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Judgments of Supreme Court of India and High Courts

N.Indira vs V.Sugandha on 13 December, 2019

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
Svn

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A.S.No.673 of 2018

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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A.S.No.673 of 2018

S.M.SUBRAMANIAM, J.

Svn

A.S.No.673 of 2018

13-12-2019

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