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Judgment
Heard Shri Sukhendra Pal Singh along with Shri Bablir Singh, learned counsel for the applicant and Shri L.S. Kushwaha, learned counsel for the private respondents as well as Shri R.C. Tiwari and Shri P.K. Rai, learned counsel for the official respondents.
The present Original Application has been filed by the applicants seeking the following reliefs:
(i)To set aside impugned Letter No. सी.ई./पेन./समादि/17/ONR मुगलसराय Dated 03.10.2019 (Vide Annexure No.1 to this original application) issued by Divisional Personnel Officer on behalf of Divisional Railway Manager, East Central Railway, Mughalsarai.
(ii)To set aside impugned Undated order titled as “reasoned and speaking order” passed by Divisional Railway Manager, East Central Railway, Mughalsarai, which communicated by Letter No. LS/CAT/ALD/OA No.1400-2018/MM, dated 23.10.2019 (Vide Annexure No.2 to this original application) issued by Law Officer on behalf of Sr. Divisional Railway Manager, East Central Railway, Mughalsarai.
(iii)To set aside impugned Letter No. एल.एस./आपत्ति-पत्र/2019/एस.एम.एम. dated 04.11.2019 issued on 05.11.2019 (Vide Annexure No.3 to this original application) on behalf of Divisional Railway Manager, East Central Railway, Mughalsarai.
(iv)To issue an order and direction commanding the respondents to pay the terminal/benefits and family pension and arrears thereof to the applicants on account of death of Late Aninda Kumar Mitra, Senior Section Engineer (C&W), East Central Railway, Mughalsarai and pay interest at the rate of 12% p.a. on the arrears of terminal benefits and pension.
(v)To pass an order and direction commanding the respondents to grant appointment on compassionate ground to the applicant Smt. Mala Mitra on account of death of aforesaid Late Aninda Kumar Mitra whilst in service (death in harness).
(vi)To issue any other order or direction which this Hon’ble Tribunal may deem fit and proper in the circumstances of the case.
(vii)To award costs of this original application in favor of this application.
The brief facts of the case, as narrated in the OA, are that applicant no. 1 claims to be the second wife and applicant no. 2 the daughter of late Shri Aninda Kumar Mitra, who was serving under the respondents’ department. Respondent no. 6, Smt. Chhanda Mitra, was married to the late employee in the year 2000. Thereafter, the late employee instituted a divorce petition before the Court of Civil Judge (Senior Division), Chandauli, which was decided ex parte vide judgment and order dated 26.05.2003 in O.S. No. 49 of 2002, whereby the marriage between the late employee and respondent no. 6 was dissolved. According to the applicants, a copy of the said judgment and order was filed in the proceedings under Section 125 Cr.P.C. and Section 10 of the Hindu Marriage Act pending in the State of West Bengal in the year 2004 itself, and, therefore, respondent no. 6 was well aware of the ex parte decree. Respondent no. 6 thereafter moved an application under Order IX Rule 13 CPC for setting aside the ex parte decree dated 26.05.2003 along with an application for condonation of delay; however, no stay was granted against the operation of the said decree. It is further pleaded that applicant no. 1 married the late employee on 12.02.2006, and the marriage was duly registered before the Marriage Magistrate, wherein the late employee described himself as a divorcee. Subsequently, the application under Order IX Rule 13 CPC was rejected, whereafter respondent no. 6 preferred an appeal before the District Judge, which was allowed with a direction to the concerned court to decide the application under Order IX Rule 13 CPC on merits. The applicants state that the ex parte decree dated 26.05.2003 was ultimately set aside on 07.03.2013 and, therefore, according to them, the marriage between respondent no. 6 and the late employee stood revived only from 07.03.2013. It is further pleaded that, after restoration, the suit was assigned a new number but was subsequently dismissed in default on 20.01.2017. After the death of the late employee, applicant no. 1, claiming herself to be his legally wedded wife, approached the competent authority for grant of family pension, terminal benefits, arrears thereof and compassionate appointment. Simultaneously, respondent no. 6 also submitted a representation claiming herself to be the legally wedded wife of the deceased employee and sought family pension, terminal benefits, arrears thereof and compassionate appointment for herself and her son. The respondents, vide the orders under challenge, directed both the parties to obtain a succession certificate, aggrieved by which the present OA has been filed. The applicants contend that, since there was no stay against the operation of the ex parte decree at the time of marriage of applicant no. 1 with the late employee on 12.02.2006 and the application under Order IX Rule 13 CPC had been filed after the expiry of the prescribed limitation period, applicant no. 1 was legally married to the late employee at the relevant time and is, therefore, entitled to family pension, terminal benefits, arrears thereof and other consequential benefits.
By way of filing counter affidavit, the official respondents have opposed the averments made in the OA and submitted that there are rival claims of the applicants and respondent no. 6 in respect of family pension, terminal benefits, arrears thereof and compassionate appointment. It has been stated that the names of the applicants were recorded in the service records of the deceased employee and certain admissible facilities were also extended to them by the department. However, the ex parte decree passed by the Civil Court dissolving the marriage between the late employee and respondent no. 6 was subsequently set aside. Therefore, according to the official respondents, unless the matrimonial status of the late employee and respondent no. 6 is finally determined by a competent court and a succession certificate is produced, the rival claims relating to family pension, terminal benefits, arrears thereof and compassionate appointment cannot be conclusively decided. In view of the competing claims, both parties were accordingly directed to obtain a succession certificate from the competent court before their respective claims could be considered and decided.
A counter affidavit has also been filed by respondent no. 6, wherein it is pleaded that she is the only legally wedded wife of late Shri Aninda Kumar Mitra. It is submitted that she was not aware of the pendency of the divorce proceedings instituted by the late employee and that the ex parte decree of divorce was passed without service of notice upon her. Immediately upon gaining knowledge thereof, she moved an application under Order IX Rule 13 CPC along with an application for condonation of delay, pursuant to which the ex parte decree of divorce was set aside. It is further stated that the suit instituted by the late employee was subsequently dismissed in default on 20.01.2017. Accordingly, respondent no. 6 contends that her marriage with the late employee continued to subsist and, therefore, the marriage allegedly solemnized between applicant no. 1 and the late employee in the year 2006 was void, rendering the applicants disentitled to the reliefs claimed in the OA. It is further pleaded that the competent authority can legally sanction and release family pension in favour of respondent no. 6 and that there is no requirement of obtaining a succession certificate for the same. Likewise, the terminal benefits and arrears thereof can also be released in her favour. As regards compassionate appointment, respondent no. 6 has also asserted her entitlement thereto and has prayed for dismissal of the OA and for issuance of a direction to the competent authority to grant family pension, terminal benefits, arrears thereof and compassionate appointment in her favour.
I have heard the learned counsel for the parties.
The learned counsel for the applicants submitted that applicant no. 1 was legally married to the late employee on 12.02.2006 and that the marriage was duly registered before the Marriage Registrar. It was further submitted that the marriage between respondent no. 6 and the late employee, solemnized in the year 2000, had already been dissolved by an ex parte decree of divorce dated 26.05.2003 passed by the competent court of law. Therefore, at the time of marriage of applicant no. 1 with the late employee, the earlier marriage stood dissolved and there was no legal impediment to the said marriage. Learned counsel further submitted that the ex parte decree of divorce was set aside only on 07.03.2013, i.e., much after the marriage of applicant no. 1 with the late employee, and hence the subsequent setting aside of the decree could not render the marriage of applicant no. 1 void or deprive her of the terminal benefits, family pension and other consequential benefits claimed in the OA. Accordingly, learned counsel prayed for setting aside the impugned orders and for issuing appropriate directions to the competent authority to extend the reliefs claimed by the applicants. Learned counsel also referred to the provisions of Section 15 of the Hindu Marriage Act, 1955, and placed reliance upon the following case laws:-
❖ Judgment passed by Hon’ble supreme Court in Krishnaveni Rai vs. Pankaj Rai and another (2020) AIR SC 1156.
❖ Judgment passed by Hon’ble supreme Court in Anurag Mittal vs. Shaily Mishra Mittal (2018) AIR (SC) 3983
❖ Judgment passed by Hon’ble supreme Court in Smt. Lila Gupta vs. Laxmi Narayan and others (1978) AIR (SC) 1351
❖ Judgment passed by Hon’ble supreme Court in Bharatha Matha and Another vs. R. Vijaya Renganathan and others (2010) AIR (SC) 2685.
Learned counsel for the official respondents, opposing the claim of the applicants, submitted that there are rival claims between the applicants and respondent no. 6 in respect of family pension, terminal benefits, arrears thereof and compassionate appointment. It was submitted that, although the names of the applicants were duly recorded in the service records and various permissible benefits had also been extended to them by the department, the ex parte decree passed by the Civil Court dissolving the marriage between the deceased employee and respondent no. 6 had subsequently been set aside and, therefore, the marital status of respondent no. 6 could not be treated as finally determined. In view of the rival claims, the entitlement of either party to family pension, terminal benefits, arrears thereof and compassionate appointment could not be finally adjudicated by the department unless the parties produced an appropriate succession certificate issued by the competent court of law. Learned counsel further submitted that the succession certificate issued by the Tehsildar, not being a certificate issued by a competent court, was insufficient to conclusively determine the rival claims and entitlement to the aforesaid benefits. Accordingly, both the parties were directed to obtain a succession certificate from the competent court before their respective claims could be considered and decided by the department.
Learned counsel for respondent no. 6 submitted that the marriage between applicant no. 1 and the late employee was solemnized during the subsistence of the marriage between respondent no. 6 and the late employee and, therefore, the subsequent marriage of applicant no. 1 was void and could not confer any legal right upon her. It was further submitted that, since the ex parte decree of divorce had subsequently been set aside, the marriage solemnized between respondent no. 6 and the late employee in the year 2000 continued to subsist and, consequently, applicant no. 1 was not entitled to any relief claimed in the OA. Learned counsel contended that respondent no. 6, being the legally wedded wife of the deceased employee, alone was entitled to family pension, terminal benefits, arrears thereof and compassionate appointment. Accordingly, learned counsel prayed that the claims of the applicants be rejected and the matter be decided in favour of respondent no. 6.
I have considered the rival submissions and gone through the entire records.
Before discussing the submissions raised across the BAR, it will be useful to quote the relevant portion of the section 15 of Hindu Marriage Act 1955. The same is as under:-
15.Divorced persons when may marry again - When a marriage has been dissolved by a decree of divorce and either there is no right of appeal against the decree or, if there is such a right of appeal the time for appealing has expired without an appeal having been presented or an appeal has been presented but has been dismissed, it shall be lawful for either party to the marriage to marry again.
It will also be useful to quote the relevant paras of the case laws relied upon by the learned counsel for the applicant. The relevant portion of the Krishnaveni Rai (supra) case is as follows:-
31.Section 15 clarifies that when a marriage has been dissolved by a decree of divorce, and there is no right of appeal against the decree, or if there is such a right of appeal, the time for appealing has expired without an appeal having been preferred, or an appeal has been presented but the same has been dismissed, it shall be lawful for either party to the marriage to marry again. Had it been the legislative intent that a marriage during the pendency of an appeal should be declared void, Section 11 would expressly have provided so.
32.As held by this Court in Anurag Mittal v. Shaily Mishra Mittal reported in (2018) 9 SCC 691, the object of Section 15 is to provide protection to the person who had filed an appeal against the decree of dissolution of marriage and to ensure that such appeal was not frustrated. The protection afforded by Section 15 is primarily to a person contesting the decree of divorce. As observed by Bobde, J. in his concurring judgment in Anurag Mittal (supra):-
“I am in agreement with the view taken by Nageswara Rao, J. but it is necessary to state how the question before us has already been settled by the decision in Lila Gupta v. Laxmi Narain [Lila Gupta v. Laxmi Narain, (1978) 3 SCC 258] . Even when the words of the proviso were found to be prohibitory in clear negative terms — “it shall not be lawful”, etc., this Court held that the incapacity to marry imposed by the proviso did not lead to an inference of nullity, vide para 9 of Lila Gupta [Lila Gupta v. Laxmi Narain, (1978) 3 SCC 258] . It is all the more difficult to infer nullity when there is no prohibition; where there are no negative words but on the other hand positive words like “it shall be lawful”. Assuming that a marriage contracted before it became lawful to do so was unlawful and the words create a disability, it is not possible to infer a nullity or voidness vide paras 9 and 10 of Lila Gupta case…
“………. What is held in essence is that if a provision of law prescribes an incapacity to marry and yet the person marries while under that incapacity, the marriage would not be void in the absence of an express provision that declares nullity. Quae incapacity imposed by statute, there is no difference between an incapacity imposed by negative language such as “it shall not be lawful” or an incapacity imposed by positive language like “it shall be lawful (in certain conditions, in the absence of which it is impliedly unlawful)”. It would thus appear that the law is already settled by this Court that a marriage contracted during a prescribed period will not be void because it was contracted under an incapacity. Obviously, this would have no bearing on the other conditions of a valid marriage. The decision in Lila Gupta case thus covers the present case on law.”
33.In Leela Gupta v. Laxmi Narain & Ors. reported in (1978) 3 SCC 258, this Court held:
“…..the interdict of law is that it shall not be lawful for a certain party to do a certain thing which would mean that if that act is done it would be unlawful. But whenever a statute prohibits a certain thing being done thereby making it unlawful, without providing consequence for the breach, it is not legitimate to say that such a thing when done is void because that would tantamount to saying that every unlawful act is void.” (Paragraph 10). “….Merely because each one of them is prohibited from contracting a second marriage for a certain period, it could not be said that despite there being a decree of divorce for certain purposes the first marriage subsists or is presumed to subsist…….. An incapacity for second marriage for a certain period does not have effect of treating the former marriage as subsisting…..” (paragraph 13).
“Thus, examining the matter from all possible angles and keeping in view the fact that the scheme of the Act provides for treating certain marriages void and simultaneously some marriages which are made punishable yet not void and no consequences having been provided for in respect of the marriage in contravention of the proviso to Section 15, it cannot be said that such marriage would be void” (paragraph
In any case, the bar of Section 15 is not at all attracted in the facts and circumstances of this case, where the appeal from the decree of divorce had been filed almost a year after expiry of the period of limitation for filing an appeal. Section 15 permits a marriage after dissolution of a marriage if there is no right of appeal against the decree, or even if there is such a right to appeal, the time of appealing has expired without an appeal having been presented, or the appeal has been presented but has been dismissed. In this case no appeal had been presented with the period prescribed by limitation.
The bar, if any, under Section 15 of the Hindu Marriage Act applies only if there is an appeal filed within the period of limitation, and not afterwards upon condonation of delay in filing an appeal unless of course, the decree of divorce is stayed or there is an interim order of Court, restraining the parties or any of them from remarrying during the pendency of the appeal.
As observed above, the appeal was infructuous for all practical purposes, from the inception, since the Appellant’s ex-husband had lawfully remarried after expiry of the period of limitation for filing an appeal, there being no appeal till then.
It could never have been the legislative intent that a marriage validly contracted after the divorce and after expiry of the period of limitation to file an appeal from the decree of divorce should rendered void on the filing of a belated appeal. If the marriage of the Appellant’s ex-husband in 2006 was a valid marriage in law recognizing that he had no living spouse, the subsequent re-marriage of the Appellant could also not be void. We are in full agreement with the view of this Court in Leela Gupta (supra) that the effect of the prohibition against one of the parties from contracting a second marriage for a certain period is not to nullify the divorce and continue the dissolved marriage, as if the same were subsisting.
Similarly, it will also be useful to quote the relevant paras of the Bharatha Matha (supra) case. The same is as under:-
5.So far as Section 16 of the Act is concerned, though it was enacted to legitimise children, who would otherwise suffer by becoming illegitimate, at the same time it expressly provide in Sub-section (3) by engrafting a provision with a non-obstante clause stipulating specifically that nothing contained in Sub-section (1) or Sub-section (2) shall be construed as conferring upon any child of a marriage, which is null and void or which is annulled by a decree of nullity under Section 12, `any rights in or to the property of any person, other than the parents, in any case where, but for the passing of this Act, such child would have been incapable of possessing or acquiring any such rights by reason of this not being the legitimate child of his parents'. In the light of such an express mandate of the legislature itself there is no room for according upon such children who but for Section 16 would have been branded as illegitimate any further rights than envisaged therein by resorting to any presumptive or inferential process of reasoning, having recourse to the mere object or purpose of enacting Section 16 of the Act. Any attempt to do so would amount to doing not only violence to the provision specifically engrafted in Sub-section (3) of Section 16 of the Act but also would attempt to court relegislating on the subject under the guise of interpretation, against even the will expressed in the enactment itself. Consequently, we are unable to countenance the submissions on behalf of the appellants......."
The admitted facts between the parties are that late Shri Aninda Kumar Mitra, who was working in the respondents’ department, had married respondent no. 6 in the year 2000. Thereafter, the late employee instituted a divorce petition, being O.S. No. 49 of 2002, under the Hindu Marriage Act before the Court of Civil Judge (Senior Division), District Chandauli, U.P., which was decided ex parte on 26.05.2003 and a decree of divorce was granted in favour of the late employee. It further appears that proceedings under Section 125 Cr.P.C. as well as Section 10 of the Hindu Marriage Act were pending before the competent court in the State of West Bengal, wherein respondent no. 6 was continuously receiving maintenance, and one male child was also born out of the wedlock between the late employee and respondent no. 6. The record further indicates that the factum of the ex parte decree of divorce was disclosed by the late employee in the proceedings pending before the court in West Bengal. Respondent no. 6 thereafter moved an application under Order IX Rule 13 CPC on 30.05.2005, along with an application for condonation of delay, seeking recall of the ex parte decree dated 26.05.2003. No stay was granted against the operation of the decree at the initial stage and the application for condonation of delay was also rejected. The late employee challenged the said order before the District Judge concerned, whereupon the appeal was allowed and the order on the application for condonation of delay was set aside with a direction to the concerned court to decide the application on merits. Subsequently, the application under Order IX Rule 13 CPC was allowed and the ex parte decree dated 26.05.2003 was set aside on 07.03.2013. Thereafter, the original suit was restored to its original number but was ultimately dismissed in default on 20.01.2017. In the interregnum, applicant no. 1 married the late employee on 12.02.2006. Thus, in view of the aforesaid factual position, the issue arising for consideration in the present OA is required to be determined.
Before discussing the submission raises across the BAR, it will be useful to quote the relevant provisions of the Railway Services (Pension) Rules 2026. The same is as under:-
50 (8) (c) Where the deceased railway servant or pensioner is survived by more widows than one, the family pension shall be paid to the widows in equal shares and on the death or ineligibility of a widow, her share of the family pension shall become payable to her child or children who fulfil the eligibility conditions mentioned in sub- rule(9).
Admittedly, in the present matter, respondent no. 6 moved an application under Order IX Rule 13 CPC on 30.05.2005 along with an application for condonation of delay seeking setting aside of the ex parte decree dated 26.05.2003, and no stay order was passed staying the effect and operation of the said decree. The ex parte decree was ultimately set aside only on 07.03.2013, whereas the second marriage of applicant no. 1 with the late employee was solemnized on 12.02.2006. Section 15 of the Hindu Marriage Act, 1955, as amended by the Marriage Laws (Amendment) Act, 1976, provides the circumstances in which a divorced person may lawfully marry again, and the proviso prescribing a further period of one year after the decree has been omitted. Thus, the relevant impediment to remarriage after a decree of divorce is the period during which the decree remains capable of being challenged in accordance with law. In the case of an ex parte decree, the aggrieved party has the remedy of seeking its setting aside under Order IX Rule 13 CPC or of preferring an appeal against the decree within the prescribed period of limitation. In the present case, respondent no. 6 invoked the remedy under Order IX Rule 13 CPC only on 30.05.2005, i.e. after about two years from the date of the ex parte decree, and admittedly no stay against the operation of the decree was granted before the marriage of applicant no. 1 with the late employee on 12.02.2006. Having regard to the principles laid down by the Hon’ble Supreme Court in Krishnaveni Rai (supra) and Bharatha Matha (supra), the marriage of applicant no. 1 with the late employee, solemnized on 12.02.2006 during the subsistence of the operative ex parte decree of divorce, cannot, in the peculiar facts and circumstances of the present case, be held to be void merely because the said decree was subsequently set aside on 07.03.2013. At the same time, since the ex parte decree was subsequently set aside and the original divorce proceedings were ultimately dismissed in default on 20.01.2017, the marriage between respondent no. 6 and the late employee also continued to subsist and, consequently, both applicant no. 1 and respondent no. 6 have survived as claimants to the post-death benefits of the late employee. The question of family pension, terminal benefits, arrears thereof and compassionate appointment is, therefore, required to be considered in the light of the applicable statutory provisions governing the entitlement of more than one surviving wife. Insofar as family pension is concerned, the applicable provision under Rule 50(8)(c) of the Railway Services (pension) Rules 2026 specifically contemplates the manner in which family pension is to be regulated where there is more than one surviving wife, and therefore the competent authority is required to determine and regulate the entitlement of the surviving claimants in accordance with the said provision, rather than insist upon a succession certificate merely for determining the family pension. Accordingly, the impugned orders, to the extent they require the parties to obtain a succession certificate as a condition precedent for consideration of their claim to family pension, cannot be sustained. The competent authority amongst the respondents is directed to consider and decide the claim of applicant no. 1 and respondent no. 6 for family pension strictly in accordance with the applicable provisions of Rule 50(8)(c) of the Railway Services (pension) Rules 2026, keeping in view the aforesaid findings, without insisting upon production of a succession certificate for that purpose.
As regards the claim for compassionate appointment, the children born from the second marriage are also to be treated as legitimate children for the purpose of consideration of such appointment. Therefore, the claim for compassionate appointment may be considered in favour of an eligible child of either the first or the second marriage, subject to fulfilment of the prescribed eligibility conditions and the applicable rules governing compassionate appointment. The competent authority is enough competent to examine and decide such claims on its own merits, and no succession certificate is required for determining the eligibility for compassionate appointment. However, insofar as the disbursement of retiral benefits, including terminal benefits and arrears thereof, is concerned, the rival claims of the parties involve determination of their respective legal entitlement to the estate and dues of the deceased employee. Accordingly, the direction issued by the competent authority requiring the parties to obtain an appropriate succession certificate from the competent court for release of such retiral benefits cannot be said to be unwarranted and does not call for interference. Accordingly, the impugned Letter No. सी.ई./पेन./समादि/17/ONR मुगलसराय dated 03.10.2019 issued by the Divisional Personnel Officer on behalf of the Divisional Railway Manager, East Central Railway, Mughalsarai, the undated order titled as “reasoned and speaking order” passed by the Divisional Railway Manager, East Central Railway, Mughalsarai and communicated vide Letter No. LS/CAT/ALD/OA No.1400-2018/MM dated 23.10.2019 issued by the Law Officer on behalf of the Sr. Divisional Railway Manager, East Central Railway, Mughalsarai, and Letter No. एल.एस./आपत्ति-पत्र/2019/एस.एम.एम. dated 04.11.2019 issued on 05.11.2019 on behalf of the Divisional Railway Manager, East Central Railway, Mughalsarai, are hereby set aside to the extent they require the applicants and respondent no. 6 to obtain a succession certificate as a condition precedent for consideration and grant of family pension and compassionate appointment. In view of the aforesaid observations and discussions made hereinabove, OA is partly allowed. No order as to costs.
All associated MAs also stand disposed of.