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Jammu & Kashmir High Court

Lajo Devi vs Union Of India And Others. on 28 January, 2019

Equivalent citations: AIRONLINE 2019 J AND K 33

Bench: Chief Justice, Tashi Rabstan

Serial No. 25
Regular List
                            HIGH COURT OF JAMMU AND KASHMIR
                                        AT JAMMU

          CDLSW No.3/2019

                                                                   Date of Order:28.01.2019.
          Lajo Devi                           v.                   Union of India and others.

          Coram:
                 HON'BLE THE CHIEF JUSTICE
                 HON'BLE MR. JUSTICE TASHI RABSTAN, JUDGE
          Appearance:
          For the Petitioner/Appellant(s) :   Mrs. Surinder Kour, Sr. Advocate with
                                              Ms. Manpreet Kour, Advocate.
          For the Respondent(s)           :   Mr. Eishan Dadhichi, CGSC.

Caveat Gita Mittal-CJ CDLSW No.3/2019 Notice.

Mr. Eishan Dadeechi, learned CGSC accepts notice on behalf of the respondents.

Having regard to the nature of the application, learned counsel for the respondents is heard orally.

For the reasons stated in the application, it is allowed and the delay of 9 days in filing the appeal is condoned.

LPASW No............

1. The Registry to diarize the appeal.

2. Notice.

3. Mr. Eishan Dadhichi accepts notice on behalf of the respondents.

4. The appellant in this appeal laid challenge to the judgment dated 22nd October, 2018 whereby SWP No.1198/2014 was dismissed.

5. In the writ petition, the writ petitioner- Lajo Devi claimed to be the second wife of Sh. Kheru Ram, who died in harness while serving in MES.

6. The facts on record would show that Sh. Kheru Ram was married to one Melo Devi. The record also discloses that upon demise of the employee on 26th July, 1981, the official respondents sanctioned family pension in favour of Smt. Melo Devi. Melo Devi received family pension till she expired on 16 th January, 2000.

7. Lajo Devi, the appellant before us, in the year 2002 set up a claim that Sh. Kheru Ram had contracted marriage with her, when his marriage with Melo Devi was subsisting and during her life time.

8. Twelve years after setting up a claim, SWP No.1198/2014 was filed by Lajo Devi, the appellant before us, claiming that she was entitled to family pension as widow of the deceased employee. We may note that in support of her claim, reliance is placed on Rule 54(7) of the Central Civil Services (Pension) Rules, 1972. The relevant extract whereof is reproduced hereunder:-

"54(7)(a)(i) Where the family pension is payable to more widows than one, the family pension shall be paid to the widows in equal shares.

(ii) On the death of a widow, her share of the family pension shall become payable to her eligible child....."

9. The writ petition came to be rejected by the learned Single Judge vide impugned order dated 22nd October, 2018 observing that after coming into force the Hindu Marriage Act, 1955, any marriage solemnized after commencement of this enactment during subsistence of the first marriage and during life time of the first wife was null and void in terms of the Section 11 thereof. The marriage CDLSW No.3/2019 Page 2 of 4 claim of the appellant had to be considered in terms of the applicable provisions of the Hindu Marriage Act.

10. The second marriage by Sh. Kheru Ram with the appellant-Lajo Devi having been contracted during subsistence of the first marriage with Melo Devi and while she was alive, was not valid marriage after the commencement of the Hindu Marriage Act, 1955. For this reason, the learned Single Judge has, in our view, rightly concluded that the appellant cannot be treated as widow of the deceased employee.

11. So far as the applicability of Rule 54(7)(a)(i) and (ii) of the CCS(Pension) Rules, 1972 is concerned, the learned Single Judge has, in our view, again rightly observed that the same would apply only where polygamy marriages were recognized in law. So far as the Hindu Marriage Act 1955 is concerned, any marriage solemnized during subsistence of first marriage and during the life time of the first wife, is null and void. The position would have been different, if both marriages had taken place prior to the coming into force of the 1955 enactment. It is admittedly not so in the present case.

In view of the above, the appellant, as rightly held by the learned Single Judge, is disentitled to the award of family pension.

12. The other circumstance, which has weighed with the learned Single Judge was that the appellant-Lajo Devi remained silent right from 1981 to 2002 when a claim seeking entitlement to family pension was asserted by the appellant. Furthermore, after setting up claim for family pension in the year 2002, the writ petitioner waited for ten years till 2014 when the writ petition was filed. This was more than thirty three years after Kheru Ram died on 26th July, 1981. Even if, the appellant had any claim in law, same deserves to be rejected on account of delay and laches.

13. For all these reasons, we find no infirmity at all in the impugned judgment. The appeal is, accordingly, dismissed.

                                    (Tashi Rabstan)        (Gita Mittal)
                                        Judge               Chief Justice
Jammu
28.01.2019
Vinod.




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