Smt. Shiramabai vs The Captain Record Officer For O. I. C. Records

Civil Appeal No.@ SLP(C) No. 29319 of 2019 REPORTABLE IN THE SUPREME COURT OF INDIA 2023INSC744 CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 5262 OF 2023 ARISING OUT OF PETITION FOR SPECIAL LEAVE TO APPEAL(CIVIL) NO. 29319 OF 2019

SMT. SHIRAMABAI W/O PUNDALIK. .… APPELLANTS BHAVE & OTHERS

Versus

THE CAPTAIN, RECORD OFFICER FOR O.I.C. RECORDS, SENA CORPS ABHILEKH, GAYA, BIHAR STATE AND ANOTHER ….. RESPONDENTS

JUDGEMENT

HIMA KOHLI, J.

1. Leave granted.

2. The appellants are aggrieved by the order dated 25 th June, 2013, passed by

the High Court of Karnataka Circuit Bench at Dharwad whereby the Regular Second

Appeal1 filed by them against the judgment and decree dated 16 th September, 2010,

passed by the Principal District and Sessions Judge, Belgaum 2, has been dismissed.

Vide judgment dated 16th September, 2010, the learned Principal District Judge

reversed the judgment and decree dated 22 nd December, 2007, passed by the

Signature Not Verified Digitally signed by GEETA AHUJA Date: 2023.08.18 17:26:27 IST 1 Reason: Regular Second Appeal No. 6079 of 2010 (DEC) 2 Regular Appal No. 70 of 2008 Page 1 of 12 CIVIL APPEAL NO @ SLP(C) No. 29319 of 2019

learned Civil Judge (Senior Division) Chikodi 3 whereunder the suit instituted by the

appellants for seeking a declaration to the effect that the appellant no. 1 was the

legally wedded wife of Late Subedar Pundalik Bhave4 and the appellants no. 2 and 3

are their legitimate children, was decreed in their favour and it was held that they

were entitled to the pensionary benefits payable by the respondents herein and

standing in the name of the deceased Subedar Bhave.

3. Facts necessary for the elucidation of the controversy at hand are as follows:

3.1 Late Subedar Bhave was enrolled in the Army in the year 1960 5. On 17th July,

1972, he got married to one Smt. Parvati who died in about two and a half years 6.

Thereafter, the deceased got married to one Smt. Anusuya 7. During the subsistence

of his marriage with Anusuya, he married the appellant no.1 herein 8. Appellants No.

2 and 3 are the offspring of the deceased and appellant no. 1. On 25th January,

1984, the deceased was discharged from service at his request and was granted

service pension at the rate of ₹376/- (Rupees three hundred seventy six only) per

month. On 15th November, 1990, the deceased and Anusuya were granted a decree

of divorce by mutual consent 9 and he paid a lumpsum amount of ₹ 15,000/- (Rupees

fifteen thousand only) to her. Thereafter, the deceased approached the respondent

No. 2 for deleting the name of Anusuya and endorsing the name of the appellant No.

3 In Original Suit No. 73/05 4 For short “Late Subedar Bhave” 5 On 21st July, 1960 6 On 26th January, 1975 7 On 17th March, 1975 8 On 21st February, 1981 9 M.C. No. 21/1990 Page 2 of 12 CIVIL APPEAL NO @ SLP(C) No. 29319 of 2019

1 in the PPO. He also submitted a certificate 10 issued by the Village Sarpanch, Gram

Panchayat Bahirewadi, certifying that he and the appellant No. 1 had got married

along with a copy of their wedding card as proof of the marriage.

3.2. Subedar Bhave expired in the year 2001 11. Thereafter, appellant No. 1

approached the respondents for grant of family pension 12. The said request was,

however, rejected by the respondents 13 on the ground that the deceased had got

divorced in November, 1990, whereas the appellant No.1 claimed to have got

married to him in February, 1981, during the subsistence of the earlier marriage.

3.3. In 2005, the appellants instituted a civil suit for declaration praying inter alia

for issuing directions to the respondents to disburse the pensionary benefits payable

on the demise of the deceased, Subedar Bhave. As noticed above, the trial Court

decreed the said suit in favour of the appellants and held that they were entitled to

receive the terminal benefits of the deceased, particularly, since no claim was ever

laid on the said amount by his ex-wife Anusuya. Aggrieved by the said order, the

respondents preferred an appeal 14, which was allowed and the judgment and decree

passed by the learned Civil Judge was set aside. The said order was assailed by the

appellants in a Regular Second Appeal15 that came to be dismissed by the High

Court. Subsequently, on the basis of the Review Application, the court clarified 16 that

10 Dated 08th October, 1994 11 on 12th January, 2001 12 Vide application dated 09th July, 2001 13 Vide letter dated 01st October, 2001 14 Regular Appeal No. 70 of 2008 15 Regular Second Appeal No. 6079 of 2010 16 Vide order dated 16th October, 2014

Page 3 of 12 CIVIL APPEAL NO @ SLP(C) No. 29319 of 2019

the appellants No. 2 and 3 herein would be entitled to the estate of Late Subedar

Bhave which is in the custody of the respondents.

4. Mr. Rahul Joshi, learned counsel, appearing for the appellants has contended

that High Court erred in holding that the appellant No. 1 cannot be declared as the

wife of the deceased Subedar Bhave, on the ground that their marriage had taken

place during the subsistence of his marriage with Anusuya. He submitted that the

embargo placed under Section 5(1) of the Hindu Marriage Act, 1955 17 that

recognizes a marriage solemnized between any two Hindus on the condition that

neither party has a spouse living at the time of marriage, would not prejudice the

case of the appellant No. 1 for being recognized as the wife of the deceased in view

of the long period of cohabitation between them, which circumstance would attract

the presumption of the marriage between the parties being legal, as contemplated

under Section 114 of the Evidence Act, 1872 18. Section 114 permits the Court to

presume the existence of certain facts which it thinks are likely to have happened in

relation to the facts of a particular case. It was contended that the said presumption

of a legitimate marriage between the deceased and the appellant No. 1 become

stronger in the instant case as during his lifetime, the deceased had approached the

respondents with an application seeking endorsement of the name of the appellant

No. 1 in his Service Book.

17

For short “HMA” 18 For short ‘Evidence Act’

Page 4 of 12 CIVIL APPEAL NO @ SLP(C) No. 29319 of 2019

5. It was further submitted on behalf of the appellants that even if the status of

the appellant No. 1 could not be treated as that of a legally wedded wife of the

deceased till the date a decree of divorce was granted, dissolving his marriage with

Anusuya, after the said date i.e. from 16 th November, 1990, till the date of demise of

the deceased19, admittedly, he and the appellant No. 1 were cohabiting, thereby

entitling the appellants to claim the pensionary benefits of the deceased. It was also

pointed out that at no stage did the first wife, namely, Anusuya lay any claim to the

pensionary benefits of the deceased and therefore, the respondents ought not to

have turned down the legitimate claim of the appellants, more so, when the appellant

no. 1 had spent a large part of her life living with the deceased as man and woman

and any shadow cast on their relationship stood dispelled once the decree of divorce

was passed in November, 1990, dissolving the marriage of the deceased and

Anusuya. To substantiate this submission learned counsel has cited decisions in

Indra Sarma v. V.K.V. Sarma 20, Dhannulal And Others v. Ganeshram And

Another21 and Kattukandi Edathil Krishnan and Another v. Kattukandi Edathil

Valsan and Others22 passed by this Court.

6. On the other hand, Mr. K M Nataraj, learned Additional Solicitor General 23

appearing for the respondents has supported the impugned judgment and submitted

that the marriage between deceased the appellant No. 1 and the deceased is a void

19 on 12th January, 2001 20 (2013) 15 SCC 755 21 (2015) 12 SCC 301 22 2022 SCC OnLine SC 737 23 For short “ASG”

Page 5 of 12 CIVIL APPEAL NO @ SLP(C) No. 29319 of 2019

marriage under Section 11 of the HMA, as the said marriage was contracted during

the subsistence of the marriage between Subedar Bhave and Anusuya. He

submitted that the said void marriage cannot be given a legal sanctity on the basis of

the subsequent dissolution of the marriage and cohabitation of the deceased and the

appellant No. 1.

7. Learned ASG also referred to Regulation 219 of the Pension Regulation for

the Army, 1961 which lays down the conditions of eligibility for grant of family

pension and submitted that Regulation 219(iii) makes it clear that a widow who has

not been married is entitled to pensionary benefits and the appellant No. 1, not being

the widow of the deceased as recognized in law, is not entitled to any relief. As for

the appellant No. 2 and 3, offspring of Late Subedar Bhave and the appellant 1, it is

submitted that they too would not be entitled to any relief under the Regulations, in

as much as, both the said appellants have crossed the age of 25 years whereas

under Regulation 219(iv), the son of an employee would be eligible for family

pension if he is below the age of 25 years. Lastly, it was submitted that the deceased

had informed the respondents about contracting a marriage with the appellant No. 1

only in the year 1990. He had suppressed the said fact till he was discharged from

service in 1984. Had this fact been brought to the notice of the authorities,

appropriate action would have been taken against the deceased for misconduct.

8. We have heard the arguments advanced by learned counsel for the parties,

perused the records and the impugned judgment. The limited issue that requires to

Page 6 of 12 CIVIL APPEAL NO @ SLP(C) No. 29319 of 2019

be answered is whether the appellants would be entitled to claim pensionary benefits

of Late. Subedar Bhave in the facts of the instant case where he had got married to

the appellant No.1 during the subsistence of his marriage with Anusuya, but,

subsequently a decree of divorce was passed, dissolving the said marriage.

9. As has been noticed above, the first wife of Subedar Bhave had passed away

in the year 197524. On 17th March, 1975, he had got married to Anusuya. It appears

that there was no issue from the said marriage. The deceased contracted a marriage

with the appellant No. 1 herein during the subsistence of his marriage with

Anusuya25.Three years down the line, he was discharged from service and granted

service pension. The divorce by mutual consent between the deceased and Anusuya

materialized only in November, 1990. The said decree of divorce is not in question. It

is also not in dispute that the deceased had approached the respondents for seeking

deletion of the name of Anusuya and for endorsing the name of the appellant No. 1

in his Service Book. Pertinently, the respondent No. 2 did include the name of the

appellant No. 1 in the Service Book of the deceased, as his wife which is apparent

from the document26 filed by the respondents along with their counter affidavit. The

contents of the said document are extracted hereinbelow for ready reference:-

“ Sena Seva Corps Abhilekh (Pashu Parivahan) ASC Records (AT) Paharpur, Gaya 823005

JC-85229/Doss /EFP=II 05 Jul 99 24 26th January, 1975 25 21st February, 1981 26 Dated 5th July, 1999

Page 7 of 12 CIVIL APPEAL NO @ SLP(C) No. 29319 of 2019

National Ex-Servicemen Co-Ordinates Committee 380, Sonwar Peth, CHIKODI Distt. Belgaum (Karnataka) 591201

ENDORSEMENT OF FAMILY JOINT NOTIFICATION

1. Refer to your letter No. N Ex CO/CED dated 22 May 99

2. Personal Occurrence regarding divorce of 1st wife Smt. Anusuya has been pub vide this Office Pt II Order No. NE /021/0002/89 and further married to Smt. 'Shirmabai' (2nd Wife) has also been pub vide Pt. II Order No. NE/021/ 0003/99 and both case have been recorded in Service docu.

Sd/-

Capt. Record Officer For OIC Records”

10. On the demise of Subedar Bhave in the year 2001, when the appellant No. 1

approached the respondents claiming family pension, the said request was rejected

only on the ground that her marriage with Late Subedar Bhave had taken place in

February, 1981 whereas he and Anusuya, got divorced much later, in the year 1990.

11. It is no longer res integra that if a man and woman cohabit as husband and

wife for a long duration, one can draw a presumption in their favour that they were

living together as a consequence of a valid marriage. This presumption can be

drawn under Section 114 of the Evidence Act that states as follows:

“114. The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.”

Page 8 of 12 CIVIL APPEAL NO @ SLP(C) No. 29319 of 2019

12. In this above context, we may refer to Andrahennedige Dinohamy and

Another v. Wijetunge Liyanapatabendige Balahamy and Others 27, where the

Privy Council observed thus:

“…..where a man and woman are proved to have lived together as man and wife, the law will presume, unless the contrary be clearly proved, that they were living together in consequence of a valid marriage and not in a state of concubinage.

xxx xxx xxx “The parties lived together for twenty years in the same house, and eight children were born to them. The husband during his life recognized, by affectionate provisions, his wife and children. The evidence of the Registrar of the District shows that for a long course of years the parties were recognized as married citizens, and even the family functions and ceremonies, such as, in particular, the reception of the relations and other guests in the family house by Don Andris and Balahamy as host and hostess—all such functions were conducted on the footing alone that they were man and wife. No evidence whatsoever is afforded of repudiation of this relation by husband or wife or anybody.”

13. In Mohabbat Ali Khan v. Muhammad Ibrahim Khan And Others 28, it was again observing by the Privy council that:

“….The law presumes in favour of marriage and against concubinage when a man and a woman have cohabited continuously for a number of years……”

14. Similarly, in Badri Prasad v. Dy. Director of Consolidation and Others 29,

this Court held as follows:

“…….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…..”

15. In S.P.S. Balasubramanyam v. Suruttayan alias Andali Padayachi and

Others30, this Court held as under:

27

1927 SCC OnLine PC 51 28 1929 SCC OnLine PC 21 29 (1978) 3 SCC 527 30 (1994) 1 SCC 460

Page 9 of 12 CIVIL APPEAL NO @ SLP(C) No. 29319 of 2019

“4. What has been settled by this Court is that if a man and woman live together for long years as husband and wife then a presumption arises in law of legality of marriage existing between the two. But the presumption is rebuttable (see Gokal Chand v. Parvin Kumari31).

16. It is true that there would be a presumption in favour of the wedlock if the

partners lived together for a long spell as husband and wife, but, the said

presumption is rebuttable though heavy onus is placed on the one who seeks to

deprive the relationship of its legal origin to prove that no marriage had taken place

(refer: Tulsa and Others v. Durghatiya and Others 32).

17. A similar view has been taken by this Court in Madan Mohan Singh and Others v. Rajni Kant and Another 33, Indra Sarma v. V.K.V. Sarma(supra) and Dhannulal And Others v. Ganeshram And Another.

18. In the case of Gokal Chand v. Parvin Kumari alias Usha Rani(supra) this Court observed thus :

“……Continuous cohabitation of man and woman as husband and wife and their treatment as such for a number of years may raise the presumption of marriage, but the presumption which may be drawn from long cohabitation is rebuttable and if there are circumstances which weaken and destroy that presumption, the court cannot ignore them.”

19. In Kattukandi Edathil Valsan’s Case (supra), citing the abovesaid decisions

and relying on Section 114 of the Evidence Act, this Court held in the facts of the

said case that there was a presumption of the marriage between the parents of the

plaintiffs on the ground of their long cohabitation status, entitling their offspring to

claim their share in the suit schedule property.

31 (1952) 1 SCC 713 32 (2008) 4 SCC 520 33 (2010) 9 SCC 209

Page 10 of 12 CIVIL APPEAL NO @ SLP(C) No. 29319 of 2019

20. It can be discerned from the aforesaid line of decisions that the law infers a

presumption in favour of a marriage when a man and woman have continuously

cohabitated for a long spell. No doubt, the said presumption is rebuttable and can be

rebutted by leading unimpeachable evidence. When there is any circumstance that

weakens such a presumption, courts ought not to ignore the same. The burden lies

heavily on the party who seeks to question the cohabitation and to deprive the

relationship of a legal sanctity.

21. In the instant case, if the period upto the year 1990 was to be excluded as the

marriage between Late Subedar Bhave and Anusuya had got dissolved only on 15 th

November, 1990, fact remains that even thereafter, the deceased had continued to

cohabit with the appellant No. 1 for eleven long years, till his demise in the year

2001. The appellant No.1 was the mother of two children born from the relationship

with the deceased, namely, appellants Nos.2 and 3. Appellants No.2 and 3 have

been held entitled to the estate of the deceased by virtue of the order passed by the

High Court on the Review application moved by them. In the above background, a

presumption ought to have been drawn in favour of the validity of the marriage

between the deceased and the appellant No. 1, more so, when during his life time,

the deceased had approached the respondent authorities for seeking deletion of the

name of his previous wife - Anusuya from his service record and for endorsement of

the name of the appellant No. 1 therein, which was duly acted upon by the

Page 11 of 12 CIVIL APPEAL NO @ SLP(C) No. 29319 of 2019

respondents vide letter dated 05th July, 1999. It is also not in dispute that the ex-wife

did not claim any pension from the respondents on the demise of Subedar Bhave.

22. In view of the aforesaid discussion, the impugned judgment dated 25th June,

2013, passed by the High Court of Karnataka Circuit Bench at DharwadError:

Reference source not found endorsing the order dated 16th September, 2010Error:

Reference source not found, passed by the First Appellate Court cannot be

sustained and are, accordingly, quashed and set aside. The judgment and decree

dated 22nd December, 2007, passed by the learned Civil Judge (Senior Division),

ChikodiError: Reference source not found is restored. The appellant No.1 is held

entitled to receive the pension payable on the demise of Late Subedar Bhave. As for

the appellants No. 2 and 3, they would be entitled to the said relief till the date they

attained the age of 25 years.

23. The appeal is allowed on the above terms while leaving the parties to

bear their own costs. Pending applications, if any, stand disposed of.

……………..……J. [ HIMA KOHLI ]

……………..……J. [ RAJESH BINDAL ]

NEW DELHI AUGUST 18, 2023

Page 12 of 12