Bhaskaran R. (Retired Senior Gang Man (class D) vs Senior Divisional Personnel Officer, Palghat Division, Southern Railway, Palakkad, Pin � 678 002 & Others

K.V. Eapen, Member A

The applicant in the Original Application is a retired Senior Gangman of the Southern Railway. He seeks an early consideration of a petition that was filed by him before the 1st respondent seeking inclusion of the 2nd respondent as his spouse in the family composition for retiral benefits and in the Pension Payment Order (PPO), after the deletion of his deceased earlier wife's name.

The applicant had retired from service on 31.3.2005. His first wife had died of cancer while he was in service. After that, while his children were minor he submits that he had married one Yesodha. The name of Smt. Yesodha was included in the PPO No. 0605219325 issued from the office of the 1st respondent Senior Divisional Personnel Officer, Palakkad Division, Southern Railway. However, after his retirement, his wife Smt. Yesodha met with a road accident on 14.6.2012 and passed away. The death certificate of Smt. Yesodha has been produced as Annexure A2. Later the applicant married the 2nd respondent (Madhavi) on 15.7.2015. He has produced a copy of the certificate of marriage between himself and Smt. Madhavi, i.e. the 2nd respondent in this matter, issued by the Karimba Grama Panchayat at Annexure A3. The applicant submits that the 2nd respondent Smt. Madhavi was looking after him and it was consequent to living together that they decided to get married. He also submits that the said Smt. Madhavi was deserted by her first husband almost 35 years back consequent to a failed marriage. After he got married to Smt. Madhavi he moved the 1st respondent for changing of the name of nominee from his earlier wife the deceased Smt. Yesodha to that of Smt. Madhavi, his present wife, in the pension records. A copy of the application for the inclusion of Smt. Madhavi as post retiral spouse for the purpose of family pension is produced as Annexure A4.

However, it is submitted that the 1st respondent has not accepted the marriage between the applicant and Smt. Madhavi for the purposes of inclusion in the family pension documents as post retiral spouse. The ground taken by the 1st respondent is that the 2nd respondent Smt. Madhavi had been earlier married to one Shri Narayanan on 10.8.1980. It is contended by Smt. Madhavi that the said Shri Narayanan has deserted her from 1983 and that she had been living alone. However, the marriage between Shri Narayanan and Smt. Madhavi has not been formerly annulled and it was at that time the applicant has entered into marriage with Smt. Madhavi vide Annexure A3. After this, consequent to the decision of the 1st respondent in not recognizing the marriage between the applicant and Smt. Madhavi, Smt. Madhavi filed an OP No. 617/2016 before the Family Court, Palakkad for divorce from her first husband for desertion. The Family Court issued a judgment on 23rd June, 2017 in the OP 617/2016 allowing the petition and dissolving the marriage between the petitioner and the respondent Shri Narayanan held on 10.8.1980. It is to be seen that this order was passed exparte, a copy of which is produced as Annexure A5.

After the order by the Family Court, Palakkad in OP No. 617/2016 was passed, the applicant had submitted the same to the 1st respondent in order to prove that Smt. Madhavi and him were living as wife and husband and therefore, the said Smt. Madhavi was entitled to be included as his spouse for his post retiral pensionary benefits. However, the 1st respondent then passed the impugned order at Annexure A6, declining the inclusion of Smt. Madhavi as the spouse of the applicant for purposes of retiral pension etc. In the order it has been indicated that, as per the copy of the marriage certificate produced by the applicant, it is seen that the applicant had married Smt. Madhavi on 15.7.2015. However, Smt. Madhavi had filed OP No. 617/2016 only after which the earlier marriage between Shri Narayanan and Smt. Madhavi was dissolved. Thus, Smt. Madhavi's marriage with Shri Narayanan has been dissolved only on 23.6.2017 after the judgment of the Family Court in OP No. 617/2016 which was passed exparte. Thus, it appears that the second marriage during the subsistence of the 1st marriage cannot be legal and is a void marriage. It has been clearly established that the applicant had married Smt. Madhavi when her marriage to Shri Narayanan was still in subsistence and she got legally divorced only on 23.6.2017, whereas she married the applicant on 15.7.2015. Thus the relationship was dissolved only on a latter date and, as such, the marriage which was held on 15.7.2015 between the applicant and Smt. Madhavi cannot be taken as legally valid. It is stated that the inclusion of Smt. Madhavi as the spouse in the Railway records is not possible as per rules.

Aggrieved by the communication of the 1st respondent at Annexure A6 the applicant made various representations. He submits that the present status of himself and Smt. Madhavi has to be looked into in this matter and that the name of Smt. Madhavi as spouse has to be accordingly included in the post retiral pension records. The representation dated 9.3.2020 to the 1st respondent has been produced at Annexure A7. It reiterates that the name of Smt. Madhavi should be included in his PPO as post retiral spouse. It points out that there is no dispute from any quarter with the applicant and Smt. Madhavi living as husband and wife. However, it is contended that the said representation at Annexure A7 has been kept pending and that the applicant has been denied of his right to have the name of his wife Smt. Madhavi included as the post retiral spouse in the family records. It is submitted that the reason given by the 1st respondent for the denial of his marital status with Smt. Madhavi i.e. just for the reason that Annexure A5 order of dissolution of marriage was obtained by Smt. Madhavi subsequent to her marriage with the applicant, is illegal and liable to be interfered with. It is the main contention of the applicant that the Marriage Certificate produced at Annexure A3 which has to be accepted by the respondents and there can be no legal bar in Smt. Madhavi figuring as the spouse of the applicant. The Annexure A5 Judgment of the Family Court, Palakkad, which has been passed subsequently, does not go against any claim of Smt. Madhavi to be accepted as the legal wife of the applicant, in as much the judgment is exparte i.e. it operates to dissolve the marriage between Smt. Madhavi and her husband in the first marriage. It is submitted that Smt. Madhavi's earlier marriage was annulled as she was deserted by her husband since 1983 for 35 years and that the stand taken that the marriage was subsisting is illegal. The respondents therefore, should accept Annexure A5 order of the Family Court for the purpose of inclusion of Smt. Madhavi as spouse in the family pension records. It is also pointed out that there is no appeal or review filed and the judgment has become final, with the order that the marriage between Smt. Madhavi and Shri Narayanan held on 10.8.1980 is dissolved.

The applicant had moved a Writ Petition before the Hon'ble High Court of Kerala in WP(C) No. 13936 of 2020 seeking a direction to the respondents to consider the representation dated 9.3.2020 submitted by him within a time frame. The Writ Petition was, however, disposed of by the Hon'ble High Court by directing that in view of Section 14 of the Administrative Tribunals Act and the decision of this Court in P. Suresh Babu (IAS) v. State of Kerala & Anr. - 2019 (2) KLT 972, the Writ Petition was not maintainable. Thus, the Writ Petition was dismissed without prejudice to the right of the petitioner to move the Central Administrative Tribunal with appropriate application. A copy of the order dated 10.07.2020 in WP No. 13936 of 2020 has been produced at Annexure A8. The applicant therefore seeks direction of this Tribunal on the 1st respondent to inquire into and consider passing orders on Annexure A7 within a time limit that may be fixed by the Tribunal. He also seeks relief to call for the records leading to issue of Annexure A6 and to quash the same. He seeks a direction to hold that the wife of the applicant, (Smt. Madhavi) is entitled to be included as the post retiral spouse of the applicant for the purposes of family pension as requested for vide the Annexure A4 application.

The respondents have filed a reply statement in response to the OA, wherein they submit that as per the documents produced by the applicant it had been found that the marriage of the applicant with Smt. Madhavi was solemnized on 15.7.2015. When the application was filed by the applicant with the respondents requesting to include Smt. Madhavi as her post retiral spouse, it had been found that the said Smt. Madhavi was the wife of one Shri Narayanan. Their marriage was dissolved by the Hon'ble Court only in 2017 and thus even before dissolution of the said marriage, Smt. Madhavi was married to the applicant, which cannot be recognized in terms of the Hindu Marriage Act, 1955. Accordingly, the applicant was advised the legal position stating that the 2nd marriage of the lady when 1st marriage was subsisting was a void marriage and was impermissible under the rules. In effect what the respondents submit is that the marriage between the applicant and Smt. Madhavi is void as she got legally divorced from Shri Narayanan only on 23.6.2017, which was much after the marriage with the applicant on 15.7.2015. The relationship between Smt. Madhavi and Shri Narayanan being dissolved only on a later date (on 23.6.2017), the marriage between the applicant and Smt. Madhavi cannot be taken as legally valid. As such, the inclusion of Madhavi as the applicant's spouse in PPO is not permissible and it is submitted that as per the Hindu Marriages Act, 1955 it is also punishable for bigamy. It is also submitted that the representation dated 9.3.2020 has not been received by the respondents and that the Annexure A6 order passed by the respondents is a speaking order clearly stating all the facts.

I have heard Mr. Rajesh Sivaramankutty, learned counsel appearing for the applicant and Mr. V.A. Shaji, ACGSC, learned counsel appearing for respondent No. 1, as well as, Mr. Antony K.V., who has appeared for the respondent No. 2 Smt. Madhavi. The learned counsel for the 2nd respondent Smt. Madhavi has gone by the contentions made by the applicant in the matter. I find that the issue to be decided in this matter at the end of the day is whether the 1st respondent Senior Divisional Personnel Officer, Southern Railway is bound to take a strict technical view in the matter relating to the marriage between the applicant and Smt. Madhavi or if some consideration can be exercised by him in the overall facts and circumstances of the case. As per facts brought out, it is clear that the marriage between the applicant and Smt. Madhavi has been registered and a marriage certificate has been issued on 29.7.2015. It is also clear that Smt. Madhavi's first marriage was annulled through the orders of the Family Court, Palakkad only in 2017. Whether these two facts should result in the non-inclusion of Smt. Madhavi as family pensioner is the moot question. In any case at this present point of time Smt. Madhavi is no longer married to Shri Narayanan. Further, a marriage certificate between Smt. Madhavi and the applicant has been produced as Annexure A3 which has not been questioned by anyone in any form. There is no indication been produced that there has been any objection to the circumstances that are now existing. Thus, there can be a presumption that the marriage between the applicant and Smt. Madhavi has been generally accepted and the marriage certificate at Annexure A3 has not been declared invalid or been cancelled by any legal authority.

In view of the facts and circumstances, I, therefore, direct the respondent No. 1 to consider the representation at Annexure A7 once again in the above light and to pass necessary orders. It is urged that the respondent No. 1 need not take a hyper-technical stand in the matter in the context of the current circumstances and only examine whether the name of Smt. Madhavi can be included in the post retirement family pension documents, given the above considerations. A decision may be taken by the respondents within a period of three months from the date of receipt of a copy of this order.

The Original Application is accordingly, disposed of. No order as to costs.