A.S.No.673 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 13-12-2019
CORAM
THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM
A.S.No.673 of 2018
And
C.M.P.No.18573 of 2018
N.Indira .. Appellant/Defendant No.1
vs.
V.Sugandha .. Respondent No.1/Plaintiff
The General Manager of Metro Transport,
Corporation of Chennai,
Pallavan Salai,
Chennai.
The Divisional General Manager of
Metro Transport Corporation,
Madhavaram Depot,
Chennai-600 060. .. Respondent Nos.23/Defendant
Nos.23
First Appeal is filed under Section 19(1) of Family Court Act
read with Section 96 read with Order 41, Rule 1 of the Code of Civil
Procedure against the judgment and decree dated 13.08.2018 made in
O.S. No.208 of 2010 on the file of the learned III Additional Judge,
Family Court, Chennai.
For Appellant : Mr.S.Sadasharam
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For Respondent No.1 : No Appearance
For Respondents-23 : Mr.M.Chidambaram
JUDGMENT
The appeal suit on hand is preferred against the judgment
and decree dated 13.08.2018 passed by the learned III Additional
Judge, Family Court, Chennai in O.S.No.208 of 2010.
2. The first defendant is the appellant, the first respondent
is the plaintiff and the second and third respondents are the second
and third defendants respectively in the appeal suit.
3. The suit was instituted for a declaration that the first
respondent/plaintiff is the legally wedded wife of the deceased Metro
Transport Corporation of Chennai employee late Mr.R.Venkatesan.
4. The contentions of the first respondent/plaintiff was that
she was the legally wedded wife of Mr.R.Venkatesan, Staff No.12086,
who was working as an employee in the Metro Transport Corporation
at Madhavaram Depot. The deceased employee Mr.R.Venkatesan
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married the appellant/first defendant Smt.N.Indira on 15.12.1986 and
the same was registered before the Marriage Register of Sub-Registrar
Office, Pallavaram under the SectionHindu Marriage Act. The first respondent/
plaintiff herself admitted the fact that the appellant/first defendant
married late Mr.Venkatesan prior to her marriage. A female child was
born to late Mr.Venkatesan and Smt.N.Indira.
5. The first respondent/plaintiff had stated that during the
year 1988, the appellant/first defendant had an illicit intimacy with one
Mr.Ravi and left the matrimonial home without the knowledge of the
deceased R.Venkatesan. The appellant/first defendant after four years
filed a maintenance case in M.C.No.250 of 1992 and an order was
passed to pay a sum of Rs.1,000/- per month to herself and to her
daughter. The first respondent/plaintiff’s husband late Mr.Venkatesan
filed divorce petition before the First Additional Family Court at
Chennai in O.S.No.865 of 1990 and the said petition was dismissed for
default on account of the non-appearance of the petitioner. The
deceased Mr.R.Venkatesan subsequently married the plaintiff/first
respondent Smt.Sugandha on 13.11.1991 and was leading a
matrimonial home with her till his death. Mr.R.Venkatesan filed a
divorce petition in O.P.No.1192 of 2004 before the very same Court on
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the ground of cruelty and desertion and a decree of divorce was
granted on 13.09.2004 in favour of the deceased late
Mr.R.Venkatesan. However, the deceased late R.Venkatesan had
married the first respondent/plaintiff Smt.Sugandha on 13.11.1991
long before the dissolution of marriage with the first wife. The first
respondent/plaintiff had one male child born through late
Mr.R.Venkatesan and the said child was also died on 08.07.1999. The
first respondent/plaintiff’s husband Mr.R.Venkatesan died on
31.01.2006 and the Transport Corporation had not settled the terminal
and pensionary benefits due to the deceased employee late
Mr.R.Venkatesan. Thus, the first respondent/plaintiff instituted the
suit.
6. The appellant/first defendant Smt.N.Indira contested
the suit by stating that the marriage between the appellant/first
defendant and the deceased husband Mr.R.Venkatesan took place on
15.12.1986 and they were living in the matrimonial home and one
female child was also born and the allegation of illicit intimacy was
false.
7. In view of the fact that the deceased employee failed to
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maintain the first wife Smt.N.Indira, a maintenance case was filed and
the Court ordered the maintenance amount of Rs.1,000/-.
Subsequently, O.P.No.1192 of 2004 was filed by the deceased
employee and the decree of divorce was granted on 13.09.2004. It
was an ex parte decree and the appellant/first defendant filed an
application in I.A.No.1653 of 2005 to set aside the ex parte decree and
filed another I.A.No.1652 of 2005 to condone the delay in filing the
application to set aside the ex parte decree.
8. When the matter was taken up for hearing, it was
brought to the notice of the Court that the husband of the appellant/
first defendant died on 31.01.2006 and accordingly, the petition was
dismissed as not pressed on 29.03.2006 and now steps are taken to
restore the application to set aside the ex parte decree of divorce.
9. It is contended by the appellant/first defendant that the
marriage solemnised between the first respondent/plaintiff and her
deceased husband on 13.11.1991 was not a legal marriage and the
first respondent/plaintiff had suppressed the material particulars about
her personal life and she was found to had clandestinely lived with the
deceased husband of the appellant/first defendant and the marriage
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dated 13.11.1991 was not a valid marriage. It is contended that the
first respondent/plaintiff was not the legal heir of the deceased late
R.Venkatesan and the appellant/first defendant, being the widow of
the deceased R.Venkatesan and the daughter of the first wife were
entitled for the benefits due to the deceased employee.
10. The Trial Court framed the following issues for
consideration:-
“(1) Whether the plaintiff is entitled for
declaration as prayed for ?
(2) Whether the first defendant and her
daughter V.Revathi are entitled to succeed the
estate of the deceased Venkatesan or not ?
(3) Whether the plaintiff is entitled for
mandatory injunction as prayed for ?
(4) To what other relief the plaintiff is
entitled ?”
11. With reference to issue Nos.1 and 2, on the side of the
first respondent/plaintiff, the first respondent/plaintiff was examined
herself as PW-1 and her witnesses were examined as PWs 2 and 3 and
Exs.A-1 to A-15 were marked as documents. On the side of the
defendants, the appellant/first defendant herself was examined as DW-
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1 and Exs.B-1 to B-3 were marked as documents.
12. The first respondent/plaintiff deposed in her cross-
examination by the appellant/first defendant and had stated that the
marriage between the first respondent/plaintiff and the deceased
employee Mr.R.Venkatesan was solemnised on 13.11.1991 and the
decree of divorce against the appellant/first defendant was passed on
13.09.2004. The decree of divorce was an ex parte decree and further
the first respondent/plaintiff, in her cross-examination, admitted that
the appellant/first defendant had filed maintenance case in M.C.No.250
of 1992.
13. Till his death, the deceased employee paid
maintenance to his first wife, appellant/first defendant. The said fact
was informed to her by late Mr.R.Venkatesan. The marriage between
the first respondent/plaintiff and the deceased employee Venkatesan
was solemnised on 13.11.1991 in Viyasarpadi Amman Koil. The first
respondent/plaintiff examined an additional witness Thiru Rathna Raja
of Madhavaram, a friend of the deceased Mr.R.Venkatesan, who was
examined as PW-2.
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14. PW-2, in his cross examination, deposed that the
deceased employee R.Venkatesan was known to him and he was a
driver in Pallavan Transport Corporation and he knows the deceased
employee Mr.R.Venkatesan. Whatever be the case about the deceased
Mr.R.Venkatesan was only hear say and he was not personally seen
any such thing or he had no personal knowledge about these facts. All
of them he heard from somebody, who came to know about these
facts.
15. Another additional witness was examined by the first
respondent/plaintiff Mrs.F,Mary, Chennai-58 as PW-3. It was admitted
that during the year 1981, the first respondent/plaintiff married one
Mr.Selvarathinam and she was not living with Mr.Selvarathinam. The
marriage between the first respondent/plaintiff and Mr.Selvarathinam
was solemnised as per the Christian Customs and there was no
dissolution of marriage between Mr.Selvarathinam and the first
respondent/plaintiff. It is further deposed by PW-3 that the marriage
between her sister, the first respondent/plaintiff and Mr.R.Venkatesan
was solemnised in the year 1991 and the first wife was divorced by
Mr.R.Venkatesan during the year 2004.
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16. The documents were examined by the Trial Court.
Ex.A-8 was the death certificate and the appellant/first defendant as
well as the deceased employee loved each other and the marriage was
registered on 15.12.1986 before the Sub-Registrar Office, Pallavaram
under the SectionHindu Marriage Act. The marriage between the appellant/
first defendant and the deceased employee was admitted by the
parties.
17. The Court perused the documents filed by the first
respondent/plaintiff and the cross-examination of the appellant/first
defendant also reveals that the marriage between the appellant/first
defendant and the deceased employee was solemnised on 15.12.1986
and out of their wedlock, a girl child was born to them and all other
facts regarding filing of maintenance case and the ex parte decree of
divorce passed on 13.09.2004 were admitted.
18. The Trial Court examined the witnesses and arrived a
finding that the appellant/first defendant, who was the first wife of
Mr.R.Venkatesan was a divorcee and she did not take any steps to
number the set aside petition after the death of Mr.R.Venkatesan and
therefore, the Trial Court came to a conclusion that the appellant/first
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defendant, being a divorcee, has no right in the retirement benefits of
late Mr.R.Venkatesan and accordingly, declared that the first
respondent/plaintiff is the legally wedded wife of late R.Venkatesan
and she is the legal heir of the deceased R.Venkatesan. Accordingly,
the Trial Court arrived a conclusion that the first respondent/plaintiff
and the daughter of the first wife Revathi are entitled to receive the
death cum service and family pension and provident fund and the
arrears of pension and monthly pension and other monetary benefits
of the deceased employee Mr.R.Venkatesan.
19. The first respondent/plaintiff is entitled to get arrears
of pension and family pension and other benefits of late
Mr.R.Venkatesan. The Trial Court further directed the second and third
defendants to settle the retirement and pensionary benefits to the first
respondent/plaintiff with the consent of the daughter of the first wife
Ms.Revathi equally and to pay the family pension to the first
respondent/plaintiff. Accordingly, answered issue Nos.1 and 2. Issue
No.3 was also decided in faovur of the first respondent/plaintiff and
finally, the suit was decreed that by declaring that the first
respondent/plaintiff was the legally wedded wife of late
Mr.R.Venkatesan, Driver of Metro Transport Corporation, Chennai and
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a mandatory injunction was granted, directing the defendants 2 and 3
to pay the death cum service and family pension and provident fund
and the arrears of pension and monthly pension and other monetary
benefits of the deceased Metro Transport Corporation of Chennai
employee late Mr.R.Venkatesan, to the first respondent/plaintiff with
the consent of the daughter of the first wife Ms.Revathi, equally and to
pay the family pension to the first respondent/plaintiff.
20. The correctness of the decree is to be decided with
reference to the principles of law.
21. The admitted facts are that the appellant/first
defendant Smt.N.Indira married the deceased employee
Mr.R.Venkatesan in the year 1986 and the first respondent/plaintiff
Smt.V.Sugandha married the deceased employee Mr.R.Venkatesan in
the year 1991.
22. The first respondent/plaintiff herself admitted the fact
that she married deceased employee Mr.R.Venkatesan in the year
1991 when the marriage between the appellant/first defendant
Smt.N.Indira and late Mr.R.Venkatesan was in existence. In other
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words, during the lifetime of the first wife, the first respondent/
plaintiff married the deceased employee Mr.R.Venkatesan in the year
1991 as his second wife.
23. The deceased employee Mr.R.Venkatesan was an
employee of the Metro Transport Corporation, which is a State owned
undertaking. The Service Rules and Regulations as well as the Conduct
Rules enumerates that entering into a contract for second marriage
during the lifetime of the first wife itself is a misconduct.
24. This apart, the second marriage during the lifetime of
the first wife is a bigamy and the second marriage itself is invalid in
the eye of law. Any marriage solemnised during the existence of the
first marriage and the spouse is living, then the second marriage is null
and void and therefore, the same cannot be construed as a valid
marriage.
25. In respect of the present case on hand, the marriage
between the appellant/first defendant and the deceased late
Mr.R.Venkatesan was solemnised in the year 1986 and the second
marriage between the first respondent/plaintiff Smt.V.Sugandha and
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the deceased late Mr.R.Venkatesan was solemnised in the year 1991.
Therefore, the very marriage between the deceased late
Mr.R.Venkatesan and the first respondent/plaintiff Smt.V.Sugandha is
null and void and cannot be considered as a valid marriage.
26. This apart, the Trial Court arrived a conclusion that the
appellant/first defendant was the divorcee and she did not take any
steps to number the set aside petition after the death of late
Mr.R.Venkatesan and accordingly, the Trial Court concluded that the
appellant/first defendant, being a divorcee, had no right in the
retirement and pensionary benefits of the deceased Mr.R.Venkatesan.
27. As far as the above findings are concerned,
undoubtedly, the appellant/first defendant was a divorcee at the time
of the institution of the suit in O.S.No.208 of 2010. However, an ex
parte decree of divorce was passed in the year 2004, well after the
marriage between the deceased employee and the first
respondent/plaintiff in the year 1991. Undoubtedly, the appellant/first
defendant is not entitled for the pensionary benefits of late
Mr.R.Venkatesan, as the marriage between the appellant/first
defendant as well as the employee was dissolved by way of a decree of
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divorce in the year 2004.
28. However, the ineligibility of the first wife, who was a
divorcee, would not automatically provide a right to the first
respondent/plaintiff whose marriage was also null and void in the eye
of law. Therefore, the ineligibility of the first wife on account of decree
of divorce would not provide an entitlement to the second wife whose
marriage was not a valid one in the eye of law. Thus, for the purpose
of family pension and pensionary benefits, any spouse has to establish
that she is the legally wedded wife of the deceased employee and the
marriage was a valid one. Only in the event of a valid marriage, the
terminal and pensionary benefits of the deceased employee can be
settled in favour of the wife.
29. When the parties had admitted that the marriage
between the first respondent/ plaintiff and the deceased employee
Mr.R.Venkatesan was solemnised on 13.11.1991 and during that point
of time, the marriage between the appellant/first defendant
Smt.N.Indira and the deceased Mr.R.Venkatesan was in existence,
then the second marriage itself is null and void. The ex parte decree of
divorce was granted only on 13.09.2004, after a lapse of about 13
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years from the date of second marriage between the deceased
Mr.R.Venkatesan and the first respondent/plaintiff Smt.V.Sugandha.
Thus, the marriage itself is null and void.
30. As per the Pension Rules/Scheme, only a legally
wedded spouse is entitled for the terminal and pensionary benefits of
the deceased employee. Once the first respondent/plaintiff has not
established that she is the legally wedded spouse of the deceased
employee, then she is incapable of getting any relief from the hands of
the Trial Court.
31. The appellant/first defendant, who was a divorcee,
may not be entitled for the family pension. However, ineligibility of the
first wife would not entail the second wife for receiving the family
pension, as in the present case, the second marriage solemnised
between the deceased employee and the first respondent/plaintiff was
null and void. Dis-entitlement of the first wife would not be an
automatic entitlement to the second wife, whose marriage was not
valid in the eye of law. The very relief sought for in the suit itself is for
a declaration that the first respondent/plaintiff is the legally wedded
wife of the deceased employee. Thus, the Trial Court committed an
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error in granting the relief in favour of the first respondent/plaintiff.
32. The first respondent/plaintiff, in the event of
establishing the legality of the marriage between the deceased
employee, may be entitled for the pension benefit and not otherwise.
When the solemnisation of the second marriage during the year 1991
was not disputed by the parties, more specifically during the
subsistence of the first marriage with the appellant/first defendant,
then there is no reason for the Trial Court to arrive a conclusion that
the first respondent/plaintiff is entitled for the family pension and
pensionary benefits. Undoubtedly, the daughter, born through the first
wife to late Mr.R.Venkatesan, is the legal heir and she would be
entitled for the terminal and pensionary benefits and as far as the
family pension is concerned, the spouse alone is entitled for the family
pension. The other benefits shall be settled in favour of the daughter,
who is the legal heir of the deceased employee Mr.R.Venkatesan.
33. As far as the family pension is concerned, the spouse
alone is entitled for the family pension. As regards the Death Cum
Retirement Gratuity (DCRG) and other terminal benefits are
concerned, the legal heirs of the deceased employee are entitled. In
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the present case on hand, the first respondent/plaintiff cannot be
considered as a legal heir since the marriage between the deceased
employee Mr.R.Venkatesan and the first respondent/plaintiff is null and
void and therefore, the daughter of late Mr.R.Venkatesan Ms.Revathi is
the legal heir as of now and she would be entitled to get all the
terminal benefits, including the DCRG, provident fund and arrears of
salary or leave salary etc.
34. However, the daughter is not entitled to receive the
family pension in the absence of a specific clause in the Pension
Scheme. Therefore, the terminal and pensionary benefits are to be
settled in favour of the daughter of the deceased late
Mr.R.Venkatesan. However, the family pension cannot be granted
either to the first respondent/plaintiff or the appellant/first defendant
as the appellant/first defendant was a divorcee and the first
respondent/plaintiff is not a legally wedded wife of the deceased
employee late Mr.R.Venkatesan.
35. This being the principles to be followed, the
respondents 2 and 3/defendants 2 and 3 are bound to settle the
terminal benefits in favour of the daughter of the deceased employee
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late Mr.R.Venkatesan and as far as the family pension is concerned,
neither the first respondent/plaintiff nor the appellant/first defendant is
entitled for the same.
36. Thus, the Trial Court has committed the perversity and
the findings on the issues are also infirm. Accordingly, the judgment
and decree dated 13.08.2018 passed by the learned III Additional
Judge, Family Court, Chennai in O.S.No.208 of 2010 stands set aside
and consequently, the appeal suit stands allowed. However, there shall
be no order as to costs. Consequently, connected miscellaneous
petition is closed.
13-12-2019
Index : Yes/No.
Internet: Yes/No.
Speaking Order/Non-Speaking Order
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To
1.The III Additional Judge,
Family Court,
Chennai.
2.The General Manager of Metro Transport,
Corporation of Chennai,
Pallavan Salai,
Chennai.
3.The Divisional General Manager of
Metro Transport Corporation,
Madhavaram Depot,
Chennai-600 060.
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S.M.SUBRAMANIAM, J.
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