Karnataka High Court
Smt.Davalbi W/O.Davalsab Kalenavar vs Smt.Shamshad Begum W/O. Davalsab ... on 22 September, 2020
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 22ND DAY OF SEPTEMBER 2020
BEFORE
THE HON'BLE MR. JUSTICE M.NAGAPRASANNA
RSA No.100321/2020 (DEC)
BETWEEN:
SMT.DAVALBI W/O.DAVALSAB KALENAVAR
AGE : 55 YEARS, OCC : HOUSEHOLD
R/O : PATIL CHAWL, KESHWAPUR, HUBBALLI-580023
.. APPELLANT
(BY SRI.V.M.SHEELVANT, ADV.)
AND:
1. SMT.SHAMSHAD BEGUM W/O. DAVALSAB KALENAVAR
AGE : 58 YEARS, OCC : HOUSEHOLD
R/O : HOUSE OF RASOOLSAB NAVALUR,
FIRST BUS STOP CROSS, ANAND NAGAR ROAD,
OLD HUBLI, HUBBALLI-580024
2. THE UNION OF INDIA
REP.BY ITS GENERAL MANAGER,
SOUTH WESTERN RAILWAYS,
KESHWAPUR, HUBBALLI-580023
3. THE DIVISIONAL RAILWAY PERSONAL OFFICER
SOUTH WESTERN RAILWAYS,
D.R.M.OFFICE, KESHWAPUR, HUBBALLI-580023
4. THE SENIOR DIVISIONAL PERSONAL OFFICER
SOUTH WESTERN RAILWAYS,
D.R.M.OFFICE, KESHWAPUR, HUBBALLI-580023
.. RESPONDENTS
THIS APPEAL IS FILED UNDER U/SEC.100 READ WITH ORDER
41 RULE 1 OF CPC, AGAINST THE JUDGMENT & DECREE
DTD:23.01.2020 PASSED IN R.A.NO.124/2018 ON THE FILE OF THE
2
PRINCIPAL SENIOR CIVIL JUDGE, HUBBALLI, DISMISSING THE
APPEAL AND CONFIRMING THE JUDGMENT AND DECREE
DTD:29.09.2018, PASSED IN O.S. NO.30/2014 ON THE FILE OF THE I
ADDITIONAL CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS,
HUBBALLI, PARTLY DECREEING THE SUIT FILED FOR DECLARATION
AND PERMANENT INJUNCTION.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
Defendant No.1 is in appeal against the concurrent finding of both the Courts below in O.S.No.30/2014 dated 29.09.2018 on the file of the I Additional Civil Judge & JMFC, Hubballi and in R.A.No.124/2018 dated 23.01.2020 on the file of the Principal Senior Civil Judge, Hubballi, whereby the Courts have concurrently held that both the plaintiff and defendant No.1 are entitled to equal share of pensionary and other service benefits of the deceased husband.
2. Parties will be referred to as per their ranking before the trial Court.
3. Brief facts leading to the filing of the appeal are that, the plaintiff who was the legally wedded wife of the 3 deceased railway employee by name Davalsab S/o Mehaboobsab Kalenavar filed a suit for declaration and permanent injunction contending that she was entitled to half of the pensionary and other service benefits of the deceased railway employee. Defendant No.1 is the second wife of Davalsab and from their wedlock, they have two sons and from the wedlock with the first wife, they have one daughter.
4. The marriage between the plaintiff and deceased employee took place on 29.12.1972, it transpires that she lived with him for some years and due to disputes in the family, the deceased neglected the plaintiff and did not maintain her and the daughter. The plaintiff was constrained to file a petition for maintenance against the deceased employee in Crl.Misc.No.49/1991 before the III JMFC Court, Hubballi wherein the Court had directed the deceased employee to pay maintenance to the plaintiff and her minor daughter.
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5. On the retirement of the deceased employee, he failed to pay the maintenance or arrears of maintenance and subsequently changed the name of defendant No.1 in the service records, as nominee to his pensionary benefits.
6. After the death of the deceased employee, taking undue advantage of the nomination, defendant No.1, who is the second wife of the deceased gets her name entered in all the records of the deceased employee as his only wife. The plaintiff claims to have got the knowledge of the same in the month of December, 2013 when she received an information from Defendant Nos.2 to 4 about events mentioned hereinabove. On receipt of such information, the plaintiff gave a representation to the railway department and requested them to grant the terminal benefits of the deceased husband in her favour, as she was the first wife of the deceased employee. When the railway department did not accede to the request of the plaintiff, the plaintiff instituted a suit in O.S.No.30/2014 5 before the I Additional Civil Judge and JMFC, Hubballi on the ground that entire pensionary benefits ought to have been paid to her, as he was the first wife.
7. On issuance of notice, defendants appeared through their counsel. Defendant No.1 filed her written statement by denying all the averments of the plaint. Defendant No.1 contended that the plaintiff has instituted the present suit only to harass the family for wrongful gain. She also contended that the plaintiff is not the wife of the deceased and it was only defendant No.1 who was the legally wedded wife, as the marriage between the deceased employee and defendant No.1 had taken place as per the religious rights and rituals. It was vehemently contended that the name of defendant No.1 appears in all the service records of the deceased employee, as being his wife and nominee.
8. Defendant No.4-Railways filed its written statement, which was adopted by defendant Nos.2 and 3 6 contending that the suit was not maintainable, as deceased was working as Peon and had retired from service on superannuation on 31.10.2002 and in the declaration of family members submitted by the deceased employee at the time of his retirement had mentioned the name of defendant No.1 as his wife and her children as members of the family. Accordingly, Pension Pament Order dated 19.11.2002 was issued holding that defendant No.1 was entitled to family pension, in terms of Railways Service Pension Rules.
9. On the basis of the afore-stated pleadings, the trial Court framed issues and recorded the evidence.
10. In order to prove her case, plaintiff examined herself as P.W.1 and got marked 2 documents as Exs.P1 & P2. On the other hand, defendant No.1 examined herself as D.W.1 and another witness as D.W.2-Supreintendent of South Western Railways and got marked 11 documents as Exs.D1 to D11.
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11. The trial Court by its judgment and decree dated 29.09.2018 declared that the plaintiff is also entitled to pensionary and other benefits of the deceased employee along with defendant No.1.
12. Defendant No.1 being aggrieved by the judgment and decree of the trial Court challenged it before the first appellate Court in R.A.No.124/2018. The first appellate Court again on re-appreciation of the entire material on record, with some modification, declared that both the plaintiff and defendant No.1 are entitled for pensionary and other service benefits of the deceased employee at the ratio of 50% each. Defendant No.1 has filed the subject appeal questioning the concurrent findings of both the trial Court and the first appellate Court.
13. I have heard Sri.V.M.Sheelvant, learned counsel for the appellant through video conference.
14. The learned counsel for the appellant would contend that the judgment of both the trial Court and the 8 first appellate Court are contrary to law inasmuch as thgy run counter to Railway Services (Pension) Rules, 1993 wherein the rules mandate that pension and other service benefits shall be paid only to the nominated members of the deceased railway servant. He would further contend that both the Courts have concurrently erred in declaring that plaintiff and defendant No.1 are entitled to pensionary benefits of the deceased employee at the ratio of 50% each.
15. I have given my anxious consideration to the submission made by the learned counsel for the appellant and perused the material on record.
16. Certain undisputed facts are that, Davalsab S/o Mahaboobsab Kalenavar was working as a railway employee (Group D) (hereinafter referred to as "deceased employee") under defendant Nos.2 to 4 in terms of an appointment order dated 19.10.1987. The deceased employee married the plaintiff on 29.12.1972 and from 9 their wedlock have a daughter. It is after the marriage and birth of the daughter, the deceased employee secured employment on 19.10.1987 in the railway department. It transpires that after few years after employment, the deceased employee married defendant No.1 and from their wedlock have two children. It also transpires that claiming maintenance from the deceased employee, plaintiff has instituted a case in Crl.Misc.No.49/1991 before the III Court, Hubballi, wherein the Court had directed the deceased employee to pay maintenance to the plaintiff and her minor daughter. In the year 2002, the deceased employee retired from service. In the service records, the deceased employee at the time of retirement entered the name of defendant No.1 as his nominee to receive his terminal benefits and he died on 30.10.2012.
17. After the death of the deceased employee, the plaintiff came to know about the name of defendant No.1 and his family members being entered as nominees in the 10 service records, represented to defendant Nos.2 to 4 to grant her the pensionary benefits, as she was the first wife of the deceased employee. When the representation went unheeded, the plaintiff instituted O.S.No30/2014 before the I Additional Civil Judge and JMFC, Hubballi seeking the relief of declaration and mandatory injunction.
18. The trial Court, put the parties to trial on the following issues.
i) Whether the plaintiff proves that she is the legally wedded wife of one Davalsab Kalenavar?
ii) Whether the plaintiff proves that she is entitled to the pensionary and other service benefits of the deceased Davalsab kalenavar?
iii) Whether the plaintiff is entitled to the relief of declaration as sought for?
iv) Whether the plaintiff is entitled to permanent injunction as prayed?11
v) What order or Decree?
19. Answering the said issues, the trial Court held that the plaintiff had proved that she was legally wedded wife of the deceased employee and she is entitled to pensionary benefits of the deceased employee and decreed the suit in part by granting the following relief.
"The suit of the plaintiff is hereby decreed in part.
It is declared that the plaintiff is also entitled for pensionary and other service benefits of deceased Davalsab S/o Mehaboobsab Kalenavar along with defendant No.1, from the Defendants No.2 to 4."
20. Defendant No.1 challenged the said judgment and decree of the trial Court before the first appellate Court in R.A.No.124/2018. The first appellate Court framed the following points for its consideration.
i) Whether appellant/defendant No.1 proves that the Trial Court failed to appreciate the oral and documentary evidence in proper and perspective manner?12
ii) Whether interference of this Appellate Court is necessary in the findings of the Trial Court?
iii) What order?
21. Answering the said issues, the first appellate Court affirmed the judgment and decree of the trial Court in O.S.No.30/2014 with a slight modification. The order passed by the first appellate Court reads as follows:
"The Regular Appeal filed by the appellant/defendant No.1 under R1 Rule 1 and 2 of CPC is hereby dismissed.
The judgment and decree passed by I
Additional Civil Judge & JMFC, Hubballi in
O.S.No.30/2014 dated 29.09.2018 is hereby
confirmed subject to following modification:
The suit of the plaintiff is hereby decreed in part.
It is hereby declared that plaintiff and defendant No.1 are entitled for pensionary and other service benefits of deceased Davalsab S/o Mehaboobsab Kalenavar at the ratio of 50% each from defendant No.2 to 4.13
Further, plaintiff is entitled for 50% of the pensionary and other service benefits of deceased Davalsab S/o Mehaboobsab Kalenavar from the date of suit i.e.16.01.2014. However, if defendant No.1 already obtained entire pensionary and other service benefits from defendant No.2 to 4 from the date of suit till today, the plaintiff is at liberty to recover 50% of her share of pensionary and other service benefits from defendant No.1 from the date of suit till today, as per law.
No order as to costs."
22. In terms of the order passed by the first appellate Court, the plaintiff and defendant No.1 both were entitled to 50% of pensionary and service benefits of the deceased employee.
23. Pension in the department of Railways is governed by the Railway Services (Pension) Rules, 1993 which are amended from time to time and the present rule subsisting and germane to the lis is Rule 75, which reads as follows:14
"75. Family Pension Scheme for railway servants, 1964:- (1) The provisions of this rule shall apply:-
(a) to a railway servant entering service in a pensionable establishment on or after the 1st January, 1964; and
(b) to a railway servant who was in service on the 31st December, 1963 and came to be governed by the provisions of the Family Pension Scheme for railway employees, 1964, contained in the Railway Board's letter No.F(P) 63 PN-1]40, dated 2nd January, 1964 as in force immediately before the commencement of these rules.
Note: The provisions of this rule has also been extended from 22nd September, 1977, to railway servants on pensionable establishments who retired or died before the 31st December, 1963 and also to those who were alive on that date but had opted out of the 1964 Scheme.
(2) Without prejudice to the provisions contained in sub-rule (3), where a railway servant dies -
(a) after completion of one year of continuous service, or
(b) xxxxxx 15
(c) after retirement from service and was on the date of death in receipt of pension, or compassionate allowance, referred to in Chapter V, other than the pension referred to in rule 53;
(7) (i) (a) Where the family pension is payable to more widows than one, the family pension shall be paid to the widows in equal shares.
(b) On the death of a widow, her share of the family pension, shall become payable to her eligible child: Provided that if the widow is not survived by any child, her share of the family pension shall not lapse but shall be payable to the other widows in equal share, or if there is only one such other widow, in full, to her.
(ii) Where the deceased railway servant or pensioner is survived by a widow but has left behind eligible child or children from another wife who is not alive, the eligible child or children shall be entitled to the share of family pension which the mother would have received if she had been alive at the time of the death of the railway servant or pensioner: Provided that on the share or shares of family pension payable to such a child or children or to a widow or widows ceasing to be payable, such share or shares not lapse but shall be payable to the other widow or widows or the other child or children 16 otherwise eligible in equal shares, or if there is only one widow or child, in full, to such widow or child."
24. The said Rules fell for judicial interpretation before the High Court of Bombay in W.P.No.4467/2014 dated 20.11.2014 between Union of India, through General Manager, South East Central Railway and Another Vs Jaywantabai. The learned Division Bench of High Court of Bombay interpreting the said Rules, has held as follows:
"Railway Services Pension Rules, 1993, Rule 75 deals with family pension for railway servants, 1964. In Railway Services Pension Rules, sub rule 5 of Rule 70 says as follows:
"For the purpose of this rule, rules 71, 73 and 74 "family", in relation to railway servant means-
(i) Wife or wives including judicially separated wife or wives in the case of a male railway servant."
"8. Rule 75 deals with Family Pension Scheme for Railway Servants, 1964. Sub rule 7(i)(a) of Rule 75 stipulates that where the family pension is payable to more widows than one, the family 17 pension shall be paid to the widows in equal shares. Therefore, from these rules, it appears that rule making authorities made provision for the second wife, being aware of the situation where the railway employee may perform a second marriage during the lifetime of the first wife. Sub Rule 7(i)(a) stipulates that where there are more widows of a deceased railway employee, family pension shall be paid to the widows in equal share.
9. Article 15 of the Constitution prohibits discrimination on the ground of sex, while Article 39(a) provides for securing adequate means of livelihood for men and women equally. Article 39(e) provides for ensuring health and strength for women. Keeping in mind the "Laxman Rekha" in the matter of interpretation of provisions of Personal Laws - qua the Constitution, we find that the above constitutional provisions obligate the State for uplifting the women and secure descent living for them. What we find is that Rule 75 provides for grant of pension even to the second wife/widow of a deceased railway servant along with first wife. In our opinion, this provision of Rule 75 made by the Indian Railways cannot be held to be in conflict or interdiction with Section 11 of the Hindu Marriage Act. On the contrary, in our opinion, for achieving the constitutional goal, as aforesaid, even for the 18 unfortunate second wife/widow, Rule 75 provides for grant of pension to her for her survival in life. At any rate, it must be seen that by virtue of Rule 75, the payment of pension to the two widows is required to be made in equal share, which clearly shows that there is no burden on the treasury or the Indian Railways by inserting the said noble idea. There is no reason for us to hold that Rule 75 violates Section 11 of the Hindu Marriage Act, or that it is contrary to the Hindu Marriage Act, since it does not even remotely provides for any contradiction or interdiction therewith. We, therefore, hold that Rule 75 has been brought in the Rule book by the Indian Railways fully in consonance with the aforesaid constitutional provision.
In our opinion, Indian Railways must be complimented for making such a provision for such type of women-widows who unfortunately fall in the trap of males in performing with them what is called "illegal or void marriage" within the meaning of Section 11 of the Hindu Marriage Act. The Indian Railways deserve applauds for incorporating such a rule which is seldom found in Service/Pension Rules of en number of Organizations and the Governments. In our opinion, the Central Administrative Tribunal has rightly found that the 19 object of Rule 75 is nothing but to provide relief to such a woman who is ensnared in void marriage. We find that such an unfortunate woman is provided minimum food and shelter and that too not at the cost of Indian Railways or the taxpayers, but the pension is equally divided amongst the widows by virtue of the said Rule 75. To repeat, provision of Rule 75 is a step in furtherance of the revolution for emancipation of women.
10. Since we find that the Indian Railways have done a commendable job in framing rule like Rule 75, there is no reason why the model employers like the State and Central Government and all other instrumentalities should not adopt the same course of action, i.e., to provide for relief to a woman married with a Govt. servant, whose marriage becomes void as per Section 11 of the Hindu Marriage Act.
11. To sum up, we do not think that Rule 75, in any way, is violative of Section 11 of the Hindu Marriage Act, and, on the contrary, we find that it is in consonance with the constitutional obligations of the State, including the Chapter providing for 'Fundamental Rights' in the Constitution."20
25. This judgment of the High Court of Bombay was challenged by respondent No.3 herein before the Apex Court in SLP NO.11491/2015, in the case of Union of India and Another Vs Yayawanta Bai. The Apex Court by order dated 08.05.2015 dismissed the petition by the following order:
"We have perused this petition and heard learned Counsel for the Petitioner. It appears that the so called Second wife-Smt.Jaywantabai has prayed for half pension since at the material time "the first wife-Saraswatibai" was still living. The Impugned Order finds no error in this request of "the Second wife-Smt.Jaywantabai".
We are not inclined to interfere in the matter at all however it now appears that "the first wife- Saraswatibai" has passed away and from that matrimony no children are alive. In these circumstances "the Second wife-Smt.Jaywantabai"
would prima facie be entitled to the entire pensionary benefits.
Special Leave Petition is dismissed with these observations leaving the question of law open as to whether a Second wife can lay claim to the 21 pensionary benefits or any part thereof, despite Rule 21 of the Railway Services (Conduct) Rules, 1966."
26. Thus, the Rules which gave equal share to both the wives, in the circumstances contemplated under the rules, is now held to be valid in the afore-extracted judgments.
27. In terms of the afore-extracted Rules and its interpretation, if the facts of the subject lis are noticed, it becomes unmistakably clear that plaintiff and defendant No.1 who are wives of the deceased employee would be entitled to 50% share of the pension and other service benefits of the deceased employee. The trial Court has rightly held on the basis of cogent evidence and analysis of the same that the plaintiff is also entitled to a share in the pensionary benefits of the deceased employee.
28. The contention of the learned counsel for the appellant that, both the Courts have concurrently erred in decreeing the suit and confirming the same, as it is 22 contrary to Rule 74 of the said Rules, is unacceptable. Rule 74 deals with Nominations, where nominations have to be made, forms in which nominations are to be made but does not deal with disbursement of family pension. Family pension for railway servants is dealt with under Rule 75 (supra), and Rule 75 (7)(i)(a) clearly mandates that the family pension shall be paid to the wives in equal shares where pension becomes payable to the widows more than one.
29. In the case on hand, both the wives of the deceased employee are legally wedded wives. Though Rule 75 does not make a distinction between legally wedded wife or otherwise, both the claimants herein are legally wedded wives of the deceased employee.
30. I am also fortified by the judgment and of a coordinate Bench of this Court dated 01.07.2020 in W.P.NO.111260/2017 between Smt.Sjhanta Sadani Vs. General Manager, Sought Western Railway, 23 Gadag, whereby this Court by its erudite judgment, after considering the law laid down by the Apex Court, declared that second wife of the deceased employee has to be treated as a widow and would consequently be entitled to pension and other service benefits of the deceased employee, in terms of afore-extracted mandate of Rule 75 of the said Rules.
31. The trial Court and the first appellate Court after considering the matter in great detail have held that both the plaintiff and defendant No.1 are to be entitled to pension and other service benefits of the deceased employee. I do not find any error in the concurrent findings of both the trial Court and the first appellate Court.
32. There is no substantial question of law that arises for my consideration in the subject appeal.
Accordingly, the appeal lacks merit and is dismissed.
Sd/-
JUDGE MBS/-