaid provision, it is apparent that the ceremonies of Saptapadi is not the neces sary ceremony for completion of the marriage but if rites and ceremonies of marriage include the Saptapadi only then the marriage becomes complete and binding when the seventh step is taken. Therefore, it is not necessary that in each and every marriage saptapadi is necessary rites and ceremonies. The Plaintiff has also relied upon testimony of PW2 and he has argued that the testimony of the said witness cannot be RCA No. 21/2017 Page 46 of 60 Union of India & Anr. V. Sulochana Devi discarded as the opportunity to cross examine the said wit ness was given to the defendants but they have not availed the said opportunity. Although, the application for defendants were allowed for cross examination of PW2 but they could not cross examine the said witness as the said witness has ex pired between the date of allowing the application and the date fixed for his cross examination. The defendants were given the opportunity to cross examine but they have not availed the said opportunity and after that also the defen dants have taken substantial time in filing the application and in view of the judgment of the Division Bench of the Hon'ble High Court of Delhi in the case of "Tinku Ram Vs. State" re ported in MANU/DE/3698/2011, the testimony of the said witness can be read in evidence.
The PW2 was examined by the Plaintiff on 13.3.2012 and the defendants were granted opportunity for cross examination but the same was not availed by the defen dants and PW2 was discharged. After the said date the mat ter was listed for remaining Plaintiff evidence on 26.7.2012. The defendants have filed the application under Order 18 Rule 17 CPC for recalling PW2 on 26.7.2012. The defendants have taken more than four months in filing the said application. The Plaintiff filed reply to the said application on 01.11.2012 and the matter was adjourned for arguments on the said ap plication on 9.1.2013. On 9.1.2013 the ld. P.O. was on half RCA No. 21/2017 Page 47 of 60 Union of India & Anr. V. Sulochana Devi day leave and the matter was adjourned to 5.3.2013. On 5.3.2013, the defendants have taken the date as the panel for lawyers was changed and new lawyer was not available for ar guments and the matter was adjourned to 13.5.2013. On 13.5.2013 the application was allowed and the following order was passed: "13.5.2013....
"It is submitted that on 13/03/2012, PW2 was presented for his cross examination. However, the counsel for the respondent was busy in the Hon'ble High Court. Therefore, proxy counsel for the respondent requested to pass over the matter till 12.30 p.m. which was declined by this Court. The absence of the counsel for re spondent was not deliberate and unwarranted.
"In the reply, it is submitted that, the applica tion is abuse of the process of law and time barred. It is further submitted that the witness is a 90 years old person and the counsel for the respondent waited 1.00 p.m on the last date of hearing and whereupon the opportunity to cross examine the PW2 was closed. Therefore, there is no cause for allowing the present appli cation.
"I have heard Ld. Counsel for the parties and have perused the record carefully.
"It is to be seen that being busy in another court, cannot be a ground for making the wit ness to wait endlessly and the court adjourned the matter and closed the opportunity to cross examine the witness as enough time had been RCA No. 21/2017 Page 48 of 60 Union of India & Anr. V. Sulochana Devi granted. Therefore, the defendant does not de serve indulgence of the Court. However, the case pertains to the Union of India and even otherwise, I deem it appropriate that matter should be decided on merits and therefore, the cross examination of the witness is necessary for just decision of the Court. In these circum stances, the application under Order 18 Rule 17 CPC, is allowed subject to cost of Rs.4,000/ upon the respondent.
Put up for cross examination of PW2 on 16/07/2013........"
On 16.7.2013, it was observed that witness PW2 has expired. Thus, the witness was expired between the dates of 13.5.2013 and 16.07.2013. The witness was about 90 years old when he has deposed before the Court, which was also apparent from the aforesaid order. The witness has deposed on 13.3.2012 and opportunity for cross examination was granted to the defendants on the said date but the defendants have not availed the said opportunity. On account of lapses on the part of the defendants/ Appellants the testimony of the PW2 cannot be discarded when the Plaintiff has examined him in order to prove her case of marriage with the deceased Shri B.P. Shukla. I am fully in agreement such proposition is also supported by the aforesaid Judgment relied upon by the Plaintiff. The relevant portion of Para No.9 and 10 of the said Judgment is reproduced as under: "...............Now, the testimony of PW7, an eye witness, and an injured one, to boot, has to be RCA No. 21/2017 Page 49 of 60 Union of India & Anr. V. Sulochana Devi seen from the above standpoint. The Appellant's grievance is that he was not subjected to cross examination, and that the other eyewitness, Raj Kumar was not even examined. Further, it was submitted that PW5, the witness to the recov ery of knife, turned hostile. While it is true that PW7 could not be cross examined - a condition that is inflexible as a rule, and seldom departed from - we cannot help noticing (after examining the Trial Court records) that the case was ad journed after his examination in chief was recorded. Thereafter, despite repeated summons being issued, the witness was not present; the police was unable to enforce his attendance. As far as Raj Kumar's testimony goes, we notice from the Trial Court records that he too could not be traced, despite repeated attempts by the prosecution......"
10. The question which arises is what then is the correct position regarding the deposition of PW7. We are conscious that Section 138 of the Evidence Act, 1872 mandates that to constitute evidence, the testimony of each witness has to be subjected to cross examination. The provi sion seemingly admits of no exception; yet courts have recognized them in exceptional sit uations. "Sarkar on Evidence" at page 2170, states that:
"The evidence of a witness who could not be subjected to crossexamination due to his death before he could be crossexamined, is admissible in evidence, though the evidentiary value will de pend upon the facts and circumstances of case. [Food Inspector v. James N.T., 1998 Cri LJ 3494, 3497 (Ker)]. If the examination is substantially RCA No. 21/2017 Page 50 of 60 Union of India & Anr. V. Sulochana Devi complete and the witness is prevented by death, sickness or other causes (mentioned in s 33) from finishing his testimony, it ought not to be re jected entirely. But if not so far advanced as to be substantially complete, it must be rejected [Di wan v. R, A 1933 L 561]. Deposition of a witness whose crossexamination became impossible can be treated as evidence and the court should carefully see whether there are indications that by a completed crossexamination the testimony was likely to be seriously shaken or his good faith to be successfully impeached [Horil v. Ra jab, A 1936 P 34]. In a divorce case, the crossex amination of a witness for the wife who is the uncle of the husband was interrupted to enable the witness to effect a compromise. No compro mise was effected. The witness did not turn up thereafter. The husband did not take steps to compel the witness to appear for further cross examination. The reading of the evidence of this witness cannot be objected, on the ground that the crossexamination is not completed [R v. S, A 1984 (NOC) 145 All"
In Horilal v. State of U.P., 1970 [2] SCJ 223, it was held that where a witness died after his evi dence was recorded by the committing Magis trate and his deposition was admitted at the session trial, the question of whether the evi dence of the investigation officer that it was learnt that the witness had died was sufficient proof of the death was left open by the Supreme Court. Much earlier, in Maharaja of Kolhapur V. Sundaram Ayyar, AIR 1925 Mad 497 the Madras High Court held that:
RCA No. 21/2017 Page 51 of 60Union of India & Anr. V. Sulochana Devi "I do not think that the evidence can be rejected as inadmissible, though it is clear that evidence untested by crossexamination on a question like the present can have little value. I need only re fer to Tahlor on Evidence, Section 1469 : DAVIES v. OTTY [(1865) 35 Beav. 208 = 5 N.R. 391 = 34 L.J.Ch. 252)], ELIAS v. GRIFFITH [(1877) 46 L.J.Ch. 806)], MAN GOBINDA CHOWDHURI v. SHAHINDIA CHANDRA CHOWDHURI [(1908) 35 Cal. 28)] and DHANU RAM MAHTO v. MURLI MAHTO [(1909) 36 Cal. 566= 13 C.W.N. 525 = 1 I.C. 366 = 11 C.L.J. 150]. There is nothing in the Evidence Act which renders such evidence inad missible. In ROSI v. PILLAMMA [(1910) 20 M.L.J. 400 = 7 M.L.T. 41 = 5 I.C. 512 = 11 Cr. L.J. 145] it was pointed out that the evidence was admis sible though the learned Judges were of opinion that it should not be acted upon. I think the cor rect rule is that the evidence is admissible but that the weight to be attached to such evidence should depend upon the circumstances of each case and that, though in some cases the Court may act upon it, if there is other evidence on record, its probative value may be very small and may even be disregarded."
Thus, the law insists that to accept the testi mony of every witness who deposes in court, she (or he) should be cross examined. How ever, if it is shown that the witness, after de posing in examination in chief, could not present himself or herself for cross examina tion, the Court has to probe further the rea sons for absence of such a witness. It can not, in a stereotypical manner, reject the de position; if the reasons point to the unavail RCA No. 21/2017 Page 52 of 60 Union of India & Anr. V. Sulochana Devi ability of the witness for genuine reasons, beyond the prosecution's control, such as death, serious illness or the witness becom ing untraceable, the deposition recorded dur ing examination in chief can be read, pro vided it is complete, and the Court is satis fied that there are no elements in that depo sition, or the record, which can shake the testimony. The Court has to therefore, adopt a cautious approach, either way.
(Portion bolded in order to highlight) The Plaintiff cannot be punished for the lapses and negligence on the part of the defendants to cross examine PW2 and the aforesaid order dated 13.05.2013 clearly culls out such negligence and lapses. The Ld. Trial Court while allowing the application under Order 18 Rule 17 CPC has held that the defendants/ appellants do not deserve the indulgence of the Court. However, the Ld. Trial Court in the interest of justice has allowed the application for recalling the witness PW2.
Accordingly, in view of the discussions hereinabove, the evidence of PW2 cannot be washed and effaced away and it has to be also read in evidence for the purpose of adjudication of the case. The PW2 has deposed regarding the marriage of the Plaintiff with the deceased Shri B.P. Shukla. The PW2 has categorically deposed to the following effect: "He was retired person having retired from Indian Army as Subedar on attaining the age of RCA No. 21/2017 Page 53 of 60 Union of India & Anr. V. Sulochana Devi superannuation in 1972. Late Sh. B.P. Shukla was his neighbor and he was married to the Plaintiff on 25.7.88 according to Hindu rites and ceremonies and he had attended the said marriage. He had also deposed about the constitution of their family and residential address."
The Ld. Counsel for the Defendants/Appellants have further argued the details of family is not mentioned in their record and it is apt to mention here that in case the deceased had mentioned the family details then there was no requirement for the plaintiff to file the present case for declaration and the said document itself was sufficient for the Plaintiff. The Plaintiff has placed on record plethora of documents, the details of the same has also been mentioned hereinabove by the Plaintiff/Respondent, which could sufficiently reflects that the Plaintiff was the wife of Late Shri B.P. Shukla. The Judgments relied upon by the Plaintiff duly support the case of the Plaintiff, wherein it has been consistently held that strong presumption arose in favour of the wedlock where the partners lived together for a long spell as husband and wife. However, the presumption is rebuttable, a heavy burden lied upon on him who was seeking to deprive the relationship of legal origin. Law leaned in favour of legitimacy and frowns upon bastardy.RCA No. 21/2017 Page 54 of 60
Union of India & Anr. V. Sulochana Devi The Ld. Trial Court has also elaborately dealt the plethora of documents and the relevant portion of the findings of the Trial Court is reproduced as under: "... 27. In her evidence, plaintiff i.e. PW1 has relied upon various documents. Ex. PW1/1 is the birth certificate of Hari Om Shukla wherein name of father is mentioned as Brahaspati Prasad Shukla. Further, name of mother is mentioned as Sulochana Devi i.e. plaintiff. Ex.PW1/2 is the birth certificate of Pooja. In this document also, name of father is men tioned as B. P. Shukla and name of mother is mentioned as Sulochana Devi. Both these doc uments are pertaining to year 1991 and 1996. Ex.PW1/3 is progress report of Pawan Kumar of the year 19961997. As per this document, address is mentioned as 8/27, XBlock, Gali No.6, Brahampuri and it is signed by B. P. Shukla on the column of signature of parent. Ex.PW1/4 to Ex. PW1/6 are the documents related to CBSE wherein name of mother has been shown as Sulochana Shukla and name of father has been shown as Brahaspati Prasad Shukla, however, these documents were marked in examinationinchief of PW1. Ex.PW1/7 is death certificate. Ex. PW1/8 and Ex.PW1/9 are the representations made to the department by the plaintiff. Ex. PW1/10 is the order of Ld. C. A. T. Ex. PW1/11 is the regis tered General Power of Attorney executed by B. P. Shukla in favour of Plaintiff i.e. Sulochana Devi. In this document also name of husband of plaintiff has been shown as B. P. Shukla. This document also shows that both were living at 8/27, X Block, Gali No.6, Brahampuri, Delhi -RCA No. 21/2017 Page 55 of 60
Union of India & Anr. V. Sulochana Devi
6. Original document was also produced at the time of examinationinchief. Ex. PW1/12 and Ex. PW1/13 are the Election Commission card.
As per these documents also name of husband has been shown as B. P. Shukla and address has been given as 8/27, X Block, Gali No.6, Brahampuri, Delhi. Ex.PW1/12 shows that it was prepared on 23.03.1995 i.e. much before the death of the B. P. Shukla. Originals of the Ex. PW1/11 and Ex.PW1/12 were also pro duced during the examinationinchief of the plaintiff. Ex.PW1/14 is the voter list bearing address of plaintiff as the same and her hus band's name is shown as B.P. Shukla. Ex.PW 1/15 and Ex. PW1/16 are copies of ration card. Original of Ex. PW1/16 was also pro duced during the examination of PW1. As per this document also, husband of plaintiff has been shown as late Brahaspati Prasad Shukla and address has been shown as 8/27, Gali No.6, Brahampuri, Delhi. Ex.PW1/17 to Ex. PW1/21 are the representations of plaintif made to department. Ex.PW1/23 is the notice dated 09.03.2006 u/s. 80 of CPC issued to the department. Ex.PW1/24 to Ex.PW1/26 are the receipts.
"28. Ex.PW1/1, Ex.PW1/2, Ex.PW1/12, Ex.PW1/13, Ex.PW1/14, Ex.PW1/15 and Ex.PW1/16 are the public documents. In most of the documents relied upon by the plaintiff, plaintiff has been shown as wife of the Brahas pati Prasad Shukla and address has been men tioned as 8/27, XBlock, Gali No.6, Braham puri, Delhi - 6. It is to be kept in mind that doc ument speaks itself. The entries made in docu ments are presumptive evidence of what they RCA No. 21/2017 Page 56 of 60 Union of India & Anr. V. Sulochana Devi recorded until disproved by satisfactory evi dence to the contrary. The burden was upon the defendants to prove these documents as false or fabricated. Perusal of crossexamination of PW 1 shows that only one suggestion was given with regard to documents and PW1 deposed that it is wrong to suggest that birth certificates Ex.PW1/1 and Ex.PW1/2 are forged and fabri cated documents. No other suggestion was given with regard to other documents relied upon by the plaintiff. In most of the documents, plaintiff has been able to show that she has been shown as wife of the Brahaspati Prasad Shukla. By simply deposing that some of the documents are forged and fabricated, it cannot be presumed that those documents are forged and fabricated. Plaintiff has not relied upon a single document, rather plaintiff has relied upon various documents to prove her case. This court cannot expect more documents than re lied upon by the plaintiff.
"29. One SubRegistrar was also summoned by the plaintiff and he was examined as PW3. He has deposed that copy of birth certificate of Pooja is Ex.PW3/1 and the name of mother is Smt. Sulochana and name of father is Sh. B. P. Shukla. He has further deposed that copy of rel evant entry in register of births and deaths is Ex.PW3/2. This document also shows the name of father as B. P. Shukla and mother's name as Sulochana. He has further deposed about the birth certificate of Hari Om as Ex. PW3/3 wherein name of mother is mentioned as Sulochana and name of father is mentioned as Brahaspati Prasad Shukla and residential address is mentioned as 8/27, XBlock, Gali RCA No. 21/2017 Page 57 of 60 Union of India & Anr. V. Sulochana Devi No.6, Brahampuri, Shahdara, Delhi. Ex.PW3/4 is the original birth certificate issued to Hari Om mentioning the name of mother and father as stated above. Perusal of his crossexamina tion shows that he has supported the case of the plaintiff and this court does not find any reason to disbelieve the same. All the docu ments relied upon by this witness are support ing the case of the plaintiff and corroborating her facts.
"30. Defendants have examined three witnesses. As stated above, examination of DW1 cannot be read in evidence. DW2 has deposed that as per record no child was delivered by Smt. Su lochana Devi on 21.07.1989. Even as per this statement, case of plaintiff cannot be thrown as plaintiff has proved various documents on record to support her case.
"31. DW3 has deposed about the contents of the written statement. This witness was cross examined at length. In his cross examination, he has admitted that deceased Brahaspati Prasad Shukla was having family and children. He has further admitted that department has verified the claim of the plaintiff and in that re port, the claim of the plaintiff has been stated to be appearing to be genuine. The said report is Ex.DW3/P1 (Original was produced before the court). He has further admitted as correct that while rejecting the claim of the plaintiff, the de partment has not considered the said report. It is an admitted fact that the case of the plaintiff was inquired by one Ram Khilawan i.e. Asst.
Superintendent, Delhi RMS. Perusal of Ex.DW 3/P1 shows that a detail enquiry was con RCA No. 21/2017 Page 58 of 60 Union of India & Anr. V. Sulochana Devi ducted by the official of the department / defen dants on the claim of the plaintiff and a detailed report was filed and it was observed by the con cerned Ram Khilawan that it can safely be concluded that she is post retired spouse /wife of Sh. Brahaspati Prasad Shukla, Ex.S.A and therefore, her claim for grant of family pension to her appears to be genuine.
It is a very surprising fact that after giving the said report, the said report was not considered by the department while rejecting her claim. Even, there is not a single word on behalf of the department / defendants that the abovesaid report is false or wrong. If the abovesaid report was not considered/ necessary then why such inquiry was conducted. Defendants should have considered the said report while rejecting the claim of the plaintiff. Plaintiff is running from pillar to post to get her relief / claim and defen dants have miserable failed to consider the claim of the plaintif without any reasonable ground.
"32. Hence, in view of the submissions made above, plaintiff has been able to prove that she is the legally wedded wife of Sh. Brahaspati Prasad Shukla S/o Sh. Avadh Saran Shukla and had been residing at X 8/27, Gali No.6, Brahampuri, Delhi - 110053. Hence, this issue is decided in favour of plaintiff and against the defendants."
This Court does not find any infirmity in the aforesaid findings of the Ld. Trial Court. The Ld. Trial Court has dealt the RCA No. 21/2017 Page 59 of 60 Union of India & Anr. V. Sulochana Devi issue No.1 in detail and the Appellants have failed to point that in what manner the said findings are perverse, arbitrary or fanciful. The Ld. Trial Court has discussed the entire evidence and pleadings and came to the conclusion that the Plaintiff is legally wedded wife of the deceased Shri B.P. Shukla. At the cost of repetition it is reiterated that the Ld. Trial Court has exercise discretion in accordance with the pleadings and evidence of the parties and this Court does not find any infirmity.
RELIEF:
Accordingly, in view of the discussions, as adumbrated above, I hereby pass the following :: FINAL O R D E R ::
1. The Regular Civil Appeal of the Appellants/Defendants is hereby dismissed.
2. That impugned Judgment and decree dated 06.3.2017 is hereby confirmed.
3. No order as to costs in the present appeal. The parties shall bear their own respective costs.
4. The copy of this Judgment may kindly be sent forthwith to the Ld. Trial Court alongwith the record of Trial Court.
The decree sheet in the Appeal be prepared, accordingly, in terms of this Judgment.
Announced in the open court (ARUN SUKHIJA)
on 15/09/2018 ADJ07 (Central)
Tis Hazari Courts, Delhi
RCA No. 21/2017 Page 60 of 60