Smt.K.Balamani , Balamma v. The Commissioner Of .B.C.Welfare,

I N THE HI GH COURT OF JUDI CATURE AT HYDERABAD FOR THE STATE OF TELANGANA AND THE STATE OF ANDHRA PRADESH FAMI LY COURT APPEAL No.45 of 2016 Between:

Smt.K.Balamani @ Balamma and others ..Appellants And The Commissioner of B.C.Welfare, Hyderabad and others ..Respondents JUDGMENT PRONOUNCED ON : 27th February, 2017 THE HON'BLE SRI JUSTI CE C.V.NAGARJUNA REDDY AND THE HON'BLE SMT. JUSTI CE T.RAJANI 1.Whether Reporters of local Newspapers may be allowed :

to see the Judgments?

2. Whether the copies of judgment may be marked to : yes Law Reporters/Journals?

3. Whether their Ladyship/Lordship wish to see fair copy of the : yes Judgment?

______________________________ C.V.NAGARJUNA REDDY, J __________________ T.RAJANI , J

THE HON'BLE SRI JUSTI CE C.V.NAGARJUNA REDDY AND THE HON'BLE SMT. JUSTI CE T.RAJANI FAMI LY COURT APPEAL No.45 of 2016 Between:

Smt.K.Balamani @ Balamma and others ..Appellants And The Commissioner of B.C.Welfare, Hyderabad and others ..Respondents Counsel for the appellants: Mr.K.Venkatesh Gupta Counsel for respondent No.4: Mr.V.Mallik for Mr.Balla Ravindra Nath Counsel for the other respondents: -- The Court made the following:

JUDGMENT: (Per the Hon'ble Sri Justice C.V.Nagarjuna Reddy) This Family Court Appeal arises out of order and decree, dated 29.12.2015, in O.P.No.42 of 2011 on the file of the Judge, Additional Family Court, Hyderabad, whereby it has dismissed the said O.P. filed by the appellants for declaring appellant No.1 as the legally wedded wife and appellant Nos.2 to 4 as the legitimate children of one late K.Sriram and that all of them are also entitled for the retirement benefits. 2.

We have heard Mr.K.Venkatesh Gupta, learned counsel for the appellants, and Mr.V.Mallik, learned counsel, representing Mr.Balla Ravindranath, learned counsel for respondent No.4. 3.

Mr.K.Sriram (hereinafter referred to as 'the deceased'), who worked as Grade I Warden in the District Backward Classes Welfare Office at Nampally, Hyderabad, retired on 31.07.2009 and died on 28.08.2009. Appellant No.1 has claimed that she is the legally wedded wife of the deceased and appellant Nos.2 to 4 were born to her through the deceased. Respondent No.4 has resisted the claim of the appellants and pleaded that the deceased, who was her husband, never married appellant No.1 and that appellant Nos.2 to 4 were not born through the deceased. The lower Court, while holding that appellant No.1 failed to prove that she was the legally wedded wife of the deceased has, however, rendered a categorical finding that appellant Nos.2 to 4 are the legitimate children of the deceased in view of Section 16 of the Hindu Marriage Act, 1955 (for short 'the Act'). Having held so, the lower Court has declined the relief to the appellants regarding the retirement benefits based on Rule 50 of the Andhra Pradesh Revised Pension Rules, 1980 (for short 'the Rules').

4.

At the hearing, Mr.K.Venkatesh Gupta, learned counsel for the appellants, has submitted that while appellant No.1 may not be entitled to

the family pension in view of Rule 50 of the Rules, appellant Nos.2 to 4, being the legitimate children of the deceased, are nevertheless entitled to their respective shares in gratuity as per Rules 46 and 47 of the Rules. 5.

Rule 46(5) of the Rules rendered various persons in case of a male Government servant viz., wife and wives, sons, including step sons, posthumous sons and adopted sons (whose personal law permits such adoption) and also unmarried daughters, including step daughters, posthumous daughters and adopted daughters (whose personal law permits such adoption) eligible to receive gratuity. Under Section 16 of the Act, the children born out of void and voidable marriages are recognized as legitimate children. Respondent No.4 has not filed any appeal questioning the findings of the lower Court on the status of appellant Nos.2 to 4 as the legitimate children of the deceased. Therefore, it goes without saying that appellant Nos.2 to 4 are entitled to their respective shares in the gratuity along with respondentNo.4, her sons and unmarried daughters.

Mr.V.Mallik, learned counsel representing Mr.Balla Ravindranath, learned counsel for respondent No.4, has submitted that his client has three daughters and one son, all of whom are minors, which submission is not disputed by the learned counsel appearing for the appellants. The lower Court has not adverted to the right of appellant Nos.2 to 4 to share gratuity along with respondent No.4 and her children. Therefore, to this extent, the order and decree of the lower Court is not sustainable.

6.

The Family Court Appeal is, accordingly, partly allowed, by declaring that appellant Nos.2 to 4 are entitled to receive their respective shares in gratuity along with respondent No.4 and her four minor children. Respondent Nos.1, 2, 3 and 5 are, therefore, directed to apportion the

gratuity payable to the deceased among appellant Nos.2 to 4, respondent No.4 and her four children, equally.

7.

As a sequel to allowing the appeal, F.C.A.M.P.No.81 of 2016 filed by the appellants for interim relief shall stand disposed of as infructuous. ______________________________ C.V.NAGARJUNA REDDY, J __________________ T.RAJANI , J 27th February, 2017 Note: L.R. copies to be marked.

(B/o) GHN