Meghalaya High Court
Lahun Pyrtuh vs . State Of Meghalaya & Ors on 29 July, 2019
Equivalent citations: AIRONLINE 2019 MEG 145, (2019) 163 FACLR 82 (2019) 4 GAU LT 293, (2019) 4 GAU LT 293
Bench: Ajay Kumar Mittal, H.S. Thangkhiew
Serial No.16
Regular List
HIGH COURT OF MEGHALAYA
AT SHILLONG
WA No.3/2018
Date of Order: 29.07.2019
Lahun Pyrtuh Vs. State of Meghalaya & ors
Coram:
Hon'ble Mr. Justice Ajay Kumar Mittal, Chief Justice
Hon'ble Mr. Justice H.S. Thangkhiew, Judge
Appearance:
For the Petitioner/Appellant(s) : Mr. N Syngkon, Adv
For the Respondent(s) : Ms. R Colney, GA
Mr. R Deb Nath, CGC Mr. PD Nair, Adv for R/4
i) Whether approved for reporting in Yes Law journals etc.:
ii) Whether approved for publication in press: Yes Per Ajay Kumar Mittal, 'CJ': (ORAL):
1. The appellant filed the writ petition seeking direction to the State Government to stop the family pension to respondent No.4 which has been duly issued vide PPO No.MG/44014. The writ petition was dismissed by the learned Single Judge holding that the appellant could approach the Civil Court which necessitated the appellant to file the present appeal.
2. Briefly, few facts may be noticed.
3. The appellant claims that she was the legally wedded wife of Kulendra Chandra Keot @ Kulen Ch. Koet who died on 27.09.2016.
Besides her, Smti. Rita Pyrtuh, Smti. Minuti Pyrtuh, Smti. Sabina Pyrtuh (daughters), Shri Dhiren Pyrtuh, Shri Nirmal Pyrtuh and Shri Bimal Pyrtuh (sons) are the surviving heirs and successors of her late husband who was serving as A.B. Constable in the Police department since 11.01.1971 with substantive status till 31.01.2009 when he superannuated from the office of Superintendent of Police, West Jaintia Hills, Shillong with the designation as Constable.
14. The appellant claims that on the death of her husband and being a legal heir and nominee of her husband, she applied for pension and other benefits. Surprisingly, the appellant learnt that she would not be entitled to pension nor payment could be made to her for the reason that one Smti. Lokhi Keot (respondent No.4) had been enjoying the pension benefits of the appellant's deceased husband against PPO No.MG/44014 which reflected her in pensioner's detail sheet dated 14.12.2017 issued by respondent No.3. The appellant thereafter immediately filed an application before the respondent No.3 on 12.01.2018 praying to stop the family pension issued in the name of respondent No.4.
5. According to the appellant, the respondent No.4 (second wife) undisputedly obtained the pension from the concerned respondent in a situation when the first marriage was still subsisting. The alleged second marriage between (L) Kulendra Chandra Keot and respondent No.4 during the subsistence of the first marriage was itself invalid. Hence, the second wife is barred from receiving family pension of the deceased husband. The second wife was not entitled to the said benefit especially when appellant's name had been clearly mentioned in the office record as nominee with her sons and daughters. The appellant also states that since there was no dispute as regard her status as the first wife, she had made an application under RTI Act, 2005 seeking requisite documents. Accordingly, the appellant received the required documents on 12.02.2018 which was issued on 06.02.2018 by the Public Information Officer. The appellant was surprised to see in the Kindered Role of the service book that the relationship of respondent No.4 had been recorded as wife, married on 06.02.2000 which was issued on 18.03.2011 by respondent No.2. The appellant further claims that apparently there was no such dispute noticed in the record as therein it was shown that she was the legitimate first legally married wife but still the pensionary benefits etc. has been deprived to her.
6. On the aforesaid premises, the action of respondent No.4 had been challenged pleading that it infringes the fundamental and legal rights enshrined to her as well as violation of the provision of the Meghalaya Civil Services (Pension) Rules, 1983 necessitating her to approach this Court by 2 way of petition filed under Article 226 of the Constitution of India. It is her legitimate expectation to enjoy the pensionary benefits which has been deprived to her and is in total violation of Articles 14 and 21 of the Constitution.
7. Learned counsel for the appellant emphatically argued that there was no dispute on facts as the appellant was the legally wedded wife of (L) Kulendra Chandra Keot and was entitled to receive family pension. It was urged that the pension and pensionary benefits has been wrongly granted to respondent No.4 in the presence of the appellant who was the first legally married wife.
8. The stand of the appellant has been strongly controvered by respondent No.4. In the affidavit-in-opposition filed on behalf of respondent No.4, in paragraph 5 it has been claimed that the appellant was never married to (L) Kulendra Chandra Keot. It has been stated that the appellant had only lived together with (L) Kulendra Chandra Keot and never got married. Further, it has been stated that on 15.08.1999, the appellant and (L) Kulendra Chandra Keot made an agreement stating therein that at their own sweet will owing to some differences between both of them they have separated from each other from that day and thereafter they would not claim as husband and wife and no monetary assistant also will be provided to the appellant. It has also been claimed that after execution of the agreement, the appellant got married to one person named Biki of Sipajhar, Mangaldoi and lived together as husband and wife. The respondent No.4 got married to late Kulendra Chandra Keot in the year 2002 following all Hindu rites and customs and out of their wedlock a girl child was born on 08.02.2003. Paragraph 5 of the said affidavit reads thus:-
"5. That with regard to the statement made in paragraph 1.3 of the writ appeal to the effect that the appellant is the legally married wife of late Kulendra Chandra Keot is not at all correct and the deponent denies the same. In this connection the deponent states that while serving as the constable, the appellant lived together with late Kulen Ch. Keot but they have not got married. The deponent further begs to state that on 15 th August 1999 the appellant and Late Kulen Ch. Keot made an agreement stating that at their own sweet will owing to some differences between both of them separated from each other from that day and they will not 3 claim as husband and wife from then onwards. Further no monetary assistant also will be provided to the appellant any more as desired by herself and unmarried daughter and minor sons will be looked after as desired by herself. After execution of the aforesaid agreement, the appellant married one person named Biki of Sipajhar, Mangaldoi and they lived together as husband and wife. On the other hand, the deponent got married with late Kulen Ch. Keot in the year 2002 following all the Hindu rites and customs and out of their wedlock a girl child was born on 08.02.2003."
9. However, learned counsel for the appellant submitted that in the rejoinder affidavit, the contents of paragraph 5 in the affidavit-in-opposition of respondent No.4 has been strongly opposed in the following terms:-
"2. That the appellant denies the averments made in paragraph 5 of the affidavit in opposition filed by respondent No.4 and in reply would like to state that the petitioner was married to late Kulendra Chandra Keot as per the prevailing Khasi customs known as Shongkha in the State of Meghalaya and as such they are recognized as husband and wife. That the averment made in paragraph 5 of the affidavit in opposition makes it clear that it is an admitted position by the respondent No.4 that the appellant lived together with late Kulendra Chandra Keot irrespective of the fact that the respondent No.4 denied the marriage between the appellant and (L) Kulendra Chandra Keot. It is pertinent to mention herein that the Honourable Supreme Court in the case of Madan Mohan Singh v. Rajnikant: (2010) 9 SCC 209 [Relevant paragraph 26], wherein it was held that the live in relationship if continued for a long time, cannot be termed as walk in and walk out relationship and there is a presumption of marriage between the parties. Further, the Honourable Supreme Court in the case of S.P.S. Balasubramanyam v. Suruttayan alias Andali Padayachi and others: 1992 Supp (2) SCC 304 [Relevant paragraph 3], wherein it was held that if man and woman are living under the same roof and co-habiting for a number of years, the law would raise presumption that they lived as husband and wife. Again, the Honourable Supreme Court in the case of Badri Prasad v. Director of Consolidation: (1978) 3 SCC 527, while giving legal validity to a 50 year live in relationship has held that a strong presumption arises in favour of wedlock where the partners have lived together for a long spell as husband and wife. Although the presumption is rebuttable, a heavy burden lies on him who seeks to deprive the relationship of legal origin. Law leans in favour of legitimacy and frowns upon bastardy.
Further the appellant would like to state that the marriage can be dissolved by way of death of either party or by way of decree of the court dissolving the marriage. That the marriage between the 4 humble appellant and (L) Kulendra Chandra Keot is govern by Indian Divorce Act, 1869 for the purpose of divorce because as per Section 2 of the said Act it requires either the petitioner or the respondent to profess Christian religion for applicability of this instant Act and hence, for dissolution of marriage between the appellant and (L) Kulendra Chandra Keot it could have been done only by way of decree obtained through filling of a petition by either party U/s 10 of the Indian Divorce Act, 1869 and it cannot be done by way of agreement signed by the parties, which is absolutely illegal and not recognized under law. That the humble appellant would like to refer to one of the authoritative judgment of this Honourable High Court in the case of Debokala Thakuri v. State of Meghalaya and others WP (C) No.23 of 2016 [Relevant paragraph 22] wherein, it was held that solemnization of marriage during the subsistence of the first marriage being in contravention to Section 5(i) of the Act of 1955 is totally null and void in terms of Section 11 of the Act of 1955.
Further, the humble appellant would like to state herein that both the respondent number 4 and the husband of the appellant (L) Kulendra Chandra Keot belongs to Hindu religion and as such any marriage between the two must have to be govern by the Hindu Marriage Act, 1955 and for a valid marriage in terms of the Act of 1955, it is one of the condition that neither party has a spouse living at the time of the marriage. Therefore, marriage if any between the respondent no.4 and the husband of the appellant (L) Kulendra Chandra Keot is void for non-fulfilling the conditions prescribed in Section 5 of the Act of 1955 also for absent of any decree dissolving the marriage between the appellant and (L) Kulendra Chandra Keot and again such marriage if any will be void in terms of Section 494 of the Indian Penal Code. Further the humble appellant denies the execution of the agreement annexed as annexure A in the affidavit in opposition filed by respondent no.4 and this may have been obtained through fraud. Further, the humble appellant vehemently denies the averments as to the marriage of the appellant with one Biki of Sipajhar, Mangaldoi as claimed in paragraph 5 of the affidavit in opposition filed by respondent no.4."
10. Learned counsel for the appellant also submitted that there was valid marriage between the appellant and (L) Kulendra Chandra Keot, and, thus, the appellant was entitled to family pension.
11. Perusal of the stand of the appellant and contradiction made by respondent No.4 clearly shows that there is serious dispute on the issue of appellant being legally wedded first wife of (L) Kulendra Chandra Keot essentially which fact would determine the right of the appellant.
512. On the strength of various pronouncements of the Apex Court, learned counsel for the respondent No.4 contended that the writ petition was rightly dismissed.
13. We now proceed to examine the case law relied upon by learned counsel for the respondent No.4.
14. The Apex Court in the case of State of Assam v. Bhaskar Jyoti Sarma & ors: (2015) 5 SCC 321 examining the scope of writ jurisdiction involving disputed question of fact held as under:-
"13. The case of the appellant is that actual physical possession of the land was taken over on 7-12-1991 no matter unilaterally and without notice to the erstwhile land owner. That assertion is stoutly denied by the respondents giving rise to seriously disputed question of fact which may not be amenable to a satisfactory determination by the High Court in exercise of its writ jurisdiction. But assuming that any such determination is possible even in proceedings under Article 226 of the constitution, what needs examination is whether the failure of the Government or the authorised officer or the competent authority to issue a notice to the land owners in terms of Section 10(5) would by itself mean that such dispossession is no dispossession in the eye of law and hence insufficient to attract Section 3 of the Repeal Act. Our answer to that question is in the negative."
15. The aforesaid principle of law was reiterated in the case of Swati Ferro Alloys Private Limited v. Orissa Industrial Infrastructure Development Corporation (IDCO) & ors: (2015) 4 SCC 204 as under:-
"16. From the bare pleading of the case and the record, we find that there is disputed question of fact about the ownership of Plot No.C/9, Industrial Estate, Cuttack. Therefore, the High Court was justified in dismissing the same and directing the parties to approach the civil court for resolving such dispute."
16. The disputed question of fact was held outside the realm of adjudication under Article 226 of the Constitution by the Supreme Court in the case of Hindustan Coca Cola Beverage Private Limited v. Union of India & ors: (2014) 15 SCC 44 in the following terms:-
"13. The next submission pertains to the issue whether the High Court was justified addressing the lis on merits when series of factual aspects are involved. We are disposed to think that the High Court should not have entered into the factual score to decline the relief to the appellants. We are obliged to say so as Mr. Bagaria, learned senior counsel has contended that it can only 6 be adjudicated upon with reference to the documents on record. The documents mean the transactions, quantum of CENVAT availed of, the amount that was taken as refund by paying from the PLA and further not availing refund of CENVAT credit at any point of time. Needless to emphasise, the said aspect are in the realm of facts which could not have been adjudged or adjudicated by the High Court under Article 226 of the Constitution as the order of recovery was challenged on the ground that no notice was issued to the appellant and that it was not liable to pay in the obtaining factual matrix."
17. In view of the law laid down in Bhaskar Jyoti Sarma, Swati Ferro Alloys Private Limited and Hindustan Coca Cola Beverage Private Limited cases (supra) since there is serious dispute on facts that arises in this matter, therefore, the claim of the appellant-writ petitioner could not be adjudicated in the writ proceedings. Thus, learned Single Judge was right in rejecting the writ petition.
18. In view of the above, finding no error in the judgment of learned Single Judge, there is no occasion for us to interfere in the writ appeal. Consequently, the same is dismissed.
(H.S. Thangkhiew) (Ajay Kumar Mittal)
Judge Chief Justice
Meghalaya
29.07.2019
"Lam AR-PS"
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