Central Administrative Tribunal - Ernakulam
Prakasan A P vs M/O Agriculture on 6 February, 2023
1 O.A No. 180/927/2016
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
O.A No. 180/00927/2016
Monday, this the 6th day of February, 2023.
CORAM:
HON'BLE Mr. JUSTICE SUNIL THOMAS, JUDICIAL MEMBER
HON'BLE Mr. K.V. EAPEN, ADMINISTRATIVE MEMBER
Prakasan A.P, aged 59 years,
S/o. Prabhakaran, Senior Net Maker,
Central Institute of Fisheries,
Nautical and Engineering Training,
Fine Arts Avenue, Kochi - 682 016.
Residing at: Adamuttath House, Edavanakkad P.O.,
Ernakulam District - 682 509. - Applicant
(By Advocate: Mr. T. C. Govindaswamy)
Versus
1. Union of India,
Represented by the Secretary to the Government of India,
Ministry of Agriculture and Farmers' Welfare,
Department of Animal Husbandry,
Dairying and Fisheries, New Delhi - 110 001.
2. The Director, Central Institute of Fisheries,
Nautical and Engineering Training,
Fine Arts Avenue, Kochi - 682 016.
3. The Sr. Administrative Officer,
Central Institute of Fisheries,
Nautical and Engineering Training,
Fine Arts Avenue, Kochi - 682 016. - Respondents
(By Advocate: Mr. Thomas Mathew Nellimoottil, SPC)
The application having been heard on 23.01.2023, the Tribunal on
06.02.2023 delivered the following:
2 O.A No. 180/927/2016
O R D E R :-
Per: Justice Sunil Thomas, Judicial Member The applicant was appointed under the respondents in the year 1984 as a Net Maker. Initially, he had married one Rukmani and they lived together as husband and wife. According to the applicant, the marriage was dissolved on 10.06.1991. He married one Renuka on 10.11.1991 as per religious rites at a temple. The marriage was later registered in 2014, under the Registration No. 91/2014 as per the Kerala Registration of Marriage (Common) Rules, 2008. Two children were born in that marriage. The applicant contends that he had contracted the second marriage on a bonafide belief that the marriage with Rukmani stood dissolved on 10.06.1991. While so, he submitted an application to include the name of the present wife as his wife so as to enable her to get the family pension as per the law. It seems that purusant thereto Annexure A-4 memo was issued to him informing him that contracting second marriage, during the subsistence of the first marriage amounts to misconduct and attract Rule 21(2) of CCS (Conduct) Rules. He was directed to explain thereafter. It seems that he gave an explanation. While so, the applicant retired.
2. The applicant has approached this Tribunal seeking the following reliefs:-
3 O.A No. 180/927/2016
(1) Declare that the non-fesance on the part of the respondents to include the name of the applicant's wife, Mrs. Renuka K.A and the names of the applicant's two children born on in the relationship with Mrs. Renuka K.A into the records and family composition maintained by the respondents is arbitrary, discriminatory, contrary to law and unconstitutional and direct the respondents accordingly;
(2) Direct the respondents to include the names of the applicant's wife, Mrs. Renuka K.A and his two children born in the relationship with Mrs. Renuka into the records and the family composition of the applicant maintained by the respondents and direct further to grant the consequential benefits arising therefrom."
3. To contend that Renuka is his legally wedded wife and that two children were born out of that relationship, the applicant relied on Annexure A-2 certificate of marriage dated 25.11.2014, issued by the Secretary/Legal Registrar of Marriages (Common) of Edavanakkad Panchayath. It refers to the date of marriage as 10.11.1991 and the place of marriage is shown as a Temple. It also emerges from the record that by Annexure A-1 order of the Family Court, Ernakulam, the marriage relationship with Rukmani, first wife was dissolved under Section 13(1) (ib) of the Hindu Marriage Act, 1995, by order dated 13.08.2010.
4. The respondents in their reply statement specifically stated that even though the first marriage was dissolved by Court of Law, his act of contracting second marriage during the subsistence of the first marriage amounted to misconduct and was in violation of Rule 21(2) of Central Civil Services (Conduct) Rules, 1964. He was issued with a communication, but he did not furnish any legally valid document 4 O.A No. 180/927/2016 to show that his second wife was the legally wedded wife and his children were his legal heirs.
5. The learned SCGSC vehemently opposed the prayers sought in the O.A and contended that the reliefs as sought cannot be granted, on the ground that it goes to the very root of the very validity of the marriage itself.
6. Certain facts are not in dispute. It is an admitted fact that the applicant married Ms. Rukmani on 02.02.1983. She was shown as the legally wedded wife in the service book of the applicant. He admittedly married Renuka as evidenced by Annexure A-2 on 10.11.1991. The matrimonial relationship with Rukmani was dissolved only thereafter by Annexure A-1 dated 13.08.2010. If a Government Servant contracts a second marriage during the subsistence of a legal marriage, that can be a ground for disciplinary action as rightly contended by the learned counsel for the respondents.
7. The above facts clearly show that even before the dissolution of the marriage with Rukmani, the applicant had entered into matrimonial relationship with Renuka. It was much after the above second marriage that the first marriage with Rukmani was brought to 5 O.A No. 180/927/2016 an end by due process of law. Evidently, the second marriage was contracted in breach of Section 13(1)(b) of the Hindu Marriage Act, 1955, in so far as the husband had a spouse living at the time of second marriage. As indicated earlier, he may be liable for proceeding under the relevant Conduct Rules. However, the crucial question that arises in this O.A is whether the request made by the applicant himself to incorporate Renuka as his legally wedded wife, could be granted. By Annexure A-3, the applicant was informed that his request for including Renuka as his second wife could not be acceded to, being in violation of the Conduct Rules.
8. The learned counsel for the applicant Ms. Renuka M.R contended that the matrimonial relationship with Renuka was valid. To supplement it, she relied on the decision of the Hon'ble Supreme Court in K. Edathil Krishnan and Another v. K. Edathil Valsan and Others 2022 (4) KHC 236, wherein it was held that long course of living together by a male and female will raise a presumption of marriage between them and the children born in such relationship are considered to be legitimate children. The learned counsel for the applicant pointed out that the applicant lived with Renuka together for a long period of time and the earlier wife had abandoned him. However, this decision has no relevance to the facts of the case. That relates to a case where the marriage took about 50 years back and 6 O.A No. 180/927/2016 there was no material on record to establish marriage. In that context, Hon'ble Supreme Court held that long cohabitation can be taken as an indication of the subsistence of marriage. Here, the question is totally different.
9. On the other hand, to contend that the applicant was not entitled to get the name of Renuka included in the service register as his wife, Advocate Ms. Gopika Nath, on instruction of learned SCGSC, referred to a catena of decisions. In Jairaji Devi v. State of U.P through Principal Secretary (Service Single No. 26614/2016) the Lucknow Bench of Allahabad High Court had held that if the first wife of the petitioner was living, the second marriage contracted during the subsistence of first marriage was void. It was held that the wife who had entered into the second marriage was not entitled for the benefit. However, it was also held that at the best, the children from the second wife would have right to get benefit in the retiral dues of the deceased. This view was reiterated in Smt. Shanta Sadani v. General Manager, South Western Railway by the Dharwad Bench of the Karnataka High Court in W.P. No. 111260/2017. In that case, it was held that in case there are two widows living, the family pension shall be paid to the widows in equal shares. That decision was justified in the context of Amendment Note 2 of Rule 75 of the Railway Services (Pension) 7 O.A No. 180/927/2016 Rules, 1993, by which it was specified that where the family pension was payable to two or more widows than one, the family pension shall be paid to the widows in equal shares. In the absence of such a provision, the second wife was not entitled for any relief.
10. In Union of India v. Lakshmi Suri, the Andhra High Court in W.P (C) No. 1020/2016 had occasion to consider an identical issue. It was held that the second marriage of the respondent with the Government servant, was void. Accordingly, she was not entitled to pensionary benefits. In R. Rajathi v. The Superintending Engineer W.A. No. 977/2017, a Division Bench of Madras High Court held that the view that the second wife would be entitled to family pension, irrespective of her marriage being void, under the provisions of the relevant Personal Law's applicable to the parties do not reflect the correct position of law and therefore will stand overruled. In Pappammal (Died) v Rani (Died)& Others in S.A. No. 168/1996, the learned Single Judge of Madras High Court followed the above Division Bench decision. However, in Malarkodi @Malar v. The Chief Internal Audit Officer in W.P. No. 5706/2021, a learned Single Judge of the Madras High Court noted that the Division Bench in R. Rajathi v. The Superintending Engineer (supra) had held that if the second marriage was void, wife was not entitled for any benefit. However, it was held that the above Division Bench decision though 8 O.A No. 180/927/2016 binding on the Single Bench, the decision to the extent it had not referred to the Domestic Violence Act, needed a reconsideration and referred the matter to a Division Bench. Later, a Division Bench of Madras High Court in Vijayalakshmi v. The Principal Accountant General W.A. (MD) No. 152/2022 disapproved the above view of Learned Single Judge and chose to follow the Division Bench decision in R. Rajathi's case, observing, judicial discipline.
11. However, the law as is laid down and referred above clearly shows that the wife whose marriage was contracted with the Government servant during the subsistence of previous marriage was not entitled to any benefit. Hence, the request of the applicant to treat Renuka as the legally wedded wife was correctly declined by Annexure A-3.
12. The learned counsel for the applicant invited our attention to Rule 54 of CCS (Pension) Rules, regarding regulation of amounts of pension and Note 19 under it, to contend that however, the children from a void or voidable marriage was entitled for family pension. In the note, it was indicated that by O.M dated 02.12.1996 No. 1/16/96- P&PWE it was clarified that pensionary benefits will be granted to children of a deceased Government servant/pensioner from void or voidable marriages when their turn comes in accordance with Rule 9 O.A No. 180/927/2016 54(8) of CCS (Pension) Rules. Accordingly, the son upto the prescribed age and unmarried daughter till her marriage are entitled for pension as per Rules. If that be so, the above Annexure A-3 order will not stand in the way of the applicant making appropriate request for incorporating the names of the children born in the second marriage for the purpose of family pension, if they are legally entitled to. To that extent, the latter part of both the reliefs are liable to be granted. If any such request is made within 30 days from the date of receipt of a copy of this order, the respondents shall make necessary entries in the register regarding entitlement of the children as per Rules. The O.A is allowed in part, to that extent. No costs.
(Dated, 6th February, 2023.)
K.V. EAPEN JUSTICE SUNIL THOMAS
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
ax
10 O.A No. 180/927/2016
List of Annexures
Annexure A1- A true copy of the judgment in OP No.299/2010 dated 13 th day of August 2010, rendered by the Hon'ble Family Court, Ernakulam. Annexure A2- A true copy of Marriage Registration Certificate No. 4644/2014 dated 25.11.2014, issued by the Secretary and Local Registrar of Marriages (Common), Edavanakkad.
Annexure A3- A true copy of Memo bearing No. PF 450/Adm dated 11.03.2014, issued from the office of the 3rd respondent.
Annexure A4- A true copy of Memo bearing No. PF 450/Adm dated 28.04.2015, issued by the 3rd respondent.
Annexure A5- A true copy of Memo bearing No. PF 450/Adm dated 16.10.2015. Annexure A6- A true copy of letter dated 10.12.2015, a true copy of which is addressed to the 3rd respondent.
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