Central Administrative Tribunal - Gauhati
The Hon Ble Mohd. Haleem Khan vs The Union Of India on 21 February, 2017
CENTRAL ADMINISTRATIVE TRIBUNAL GUWAHATI BENCH Original Application No. 040/00329/2015. Date of Order: This, the 21st Day of February, 2017. THE HONBLE MOHD. HALEEM KHAN, ADMIINISTRATIVE MEMBER Smti Sippo Khan @ Sippo Malakar Widow of Late Sanjit Malakar Ex SFW/2, N.F.Railway, Lumding R/o Relief Yard Colony, Lumding P.O & P.S Lumding, Dist. Hojai Assam ...............Applicant By Advocate Mrs D. Sinha -Versus- 1. The Union of India Represented by the General Manager, N.F.Railway, Maligaon. Guwahati-781011. 2. The General Manager, N.F.Railway, Maligaon, Guwahati-781011. 3. The General Manager (P) N.F.Railway, Maligaon, Guwahati-781011. 4. The Chief Personnel Officer, N.F.Railway, Maligaon, Guwahati-781011. 5. The Divisional Superintendent (P) N.F.Railway, Lumding Division, Lumding District Hojai, Assam, Pin 782447. 6. Divisional Accounts Officer, N.F.Railway, Lumding Division, Lumding District Hojai, Assam, Pin 782447. 7. The Divisional Railway Manager, N.F.Railway, Lumding Division, Lumding District Hojai, Assam, Pin 782447. 8. The Divisional Railway Manager (P), N.F.Railway, Lumding Division, Lumding District Hojai, Assam, Pin 782447. 9. Sri R.R.P. Sharma, Chief Health Inspector, N.F.Railway, Lumding Division, Lumding District Hojai, Assam, Pin 782447. 10. Mrs P. Roy, DPO-II LMG, Office of the DRM(P) N.F.Railway, Lumding Division, Lumding District Hojai, Assam, Pin 782447. 11. Smt Purnima Malakar, 2nd Widow of Late Sanjit Malakar, C/O CH & MI/Lumding P.O. Lumding, District Hojai, Assam Pin 782447. 12. Smt Manju Malakar, W/o Sri Narayan Chandra Malakar, R/O Forest Tilla, Lumding,, P.O. & P.S. Lumding, District Hojai, Assam, Pin 782447. .........Respondents By Advocate Mr, M.K.Mazumdar, Railway Standing Counsel Mr B. Choudhury, Advocate for Respondent No.11. Date of Hearing : 27.01.2017 Date of Order : 21.02.2017. ORDER
MOHD HALEEM KHAN, MEMBER (A) Smt Sippo Khan @ Sippo Malakar, widow of late Sanjit Malakar who was working as SFW/2 N.F.Railway, Lumding and resident of Relief Yard Colony, Lumding, District Hojai, Assam filed this application under Section 19 of the Administrative Tribunals Act, 1985 against the orders of the respondents dated 11.09.2015.
2. Briefly the applicant claims to be the legally married wife of Sanjit Malakar who expired on 22.05.2015. In support of her marriage the applicant submitted a deed of Marriage Agreement dated 27.11.1997 and the certificate of registration of marriage under Special Marriage Act dated 08.02.2010. The applicant has also submitted the statement of defence witness D.W.1, Sanjit Malakar in M.R.Case No.70/12, a copy of the birth certificate of her daughter and the death certificate of Sanjit Malakar in support of her contention. According to the applicant she approached respondent No.8 i.e. DRM(P), N.F.Railway, Lumding Division for funeral assistance on the death of her husband but no reply was received. Applicant further submitted that she again approached respondent No.8 on 02.06.2015 for grant of service benefits as she is the legally married wife of late Sanjit Malakar. But she did not receive any reply creating financial hardship to her family. The applicant further elaborated that on 25.3.2014 her husband late Sanjit Malakar sent a reminder regarding his application dated 27.04.2012 relating to declaration of family members. In the above documents late Sanjit Malakar showed that his wife is Smt Sippo Malakar and their daughter Champa Malakar was born on 20.1.1999. The two are shown as family members. The applicant further submitted that she has also supplied to the respondents the order passed in MR Case No.53/10. According to the applicant on 01.08.2011 the Chief Law Assistant had given a note favouring the 2nd wife of the applicants husband inspite of the above mentioned letters dated 27.4.2012 and 25.3.2014 of her husband late Sanjit Malakar.
3. The applicant filed a maintenance case bearing MR Case No.53/2010 in the court of Sub Divisional Judicial Magistrate, Hojai, which was adjudicated in her favour on the basis of compromise. The applicant has annexed the copy of the order with this application as Annexure-11. The applicant further submitted that her husband filed an FIR against his 2nd wife on 13.3.2009. According to the applicant the private respondent No.12, namely, Smt Manju Malakar approached the Principal Judge, family Court for her maintenance after eloping with another man namely Sri Chandra Kamal Bhagawati showing a false address, Anusuchit Jati Mahasabha, Uzan Bazar, Guwahati. By order dated 16.12.2013 passed in MR Case No.70/2012 the respondent No.12 was granted maintenance. However, late Sanjit Malakar, not being satisfied with the order of the Court dated 16.12.2013, approached the Addl.District & Sessions Judge, Hojai vide C.R.Case No.13/2014. On being unsuccessful in appeal the husband of the applicant filed a Criminal Petition No.805/2014 on 22.09.2014 before the Honble Gauhati High Court. However, the petitioner namely Sanjit Malakar died on 22.05.2015 before the Honble Court could decide the matter on merits.
4. The case of the applicant is that the maintenance awarded in favour of the applicant in MR Case No.53/2010 was paid to the applicant on 9.3.2011 itself and later they compromised on 17.05.2012. The applicant further submitted that on 03.08.2012 a new quarter was allotted to her husband and she is still residing there. Applicant Smt Sippo Malakar submitted an application on 18.6.2014 before the respondent No.8 praying for insertion of applicants name as the nominee of Late Sanjit Malakar who was working as SEW/2/NF.Rly/LMG. The applicant also filed an RTI application on 08.09.2014. The applicant further submitted that she has also made one representation before the General Manager, that is respondent No.2 on 02.09.2015 seeking service benefits after the death of her husband Sanjit Malakar and also sent a notice through Advocate on respondent No.7 on 07.09.2015. The applicant submitted that Mrs P.Roy, DPO/II/LMG for DRM(P)/LMG passed an order on 11.09.2015 declaring Smt Purnima Malakar as the 1st wife of Late Sanjit Malakar, Ex. SFCA/LMG. The applicant further submitted that on 16.09.2015 she approached DPO II-LMG praying for stopping any payment illegally to the 2nd wife Purnima Malakar. She has also approached the Chief Medical Superintendent. N.R.Railway, Lumding Division not to drive out the applicant from the railway quarter. She has also submitted another application dated 16.09.2015 before the CMS, Lumding Division containing allegations against the Health Inspector. According to the applicant the Railway authority has violated the law and principles of natural justice by not taking into account the Deed of Marriage Agreement, the marriage certificate and birth certificate of daughter. Hence she prayed for justice from the Honble Tribunal. The applicant sought following reliefs :
8.1 The respondent No.8 may kindly be directed to revoke the order dtd. 11.09.2015 passed by Mrs P.Roy DPO/II/LMG, N.F.Rly. Lumding (Annexure-18) forthwith.
8.2 Enquiry may be held as to who preferred the funeral work of Late Sanjit Malakar.
8.3 As the humble applicant is the legally married 1st wife of Late Sanjit Malakar Ex- ASFLA/LMG, she is entitled to give funeral assistance, family pension, GIS, Leave Salary & DCRG and compassionate ground appointment as per pension manual Rules (1997).
8.4 Any of the relief or reliefs as the Honble Tribunal may deem fit and proper. The above reliefs are prayed for in the grounds sated in paragraph 5 above.
5. Notices were issued accordingly.
6. The applicant also filed an additional affidavit and further elaborated that she is the legally married wife of Late Sanjit Malakar and they were married according to Hindu rites on 27.11.97 and on 20.1.1999 she had given birth to her daughter Champa Malakar who was born much earlier to the alleged marriage of respondent No.11 Smt Purnima Malakar with late Sanjit Malakar, which is alleged to have been solemnized on 1.10.1999. According to the applicant respondent No.11 was a domestic helper in the house of the applicants father in law. The applicant further emphasised that she approached the SDJM, Hojai by filing M.R.Case No.53/2010 praying for maintenance under section 125 Cr.P.C and the learned SDJM vide order dated 15.11.2010 directed the respondents to deduct Rs.3000/- per month from the monthly salary of Sanjit Malakar for payment to the applicant as monthly maintenance allowance which was paid in cash and subsequently the case was compromised.
7. The applicant further elaborated that respondent No.11, Smt Purnima Malakar also filed MR Case No.70/12 before the SDJM, Hojai for maintenance. The husband of the applicant late Sanjit Malakar submitted before the Court that respondent No.11 is not his wife. Though the learned Court granted maintenance vide order dated 16.1.13 but there was no declaration to the effect that respondent No.11 is the 1st wife of late Sanjit Malakar as has been stated in letter dated 6.1.2016 (Annexure II) issued by respondent No.3. Along with additional affidavit the applicant has also annexed the deposition dated 19.10.2013 of Late Sanjit Malakar.
8. The railway respondents in their written statement submitted that all the averments made by the applicant be treated as denied unless specifically admitted or corroborated by records. In para 4 of their written statement railway respondents submitted that the Deed of Marriage Agreement dated 27.11.1997 is an agreement on paper of both the parties that they will enter into marriage but marriage cannot be construed to be held at that time. The railway respondents further submitted that the marriage certificate submitted by the applicant Smt Sippo Malakar is dated 08.02.2010. According to the respondents the marriage therefore can be purported to have come in force legally with effect from 08.02.2010 only. The respondents further submitted that in M.R.Case No.70/12 the statement of Late Sanjit Malakar is contradictory since he denied that Smt Purnima Malakar is his wife. In the judgment dated 16.12.2013 of SDJM, Hojai it was decided that Smt Purnima Malakar is his legal wife and therefore Court passed an order of maintenance of Rs.2000/-p.m. The railway respondents further submitted that the birth certificate of Ms Champa Malakar dated 02.02.1999 only reveals that a daughter was born on 21.01.1999 when the applicant was living with Late Sanjit Malakar. The Railway respondents further controverted para 4.3 of the O.A and clarified that Smt Sippo Malakar was intimated vide letter No.PC/S.M dated 11.09.2015 that Smt Purnima Malakar, as per railway decision the first wife of Late Sanjit Malakar is eligible for funeral assistance. The respondents in respect of para 4.4 of the O.A further clarified that to settle the eligibility for providing the pensionary benefits to the dependants of Late Sanjit Malakar, the railway authority constituted a Committee on 22.05.2015 which submitted its report on 14.08.2015 establishing that Smt Purnima Malakar alias Smt PurnaLakshi Malakar is first wife of Late Sanjit Malakar and accordingly eligible for payment of pensionary benefits as per Rule 74 of Pension Manual 1993 based on family declaration and nomination submitted by Late Sanjit Malakar from time to time during his life time i.e. from the year 2001-2007. In the letter dated 11.09.2015, according to railway respondents, the same has been intimated and also that Ms Champa Malakar, the unmarried daughter of the applicant is eligible to get share of settlement dues on production of guardianship certificate since she is minor.
9. The Railway respondents in para 11 further controverted para 4.5 of the O.A by submitting that as per the order passed by SDJM Hojai in M.R.Case No.70/2012 on 17.05.2012 there is no place for confusion regarding who is legally married wife and accordingly Smt Purnima Malakar has rightly been declared by railway authorities as 1st wife of the deceased employee. The SDJM Court order has been upheld by the appellate court on 25.08.2014 in C.R No.13/2014. The railway respondents further submitted that railway has not paid any maintenance to the applicant Smt Sippo Malakar. The railway respondents also emphasised that the order of the SDJM, Hojai dated 17.05.2012 is based on the joint petition No.3158 filed by both the parties, namely Smt Sippo Malakar and Sanjit Malakar that they have reached a compromise stating therein that they are living as husband and wife peacefully and accordingly the joint petition was disposed of. The railway respondents also submitted that in the FIR lodged by Sanjit Malakar during his life time against Smt Purnima Malakar it is mentioned that Smt Purnima Malakar is his wife. The railway respondents also submitted that the contention of the applicant made in para 4.9 of the O.A are contrary to the record under order dated 1310.2010 in MR Case No.53.2010. The railway respondents further submitted that the railway employee Sanjit Malakar expired on 22.05.2015 but he never submitted declaration in the name of Smt Sippo Malakar and since no decree of divorce from Smt Purnima Malakar (1st wife) is available, therefore, insertion of another womans name as the wife of the deceased employee is not permissible under the railway rules. The railway respondents submitted that the letter dated 11.09.2015 was communicated by Mrs P.Roy, DPO/LMG to the applicant on behalf of the railway administration. The railway respondents in para 22 submitted that the matter for payment of final settlement dues of Late Sanjit Malakar has already been verified and decided by the railway administration. In response to para 4.16 of the O.A the Railway respondents submitted that the applicant may apply to competent authority through proper channel in prescribed format for permission for retention of Railway quarter and the same will be decided as per rules. On the basis of the judgment of SDJM, Hojai dated 16.12.2013 the marriage of Sanjit Malakar with Smt Purnima Malakar was held on 01.10.1999 and the marriage certificate submitted by Smt Sippo Malakar was issued by Marriage Officer, Nagaon on 08.02.2010. They might be living together as husband and wife from prior date but marriage was registered on 08.02.2010 i.e. the legal status of marriage of Smt Sippo Malakar with Sanjit Malakar came into force from 08.02.2010, therefore Smt Sippo Malakar is not the first wife but she is the second wife. The railway respondents submitted that as per Pension Manual Rule 74 the pensionary benefits is to be provided to the first wife Purnima Malakar and unmarried daughter of Smt Sippo Malakar namely Ms Champa Malakar since second marriage is void yet her daughter is eligible to get the share in pensionary benefits.
10. The respondent No.10 Mrs P.Roy, DPO/II/LMG has filed a separate written statement as she has been personally implicated and certain personal allegations have been made against her in para 4.18 of the O.A. Against the allegation respondent No.10 submitted that she had acted only in official capacity as per the decision and direction of the superior authority and not in individual capacity and therefore denies the allegations. She also prayed that written statement filed by the respondents 1 to 8 may be treated as part of her submission. The allegations of fanaticism made in the O.A accoding to Mrs Roy is baseless and misconceived.
11. The respondent No.9 Shri R.R.P.Sharma, who has also been arrayed as respondent by name also filed a written statement separately and submitted that his action was as per the decision and direction of the superior officers and he has acted only in official capacity. The allegation made against him in para 4.16(iii) of the O.A i.e. the complaint made against the Health Inspector is baseless and misconceived.
12. Smt Purnima Malakar, respondent No.11 has filed a written statement separately and submitted that all the statements made by the applicant in the O.A be treated as denied except those acceded to by this respondent in the written statement. The respondent No.11 clarified that an arranged marriage took place between herself and late Sanjit Malakar on 01.10.1999 as per Hindu rites and customs including performing Saptapadi ceremony at Lumding. Out of the wedlock with Late Sanjit Malakar one girl child Preety Malakar was born on 11.6.2001 and a second male child namely Rohit Malakar was born on 03.08.2004. Lastly Sri Angat Malakar was born on 1.12.2005. The discharge certificate (Annexure-1 to the W.S by respondent No.11) issued by Divisional Hospital, N.F.Railway, Lumding would, therefore, show that both respondent No.11 and late Sanjit Malakar were husband and wife. According to respondent No.11 after few years of marriage there was problem in the married life and she was subjected to various forms of cruelty and mental agony. During this period she came to know about the affair of late Sanjit Malakar with the applicant as late Sanjit Malakar stopped to look after her and the children. Finding no alternative she filed the M.R.Case No.70/12. Vide judgment dated 16.12.13 the SDJM Hojai after hearing all concerned parties came to the conclusion that respondent No.11 is the legally married wife of Late Sanjit Malakar and passed an order for payment of monthly maintenance of Rs.2000/- to her and Rs.1000/- to each of the three minor children. Later on the said order was upheld by the Addl. District & Sessions Judge, Hojai on 25.08.2014 and the Criminal Petition filed before the Honble High Court was closed on the death of Sanjit Malakar. The respondent No.11 further contended that Deed of Marriage Agreement executed on 27.11.1997 and the Certificate of Marriage issued under Special Marriage Act by the Marriage Officer, Nagaon on 08.02.2010 does not demonstrate that there was a valid legal marriage under any custom or religion or law. According to the respondent No.11, on perusal of the above marriage agreement it is clear that there was only intention of marriage in the year 1997 between the parties and they were merely living together thereafter as husband and wife upto 08.02.2010. The marriage certificate does not confer the status of husband and wife in the eye of law from an earlier date. The marriage with the applicant cannot be considered as a legal one, as Late Sanjit Malakar was already married to the respondent No.11 on 1.10.1999 as per Hindu custom and rites. It was in violation of Rule 21 of the Railway Services (Conduct) Rules 1966, which states that a railway servant having a spouse living cannot enter into a marriage, without permission under the conditions specified therein. The respondent No.11 further contended that denial made by Late Sanjit Malakar in his deposition in M.R.Case No.70/12 before SDJM that respondent No.11 was not his legally married wife contradicts the evidence adduced in the said case. SDJM accordingly concluded that respondent No.118 is the legally married wife of Late Sanjit Malakar and passed order for payment of monthly maintenance of Rs.2000/- and Rs.1000/- respectively to the respondent No.11 and each of the three minor children. The respondent further highlighted that by letter dated 11.09.2015 the respondent No.8 has agreed to her application made on 17.07.2015 claiming herself as wife for disbursement of the final settlement dues of Late Sanjit Malakar. The respondent No.11 further submitted that the unmarried daughter Ms Champa Malakar is eligible to get her share of settlement dues on production of guardianship certificate from the competent court of law. With regard to submission made in para 4.6, 4.9 and 4.12 of the O.A the respondent submitted that the maintenance case MR No.53/2010 filed by the applicant was disposed of on 17.05.2012 on compromise basis and hence the same has no significance in view of the compromise arrived between the applicant and Late Sanjit Malakar. In para 12 of her written statement, the respondent No.11 submitted that from the office note (Annexure-9A to the O.A) it appears that late Sanjit Malakar had declared her as his legally married wife in the family declaration submitted before the railway authorities. The respondent No.11 in response to para 4.8 of the O.A accepted that when her husband Sanjit Malakar subjected her to torture, she went back to her parental home along with her children. By taking advantage of this event Late Sanjit Malakar lodged an FIR. According to respondents she came back to matrimonial home after advice of the elders and the police did not proceeded further with the FIR. The respondent No.11 denied in para 14 that she had eloped with a person. The respondent No.11 highlighted that she being declared as legally married wife is eligible for getting family pension. The 2nd marriage of the applicant which took place in 2010 cannot be considered as legal marriage as per Rule 5 of the Hindu Marriage Act, 1955. The respondent No.11 also relied upon the judgment in Rameswari Devi vs State of Bihar, 2002(2) SCC 431, wherein it was held that when there are two claimants of a deceased employee for pensionary benefits, the Government wherever required can hold an inquiry instead of waiting for decision of a civil court, but the enquiry should not be sham. In the instant case the railway authorities rightly conducted an enquiry which cannot be discarded easily, more so when Late Sanjit Malakar has as per pension rules nominated the respondent No.11 and their children as his family. The right to family pension that accrued to the respondent No.11 under the statutory provisions, cannot be taken away by another nomination.
13. The applicant filed a rejoinder controverting the submissions made by the respondents and categorically submitted that Annexure-1 to the O.A is not a Deed of Agreement for Marriage but an execution deed made by the deceased husband of the applicant on 27.11.1997 by which the applicant had been accepted by late Sanjit Malakar as his lawful wife and marriage ceremony was duly performed on 27.11.1997. The above fact has been certified by the Marriage Officer, Nagaon who issued Marriage Certificate on 08.02.2010. The aforesaid fact was duly admitted by Sanjit Malakar in his deposition dated 19.10.2013 made before the SDJM in connection with M.R.Case No.70/12. Marriage between the applicant and Sanjit Malakar on 27.11.1997 became legally justiciable with effect from 8.2.2010 under the Special Marriage Act. In terms of Section 16 read with Section 18 of the Special Marriage Act, 1954, any marriage solemnised between the parties concerned in any manner whatsoever on an earlier occasion shall be deemed to be solemnised under the said Act from the date on which the certificate of marriage has been finally entered in the Marriage Certificate Book maintained by such authorities. The applicant therefore contented that she is the legally married wife of the Late Sanjit Malakar.
14. Vide order dated 15.11.2010 passed in M.R.Case No.53/2010 by the SDJM, Hojai the DRM Lumding it was directed to deduct Rs.3000/- from the monthly salary of Sanjit Malakar for payment to the applicant as monthly allowance from the month of November 2010. Hence the applicant is the legally married wife of Late Sanjit Malakar and she is entitled to family pension. There is no substance in the contention of the respondents that Smt Purnima Malakar is the legally married wife of Late Sanjit Malakar and as such the order dated 11.9.2015 holding that being the second wife , the applicant is not entitled to any relief and Smt Purnima Malakar is the first wife of Late Sanjit Malakar and thus is eligible for the benefits as per law, cannot be said to be legal and valid and, therefore, the same is liable to be set aside. According to the applicant it appears that there was a second marriage between Late Sanjit Malakar and Smt Purnima Malakar on 1.10.1999 during the subsistence of his earlier marriage with the applicant, which was duly solemnised on 27.11.1997 and was not dissolved by divorce at any time. Thus the second marriage with respondent No.11 said to have been solemnised on 1.10.1999 is not valid as per Section 5 of the Hindu Marriage Act, 1955 and the same is also in violation of the provisions of Rule 19 of the Railway Services Conduct Rules 1966.
15. The railway respondents also filed a reply to the rejoinder reiterating their stand taken in the written statement. It has been again contended in the reply that the deed of agreement between the applicant and Late Sanjit Malakar was made on 27.11.1997 is mere an agreement in between them but it has no legal status. However, their marriage was registered by the Marriage Officer on 08.02.2010 and thus the marriage legally came into force with effect from 08.02.2010. Furthermore, the marriage of Purnima Malakar with Sanjit Malakar was held on 01.10.1999 and therefore the order was passed by SDJM pm 16.12.2013 to provide the maintenance of Rs.2000/- to Purnima Malakar and Rs.1000/- each to her three minor children. The marriage with Sippo Malakar was held legal from 08.02.2010 and thereby she became the 2nd wife. Due to absence of any family declaration made by Late Sanjit Malakar Smt Sippo Malakar has not been granted any funeral allowance.
16. In the order of SDJM Hojai in MR Case No.70/12 the learned Magistrate has referred to the decisions of the Honble Apex Court in Chanmuniya Vs. Virendra Kumar Singh Kushwaha, (2011) 1 SCC 141 and in Dwarika Prasad Satpathy vs. Bidyut Prava Dixit, (1991) 7 SCC 675. While in the first case it is observed that a broad interpretation should be given to the term wife appearing in Section 125 Cr.P.C to include even those cases where a man and woman have been living together as husband and wife for a reasonable long period of time and strict proof of marriage should not be a precondition for maintenance. However, the question whether a marriage performed according to the customary rites and ceremonies without strictly fulfilling the requisites of section 7(1) of the Hindu Marriage Act, 1955 or any other personal law would entitle the woman to maintenance under section 125 Cr. P.C has been left to be decied by a larger Bench of the Honble Apex Court. In the other case of Dwarika Prasad(supra) the Honble Supreme Court has observed that if the Magistrate is prima facie satisfied with regard to the performance of marriage, in proceedings under section 125 Cr.P.C which are of a summary nature, strict proof of performance of essential rites is not required. It has been observed further that either of the parties aggrieved by the order of maintenance under Section 125 Cr.P.C can approach the Civil Court for declaration of status as the order passed under section 125 does not finally determine the rights and obligations of the parties. The matter was finally closed by the Honble Gauhati High Court vide order dated 2.3.2015 in Crl.Petition No.805/2014 on the death of Sanjit Malakar on 22.5.2015. Thus it cannot be said that the respondent No.11 is not the legally married wife of Late Sanjit Malakar as claimed by the applicant in the absence of a declaration to this effect by the competent court of law. As the maintenance was granted to the applicant by SDJM it is clear that Late Sanjit Malakar had duly married the applicant and she had become the legally married wife of the applicant. Accordingly the respondent No.11 is entitled to claim the benefits due to the death of Late Sanjit Malakar as per law and the departmental enquiry report of railways.
17. Pleadings completed and the case was heard.
18. Learned counsel for the applicant during the course of argument emphasised that in the marriage certificate dated 08.02.2010 it has been specifically mentioned that the marriage was solemnized on 27.11.1997. Learned counsel for the applicant also highlighted the various observations of the Court of SDJM, Hojai in judgment dated 16.12.2013, particularly in para 41 read with para 42 which clearly shows that the applicant has been taken note of by the Court as 1st wife and therefore any conclusion drawn by the Railway authorities on the basis of the order of grant of maintenance to Purnima Malakar is legally not sustainable and therefore the impugned order dated 11.09.2015 is based on wrong interpretation of the SDJMs Court order. The learned counsel for the applicant highlighted that in the family declaration of 2014 the name of the applicant appears and therefore, the applicants case deserves protection of this Court. Learned counsel also reiterated the various averments made in the application.
19. Learned counsel for the Railway administration justified the action taken by the Railway authorities as according to him they constituted a Committee which perused the decision of the SDJM and the appeal order passed by Addl. District & Sessions Judge and concluded in favour of Purnima Malakar and also the illegitimate daughter of Sippo Malakar and Sanjit Malakar and emphasised that the Railway authority has acted as per law of the Railway Service Conduct Rules 1996.
20. Learned counsel for respondent No.11 Smt Purnima Malakar repeated the arguments variously on the line of submission made in the written statement and also relied heavily on the fact that Railways are supporting her case.
Learned counsel for respondent No.11 was specifically asked what is the age of your client. The learned counsel pointed out that on the date of verification i.e. 28.07.2016, the age has been declared as 31 years. On being asked that if the learned counsel claims that the marriage of his client Purnima Malakar was solemnized on 1999 as per Hindu rites what will be the age of the client on the date of marriage. Whether the applicant was under age at the time of marriage ? Learned counsel submitted that this is as per local practice in the community.
Learned counsel for the applicant on being questioned similarly submitted that the age of his client is 42 years as shown in the verification on 21.09.2015. The learned counsel for respondent No.11 however, emphasised that the deed of agreement cannot be taken as a proof of marriage.
21. In view of the submissions made by the rival parties during arguments and on the basis of pleadings and documents on record following observations are being made.
(i) There is no dispute that late Sanjit Malakar was working as SFW/2 N.F.Railway, Lumding and his death occurred on 22.05.2015 while still in service,
(ii) The applicant has claimed the dues/benefits as the wife of late Sanjit Malakar which according to the Railway authorities she is not entitled to. The same benefits were claimed by Smt Purnima Malakar, respondent No.11 and railway authorities have accordingly decided in favour of her by letter No. PC/S.M dated 11.09.2015 (Annexure-III). Railway authorities submitted that they have taken due precaution while deciding the case by constituting a departmental Enquiry Committee and on the basis of the report of the Committee they have sought the approval of the Addl.Divisional Railway Manager. In view of the above submission it is necessary for the Court to go into the contents of the enquiry report and to adjudicate whether the conclusion reached by enquiry report are legally sound and sustainable.
22. From the perusal of the report it is clear that in the departmental enquiry the claim of both the applicant as well as respondent No.11 were assessed on the basis of the information available before the Committee. The Enquiry Committee has also decided that Smt Purnima Malakar and Smt Purnalakhi Malakar is one and same person. The Enquiry Committee specially took note of the decision of the Court of SDJM, Hojai in MR Case No.70/12 filed by Smt Purnima Malakar for maintenance and concluded that late Sanjit Malakar married respondent No.11 on 01.10.1999 as per Hindu Rites and Customs but subsequently tortured her physically and mentally due to having an illicit relationship with another woman of Muslim community as reflected in the judgment of SDJM dated 16.12.2013.
23. The SDJM court determined, for providing the maintenance following points :
(i) Whether the petitioner (Smt Purnima Malakar) is the legally married wife of the Opposite Party (Sri Sanjit Malakar)?
(ii) Whether the petitioner and the minor children are entitled to monthly maintenance from the OP? The Committee noticed that above point No.1 & 2 have been decided by SDJM Court in affirmative and maintenance of Rs.2000/- has been granted to petitioner Smt Purnima Malakar as his legal wife and Rs.1000/- each to the three children w.e.f. 15.12.2013. The Committee also noticed that Smt Sippo Khan alias Sippo Malakar also claimed herself as legal wife of late Sanjit Malakar by submitting birth certificate of her daughter Champa Malakar and courts order in M.R.Case No.53/10 whereby maintenance of Rs.3000/- was granted to Smt Sippo Malakar by SDJM Hojai on 15.12.2010 but subsequently the said order was dismissed by order of SDJM, Hojai on 17.5.2012 on compromise.
The Committee further noticed that :
From the marriage certificate of Smt Sippo Malakar it reveals that they appeared before the Marriage Officer on 08.02.2010 and declared that a ceremony of marriage had been performed between them on 27.11.1997 and they had been living together as husband and wife since the time of their marriage and that in accordance with their desire to have their marriage registration under Section 16 of Special Marriage Act, 1954, the said marriage was registered by the Marriage Register Officer on dtd. 08.02.2010 (SN/42) that means they got legal status of their marriage w.e.f. 08.02.2010. Findings Sri Sanjit Malakar was appointed in Railway service wef 31.12.1995 as SFLA. While going through the service record it is seen that he submitted his family declaration and nomination during the period 2001 to 2007 in his lifetime. It is pertinent to mention herein that these declaration and nominations were duly forwarded by his office H&MI/LMG. From the Family declaration it is observed that Sri Sanjit Malakar declared Smt Purnima Malakar as his legal wife to whom he legally married on 01.10.1999.
In the year 2014, Sri Sanjit Malakar again submitted his family declaration whereby the name of Sippo Khan alias Sippo Malakar and her daughter Champa Malakar were mentioned but he did not nominate Smt Sippo Khan alias Sippo Malakar by giving notice for cancellation his previous nomination and declaration against Smt Purnima Malakar.
As per Railway Pension Manual (1993), Rule-74, it is prevailed that if at the time of making the nomination-
a. The Rly servant has a family, the nomination shall not be in favour of any person or persons other than the members of the family, or b. The Rly servant has no family, the nomination may be made in favour of a person or persons, or a body of individuals, whether incorporated or not.
c. The Rly servant may at any time, cancel nomination by sending a notice in writing to the authority concerned, provided that he shall along with such notice a fresh nomination made in accordance with its rule.
Under the above mentioned rule, the staff concerned submitted his nomination for his family members from 2001 to 2007 i.e. in favour of Smt Purnima Malakar (Wife), Smt Preety Malakar (U/M/Daughter), Sri Rohit Malakar and Sri Angat Malakar (two Sons).
From Judgment of Honble SDJM/Hojai/Sankardev Nagar dtd. 16.12.2015, it reveals that Sri Sanjit Malakar legally married Smt Purnima Malakar on 01.10.1999 and from the Marriage Certificate (as submitted by Smt Sippo Khan), it is noted that the marriage of Sanjit Malakar with Smt Sippo Kan @ Smt Sippo Malakar was held on 27.11.1997 and they were living together as husband and wife but legally registered on 08.02.2010. It implies that the marriage of Smt Sippo Khan @ Sippo Malakar is valid from 08.02.2010 and gets status of marriage from 08.02.2010 i.e. after marriage of Smt Purnima Malakar on 01.10.1999.
In the said judgment Order of Honble Court dtd. 16.12.2013, it is mentioned in Para 41 that the OPs (Sri Sanjit Malakar) evidence reveals that he has to maintain his first wife (Smt Sippo Khan @ Sippo Malakar) and his daughter as well as the petitioner (Smt Purnima Malakar) and his three children. But the case has been decided in the affirmative i.e. in favour of Smt Purnima Malakar and against the O.P (Sri Sanjit Malakar) and it was directed to provide maintenance to Smt Purnima Malakar (the petitioner). In view of the foregoing facts in details based on service records, we are in the opinion the Sri Sanjit Malakar had considered that Smt Purnima Malakar is his legal wife as per Pension Manual Rules (1993) and all the incidents & documents/the Court Maintenance order dtd. 16.12.2013 goes in favour of Smt Purnima Malakar as his legal wife since she legally married w.e.f. 01.10.1999 with Sri Sanjit Malakar and from the Marriage Certificate of Smt Sippo Khan alias Sippo Malakar, the marriage status legally come into force w.e.f. 08.02.2010 and therefore, it is established that Smt Purnima Malakar is his first wife and Smt Sippo Malakar is the second wife though the second marriage is void since the prior permission for second marriage was not obtained by Sri Sanjit Malakar according to Service Conduct Rule and as per Pension manual in his life time.
24. In view of the above findings of the Railway departmental Committee this Court is not in agreement. From the judgment of SDJM Hojai it is clear that reveals that the marriage of Sanjit Malakar with Smt Sippo Khan @ Smt Sippo Malakar was held on 27.11.1997 and they were living together as husband and wife and their daughter was born on 20.01.1999. The Enquiry Committee has committed an error in ignoring the marriage certificate dated 08.02.2010 in which the date of marriage has clearly been enunciated as 27.11.1007.
25. The marriage certificate annexed by the applicant with O.A has been issued under Section 16 of Special Marriage Act, 1954. I find force in the contention of the learned counsel for the applicant that railway authorities have confused the provisions relating to certificate of marriage under Section 13 which is issued at the time of solemnizing the marriage. The marriage certificate under Section 16 is only issued to the married couple as a legal document of their marriage and since the competent authority has clearly laid down that marriage was solemnized on 27.11.1997, the railway authorities had no opportunity to ignore the date of marriage and declaring the marriage of the applicant as void. In support of his submission, learned counsel for the applicant invited my attention to the deed of marriage agreement dated 27.11.1997 (Annexure-1), which is reproduced herein below :
A DEED OF MARRIAGE AGREEMENT THIS DEED OF MARRIAGE AGREEMENT made on this 27th day of November, 1997 between Shri Sanjit Malakar aged 26 years, son of Sri Narayan Malakar, resident of Lumding P.O. & P.S Lumding, in the district of Nagaon, Assam, hereinafter called the First Party.
AND Smti. Sippo Malakar, aged 24 years, daughter of Late Swadhin Malakar, resident of Lumding, P.O. & P.S. Lumding in the district of Nagaon, Assam hereinafter called the Second party.
AND AT PRESENT BOTH OF THEM RESIDING AT DIPHU TOWN AND AT BIRALA AS A LABOUR.
WHEREAS both the parties are unmarried and known to each other since long and a love has been create between them and they are now intending to merry each other.
NOW BOTH THE PARTIES ENTERED INTO AGREEMENT AS FOLLOWS :
1. That the parties referred above to are major and are illigiable to enter into a marriage deed,
2. That the 1st party has accepted the 2nd party as his lawful wife while the 2nd party also accepted the 1st party as her busband.
3. That both the parties shall live together as spouse from today henceforth while the 1st party agree to give all kinds of maintenance to the 2nd party.
4. That the 2nd party will get the status of legally married wife of the 1st party.
5. That the children born to them will inherit the property both movable and immovable belonging to the 1st party as legal heirs.
6. That the domestic life of both the parties shall be governed by the customs and usages as prevailing in the Hindu society.
7. That neither parties will have the right to divorce each others without any decision of proper court of law.
In witness whereof both the parties do hereby put their signatures at Diphu Court before the Magistrate 1st Class today on 27th day of November, 1997.
Witness:- Sd/- 1. Sd-/ Signature of the 1st party 2. Sd/- Sd/- Signature of the 2nd party
The executants, who are identified by Sri H.C.Saikh, Advocate, Diphu Court, admitted execution and signed in my presence and authenticated.
Sd/- Illegible Sd/-Illegible Advocate Magistrate Diphu Court Diphu (emphasis supplied)
From the reading of the above marriage agreement it comes out clearly that Sanjit Malakar and Sippo Malakar started living together as spouse from the date of the deed of marriage agreement and also that on the date of agreement both were major. The contention of the respondents especially, respondent No.11 that the deed of agreement was only to agree for marriage and cannot be taken as any evidence of marriage is not legally tenable in view of the text of the agreement and also the fact that it has been signed by both the Advocate and the Magistrate on 27.11.1997 and the same date has been specifically mentioned in the marriage certificate. From the reading of the agreement deed it is clear that on the date of marriage Late Sanjit Malakar was 26 years old and Smt Sippo Khan was 24 years old. From the written statement filed by respondent No.11 an annexure has been included in which the name of the wife has been shown as Purnalakhi Malakar and the date of birth has been shown as 09.08.1985. If the contention of the respondent No.11 is taken on the face value that she married late Sanjit Malakar on 01.10.1999 then keeping in view the date of birth the age of the respondent No.11 Purnima Malakar comes out as than 14 years 1 month and 22 days. In view of this undisputed fact on what basis the railway authority reached the conclusion that Purnima Malakar was legally married wife is not clear to this Court especially if there is no documentary support of her marriage. It is also a fact that SDJM Hojai in para 19 of his order dated 16.12.2013 has clearly noted that :
.........contrarily, D.W 1 Sanjit Malakar deposed that or the last 10-12 years the petitioner used to do houseold chores at his fathers house while he (D.W.1) stayed at his railway quarter with his wife Shipu Malakar and daughter. D.W.1 deposed that he married Shipu Malakar in Diphu Court in 1997 and later, registered the marriage at Nagaon. D.W. 1 identified the marriage agreement as Exhibit A1, A2 and the registered marriage certificate as Exhibit A3. D.W 1 deposed that Purnima Malakar is not his wife but his father forcefully brought her to hi (D.W.1). Put to cross examination. D.W1 denied the suggestion that there is not mention of Shipu Malakar in his written statement. D.W.1 admitted that in the voter list, there is a mention of Purnima as his wife under his name. D.W.1 stated that he had filed a theft case G.r.373/09 against Purnimas mother and brother, D.W.1 denied the suggestion that he has not stated in evidence of G.R.373/09 that Purnima is his wife. That Late Sanjit Malakar has identified the marriage agreement and the marriage certificate before the Court. It is also noted by the Court that late Sanjit Malakar has denied the marriage with Purnima Malakar. In this regard para 33 and 34 of the SDJMs order is reproduced herein below :
33 As far as the submission of learned counsel for the O.P is concerned as regards to fact that there was no valid marriage between petitioner and O.P as there was no ritual followed by the parties at the time of marriage as per Hindu Law, the law is no longer res integra in view of a decision of Honble Supreme Court as reported (1999) 7 SCC 675 Dwarika Prasad Satpathy vs. Bidyut Prava Dixit & Another wherein it ha sbeen held at para no. 13 that-
13. Hence, in our view from the evidence which is led if the Magistrate is prima facie satisfied with regard to the performance of marriage in proceedings under Section 125 Cr.P.C which are of summary nature, strict proof of performance of essential rites is not required. Either of the parties aggrieved by the order of maintenance under Section 125 Cr.P.C can approach the civil Court for declaration of status as the order passed under Section 125 does not finally determine the rights and obligations of the parties.
34. For all the foregoing discussion, it is highly probable that there was marriage between Purnima Malakar and Sanjit Malakar, though it was, may be, during the subsistence of the first marriage of Sanjit Malakar. Prima facie, it appears from the evidence on record that the petitioner and the O.P, after their marriage, lived as husband and wife out of which wedlock, three children were born to them. (emphasis supplied) From the reading of the above it can be safely concluded that even the SDJM Court decided the maintenance in favour of Purnima Malakar after assuming that Purnima Malakar married Sanjit Malakar during the subsistence of marriage. Para 41 of the SDJM Court judgment is extracted below :
41. The O.Ps evidence reveals that he has to maintain his (first) wife and his daughter. Thus it is to be understood that out of the monthly salary of the O.P, he has to maintain himself his (first) wife, daughter as well the petitioner and his three children. In ordinary course, the parents are also legally entitled to get maintenance; and the wives (and the minor children) are also equally entitled to a share of the income of their husband as maintenance. But since the O.P stays with his (first) wife, thus, it is apparent that the O.P and his (first) wife reside together in the same mess. Needless to add, as Purnima Malakar (petitioner) and the three minor children lives with the petitioner, she and the said three children ought to be given a bit higher share towards their maintenance. (emphasis supplied)
26. After taking into consideration of the case of applicant and her daughter it has to be noted that late Sanjit Malakar had suppressed the facts regarding his earlier marriage with the applicant and their daughter Champa Malakar from the railway authorities during the relevant time.
From the maintenance case filed by the present applicant before the SDJM Hojai bearing No.MR 53/10 it is evident that the said case was disposed of on 17.05.2012 on compromise basis whereby they declared that applicant and Sanjit Malakar are living as husband and wife peacefully. It emerges as a fact that Sanjit Malakar married Sippo Malakar prior to the marriage with Purnima Malakar and their daughter Champa Malakar was born on 20.01.1999 i.e. before the marriage with Purnima Malakar.
From the above records it is clear that railway authorities have committed an error in declaring Purnima Malakar as 1st wife as it is against the observation made in para No.34 by SDJM Hojai in the order of maintenance dated 16.12.2013 to Smt Purnima Malakar. The legality of claim of marriage with Purnima Malakar has been taken on the face value because on the self declared date of marriage she was only 14 years 1 month and 22 days old. The agreement dated 27.11.1997, marriage certificate dated 08.02.2010 and the birth certificate of Champa Malakar dated 13.09.2013 are sufficient to come to the conclusion that Smt Sippo Malakar is the first wife of late Sanjit Malakar. Accordingly all the pensionary dues and consequential benefits shall be paid to the applicant. To that extent O.A is allowed.
27. Since in the FIR dated 13.03.2009 late Sanjit Malakar has referred to Purnima Malakar as his wife who has eloped with some person (namely Chandrakamal Bhagawati) it cannot be doubted that after the birth of their daughter Ms Champa Malakar late Sanjit Malakar started conjugal life with another woman Purnima Malakar as a consequence 3 children were born. These children even if illegitimate will have their share from the dues payable to the dependants of the deceased under the relevant rules till they are major and in case of daughters till their marriage. The railway authority will give their share to the guardian as declared by the due process of law. Railway authorities order dated 11.09.2015, whereby they have declared Smt Purnima Malakar as first wife is set aside and quashed.
28. Railway respondents are further directed to make payment to the applicant of all dues due to the dependant of the deceased employee late Sanjit Malakar at the earliest but not later than 3 months from the date of receipt of this order. In case of delay beyond this 3 months as provided here, the Railway Respondents will be bound to pay interest at the rate of 9% per annum for the period of delay.
O.A is allowed to the extent indicated. There shall be no order as to costs.
( MOHD HALEEM KHAN ) ADMINISTRATIVE MEMBER pg