Serial No.16
Regular List
HIGH COURT OF MEGHALAYA
AT SHILLONG
WA No.3/2018
Date of Order: 29.07.2019
Lahun Pyrtuh Vs. State of Meghalaya ors
Coram:
Hon’ble Mr. Justice Ajay Kumar Mittal, Chief Justice
Hon’ble Mr. Justice H.S. Thangkhiew, Judge
Appearance:
For the Petitioner/Appellant(s) : Mr. N Syngkon, Adv
For the Respondent(s) : Ms. R Colney, GA
Mr. R Deb Nath, CGC
Mr. PD Nair, Adv for R/4
i) Whether approved for reporting in Yes
Law journals etc.:
ii) Whether approved for publication
in press: Yes
Per Ajay Kumar Mittal, ‘CJ’: (ORAL):
1. The appellant filed the writ petition seeking direction to the State
Government to stop the family pension to respondent No.4 which has been
duly issued vide PPO No.MG/44014. The writ petition was dismissed by
the learned Single Judge holding that the appellant could approach the Civil
Court which necessitated the appellant to file the present appeal.
2. Briefly, few facts may be noticed.
3. The appellant claims that she was the legally wedded wife of
Kulendra Chandra Keot @ Kulen Ch. Koet who died on 27.09.2016.
Besides her, Smti. Rita Pyrtuh, Smti. Minuti Pyrtuh, Smti. Sabina Pyrtuh
(daughters), Shri Dhiren Pyrtuh, Shri Nirmal Pyrtuh and Shri Bimal Pyrtuh
(sons) are the surviving heirs and successors of her late husband who was
serving as A.B. Constable in the Police department since 11.01.1971 with
substantive status till 31.01.2009 when he superannuated from the office of
Superintendent of Police, West Jaintia Hills, Shillong with the designation
as Constable.
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4. The appellant claims that on the death of her husband and being a
legal heir and nominee of her husband, she applied for pension and other
benefits. Surprisingly, the appellant learnt that she would not be entitled to
pension nor payment could be made to her for the reason that one Smti.
Lokhi Keot (respondent No.4) had been enjoying the pension benefits of the
appellant’s deceased husband against PPO No.MG/44014 which reflected
her in pensioner’s detail sheet dated 14.12.2017 issued by respondent No.3.
The appellant thereafter immediately filed an application before the
respondent No.3 on 12.01.2018 praying to stop the family pension issued in
the name of respondent No.4.
5. According to the appellant, the respondent No.4 (second wife)
undisputedly obtained the pension from the concerned respondent in a
situation when the first marriage was still subsisting. The alleged second
marriage between (L) Kulendra Chandra Keot and respondent No.4 during
the subsistence of the first marriage was itself invalid. Hence, the second
wife is barred from receiving family pension of the deceased husband. The
second wife was not entitled to the said benefit especially when appellant’s
name had been clearly mentioned in the office record as nominee with her
sons and daughters. The appellant also states that since there was no dispute
as regard her status as the first wife, she had made an application under SectionRTI
Act, 2005 seeking requisite documents. Accordingly, the appellant received
the required documents on 12.02.2018 which was issued on 06.02.2018 by
the Public Information Officer. The appellant was surprised to see in the
Kindered Role of the service book that the relationship of respondent No.4
had been recorded as wife, married on 06.02.2000 which was issued on
18.03.2011 by respondent No.2. The appellant further claims that
apparently there was no such dispute noticed in the record as therein it was
shown that she was the legitimate first legally married wife but still the
pensionary benefits etc. has been deprived to her.
6. On the aforesaid premises, the action of respondent No.4 had been
challenged pleading that it infringes the fundamental and legal rights
enshrined to her as well as violation of the provision of the Meghalaya Civil
Services (Pension) Rules, 1983 necessitating her to approach this Court by
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way of petition filed under SectionArticle 226 of the Constitution of India. It is her
legitimate expectation to enjoy the pensionary benefits which has been
deprived to her and is in total violation of Articles 14 and 21 of the
Constitution.
7. Learned counsel for the appellant emphatically argued that there
was no dispute on facts as the appellant was the legally wedded wife of (L)
Kulendra Chandra Keot and was entitled to receive family pension. It was
urged that the pension and pensionary benefits has been wrongly granted to
respondent No.4 in the presence of the appellant who was the first legally
married wife.
8. The stand of the appellant has been strongly controvered by
respondent No.4. In the affidavit-in-opposition filed on behalf of
respondent No.4, in paragraph 5 it has been claimed that the appellant was
never married to (L) Kulendra Chandra Keot. It has been stated that the
appellant had only lived together with (L) Kulendra Chandra Keot and
never got married. Further, it has been stated that on 15.08.1999, the
appellant and (L) Kulendra Chandra Keot made an agreement stating
therein that at their own sweet will owing to some differences between both
of them they have separated from each other from that day and thereafter
they would not claim as husband and wife and no monetary assistant also
will be provided to the appellant. It has also been claimed that after
execution of the agreement, the appellant got married to one person named
Biki of Sipajhar, Mangaldoi and lived together as husband and wife. The
respondent No.4 got married to late Kulendra Chandra Keot in the year
2002 following all Hindu rites and customs and out of their wedlock a girl
child was born on 08.02.2003. Paragraph 5 of the said affidavit reads thus:-
“5. That with regard to the statement made in paragraph 1.3 of the
writ appeal to the effect that the appellant is the legally married
wife of late Kulendra Chandra Keot is not at all correct and the
deponent denies the same. In this connection the deponent states
that while serving as the constable, the appellant lived together
with late Kulen Ch. Keot but they have not got married. The
deponent further begs to state that on 15 th August 1999 the
appellant and Late Kulen Ch. Keot made an agreement stating that
at their own sweet will owing to some differences between both of
them separated from each other from that day and they will not3
claim as husband and wife from then onwards. Further no
monetary assistant also will be provided to the appellant any more
as desired by herself and unmarried daughter and minor sons will
be looked after as desired by herself. After execution of the
aforesaid agreement, the appellant married one person named Biki
of Sipajhar, Mangaldoi and they lived together as husband and
wife. On the other hand, the deponent got married with late Kulen
Ch. Keot in the year 2002 following all the Hindu rites and
customs and out of their wedlock a girl child was born on
08.02.2003.”
9. However, learned counsel for the appellant submitted that in the
rejoinder affidavit, the contents of paragraph 5 in the affidavit-in-opposition
of respondent No.4 has been strongly opposed in the following terms:-
“2. That the appellant denies the averments made in paragraph 5
of the affidavit in opposition filed by respondent No.4 and in
reply would like to state that the petitioner was married to late
Kulendra Chandra Keot as per the prevailing Khasi customs
known as Shongkha in the State of Meghalaya and as such they
are recognized as husband and wife. That the averment made in
paragraph 5 of the affidavit in opposition makes it clear that it is
an admitted position by the respondent No.4 that the appellant
lived together with late Kulendra Chandra Keot irrespective of the
fact that the respondent No.4 denied the marriage between the
appellant and (L) Kulendra Chandra Keot. It is pertinent to
mention herein that the Honourable Supreme Court in the case of
Madan Mohan Singh v. Rajnikant: (2010) 9 SCC 209
[Relevant paragraph 26], wherein it was held that the live in
relationship if continued for a long time, cannot be termed as walk
in and walk out relationship and there is a presumption of
marriage between the parties. Further, the Honourable Supreme
Court in the case of SectionS.P.S. Balasubramanyam v. Suruttayan
alias Andali Padayachi and others: 1992 Supp (2) SCC 304
[Relevant paragraph 3], wherein it was held that if man and
woman are living under the same roof and co-habiting for a
number of years, the law would raise presumption that they lived
as husband and wife. Again, the Honourable Supreme Court in the
case of SectionBadri Prasad v. Director of Consolidation: (1978) 3
SCC 527, while giving legal validity to a 50 year live in
relationship has held that a strong presumption arises in favour of
wedlock where the partners have lived together for a long spell as
husband and wife. Although the presumption is rebuttable, a
heavy burden lies on him who seeks to deprive the relationship of
legal origin. Law leans in favour of legitimacy and frowns upon
bastardy.
Further the appellant would like to state that the marriage can be
dissolved by way of death of either party or by way of decree of
the court dissolving the marriage. That the marriage between the4
humble appellant and (L) Kulendra Chandra Keot is govern by
SectionIndian Divorce Act, 1869 for the purpose of divorce because as
per Section 2 of the said Act it requires either the petitioner or the
respondent to profess Christian religion for applicability of this
instant Act and hence, for dissolution of marriage between the
appellant and (L) Kulendra Chandra Keot it could have been done
only by way of decree obtained through filling of a petition by
either party U/s 10 of the SectionIndian Divorce Act, 1869 and it cannot
be done by way of agreement signed by the parties, which is
absolutely illegal and not recognized under law.
That the humble appellant would like to refer to one of the
authoritative judgment of this Honourable High Court in the case
of SectionDebokala Thakuri v. State of Meghalaya and others WP
(C) No.23 of 2016 [Relevant paragraph 22] wherein, it was held
that solemnization of marriage during the subsistence of the first
marriage being in contravention to Section 5(i) of the Act of 1955
is totally null and void in terms of Section 11 of the Act of 1955.
Further, the humble appellant would like to state herein that both
the respondent number 4 and the husband of the appellant (L)
Kulendra Chandra Keot belongs to Hindu religion and as such any
marriage between the two must have to be govern by the SectionHindu
Marriage Act, 1955 and for a valid marriage in terms of the Act of
1955, it is one of the condition that neither party has a spouse
living at the time of the marriage. Therefore, marriage if any
between the respondent no.4 and the husband of the appellant (L)
Kulendra Chandra Keot is void for non-fulfilling the conditions
prescribed in Section 5 of the Act of 1955 also for absent of any
decree dissolving the marriage between the appellant and (L)
Kulendra Chandra Keot and again such marriage if any will be
void in terms of Section 494 of the Indian Penal Code. Further the
humble appellant denies the execution of the agreement annexed
as annexure A in the affidavit in opposition filed by respondent
no.4 and this may have been obtained through fraud. Further, the
humble appellant vehemently denies the averments as to the
marriage of the appellant with one Biki of Sipajhar, Mangaldoi as
claimed in paragraph 5 of the affidavit in opposition filed by
respondent no.4.”
10. Learned counsel for the appellant also submitted that there was
valid marriage between the appellant and (L) Kulendra Chandra Keot, and,
thus, the appellant was entitled to family pension.
11. Perusal of the stand of the appellant and contradiction made by
respondent No.4 clearly shows that there is serious dispute on the issue of
appellant being legally wedded first wife of (L) Kulendra Chandra Keot
essentially which fact would determine the right of the appellant.
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12. On the strength of various pronouncements of the Apex Court,
learned counsel for the respondent No.4 contended that the writ petition
was rightly dismissed.
13. We now proceed to examine the case law relied upon by learned
counsel for the respondent No.4.
14. The Apex Court in the case of SectionState of Assam v. Bhaskar Jyoti
Sarma ors: (2015) 5 SCC 321 examining the scope of writ jurisdiction
involving disputed question of fact held as under:-
“13. The case of the appellant is that actual physical possession of
the land was taken over on 7-12-1991 no matter unilaterally and
without notice to the erstwhile land owner. That assertion is
stoutly denied by the respondents giving rise to seriously disputed
question of fact which may not be amenable to a satisfactory
determination by the High Court in exercise of its writ
jurisdiction. But assuming that any such determination is possible
even in proceedings under SectionArticle 226 of the constitution, what
needs examination is whether the failure of the Government or the
authorised officer or the competent authority to issue a notice to
the land owners in terms of Section 10(5) would by itself mean
that such dispossession is no dispossession in the eye of law and
hence insufficient to attract Section 3 of the Repeal Act. Our
answer to that question is in the negative.”
15. The aforesaid principle of law was reiterated in the case of SectionSwati
Ferro Alloys Private Limited v. Orissa Industrial Infrastructure
Development Corporation (IDCO) ors: (2015) 4 SCC 204 as under:-
“16. From the bare pleading of the case and the record, we find
that there is disputed question of fact about the ownership of Plot
No.C/9, Industrial Estate, Cuttack. Therefore, the High Court was
justified in dismissing the same and directing the parties to
approach the civil court for resolving such dispute.”
16. The disputed question of fact was held outside the realm of
adjudication under SectionArticle 226 of the Constitution by the Supreme Court in
the case of SectionHindustan Coca Cola Beverage Private Limited v. Union of
India ors: (2014) 15 SCC 44 in the following terms:-
“13. The next submission pertains to the issue whether the High
Court was justified addressing the lis on merits when series of
factual aspects are involved. We are disposed to think that the
High Court should not have entered into the factual score to
decline the relief to the appellants. We are obliged to say so as
Mr. Bagaria, learned senior counsel has contended that it can only
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be adjudicated upon with reference to the documents on record.
The documents mean the transactions, quantum of CENVAT
availed of, the amount that was taken as refund by paying from
the PLA and further not availing refund of CENVAT credit at any
point of time. Needless to emphasise, the said aspect are in the
realm of facts which could not have been adjudged or adjudicated
by the High Court under SectionArticle 226 of the Constitution as the
order of recovery was challenged on the ground that no notice was
issued to the appellant and that it was not liable to pay in the
obtaining factual matrix.”
17. In view of the law laid down in Bhaskar Jyoti Sarma, Swati Ferro
Alloys Private Limited and Hindustan Coca Cola Beverage Private Limited
cases (supra) since there is serious dispute on facts that arises in this matter,
therefore, the claim of the appellant-writ petitioner could not be adjudicated
in the writ proceedings. Thus, learned Single Judge was right in rejecting
the writ petition.
18. In view of the above, finding no error in the judgment of learned
Single Judge, there is no occasion for us to interfere in the writ appeal.
Consequently, the same is dismissed.
(H.S. Thangkhiew) (Ajay Kumar Mittal)
Judge Chief Justice
Meghalaya
29.07.2019
“Lam AR-PS”
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