First Appeal No. 577 of 2015 with Civil Application No. 1770 of 2015. Case: Draupada @ Draupadi Jaydeo Pawar and Others Vs Indubai d/o. Kashinath Shivram Chavan and Another. High Court of Bombay (India)
| Case Number | First Appeal No. 577 of 2015 with Civil Application No. 1770 of 2015 |
| Counsel | For Appellant: Mr. C.M. Kothari, Adv. and For Respondents: Mr. Mahindra Deshmukh, Adv. |
| Judges | Mrs. Mridula Bhatkar, J. |
| Issue | Code of Criminal Procedure - Section 125; Hindu Marriage Act - Sections 5, 11, 17; Indian Penal Code - Sections 494, 495; Maharashtra Civil Services Rules, 1982 - Rule 116(6)(a)(i); Constitution of India - Articles 15, 39(a) |
| Judgement Date | February 10, 2016 |
| Court | High Court of Bombay (India) |
Judgment:
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This Appeal is directed against the judgment and order dated 17th February, 2010 passed by the Joint Civil Judge, Senior Division, Sangli while disposing of Misc. Application Nos. 168 of 2003 and 131 of 2006 by a common judgment.
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Draupada Jaydeo Pawar and Indubai Jaydeo Pawar both claimed to be wives of the deceased Jaydeo Pawar, have filed these Misc. applications separately for succession and heirship certificate in their favour. (In order to avoid confusion, both the parties are addressed by their names).
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As per the case of the Draupada, her marriage was solemnized with Jaydeo Pawar in the year 1979 and five children were born out of the said wedlock. Jaydeo died on 10th July, 2003 at village Ainwadi, Tal. Khanapur, Sangli. Before death Jaydeo had executed a Will dated 17th May, 2002 and he bequeathed the entire property in favour of his wife Draupada. After death of Jaydeo, Draupada applied for the Letters of Administration and on that basis she claimed that Jaydeo had married to her in the year 1979 and the second marriage with Indubai allegedly performed was solemnized in the year 1981 and therefore Indubai has no claim in the pension or other pensionary benefits of Jaydeo.
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Per contra, Indubai claims that her marriage with Jaydeo was solemnized as per Hindu rites & ritual on 22nd June, 1981 & out of their wedlock she gave birth to one Shubhangi who is one of the applicant in these applications for succession certificate. It is the case of Indubai that after few years of marriage, Jaydeo neglected her and her daughter Shubhangi. Therefore she had filed an application for maintenance under Section 125 of Code of Criminal Procedure before the J.M.F.C., Sangli vide Misc. Application No. 225 of 1989. The said application was decided in favour of Indubai and the Court ordered Jaydeo to pay maintenance to her.
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Miscellaneous Application No. 131 of 2006 for heirship was filed by Draupada and Miscellaneous Application No. 168 of 2003 for heirship was filed by Indubai. Both the parties adduced oral as well as documentary evidence to prove their respective claims as legally wedded wife of Jaydeo. The learned Judge of the trial Court appreciated the evidence and held that Draupada failed to prove her valid marriage with Jaydeo in the year 1979 however, the fact of marriage of Jaydeo with Indubai is believed by the trial Court and partly allowed the application filed by Draupada. During the pendency of the applications, Draupada died. In Miscellaneous Application No. 168 of 2003, the learned Judge directed to issue succession certificate in the name of the applicant Indubai to enable her to receive arrears of family pension and future family pension subject to payment of share of family pension amount if applicant Nos. 2 to 6 i.e. children of Draupada in Misc. Application No. 131 of 2006 are found entitled to those amounts. This order is challenged by applicant Nos. 2 to 6 in Misc. Application No. 131 of 2006 i.e. children of Draupada.
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At the time of hearing the Appeal, the points of determination are formulated as under:
1) Whether Draupada was legally wedded wife of Jaydeo?
2) Whether family pension is an Estate of the employer which can be bequeathed by Will?
3) Under Rule 116(6)(a)(i) of Maharashtra Civil Services Rules, 1982 whether the family pension is payable equally to the second widow, when first widow is alive of Government servant?
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The learned counsel for the Appellants has submitted that Draupada got married with Jaydeo in the year 1979. In support of her case, many documents were filed by the Appellants. He submitted that Jaydeo before his death had executed a Will on 17th May, 2002 at Ainwadi, Tal. Khanapur. Therefore Draupada has filed Application No. 143 of 2004 for Letters of Administration and the learned Civil Judge, Senior Division, Sangli by its order dated 22nd August, 2005 issued the Letters of Administration in favour of Draupada about movable and immovable properties. He relied on the Will which is marked Exhibit 16 by which Jaydeo has bequeathed the entire property in favour of Draupada. The learned counsel submitted that the learned Judge of the trial Court ought to have consider the documents produced by Draupada. There are many documents issued by Talathi of Ainwadi. He submitted that Jaydeo was serving as a 'Teacher' in New English School, Kupri, Hatkanangale, Kolhapur which was run by 'Rayat Education Society'. He relied on the evidence of Mr. P.B. Pawar, a colleague of Jaydeo who deposed about the marriage with Draupada. The learned counsel submitted that Jaydeo has mentioned the name of Draupada as his nominee in his pension papers. He submitted that the learned Judge has committed error in accepting the evidence of Indubai and her witnesses. The trial Judge ought not to have relied completely on the findings given by the criminal Court in the maintenance application.
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The learned counsel submitted that status of Indubai as a second wife is illegal and her marriage with Jaydeo was void. She has no right in the property or pension of Jaydeo. In support of his submission, he relied on the judgment in the case of "Smt. Nanda Santosh Shirke vs. Smt. Jayashree Santosh Shirke and Another", 2011 (3) AllMR 365. He also relied on the ratio in the judgment of "State of Punjab vs. K.R. Erry and Sobhag Rai Mehta", AIR 1973 SC 834. He further relied on the judgment of full bench in the case of "D.S. Nakara and Others vs. Union of India", 1983 (1) SCC 305.
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The learned counsel for the Respondents has supported the judgment passed by the trial Court. He submitted that the other benefits are given to the Appellants but Indubai has rightful claim over the pension which is recognized by the trial Court. He submitted that Indubai got married on 22nd June, 1981 with Jaydeo and one daughter namely Shubhangi was born out of their wedlock. He submitted that the documents and entry of marriage which are produced by Draupada are forged and manipulated and therefore those documents are rightly disbelieved by the learned Judge of the trial Court. He further argued that Indubai was compelled to file a criminal case under Section 125 of the Code of Criminal Procedure and in reply, Jaydeo has admitted his marriage with Indubai and did not say a single word about his first marriage with Draupada. He further submitted that this admission given by Jaydeo of his marriage with Indubai supports the claims of Indubai as legally wedded wife of Jaydeo over pension and pensionary benefits. He further argued that if there would have been prior marriage with Draupada, then Jaydeo ought to have mentioned about the first marriage. However, there is no whisper about it. He supported the reasoning and finding given by the trial Judge. He submitted that the Will executed by Jaydeo is challenged by Indubai. It is a forged document and Indubai was not made a party in that proceeding when the application for Letters of Administration was made by Draupada. He submitted that pension is not an "estate" of any employer which can be disposed of by Will. Therefore, the bequeath of pension by Jaydeo in favour of Draupada in the said Will is not legal and the property can not be disposed of by Jaydeo in this manner.
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In support of his submission, he relied on the judgment of the Hon'ble Supreme Court in the case of Violet Issaac vs. Union of India", 1991 DGLS (Soft.) 68. He further relied on the ruling of "Jodh Singh vs. Union of India", 1980 DGLS (Soft.) 437. He further relied on the judgment of "Sundariya Bai Choudhary vs. Union of India and Others", AIR 2008 MP 227. He submitted that as per Rule 116(6)(a)(i) of Maharashtra Civil Services (Pension)...
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