Delhi District Court
Mangli Devi @ Parveen vs Parveen Devi on 28 August, 2024
IN THE COURT OF SH. PRANAV JOSHI, ADDITIONAL
SENIOR CIVIL JUDGE, CENTRAL DISTRICT, TIS
HAZARI COURTS, DELHI
RCA No. 03/2020
CNR No. DLCT030006242020
In the matter of:-
Smt. Mangli Devi @ Parveen,
W/o Late Sh. Chander Singh Rawat,
R/o B-4, Upkar Colony,
Sant Nagar, Burari,
New Delhi-1100084. ...Appellant
VERSUS
1. Smt. Parveen Devi,
R/o 2391, Gali Munde Wali,
Sadar Bazar, Delhi-110006.
2. Secretary (Pension Trust),
DVB Employee Terminal,
Benefit Fund-2002 (Pension Trust),
Shakti Sadan, Kotla Marg,
New Delhi-110002. ...Respondents
Date of Institution : 25.01.2020
Reserved for Judgment : 23.03.2024
Date of Decision : 28.08.2024
JUDGMENT
1. The present appeal impugns the Judgment and decree dated 24.12.2019 passed by the learned Ld. Civil Judge- 08, Central, whereby the suit filed by the appellant seeking declaration and mandatory injunction was dismissed. The RCA No. 03/2020 Smt. Mangli Devi @ Parveen Vs Smt. Parveen Devi & Anr. Page No.1 of 24 appellant herein was the plaintiff and the respondents were the defendants therein. For the sake of convenience, parties shall be referred to by their nomenclature in the main suit.
2. Brief facts relevant to the present adjudication are that the appellant herein has filed a suit against the defendants seeking declaration and mandatory injunction. It is pleaded in the plaint presented before the Ld. Trial Court that the plaintiff is the widow of late Sh. Chander Singh Rawat, who got married with the plaintiff in the year 1973 in their native village and out of the said wedlock, there are two sons namely Sh. Komal Singh and Sh. Balvir Singh Rawat (missing since 2005). That late Sh. Chander Singh Rawat was a permanent employee of DESU (DVB) who joined the DESU (DVB) on 17.02.1976 as Assistant Line Man (ALM) having Eemployee No. 23039 and opted the SVRS floated by the IPGCL (Indra Prastha Power Generation Company Ltd.) and he was relieved from service on 29.02.2008. That late Sh. Chander Singh Rawat got superannuated on 31.03.2012 and on the age of superannuation, the relevant papers were sent to defendant No. 2 and late Sh. Chander Singh Rawat started drawing pension from defendant No.2. That the defendant No. 1 herein is a fraud and fictitious lady, who previously in the year 2003 filed a petition for maintenance under section 125 Cr.P.C. before the MM, Mahila Court, Tis Hazari Court, Delhi, claiming herself to be the wife of late Sh. Chander Singh Rawat just to extract the money by abusing the due process of law and in the said maintenance case, she only claimed to have got married with late Sh. Chander Singh Rawat at Birla Mandir, Delhi on dated 09.03.1976 but never produced any photograph of the marriage nor any marriage certificate issued by Mandir RCA No. 03/2020 Smt. Mangli Devi @ Parveen Vs Smt. Parveen Devi & Anr. Page No.2 of 24 Authority.
3. It is further averred that in the case for maintenance, late Sh. Chander Singh Rawat denied all the claim of the defendant No. 1 herein and denied the relationship of husband and wife with defendant No. 1. That subsequently, at the time of adducing evidence in that case, late Sh. Chander Singh Rawat produced documents in the Court showing her real name as Guddo instead of Parveen Devi and that she was the wife of one Sh. Vinod Kumar. That the husband of the plaintiff late Sh. Chander Singh Rawat expired on 25.10.2012 at his native village Pauri Garwal, Uttarakhand and the son of the plaintiff Sh. Komal Singh has done all the ceremonies of the funeral and later plaintiff filed the death certificate of her husband in that case under section 125 Cr.P.C. That after the death of husband of the plaintiff, the defendant No. 1 herein stopped appearing in that case as she could not further extract the money from late Sh. Chander Singh Rawat and the case was dismissed in default for non-appearance on 19.11.2015. That on 07.12.2012, the plaintiff moved an application for claiming family pension of her husband to the office of defendant No. 2 and fulfilled all the requirements for claiming the family pension. That the defendant No. 2 after receiving the application of the plaintiff did not dispose of the said application till date despite several years.
4. It is further averred that the plaintiff on the last week of April 2014, visited the office of defendant No. 2 and requested for either disposing of the application for the grant of family pension of her husband or clarifying the reason for such long pendency of the application. That the officials of defendant No.2 verbally said that the application would not be disposed of as RCA No. 03/2020 Smt. Mangli Devi @ Parveen Vs Smt. Parveen Devi & Anr. Page No.3 of 24 there was a pendency of a case for maintenance under section 125 Cr.P.C. by a lady called Parveen Devi. That on 21.12.2012, the official of defendant No.2 Sh. V.M. Sivai, Dy. Manager, appeared as witness and deposed before the Court that Sh. Chander Singh Rawat has nominated Smt. Mangli Devi @ Parveen as his nominee which clearly reveals that the plaintiff was the nominee and entitled for the family pension of late Sh. Chander Singh Rawat. Thus, the verbal communication of the defendant no. 2 had no justification in keeping the said application pending for indefinite period. That the defendant No. 1 has never filed any claim before the defendant No. 2 till date as defendant No. 1 knows that she is fraud lady and she is not legally entitled to get family pension of late Sh. Chander Singh Rawat. That the plaintiff had also produced the marriage certificate issued from Gram Panchayat, Nogaon during the evidence of the maintenance case.
5. It is further averred that the plaintiff had filed a writ petition bearing No. 7734/2014 before the Hon'ble Delhi High Court for seeking the direction to the defendant No. 2 to dispose of the said application of the plaintiff with a speaking order within a certain time frame but, the Hon'ble Delhi High Court on dated 07.02.2017 disposed of the said writ petition by passing the order that there is a dispute as to who is the legal heir in law and entitled to succeed to the estate and observed that it is only a decision of a civil Court which would determine as to who was the person who would be the legal heir of deceased Sh. Chander Singh Rawat. That even if it is presumed that the defendant No. 1 was the wife of late Sh. Chander Singh Rawat, she cannot be the successor of the family pension of late Sh. Chander Singh Rawat RCA No. 03/2020 Smt. Mangli Devi @ Parveen Vs Smt. Parveen Devi & Anr. Page No.4 of 24 as she had previously filed a maintenance case under section 125 Cr.P.C. before MM, Mahila Court, Tis Hazari Court where she stated that she got married with late Sh. Chander Singh Rawat on dated 09.03.1976 and thus, she being the second wife cannot be successor of any property including family pension of late Sh. Chander Singh Rawat since as per section 11 of Hindu Marriage Act, a second marriage is null and void and as per CCS(pension) Rules 1964 only legally wedded wife of deceased government employee can claim family pension of the deceased employee. Hence the present suit. The plaintiffs have sought the following reliefs in the suit:
"a) Pass a decree for declaration in favour of the plaintiff and against the defendants thereby declaring that the plaintiff is the lawful legally wedded wife of Late Sh. Chander Singh Rawat, in the interest of justice.
b) Pass a decree of mandatory injunction in favour of the plaintiff and against the defendant no.2 thereby defendant no.2 may kindly be directed to release the family pension of Late Sh. Chander Singh Rawat to the plaintiff, in the interest of justice.
c) Cost of the suit may also be awarded in favour of the Plaintiff and against the Defendants.
d) Pass any other and/or further order as may be deemed fit and proper in the facts and circumstances of this case and in favour of the plaintiff and against the defendants."
6. Defendant No.1, upon her appearance, filed her written statement, wherein it was stated that during the life time of her husband, the defendant No.1 Smt. Parveen Devi filed the maintenance petition under section 125 Cr.P.C. against her husband Sh. Chander Singh Rawat in the Court of the Ld. Metropolitan Magistrate, Delhi on 27.5.2003 and then Ld. M.M. vide her order dated 03.07.2004 held the present defendant No.1 as his legally wedded wife on the basis of the documents, photographs, ration card etc. and directed her husband C hander RCA No. 03/2020 Smt. Mangli Devi @ Parveen Vs Smt. Parveen Devi & Anr. Page No.5 of 24 Singh Rawat to pay the maintenance @ Rs.1000/- per month. That against this order dated 03.07.2004, the late Sh. Chander Singh Rawat filed revision petition before the Court of the Ld. Sessions Judge, Delhi and the said revision was also dismissed by the Ld. ASJ, Delhi vide order dated 25.04.2005. That during his life time, the late Sh. Chander Singh Rawat had remarried with one another lady namely Mangli Devi and so the present defendant No.1 Parveen Devi, being the first legally wedded wife of the late Sh. Chander Singh Rawat, had filed a complaint before the office of the Sh. Chander Singh Rawat. That on the basis of the said complaint, he had been chargesheeted by the office for the offence of bigamy committed by him and departmental enquiry was initiated against him. That because of the said charge of bigamy, late Sh. Chander Singh Rawat took the voluntary retirement from his office so the charge-sheet against him stood withdrawn. That previously the present plaintiff had filed a writ petition before Hon'ble High Court of Delhi seeking a declaration to be the wife of late Sh. Chander Singh Rawat and claimed the same reliefs but the Hon'ble High Court had declined to grant any relief to the plaintiff vide order dated 07.02.2017 and directed her to approach civil Court.
7. Defendant No.2 also entered appearance and filed its written statement, wherein it was stated that late Sh. Chander Singh Rawat, ALM, E. No. 23039 while working with IPGCL opted for special voluntary retirement scheme floated by IPGCL. That he was relieved from the services on 29.02.2008. That he attained the age of superannuation on 31.03.2012 and was drawing pension from the DVB ETBF-2002. That late Sh. Chander Singh Rawat expired on 25.10.2012. That on his death RCA No. 03/2020 Smt. Mangli Devi @ Parveen Vs Smt. Parveen Devi & Anr. Page No.6 of 24 one Smt. Mangli Devi staked her claim for family pension claiming that she is the legally wedded wife of late. Sh. Chander Singh Rawat. That as per nomination submitted by late Sh. Chander Singh Rawat, the name of his wife was shown as Smt. Mangli Devi @ Parveen Devi. That in the life time of Sh. Chander Singh Rawat one lady named Smt. Parveen filed a petition CC. No. 180/04/08 titled Parveen Devi Vs. Chander Singh Rawat in the Court of Metropolitan Magistrate, (Mahila Court), Tis Hazari against Sh. Chander Singh Rawat claiming that she is wife of late Sh. Chander Singh Rawat and is claiming for maintenance. That in the Medical Prescription Card issued to late Sh. Chander Singh Rawat on 02.02.1980, his wife is Smt. Parveen. That in the year 1984, while applying for issue of new medical card, the name of the wife was shown as Smt. Parveen. That as per CCS Pension Rules only legally wedded wife is eligible for family pension. That on submission of claim for family pension, Smt. Mangli Devi was asked to clarify whether Smt. Mangli Devi and Smt. Parveen Devi is one and the same person or two separate persons. That she was also requested to take up the issue with employer of late Sh. Chander Singh Rawat for clarification/decision. That instead of clarifying the position, Smt. Mangli Devi preferred Civil Writ Petition No. 7734/2014 before the Hon'ble High Court stating that she is the wife of late Sh. Chander Singh Rawat Mangli Devi @ Parveen.
8. It is further stated that present suit was filed on the basis of the order of Hon'ble Ld. Single Judge of High Court of Delhi in the matter of WPC No. 7734/2014 filed by the plaintiff against Pension Trust and others for release of family pension of late Sh. Chander Singh Rawat in her favour. That however, RCA No. 03/2020 Smt. Mangli Devi @ Parveen Vs Smt. Parveen Devi & Anr. Page No.7 of 24 another lady Smt. Parveen Devi filed an application before the Single Judge of Hon'ble High Court of Delhi in the matter of WP No. 7734/2014 stating that she is the legally wedded wife of Sh. Chander Singh Rawat and the family pension and other benefits to be released in her favour. That Hon'ble Justice Valimiki J Mehta, High Court of Delhi observed that a civil Court will determine who would be the legal heir of late Sh. Chander Singh Rawat and disposed of the case giving the liberty to file appropriate independent proceedings in case of any dispute thereafter. That DVB ETBF-2002 is a superannuation fund Trust for pension disbursing and is working on behalf of all the Successor Utilities of erstwhile DVB. That the case of Mangli Devi has been taken up with IPGCL being the employer of late Sh. Chander Singh Rawat to clarify who is the legally wedded wife eligible for family pension and other terminal benefits of late Sh. Chander Singh Rawat. That in response to Trust, the employer IPGCL informed that as per Personal file of late Sh. Chander Singh Rawat, different documents are showing two different name of spouse i.e. in number of records the name is Smt. Mangli Devi and in other records, it is Smt. Praveen. That due to above, the employer is not in a position to confirm the real name of the spouse of late Sh. Chander Singh Rawat. That once the eligible legal heir is established, the Pension Trust has no objection in releasing family pension to the legitimate legal heir in accordance with the rules and decision of the employer. That in this case, the employer has not yet cleared the case for release.
9. The followings issues were farmed by Ld. Trial Court:
"1. Whether the plaintiff is entitled to the decree of RCA No. 03/2020 Smt. Mangli Devi @ Parveen Vs Smt. Parveen Devi & Anr. Page No.8 of 24 declaration, as prayed for? OPP
2. Whether the plaintiff is entitled to the decree of mandatory injunction, as prayed for? OPP
3. Whether this Court has subbject matter jurisdiction in light of section 7 of Family Court Act, 1984? OPP"
10. In support of her case, the plaintiff examined herself as PW1 and deposed by way of her affidavit Ex. PW1/A, reiterating the averments made in the plaint and she relied upon the documents, i.e. (i) copy of marriage verification certificate issued by Gram Panchayat, Nogaon Ex.PW-1/1 (OSR), (ii) photocopy of Parivar Register, Nogaon Ex.PW-1/2 (OSR), (iii) copy of Parivar Register, Virsani Ex.PW-1/3 (OSR), (iv) copy of Ration Card Mark-C, (v) copy of death certificate of husband of plaintiff Ex.PW-1/5 (OSR), (vi) certified copy of order dated 19.11.2015 of Principal Judge, Family Court, THC, Delhi Ex. PW-1/6, (vii) copy of application for grant of Family Pension Mark-D, (viii) internet generated copy of order of Hon'ble High Court of Delhi dated 07.02.2017 in W.P.(C) 7734/14 Ex. PW- 1/8, (ix) certified copy of petition for maintenance under Section 125 Cr.P.C Mark-A, and (x) certified copy of evidence recorded in petition under Section 125 Cr.P.C Mark-B (colly.). PW1 was duly cross-examined by Ld. Counsel for defendant No.1 and Ld. Counsel for defendant No.2.
11. The plaintiff examined Sh. Praveen Kumar, ASO (HR), AM (HR) Billing, RPH, IPGCL Office, Rajghat Power House, Delhi, who was a summoned witness. PW2 proved the service record of late Sh. Chander Singh Rawat which was exhibited as Ex. PW2/1.
12. To rebut the case of the plaintiff, defendant No.1 RCA No. 03/2020 Smt. Mangli Devi @ Parveen Vs Smt. Parveen Devi & Anr. Page No.9 of 24 examined herself as DW1, who deposed by way of her evidence affidavit Ex. DW1/A. Defendant No.1 deposed on the lines of the averments made in her written statement and she relied upon the documents i.e. (i) copy of Ration Card Ex. DW-1/1 (OSR), (ii) copy of Aadhar Card Ex. DW-1/2 (OSR), (iii) marriage photograph Ex.DW-1/3, (iv) certified copy of order dated 25.04.2005 passed by the Court of Sh. Ramesh Kumar, Ld. ASJ, Delhi Ex.DW-1/4, (v) copy of DVB Employees Terminal Benefit Fund application Ex.PW- 1/DX2 (Colly.), (vi) dasti copy of Successor Court order dated 11.12.2017 Ex. DW-1/6, (vii) certified copy of order dated 03.07.2004 Ex. DW-1/7, (viii) copy of medical prescription card Ex.D1W-2/5, and (ix) copy of order of departmental enquiry initiated against Sh. Chander Singh Rawat Mark-B.
13. The defendant No.1 examined Sh. P.K. Meena, Assistant Manager, HR, IPGC Rajghat Power House, New Delhi as D1W2 who was a summoned witness. D1W2 proved application for medical card made by late Chander Singh Rawat Ex. D1W2/1 (OSR), another copy of application for medical card Ex. D1W2/2 (OSR), copy of application dated 21.08.1987 for issuing medical card Ex. D1W2/3 (OSR), copy of application for issuing new medical card Ex. D1W2/4 (OSR), copy of medical prescription card of late Sh. Chander Singh Rawat Ex. D1W2/5 (OSR), and copy of letter regarding lost medical card Ex. D1W2/6 (OSR).
14. The Ld. Trial Court has decided issue No.1 against the plaintiff by holding that plaintiff could not prove that she was the first legally wedded wife of late Sh. Chander Singh Rawat. Ld. Trial Court observed that the marriage verification certificate RCA No. 03/2020 Smt. Mangli Devi @ Parveen Vs Smt. Parveen Devi & Anr. Page No.10 of 24 Ex.PW 1/1 was not proved by the plaintiff by calling the author of the said witness and that the said document was not even of corroborative value since the same was executed in the year 2003. Ld. Trial Court also rejected Ex. PW 1/2 and Ex. PW 1/3 i.e. copies of the parivar registers on the ground that the same could not be taken as direct evidence of marriage between plaintiff and late Sh. Chander Singh Rawat and they were only having corroborative value. The Ld. Trial Court also noted the discrepancies in the documents filed by the plaintiff and the documents pertaining to the employment record of late Sh. Chander Singh Rawat. It was observed by the Ld. Trail Court that in rashan card Ex. PW 1/DX-1 and in the application for grant of family pension Ex. PW 1/D2X-1, the name of the wife of late Sh. Chander Singh Rawat was mentioned as Mangli Devi, whereas in the nomination form Ex. P1/D2X2, the name of the plaintiff is mentioned as Mangli Devi urf Parveen and in documents Ex. D1W2/4 and Ex. D1W2/5, which were authored by late Sh. Chander Singh Rawat during the course of his employment, the name of wife of late Sh. Chander Singh Rawat was mentioned as Smt. Parveen. The Ld. Trial Court also observed that in the absence of any documentary proof such as marriage registration certificate, the plaintiff could have brought on record testimony of witnesses to the marriage ceremony or the witnesses having special means of knowledge about the relationship between the plaintiff and late Sh. Chander Singh Rawat in terms of Section 50 of Indian Evidence Act 1872 (herein after referred to as Evidence Act). Ld. Trial Court also held that the plaintiff could not prove her identity so as to establish that Mangli Devi urf Parveen are one and the same person. Since, the Ld. Trial Court has declined RCA No. 03/2020 Smt. Mangli Devi @ Parveen Vs Smt. Parveen Devi & Anr. Page No.11 of 24 the relief of declaration to the plaintiff, Ld. Trail Court therefore, declined the relief of mandatory injunction also to the plaintiff and decided issue No. 2 against the plaintiff.
15. Ld. Trial Court, in deciding issue No. 2A, held that the present suit was barred by Section 8 of the Family Courts Act, 1984 (herein after referred to as Family Courts Act). Ld. Trial Court was of the view that Explanation (b) to the Section 7(1) of the Act was widely couched to include all the proceedings in regard to validity of marriage or declaration of the marital status of any person and that it need not be between the parties to the marriage only.
16. The impugned order is assailed on the ground that the that the Ld. Trial Court committed error in the impugned judgment by not relying on the Marriage Verification Certificate issued by Gram Panchayat, Nogaon Ex. PW1/1 by which the marriage of the appellant/plaintiff and her husband late Sh. Chander Singh Rawat was verified by the competent authority i.e. Village Gram Panchayat. That Ld. Trial Court committed a serious error in the impugned judgment by not relying on the copy of evidence by way of affidavit filed by Sh. Chander Singh Rawat in the said case under section 125 Cr.P.C. which is an admitted document by respondent No. 1/defendant No. 1 and in the said affidavit, late Sh. Chander Singh Rawat stated that he had married with the appellant/plaintiff in the year 1973 in their native village and the appellant/plaintiff was her only wife. That Ld. Trial Court committed serious error in the impugned judgment by not relying on the ration card which was issued on 11.08.2005 during the lifetime of Sh. Chander Singh Rawat in which the name of wife of Sh. Chander Singh Rawat is RCA No. 03/2020 Smt. Mangli Devi @ Parveen Vs Smt. Parveen Devi & Anr. Page No.12 of 24 mentioned as 'Mangli Devi' and in the record of Delhi Vidyut Board in which name of wife of Late Sh. Chander Singh Rawat has also been mentioned as Mangli Devi @ Parveen. That Ld. Trial Court committed serious error in the impugned judgment by not considering this fact that only respondent No.1/defendant No. 1 and appellant/plaintiff are claiming to be the wife of late Sh. Chander Singh Rawat and no other person is claiming, and appellant/plaintiff as well as her husband Sh. Chander Singh Rawat deposed before the various Courts that the marriage between the appellant/plaintiff and late Sh. Chander Singh Rawat was solemnized in the year 1973 in their native village.
17. It is further submitted that as per the appointment letter Ex. PW2/1 of late Sh. Chander Singh Rawat was married at that point of time, whereas respondent No. 1/defendant No. 1 only claimed in her written statement as well as her previous filed maintenance petition U/s 125 Cr.P.C. that she had married to Sh. Chander Singh Rawat on 09.03.1976, so while considering the above facts and evidences on record, it has been proved that appellant/plaintiff was the only legally wedded first wife of Sh. Chander Singh Rawat. That the Ld. Trial Court committed a serious error in the impugned judgment by not observing that respondent No. 1/defendant No. 1 is the dishonest person who made trap to usurp the family pension of the deceased husband of the appellant/plaintiff. That the Ld. Trial Court committed a serious error in the impugned judgment by observing that Ld. Trial Court does not have jurisdiction to try the present suit for declaration of validity of marriage in light of Section 7 of Family Court Act, 1984, as Family Courts have been established for adjudicating the disputes between husband and wife arising out RCA No. 03/2020 Smt. Mangli Devi @ Parveen Vs Smt. Parveen Devi & Anr. Page No.13 of 24 of their marriage and some extent to maintenance dispute between the family and not the disputes between third parties. That Ld. Trial Court committed a serious error in the impugned judgment by not considering the judgment filed by the appellant/plaintiff of the Division Bench of Hon'ble High Court of Andhra Pradesh in the case titled as P. Srihari Vs. P. Sukunda, 2001 (2) ALD 72 in which Hon'ble High Court of Andhra Pradesh held that one of the essential ingredient for a dispute to come before a Family Court is that it should be a dispute between husband and wife and may include children said dispute can be with regard to their marital status, divorce, restitution of conjugal rights, judicial separation, child custody, maintenance as also property sharing.
18. It is further submitted that Ld. Trial Court committed a serious error by not considering the judgment filed by the appellant/plaintiff of the Delhi District Court passed by Ld. ADJ- 04, South-East District, Saket Courts, New Delhi in case titled as Shyla Shanker Vs. Anita, RCA No. 28/2014 dated 05.03.2015 in which the Ld. ADJ discussed the jurisdiction of Family Courts and held that in similar cases of appellant/plaintiff only Civil Courts have jurisdiction to entertain the suits and not the Family Courts. That Ld. Trial Court committed a serious error in the impugned judgment by not considering that when third party questioning marriage, the suit at the instance of third party not maintainable before Family Court and the only remedy lies before ordinary civil Court.
19. I heard the arguments advanced and perused the record.
RCA No. 03/2020 Smt. Mangli Devi @ Parveen Vs Smt. Parveen Devi & Anr. Page No.14 of 24
20. Ld. Counsel for the appellant has placed heavy reliance on the documents Ex. PW 1/1 (marriage verification certificate issued by Gram Panchayat, Nogaon), Ex. PW 1/2 and Ex. PW 1/3 (Copy of parivar registers) and submitted that Ld. Trail Court has committed an error by not considering these documents as proof of marriage between the plaintiff and late Sh. Chander Singh Rawat. In the opinion of this Court, these document, at best, have corroborative value but could not be taken as direct evidence of the marriage between the plaintiff and late Sh. Chander Singh Rawat. Further, it was rightly observed by Ld. Trial Court that the document Ex. PW 1/1 was issued in the year 2003 only i.e. about thirty years after the alleged marriage of the plaintiff and thus, it could not be relied upon as an evidence for marriage of the plaintiff with late Sh. Chander Singh Rawat in the year 1973. Even taking the arguments advanced by Ld. Counsel of the plaintiff on the face value that Ld. Trail Court ought to have considered Ex. PW 1/1 as the same has been issued by a public authority i.e. Gram Panchayat, any such certificate issued by village panchayat could only be a corroborative piece of evidence and cannot be taken to be the direct proof of the marriage of the plaintiff since, the competent authority to issue such certificates would only be the Registrar of Marriage. In the case of Rupajan Begum Vs. Union Of India & Ors., (2017) 12 S.C.R. 58, Hon'ble Supreme Court has held that the certificate of residence issued by village panchayat have corroborative value upon verification. Similarly, Ex. PW 1/2 and Ex. PW 1/3 can only be taken as corroborative evidences and not as direct proof of marriage of the plaintiff with late Sh. Chander Singh Rawat.
21. Further, Ld. Trial Court, in the light of section 50 of RCA No. 03/2020 Smt. Mangli Devi @ Parveen Vs Smt. Parveen Devi & Anr. Page No.15 of 24 Evidence Act, has observed that the plaintiff ought to have examined the witnesses who must be having special knowledge about the relationship of the plaintiff with late Sh. Chander Singh Rawat such as family members. Section 50 reads as under:
50. Opinion on relationship, when relevant. --When the Court has to form an opinion as to the relationship of one person to another, the opinion, expressed by conduct, as to the existence of such relationship, of any person who, as a member of the family or otherwise, has special means of knowledge on the subject, is a relevant fact:
Provided that such opinion shall not be sufficient to prove a marriage in proceedings under the Indian Divorce Act, 1869 (4 of 1869), or in prosecutions under section 494, 495, 497 or 498 of the Indian Penal Code (45 of 1860).
In the present case, the plaintiff did not have any direct proof of marriage such as marriage registration certificate or any other clinching evidence to prove her marriage. As already observed above, Ex. PW1/1, Ex. PW1/2 and Ex. PW1/3 despite having public records, could only be used as corroborative evidence and not as direct proof of marriage. In such circumstances, the plaintiff should have brought indirect proof of her relationship such as long cohabitation with late Sh. Chander Singh Rawat so as to raise presumption in her favour under section 114 Evidence Act or oral testimonies of family members. In Tulsa & Ors. Vs. Durghatiya & Ors. Case [2008] 1 S.C.R. 709, the Hon'ble Supreme Court has observed as under:
"13. Where the partners lived together for long spell as husband and wife there would be presumption in favour of wedlock. The presumption was rebuttable, but a heavy burden lies on the person who seeks to deprive the relationship of legal origin to prove that no marriage took place. Law leans in favour of legitimacy and frowns upon bastardy. (See: Badri Prasad v. Dy. Director of Consolidation and Ors. [AIR 1978 SC 1557].
14. This court in Gokal Chand v. Parvin Kumari [AIR 1952 SC 231] observed that continuous co-habitation of woman as husband and wife and their treatment as such for a number of years may raise the presumption of marriage, but the presumption which maybe drawn from long cohabitation is RCA No. 03/2020 Smt. Mangli Devi @ Parveen Vs Smt. Parveen Devi & Anr. Page No.16 of 24 rebuttable and if there are circumstances which weaken and destroy that presumption, the Court cannot ignore them.
15. As noted above, the continuous living together of Lolli and Radhika has been established. In fact the evidence of the witnesses examined by the plaintiff also established this fact. The conclusion of the first appellate court that they were living together when Mangal was alive has not been established. The evidence on record clearly shows that Lolli and Radhika were living together after the death of Mangal."
It is clear from the law cited above that in the absence of any direct evidence as to the relationship of marriage, a long cohabitation is sufficient to raise presumption in favour of marriage and to raise that presumption, a party can bring on record oral testimonies of such witnesses who may be privy to existence of such relationship or has special means of knowledge of that relationship, such as family members. However, in the present case the plaintiff has failed to bring on record any such evidence. It is rather surprising that the plaintiff despite having resided with late Sh. Chander Singh Rawat, in Delhi as well as in his native village, could not examine any family member as witness to establish her marital relationship with late Sh. Chander Singh Rawat. In fact, she could not secure the testimony of his son Komal Singh in support of her case also. Thus, it was rightly observed by Ld. Trial Court that the plaintiff has failed to discharge her initial burden to prove that she was the legally wedded wife of late Sh. Chander Singh Rawat.
22. It is relevant to note that there are discrepancies in the name of wife of late Sh. Chander Singh Rawat in his employment record. In the application for issuance of medical prescription card Ex.D1W2/4 which was made somewhere in the year 1984 (though no date is mentioned on the application, the same was allowed by the competent authority of DESU on RCA No. 03/2020 Smt. Mangli Devi @ Parveen Vs Smt. Parveen Devi & Anr. Page No.17 of 24 15.03.1984), the name of wife of late Sh. Chander Singh Rawat is mentioned as Smt. Parveen. In the medical prescription card Ex.D1W2/5 which bears the date 31.03.1981, the name of the wife of late Sh. Chander Singh Rawat is mentioned as Smt. Parveen. However, in the nomination form for retirement gratuity Ex. P1/D2X2, late Sh. Chander Singh Rawat has mentioned his wife's name to be Smt. Mangli Devi urf Parveen. It is relevant to note herein that the nomination was made by late Sh. Chander Singh Rawat in the year 2008. This fact is crucial here since in the year 2003, defendant No. 1 has filed a petition under section 125 Cr.P.C, in which late Sh. Chander Singh Rawat contested the claim of defendant No. 1 on the ground that the plaintiff herein was his legally wedded wife and he has no concern with defendant No. 1. The said petition was allowed and the claim of late Sh. Chander Singh Rawat was rejected. Therefore, there is a possibility that late Sh. Chander Singh Rawat mentioned name of his wife as Smt. Mangli Devi urf Parveen in the nomination form Ex. P1/D2X2 in the year 2008 in view of the dispute with defendant No. 1. In the employment record prior to 2005, the name of wife of late Sh. Chander Singh Rawat has been mentioned only as Smt. Parveen. Similarly, the ration card Ex. P1/DX1 which is relied upon by the plaintiff was issued only in the year 2005 where name of wife of late Sh. Chander Singh Rawat is mentioned as Mangli Devi. Defendant No. 1 has filed ration card Ex. DW1/1 which was issued on 01.01.1983 as per which name of wife of late Sh. Chander Singh Rawat is mentioned as Smt. Parveen Devi. All these circumstances do not rule out the possibility that all these documents Ex. PW1/D2X2 and Ex. P1/DX1 were created deliberately as a result of the RCA No. 03/2020 Smt. Mangli Devi @ Parveen Vs Smt. Parveen Devi & Anr. Page No.18 of 24 dispute between late Sh. Chander Singh Rawat and defendant No. 1 and thus, merely on the basis of these documents, it cannot be taken as a fact that plaintiff was the legally wedded wife of late Sh. Chander Singh Rawat.
23. Ld. Trial Court also observed that there is a dispute about the identity of plaintiff itself. It is relevant to mention here that the plaintiff has mentioned her name in the application for the grant of family pension Ex. P1/DX2 as Mangli Devi and not as Mangli Devi urf Parveen. Further, in the ration card Ex. P1/DX1, name of wife of late Sh. Chander Singh Rawat is mentioned as Mangli Devi. Therefore, it was incumbent upon the plaintiff to establish her identity and prove that Mangli Devi and Parveen are one and the same person. Interestingly, not a single document has been filed by the plaintiff in respect of her identity. Therefore, Ld. Trial Court rightly concluded that the plaintiff has failed to prove her identity before the relief of declaration could be granted to her.
24. Lastly, it is urged before this Court that as per the employment record of late Sh. Chander Singh Rawat Ex. PW2/1, when late Sh. Chander Singh Rawat joined the service of DESU on 17.02.1976, he was already married which disproves the case of defendant No. 1 since as per the claim of defendant No. 1, she got married with late Sh. Chander Singh Rawat on 09.03.1976. The same submission was made before the Ld. Trial Court also. This Court is in agreement with the observation of Ld. Trial Court that merely because of the contradiction in the stand of defendant No. 1 and Ex. PW2/1, no presumption in favour of the plaintiff about she being the legally wedded wife of late Sh. Chander Singh Rawat can be made.
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25. In view of the above discussion, this Court finds no infirmity in the findings of Ld. Trial Court as far as the issue No. 1 and 2 are concerned. However, this Court is unable to agree with the findings of Ld. Trial Court on issue No. 2A i.e. jurisdiction of the Ld. Trial Court to deal with the suit at hand in view of section 7 and 8 of Family Courts Act. Section 7 of Family Courts Act deals with the subject matters on which the Family Court exercises jurisdiction. Section 8 of Family Courts Act bars the jurisdiction of any other Court to deal with the suit or proceedings in respect of the matters mentioned in Section 7 of Family Courts Act. Section 7 of the Family Courts Act reads as under:-
7. Jurisdiction.--(1) Subject to the other provisions of this Act, a Family Court shall-- (a) have and exercise all the jurisdiction exercisable by any district court or any subordinate civil court under any law for the time being in force in respect of suits and proceedings of the nature referred to in the Explanation; and (b) be deemed, for the purposes of exercising such jurisdiction under such law, to be a district court or, as the case may be, such subordinate civil court for the area to which the jurisdiction of the Family Court extends.
Explanation.--The suits and proceedings referred to in this sub-section are suits and proceedings of the following nature, namely:--
(a) a suit or proceeding between the parties to a marriage for a decree of nullity of marriage (declaring the marriage to be null and void or, as the case may be, annulling the marriage) or restitution of conjugal rights or judicial separation or dissolution of marriage;
(b) a suit or proceeding for a declaration as to the validity of a marriage or as to the matrimonial status of any person;
(c) a suit or proceeding between the parties to a marriage with respect to the property of the parties or of either of them;
(d) a suit or proceeding for an order or injunction in circumstance arising out of a marital relationship;
(e) a suit or proceeding for a declaration as to the legitimacy of any person;
(f) a suit or proceeding for maintenance;
(g) a suit or proceeding in relation to the guardianship of RCA No. 03/2020 Smt. Mangli Devi @ Parveen Vs Smt. Parveen Devi & Anr. Page No.20 of 24 the person or the custody of, or access to, any minor. (2) Subject to the other provisions of this Act, a Family Court shall also have and exercise--
(a) the jurisdiction exercisable by a Magistrate of the first class under Chapter IX (relating to order for maintenance of wife, children and parents) of the Code of Criminal Procedure, 1973 (2 of 1974); and
(b) such other jurisdiction as may be conferred on it by any other enactment
26. Preamble of Family Courts Act lays down the objective of the Act which is to promote amicable resolution of disputes related to marriage and family matters and the matters connected therewith through alternative dispute resolution such as mediation, conciliation, counselling etc. so that speedy settlement of such disputes can be achieved. The construction of section 7 and 8 of Family Courts Act has to be made in the light of its preamble. As per section 9 of Code of Civil Procedure, 1908 (hereinafter referred to as 'CPC'), Civil Courts have jurisdiction to try all suits of civil nature except those of which cognizance is either expressly or impliedly barred. It is settled law that exclusive of jurisdiction of Civil Courts is not to be readily inferred, but such exclusion must either be explicitly expressed or clearly implied. The scheme of Family Courts Act shows that section 8 of Family Courts Act creates a specific bar excluding jurisdiction of Civil Courts. However, the explanation to section 7 (1) of the Family Courts Act does not provide for all the circumstances and disputes that may arise in a matrimonial relationship. Hon'ble Delhi High Court in CS (OS) No. 601/2022, dated 01.04.2024 has made similar observation while setting aside the judgment in Avneet Kaur Vs. Sadhu Singh, CM (M) No. 69/2020 dated 01.06.2022. The relevant observations made by the Hon'ble Delhi High Court in CS (OS) No. RCA No. 03/2020 Smt. Mangli Devi @ Parveen Vs Smt. Parveen Devi & Anr. Page No.21 of 24 601/2022, dated 01.04.2024 read as under:-
19. First things first, we need to have a look at the Preamble to the Family Courts Act, 1984, which reads as under: -
"An Act to provide for the establishment of Family Courts with a view to promote conciliation in, and secure speedy settlement of, disputes relating to marriage and family affairs and for matters connected therewith."
20. A meaningful perusal of the Preamble would show that the underlying objective of the Act is to promote an amicable resolution of disputes relating to marriage and family affairs and the matters connected therewith through conciliation, mediation, counselling and like measures and thus securing speedy settlement of such disputes. It is but obvious that the impetus of the Preamble is to secure peace and harmony amongst the members of the family and to promote family welfare....
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31. It is a well ordained principle in law that exclusion of the jurisdiction of the civil court should neither be readily inferred nor be construed liberally. There must be either a specific exclusion of its jurisdiction or it must be shown to be ousted by necessary implication. A bare perusal of the entire scheme and structure of the Family Courts Act would show that Section 8 of the FC Act does create a specific provision for excluding the jurisdiction of the civil courts. Section 8 provides that where a Family Court has been established for an area, no District Court or any subordinate Civil Court referred to in section 7(1) in relation to such area shall exercise any jurisdiction in respect of any suit or proceedings of the nature referred to in the Explanation to that sub-section. Section 8(c) further provides that upon establishment of a Family Court, any proceedings pending immediately before the establishment of such Family Court before any District Court or subordinate Court shall stand transferred to such Family Court on the date on which it is established. However, the situations provided for by the Legislature in the Explanation forming part of the section 7(1)
(a) of the FC Act and exclusion provided for under section 8 of the FC Act does not illustrate the whole gamut of eventualities and disputes that may arise in a matrimonial relation. In the case of Darshan Singh v. Ram Pal Singh21, the Supreme Court observed in the said context as under:
"24...Neque leges neque senatus consulta ita scribe possunt ut omnes casus qui quandoque inciderint comprehendatur; sed sufficet ea quoe pleramque accident contineri. Neither laws nor Acts of a Parliament can be so written as to include all actual or possible cases; it is sufficient if they provide for those things which frequently or ordinarily happen. What is material is to see the expressed objects and reasons and the language used..."
32. It is no longer res integra that the question as regards RCA No. 03/2020 Smt. Mangli Devi @ Parveen Vs Smt. Parveen Devi & Anr. Page No.22 of 24 exclusion of jurisdiction of the civil court is to be considered having regard to the scheme of the FC Act as also the objects that the enactment seeks to subserve. Whenever there is an express bar on the jurisdiction of the civil court, it becomes imperative to examine the nature of the Act and the provision of the adequate remedies can be relevant but cannot be considered to be the sole ground to sustain the ouster of the jurisdiction of a civil court. In M. Hariharasudhan v. R. Karmeam22, it was observed by the Supreme Court that "we say no more but reiterate that the plea of bar to jurisdiction of Civil Court must be considering having regard to the contention raised in the plaint, which is to be read as whole and for that purpose the averments must disclose cause of action and the reliefs which are sought must be considered in its entirety." The jurisdiction of civil court or exclusion thereof, cannot and must not depend only on few averments made in the plaint or petition and/or all the reliefs claimed thereupon.
33. Incidentally, the Supreme Court in the case of Samar Kaur Roy v. JharnaBera dealt with a case filed by the husband for declaration under Section 34 of the Specific Relief Act, 1963 to the effect that the defendant was not his legally wedded wife and holding that the said suit did not lie under Section 7 and 8 of the FC Act, it was observed as under: -
"16. On a reading of the aforesaid propositions, it is clear that the examination of the remedies provided and the scheme of the Hindu Marriage Act and of the Special Marriage Act show that the statute creates special rights or liabilities and provides for determination of rights relating to marriage. The Acts do not lay down that all questions relating to the said rights and liabilities shall be determined only by the Tribunals which are constituted under the said Act. Section 8(a) of the Family Courts Act excludes the Civil Court's jurisdiction in respect of a suit or proceeding which is between the parties and filed under the Hindu Marriage Act or Special Marriage Act, where the suit is to annul or dissolve a marriage, or is for restitution of conjugal rights or judicial separation. It does not purport to bar the jurisdiction of the Civil Court if a suit is filed under Section 34 of the Specific Relief Act for a declaration as to the legal character of an alleged marriage. Also as was pointed out, an exclusion of the jurisdiction of the civil courts is not readily inferred [see context]. Given the line of judgments referred to by the High Courts, and given the fact that a suit for declaration as to legal character which includes the matrimonial status of parties to a marriage when it comes to a marriage which allegedly has never taken place either de jure or de facto, it is clear that the civil court's jurisdiction to determine the aforesaid legal character is not barred either expressly or impliedly by any law."
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27. In the present case, the declaration to the effect that plaintiff was the legally wedded wife of late Sh. Chander Singh Rawat was sought against defendant No. 1 who also claims to be the legally wedded wife of late Sh. Chander Singh Rawat. The present suit is not between the parties to a marriage and the cause of action for the present suit emanates as defendant No. 2 did not grant the family pension in favour of the plaintiff in view of the rival claims made by the plaintiff as well as by defendant No. 1. The present suit, by its nature, cannot be such as contemplated under section 7 (1) of the Family Courts Act. The dispute was purely of such nature which does not fall within the scheme of Family Courts Act. Therefore, it is held that the jurisdiction of the Ld. Trial Court to deal with the subject matter of the suit was not barred. Accordingly, the finding of Ld. Trial Court on issue No. 2A are set aside.
28. In view of reasons given above, the appeal is partly allowed only so far as the findings on issued No. 2A are concerned. The findings of Ld. Trial Court on issue No. 1 and 2 are upheld.
The appeal file be consigned to the Record Room after due compliance. Trial Court Record be sent back along with a copy of the judgment.
Digitally signedAnnounced in open Court PRANAV by PRANAV JOSHI On this 28th Day of August, 2024 JOSHI Date: 2024.08.28 17:02:17 +0530 (PRANAV JOSHI) JSCC/ASCJ/GJ (CENTRAL) TIS HAZARI COURTS/DELHI RCA No. 03/2020 Smt. Mangli Devi @ Parveen Vs Smt. Parveen Devi & Anr. Page No.24 of 24