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IN THE COURT OF THE PRINCIPAL JUNIOR CIVIL JUDGE
AT NIZAMABAD
PRESENT: SRI MOHD AFROZ AKHTAR,
PRINCIPAL JUNIOR CIVIL JUDGE
NIZAMABAD.
Monday, the 30th day of July, 2018.
OS.No. 25 of 2015
Between:
Smt. M. Gangamani, W/o. M. Gangadhar, aged about 52 years, occu: Household, R/o. Boigally, Jawahar Road, Nizamabad.
.. Plaintiff
And
1) Smt. Anuradha, W/o. Not known, aged about 45 years, occu: Beedi Roller, R/o. Chengal village, Bheemgal mandal, Nizamabad
2) The District Tribunal Welfare Office, Nizamabad
3) The Tahsildar, Tahsil Office, Bheemgal village and mandal, Nizamabad district
4) Praveen Kumar, S/o. Late M. Gangadhar, aged 22 years,
5) Uma Maheshwari, D/o. Late M. Gangadhar, aged 17 years,
5) Mahesh Kumar, S/o. Late M. Gangadhar, aged about 13 years,
All R/o. H.No. 634, Chengal village, Bheemgal mandal.
All are under the guardianship of natural mother i.e. Defendant No.1impleded as per the orders sof this Court in IA No. 826 of 2015
dated 31.3.2015)
… Defendants
This suit is coming on 6.7.2018 before me for hearing in the presence of Sri N. Srinivas Raju, Advocate for the plaintiff, Sri M. Rajender Reddy, Advocate for Defendant Nos.1, 4 to 6, Asst. Government Pleader for Defendant No.2 and 3 and having stood over for consideration till this day, this court delivered the following:
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:: J U D G M E N T ::
1. This is a suit for declaration to declare the plaintiff as the only legal heir of her husband late Madavedi Gangadhar. Plaintiff also seeks a direction to Defendant No.2 to pay family pension to her.
2.The averments of the plaint, in brief, are that the plaintiff is a legally wedded wife of Madavedi Gangadhar and their marriage was solemnized on 1.6.1986 as per Hindu customs and traditions. The husband of the plaintiff was a Government employee as he used to work as Cook (kamati) in the Govt. S.T. Hostel, Bheemgal, Nizamabad district. That the plaintiff and her husband led marital life happily, thereafter, her husband started harassing her for additional dowry.
That her husband Gangadhar was transferred to Bheemgal, where he tried to kill the plaintiff by pouring kerosene on her, but she was rescued by locality people. Thereafter, the plaintiff and her husband used to reside separately and several efforts were made by the elders, but the husband of the plaintiff refused to join the company of the plaintiff. Plaintiff being vexed with the attitude of her husband, got filed a maintenance case vide M.C.No. 23 of 1992 on the file of the
Judicial Magistrate of First Class, Nizamabad which was allowed
granting monthly maintenance of Rs.500/ per month. It is further averred that the plaintiff lodged a complaint against her husband for dowry harassment and when the police arrested her husband, at that time, her husband made a proposal for compromising the matter and 3 her husband Gangadhar agreed to give a sum of Rs.3,00,000/ to plaintiff towards her past, present and future maintenance and an agreement was entered to that effect on 27.12.2010 in the presence of witnesses, but her husband did not comply the said agreement. That the husband of the plaintiff withdrew all his retirement benefits from the bank. On 15.5.2014 the husband of plaintiff died leaving behind the plaintiff as his sole surviving legal heir and successor to his property. Her late husband used to draw Rs.10,000/ towards pension and the said Gangadhar mentioned the name of the plaintiff in his
Service Register as his wife, therefore, the plaintiff is entitled to get pension benefit from the office of Defendant No.2 being the wife of late husband. It is further averred that Defendant No.1, who is no way concerned with the husband of the plaintiff, is illegally claiming that she is the wife of the husband of the plaintiff. After the death of her husband, the plaintiff made an application to the Tahsildar, Bheemgal i.e. Defendant No.3 for issuance of family members certificate and at that time the defendant No.1 also made an application to Defendant
No.3 stating that she is also wife of Gangadhar and then the Defendant
No.3 made an endorsement on 11.7.2014 stating that as there are rival claims from plaintiff and Defendant No.1 for issuance of family members certificate, he directed the plaintiff and the defendant No.1 to approach the Civil Court. It is further averred that the plaintiff issued a legal notice to Defendant No.2 on 19.5.2014 to grant family pension to her every month, but defendant No.2 issued a reply notice in
Rc.No. A/19/2011 dated 22.5.2014 stating that the plaintiff has to 4 submit legal heir certificate issued from the competent authority. That defendant No.1 is illegally claiming that she is the wife of late
Gangadhar, but in fact, the plaintiff is the only legal heir of late
Madavedi Gangadhar. Hence the suit.
3.Defendant No.1 filed written statement wherein at para no.2 of the written statement, it is admitted that the plaintiff is the wife of the deceased Gangadhar and their marriage was solemnized on 1.6.1986 as per Hindu customs and tradition. In fact, defendant No.1 was informed by her husband Gangadhar that the plaintiff was a widow prior to her marriage with Gangadhar and the said fact was suppressed by the plaintiff and by suppressing the same her marriage was performed with Gangadher. After 5 months of marriage, the plaintiff left the marital company of the Gangadhar without any reasonable cause and went to her parents house. Inspite of several mediations, the plaintiff refused to join the company of Gangadhar. It is further averred that in the year 1991 the said Gangadher married the
Defendant No.1 at Basaveshwar temple, Banswada and that Defendant
No.1 begot three children, who are Defendant Nos.4 to 6 and their names were mentioned in the Service Register of Gangadhar and the same was confirmed by the office of Defendant No.2 vide its letter in
Rc.No. A/19/2011 dated 22.5.2014. it is also admitted that the late
Gangadhar was a Government employee and he used to work as Cook (kamati) in the Government ST Hostel, Bheemgal. The fact of filing 5 maintenance case by the plaintiff vide MC No. 23 of 1992 on the file of the Judicial Magistrate of First Clas, Nizamabad is admitted. It is further averred that thereafter Gangadhar paid maintenance regularly to the plaintiff @ Rs.500/ per month and inspite of the same after gap of 20 years, the plaintiff has filed a criminal petition vide Crl. M.P.
No. 72 of 2013 for recovery of arrears of maintenance. The averments of plaint with regard to compromise agreement dated 27.12.2010 and husband of plaintiff agreeing to give Rs.3,00,000/ to the plaintiff towards her past, present and future maintenance is denied. It is further pleaded that the name of three children of Gangadhar born through defendant No.1 were mentioned as family pension beneficiaries in the Service Register of Gangadhar. It is further averred that after the plaintiff left the company of Gangadhar, the said Gangadhar married defendant No.1 and begot three children and he lived with them till his death and as such his three children i.e. Defendant Nos.4 to 6, being the legal heirs of the deceased Gangadhar are also entitled for death benefits of late Gangadhar along with the plaintiff. It is further pleaded that Defendant No.3 issued letter dated 2.8.2014 to the
District Collector, Nizamabad and also to Mandal Revenue Inspector,
Bheemgal stating that Defendant No. 1 is the second wife of late
Gangadhar and there are three children namely I) Praveen Kumar, ii)
Uma Maheshwari and iii) Mahesh Kumar i.e. Defendant Nos.4 to 6 and that the Defendant No.3 also mentioned in his letter that the plaintiff has been living separately from late Gangadhar since 20 years and she also getting widow pension @ Rs.400/ per month vide order No.
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RD5/93/2006 dated 14.9.2007 even during the life time of her husband Gangadhar. It is true that late Gangadhar never denied about the relationship between the plaintiff and himself as husband and her wife in the earlier cases, but he stated in her earlier cases that the plaintiff has lead the marital life with him for a period of 5 months of their marriage and refused to resume cohabitation. That during the life time of Gangadhar, the plaintiff was also getting widow pension from October, 2007 by cheating the Government Authorities. It is further stated that as the plaintiff left the marital company of her husband Gangadhar and refused to join the company, as such the said
Gangadhar married defendant No.1 in the year 1991 itself and lived with her till death and they begot three children and their names are also mentioned in the service register of deceased Gangadhar as family pension beneficiaries, therefore, they are also legal heirs of Gangadhar along with the Defendant no.1 and the plaintiff. Therefore, plaintiff alone is not the legal heir of late M. Gangadhar. With these averments, it is prayed to dismiss the suit.
4. Defendant No.2 i.e. District Tribal Welfare Officer, Nizamabad field written statement stating that the deceased Gangadhar was appointed as watchman/kamati and he retired from serivce on 31.3.2011 and he worked in Tribal Welfare Government Hostels at various places in the district including Govt. S.T. Hostel, Bheemgal.
As per the entries recorded in the Service Register, Smt. Gangamani 7 (plaintiff) is shown to be his wife. It is further pleaded that the said
Gangadhar retired from service on 31.3.2011 and in the pension papers submitted by him, the name of his wife Gangamani is not mentioned as the family pension beneficiary and in view of the same, the name of plaintiff can not be considered as family pension beneficiary, unless she produces a family members certificate or legal heir certificate issued by the competent authority.
5. Defendant No.3 the Tahsildar, Bheemgal also filed separate written statement, wherein it is stated that on 30.5.2014 Smt. M.
Gangamani applied for family members certificate and that Defendant
No.1 also applied for family members certificate and the Village
Revenue Officer, Chengal reported after due enquiry that late
Gangadhar had two wives as such, Defendant No.3 directed the parties to approach the Civil Court and thus the application for issuance of family members certificate filed by the plaintiff and the Defendant No.1 was rejected.
6. Defendant no.5 filed separate written statement which is adopted by the Defendant Nos.4 and 6. The averments of written statement of
Defendant Nos.4 to 6 are quite similar and identical as that of the averments of the written statement of defendant No.1. hence the same need not be reproduced.
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7.On the basis of the above said pleadings, the following issues were settled by my learned Predecessor on 2.12.2016.
1) Whether the plaintiff is legally wedded wife of Madavedi
Gangadhar?
2) Whether the plaintiff is entitled for declaration to declare her as only legal heir of her husband Madavedi Gangadhar?
3) Whether plaintiff is entitled to consequential relief i.e. to direct the defendant No.2 to pay family pension of her husband to plaintiff?
4) To what relief?
8. Subsequent to impleading of Defendant Nos.4 to 6, the following additional issue was settled on 18.7.2017.
Whether the Defendant Nos.4 to 6 are also legal heirs of the deceased Gangadhar
9. During the course of trial plaintiff herself was examined as PW1 and got marked Exs.A1 to A9 towards documentary evidence on her behalf.
10. On the other hand, the Defendant No.1 was examined as DW1 and her daughter, Defendant No.5 was examined as
DW2 and Exs.B1 to B12 were marked as documentary evidence on their behalf.
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11. Defendant Nos.2 and 3 did not adduce any evidence.
12. Heard both sides and perused the record.
ISSUE NO.1
13. In Written statement, the Defendant Nos.1, 4 to 6 have clearly admitted that the plaintiff is the wife of Madavedi
Gangadhar and that their marriage was solemnized on 1.6.1986. Thus there is no dispute that the plaintiff is the wife of late Gangadhar. It is not the case of the defendants that such marriage of plaintiff with late Gangadhar was annulled or dissolved by following due process of law. It is the only case of defendant Nos.1, 4 to 6 that the plaintiff led marital life with Gangadhar only for a period of five months and thereafter she deserted and started living separately. Merely because she was living separately from her husband
Gangadhar for a long period of time, that itself is not sufficient to hold that the plaintiff is not the wife of late Madavedi
Gangadhar. Unless and until such marriage of plaintiff with the said Gangadhar is dissolved by way of decree of divorce or by due process of any other law for time being in force, the status of plaintiff remained as wife of late Gangadhar only, therefore, this Court holds that the plaintiff is a legally wedded wife of Madavedi Gangadhar.
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ISSUE No.2 and ADDITIONAL ISSUE:
14. As could be seen from the pleadings of the parties narrated supra, the case of plaintiff is that she is the wife of late Gangadhar and the said Gangadhar was Governemnt employee working as Cook (kamati) in the Government S.T.
Hostel, Bheemgal and after the death of said Gagnadhar, she being the wife of her husband is the only legal heir of said
Gangadhar.
15. On the other hand, the case of the defendant Nos.1, 4 to 6 is that as the plaintiff deserted late Gangadhar and refused to join him, the said Gangadhar married with
Defendant No.1 in the year 1991 itself and out of such marriage, the defendant nO.1 blessed with three children through the said Gangadhar and they are the Defendant
Nos.4 to 6, as such the defendant Nos.4 to 6 along with the plaintiff are also legal heirs of late Gangadhar. Plaintiff denied the version of Defendant No.1 stating that the Defendant No.1 is no way concerned with late Gangadhar and she is falsely claiming as wife of Gangadhar.
16. In view of rival contentions, legal burden is on the defendant Nos.1, 4 to 6 to prove that late Gangadhar married defendant No.1 and out of such wedlock, defendant Nos.4 to 6 11 were born. Considering the scope of the suit and in the opinion of this Court, strict proof of marriage of Defendant
No.1 with Gangadhar is not necessary. It is needless to mention that in the civil cases, it is preponderance of probabilities that has to be weighed and looked into.
17. Ex.B3 is Aadhar card of Defendant No.1 in which the name of her husband is mentioned as Madavedi Gangadhar,
Ex.B9 is household ration card standing in the name of
Madavedi Gangadhar. In Ex.B9 the name of Defendant no.1 is mentioned as wife of the said Madavedi Gangadhar and the names of defendant Nos.4 to 6 are mentioned as sons and daughters respectively of the said Madavedi Gangadhar. It is relevant to note here that when the plaintiff was in witness box, Ex.B9 was confronted to her and by looking at the photo of Gangadhar appearing on Ex.B9 house hold ration card, she (plaintiff) admitted that it is the photo of her husband
Gangadhar. Thus in the said Ex.B9 household ration card, the name of defendant No.1 is mentioned as wife of
Gangadhar and names of Defendant no.4 to 6 are mentioned as sons and daughter of Madavedi Gangadhar. Further the defendant Nos.1, 4 to 6 filed Ex.B12 letter No. A/4304/2014
dated 2.8.2014 addressed by the Tahsildar, Bheemgal to the
then District Collector, Nizamabad stating that his enquires 12 reveal that Smt. Anuradha (Defendant No.1) is the second wife of Gangdhar. On considering the above said documents, this
Court is of the opinion that late Gangadhar also married defendant No.1 herein during his life time. Since the
Defendant No.1 herself stated in her written statement that she was married to Gangadhar in the year 1991, whereas the marriage of plaintiff with Gangadhar was solemnized in the year 1986, therefore, it can safely be concluded that
Defendant No.1 herein is the second wife of late Gangadhar.
18. Now the next question is that whether Defendant No.4 to 6 are the children of Defendant No.1 through Madavedi
Gangadhar and there is abundant documentary evidence filed by defendant Nos.1, 4 to 6 herein in this regard. Ex.B1 is SSC certificate of Defendant no.5/Kum. Uma Maheshwari, in which the name of her father is mentioned as Madavedi
Gangadhar and her mother’s name is mentioned as Smt. M.
Anuradha i.e. Defendant No.1. Exs.B2, 6 and 8 which are
Health Cards of Defendant Nos.4 to 6 issued by the
Government of Telangana, the name of Madavedi Gangadhar is mentioned as pensioner.
19. Exs. B4, B5 and B7 are the Aadhar Cards of Defendant
Nos.4 to 6 in which the name of Madavedi Gangadhar is mentioned as father of Defendant Nos.4 to 6. Similarly, Ex.B1 13 is Secondary School Certificate (SSC) of Defendant No.5, in which the name of her father is noted as Madavedi Gangadhar and name of her mother is noted as Smt. M. Anuradha.
Ex.B10 is Bonafide Certificate issued by the Backward Class
Welfare Residential School, Dharmaram (B) Nizamabad pertaining to Defendant No.6. In this certificate also the name of Madavedi Gangadhar is noted as father of Defendant No.6.
When all the above documentary evidence produced, which is discussed above, is considered, the same leads to an irresistible conclusion that the Defendant No.4 to 6 are the children of the deceased Madavedi Gangadhar born through defendant No.1.
20. As per the Section of 5 of Hindu Marriage Act, 1955 (hereinafter called as ‘the Act, 1955’) to constitute the valid marriage and for solemnization of marriage between two
Hindus, the prime requisite is that the parties shall not have a spouse alive at the time of marriage, but in the instant case, at the time of marriage of Defendant No.1 with Madavedi
Gangadhar, the plaintiff being first wife of Madavedi
Gangadhar was alive. Therefore, the marriage of Defendant
No.1 with the deceased Madavedi Gangadhar can not be held to be a valid marriage in view of the above provisions of the
Act, 1955.
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21. Now the next question that arises is about the legitimacy of such children i.e. Defendant Nos.4 to 6 born to
Defendant No.1 through Madavedi Gangadhar and rights of such children, vis a vis, the property of their parents. Section 16 of the Hindu Marriage Act, 1955 provides an answer to such question and for better appreciation, it would be apt to reproduce Section 16 of the Act as under:
16. Legitimacy of children of void and voidable marriages: (1) Notwithstanding that a marriage is null and void under section 11, and child of such marriage who would have been legitimate if the marriage had been valid, shall be legitimate, whether such children is born before or after the commencement of the Marriage Law (Amendment) Act, 1976 (68 of 1976), and whether or not a decree of nullity is granted in respect of that marriage under this Act and whether or not the marriage is held to be void otherwise than on a petition under this Act.
2) Whether a decree of nullity is granted in respect of a voidable marriage under Section 12, any child begotten or conceived before the decree is made, who would have been the legitimate child of the parties to the marriage, if at the date of the decree it had been dissolved instead of being annulled, shall be deemed to be their legitimate child notwithstanding the decree of nullity.
3) Nothing contained in subsection (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 15 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 his not being the legitimate child of his parents.
22. Thus a bare reading of Section 16 (1) of the Act, 1955, states that irrespective of the fact, whether the marriage is null and void as per the Section 11 of the Act, 1955, the child of such marriage shall be legitimate. Further Section 16 (3) of the Act, 1955 says that children of such marriage, which marriage is null and void or which is annulled by decree, will not have any right in the property of any person, other than the parent of such children. Thus as per the Section 16 (3) of the Act, 1955, it is crystal clear that the children born out of void marriage are having right over the property of their parents, but they will not have right over the property of any other person including the ancestral property. Such findings is also supported by a judgment of the apex Court rendered in the case of Rameshwari Devi vs. State of Bihar, reported in
AIR 2000 (SC) 735.
23.Thus the law is very clear that even the children born out of a null marriage are having right over the property of their parents. In view of such crystal clear legal position, the present suit of the plaintiff, which is filed seeking a 16 declaration that she is the only legal heir of late Madavedi
Gangadhar should be dismissed. However, when law confers such right on plaintiff and Defendant No.4 to 6 to claim themselves as legal heirs of the deceased Madavedi
Gangadhar, instead of again relegating the parties to another round of litigation to seek the same relief, which they are otherwise entitled as per law and instead of making both the parties to go through legal ordeal in another round of litigation, which may span over another two to three years as happened in the instant case, and since there are no other parties, except the parties on record who are affected with, if any decree is passed in this case, this Court in the ends of justice, intends to declare that the plaintiff as well as
Defendant Nos.4 to 6 are the legal heirs of the deceased
Madavedi Gangadhar S/o. Gangaram. In fact, no prejudice would be caused to the plaintiff, if such relief is granted, for the reason that, if this Court goes by the prayer in this case and to adjudicate the same, in such a event, the suit of the plaintiff should be dismissed for the reasons stated above.
Therefore, this Court intends to mould the relief keeping in view of the provisions of Order 7 Rule 7 CPC and intends to declare the plaintiff as well as Defendant Nos.4 to 6 are the legal heirs of the deceased Madavedi Gangadhar. Thus, accordingly the regular issue No.2 and the additional issue are answered.
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ISSUE No. 3:
24.In view of findings given in the regular Issue No.2 and the Additional Issue, the plaintiff alone can not claim the family pension of the deceased Madavedi Gangadhar, and as such, a direction to the defendant No.2 to release the family pension only in favour of the plaintiff can not be given.
25.In view of the above findings, it is just and apppropriate to direct the Defendant No.2 to release the family pension of the deceased Madavedi Gangadhar in favour of his legal heirs i.e. the plaintiff and Defendant Nos.4 to 6, as per law, procedure and rules so applicable. This issue is answered accordingly.
ISSUE NO.4:
26.In view of findings arrived in the above discussed
Issues, the plaintiff and defendant Nos.4 to 6 are entitled to be declared as legal heirs of the deceased Madavedi Gangadhar and direction should be given to Defendant No.2 to release the family pension in faovur of his legal heirs as declared above.
27. IN THE RESULT, the suit is decreed without costs and the plaintiff, Defendant Nos.4 to 6 i.e. Smt. M. Gangamani,
Praveen Kumar, Uma Maheshwari and Mahesh Kumar are 18 hereby declared as Legal Heirs of the deceased Madavedi
Gangadhar S/o. Gangaram.
Defendant No.2 is directed to release the family pension of the deceased Madavedi Gangadhar in favour of his legal heirs as declared above as per law, procedure and rules so applicable.
Dictated to Steno, transcribed by him, corrected and pronounced by me in
the open court on this 30th day of July, 2018.
Prl. Junior Civil Judge,
Nizamabad.
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
FOR PLAINTIFFS FOR DEFENDANTS
PW1 : M. Gangamani DW1 : Smt. M. Anuradha DW2 : Smt. S.Sandhya Rani
::Exhibits marked on behalf of the plaintiffs ::
Ex.A1 : CC of agreement dated 27.12.2016 Ex.A2 : O/c. Of legal notice dated 19.5.2014 Ex.A3 : Postal reciept dated 20.6.2014 Ex.A4 : Acknowledgement due card dated 23.6.2014 Ex.A5 : Office copy of legal notice dated 20.6.2014 Ex.A6 : Postal receipt Ex.A7: Acknowledgement card of Dist. Welfare Officer, Pragathi Bhavan, Nizamabad Ex.A8: Reply given by Dist. Tribal Welfare Officer, Pragathi Bhavan, Nizamabad dated 27.5.2014 Ex.A9: Copy of endorsement dated 11.7.2014 :: Exhibits marked on behalf of the defendants ::
Ex.B1 : Original SSC certificate of D6. Ex.B2 : Health card of M. Praveen Ex.B3 : Aadhar card of M. Anuradha Ex.B4 : Aadhar card of M. Praveen Ex.B5 : Aadhar card of M. Mahesh Kumar 19
Ex.B6 : Health Card of M. Mahesh Kumar Ex.A7 : Aadhar card of Kum. M. Uma Maheshwari Ex.A8 : Health Card of Kum. M. Uma Maheshwari Ex.A9 : House hold card of Madavedi Gangadhar Ex.A10: Bonafide certificate o Madavedi Mahesh Kumar Ex.B11 : Attested copy of Service Register of Gangadhar in Vol. I and II Ex.B12 : Letter dated 2.8.2014 issued by Tahsildar, Bheemgal to District Collector, Nizamabad.
Prl. Junior Civil Judge, Nizamabad