Smti. S.Kedaramma v. The Principal Chief Conservator Of Forest And ORS.

IN THE HIGH COURT AT CALCUTTA

CIVIL APPELLATE JURISDICTION [CIRCUIT BENCH AT PORT BLAIR] PRESENT: THE HON'BLE JUSTICE ARINDAM MUKHERJEE AND THE HON'BLE JUSTICE DINESH KUMAR SHARMA MAT/62/2025 IA No.CAN/1/2025 SMTI S. KEDARAMMA ... APPELLANT Vs.

THE PRINCIPAL CHIEF CONSERVATOR OF FOREST AND OTHERS ... RESPONDENTS For the appellant :

Mr. Ananda Halder For the respondent nos.1, 2 & 3 :

Mr. V. D.Sivabalan For the respondent No. 4 :

Ms. A.S. Zinu WITH MAT/1/2026 SMTI M. DAMAYANTI ... APPELLANT Vs.

THE PRINCIPAL CHIEF CONSERVATOR OF FOREST AND OTHERS ... Respondents For the appellant :

Ms. A.S. Zinu For the respondent nos.1, 2 & 3 :

Mr. V. D.Sivabalan For the respondent No. 4 :

Mr. Ananda Halder Heard on :

January 08, 2026 Judgment on :

January 08, 2026 ARINDAM MUKHERJEE, J.

1.

The facts of the case attract two important legal issues. Before going into the merits of the order impugned, we briefly narrate the relevant facts.

2.

Smti S. Kedaramma, being the appellant in MAT/62/2025, was married to M.Kurma Rao, who was employed at Chatham Saw Mill under the Department of Environment and Forests, Andaman and Nicobar Administration. Subsequently, S. Kedaramma and M. Kurma Rao separated from each other which, according to Smti M. Damayanti, the respondent no.4, happened pursuant to a customary divorce between S.Kedaramma and M.Kurma Rao legally to dissolution of their marriage. This fact is, however, disputed by Smti S. Kedaramma.

3.

Later on, M. Kurma Rao married M. Damayanti. M. Kurma Rao had one son from first marriage and one son and a daughter from the second marriage. M. Kurma Rao died while in service on 4th January, 2004. After the death of M. Kurma Rao, the legal battle started between S. Kedaramma and M. Damayanti being the wor wives of M. Kurma Rao, since decewased.

4.

It is the case of the S. Kedaramma that there was no divorce either in customary form or in any other form between M. Kuma Rao and herself. The marriage between M. Kurma Rao and S. Kedaramma was solemnized after the Hindu Marriage Act, 1955 (herein after referred to as the said Act) come into effect. It was, therefore, necessary to have a dissolution of marriage through a competent Court.

5.

In that view of the matter, according to S. Kedaramma, marriage between M. Kurma Rao and M. Damayanti was a void

marriage in view of the provisions of the said Act on having taken place during subsistence of the first marriage. 6.

M. Damayanti, on the other hand, says that pursuant to the customary divorce, S. Kedaramma left her matrimonial abode and started residing at her parental house. The father of S. Kedaramma died in harness. S. Kedaramma as the dependant daughter of her father applied for compassionate appointment declaring herself to be unmarried and had even suppressed that she had a son from her marriage with M. Kurma Rao.

7.

Be that as it may, M. Damayanti as a nominee in the service records of M. Kurma Rao received the terminal benefits of M. Kurma Rao aggregating to Rs.2,40,000/-. M. Damayanti also claimed the family pension which the department has accorded sanction pursuant to the order impugned which directed the grant of family pension to M. Damayanti.

8.

Challenging the order of the learned Single Judge directing payment of family pension to M. Damayanti, this instant appeal has been preferred by S. Kedaramma.

9.

The principles of law relating to validity of a second marriage, subsequent to promulgation of the said Act are well settled. Unless there is a decree of divorce under section 13 of the said Act by a competent court, the marriage between the husband and the wife is not annulled.

10.

Going by such principle, in absence of any decree of divorce from a competent court, it cannot be said that the marriage between S. Kedaramma and M. Kurma Rao got annulled and/or dissolved. In such a situation S. Kedaramma therefore continues to be the wife of M.Kurma Rao. The necessary consequence is that marriage between M.Kurma Rao and M. Damayanti is void marriage having taken place during the subsistence of the first marriage. The right of the second wife and children out of a void or voidable marriage has been dealt with by the Hon'ble Supreme Court in the judgment reported (2000) 2 SCC 431 ( Rameshwari Devi vs. State of Bihar and others) and (2019) 14 SCC 646 (Union of India and another vs. V.R. Tripathi).

The estate of a male Hindu who had married for the second time during the subsistence of the first marriage, as held by the Supreme Court, will devolve unto the first wife, the children from first wife and the children from the second marriage. The rights of the second wife get eliminated in accordance with such provisions of law as the second marriage during the subsistence of the first marriage under the provisions of Hindu Marriage Act, 1953 is a void marriage.

11.

In the instance case, the terminal benefits of M. Kurma Rao, admittedly a Hindu at the time of his death, will form a part of the estate and as such it devolve on S. Kedaramma and son from the first marriage and children from the second marriage of M. Kurma Rao, if the dissolution of marriage between M. Kurma Rao and Smt S.

Kedaramma is not proved. On the other hand customary divorce between M. Kurma Rao and Smt S. Kedaramma is established then Smt M. Damayanti, the second wife will get a share instead of S. Kedaramma as the second marriage in such a case will be a valid marriage.

12.

So far as family pension is concerned, the Hon'ble Supreme Court has held that the same does not form part of the estate and is available to the widow and/or dependent children in accordance with the service rules governing the employee concerned. In the case in hand M. Kurma Rao is said to be governed by the provisions of Central Civil Service (Pension) Rules, 2021. Under the provisions of the said rules in case of more than one widow, the family pension is to be apportioned amongst them. We fail to understand as to how the 2021 rules will be applicable in case of a person who died on 4th January 2004. Assuming without admitting that the 2021 rules are applicable in the instant case then also an enquiry and finding by a competent court regarding the status of the second marriage of M. Kurma Rao is necessary to hold that S. Kedaramma and M. Damayanti are the widows of M. Kurma Rao.

13.

At the same time, customary divorce is not a form of divorce which is unheard of. The Hon'ble Supreme Court has taken note of customary divorce in the judgment reported in (1989) 2 SCC 526 (Shakuntalabai and another vs. L.V. Kulkarni and another) and (2010) 9 SCC 484 ( Mahendra Nath Yadav vs. Sheela Devi). On a

conjoined reading of the ratio laid down in these two judgments, it is apparent that customary divorce is to be placed and proved through evidence. Only on being proved, it can be established that the marriage between a husband and a wife stood dissolved through a customary divorce.

14.

It is therefore necessary, in the facts of the case, M. Damayanti has to prove that her marriage with Kurma Rao is a valid marriage and to establish the same there has to be a finding that there was a customary divorce which annulled the marriage between M. Kurma Rao and S. Kedaramma. Only then the marriage between M. Kurma Rao and M. Damayanti would be considered to be a valid marriage and give M.Damayanti the right to claim family pension as widow of M. Kurma Rao.

15.

However, the fact reveals that S. Kedaramma while applying for compassionate appointment on the death of her father had prior to 23rd January, 1991 declared herself to be unmarried. This fact has been taken note of by the employer of S. Kedaramma and a disciplinary proceeding had been initiated against her which has resulted in a punishment for which service of S.Kedaramma had been lower down to one grade. This issue is also the subject matter of MAT/1/2026 filed by M. Damayanti.

16.

It is equally correct that an admitted fact is not required to be proved. If we go by such principle, the admission on behalf of S. Kedaramma while seeking compassionate appointment, after she was

married with M. Kurma Rao, give rise to a presumption that she treated the marriage between herself and M. Kurma Rao to have been dissolved. The finding by employer in a disciplinary proceeding regarding suppression of fact by S. Kedaramma cannot, however, be treated to be a declaration by a competent court annulling and/or dissolving the marriage when the admitted position is that Mr. Kurma Rao and S. Kedaramma were married. At the same time, we cannot ignore the provision of customary divorce in view of the judgment of the Hon'ble Supreme Court referred to hereinabove. 17.

It is also an admitted position that M. Damayanti filed a civil suit, inter alia, seeking declaration about the validity of her marriage with M. Kurma Rao. The said suit is pending. The result of the said suit in the light of the discussion as aforesaid will have a bearing effect in respect of the claims and counter claims made by S. Kedaramma and M. Damayanti.

18.

We, while exercising jurisdiction as an appellate court while hearing letters patent appeal arising from writ jurisdiction also cannot comment about the pending suit. At the same time, this Bench, while hearing a letters patent appeal, is not equipped to adjudicate on the factual matrix as to the validity of the marriage and the existence of customary divorce.

19.

We, therefore, set aside the order of the learned Single Judge in the light of the discussion, as aforesaid and give the following directions.

1) The son from the first marriage of M. Kurma Rao, the son and daughter from the second marriage, is entitled to a share as to his estate.

2) If the marriage between M. Kurma Rao and M.

Damayanti is held to be valid, it will automatically mean that the marriage between M. Kurma Rao and S. Kedaramma had stood dissolved prior to the marriage between M.Kurma Rao and S.

Kedaramma.

M.

Damayanti in that case will be considered to be the widow of M. Kurma Rao. In such situation, either S. Kedaramma or M. Damayanti would get a share in the estate of M. Kurma Rao. There will be as such in either case, four legal heir/heirers, will become entitled to the share of estate of M. Kurma Rao. The son from the marriage between M. Kurma Rao and S. Kedaramma is not before the Court.

3) We, therefore, direct M. Damayanti who collected the sum of Rs.2,40,000/- as the nominee to deposit a sum of Rs.1,20,000/- before the Court Civil Judge Junior Division ( Additional Court), Port Blair to the credit of the said Other Suit No.54 of 2018 within a period of two months from date. The money, on being deposited, shall be invested in a short term deposit earning highest rate

of interest and shall be kept renewed from time to time until further orders of the Court.

4) The respondent nos. 1, 2 and 3 are directed not to disburse any family pension in terms of the Office Order No.LS/1102 dated 24th December, 2025 passed pursuant to the order impugned.

5) The said office orders is quashed and/or set aside. The disbursement of the family pension along with arrears and interest will be made either to S. Kedaramma or M. Damayanti depending upon the outcome of the civil suit being Other Suit No.54 of 2018.

6) We also direct the learned Civil Judge Junior Division (Additional Court), Port Blair to dispose of the matter as expeditiously as possible preferably within eight months from date without granting unnecessary adjournment to either of the parties since the issue is pending from 2004. 20.

The appeal and the connected application are accordingly disposed of.

21.

The Registry of this Circuit Bench is directed to transmit a copy of this order to the learned Civil Judge Junior Division (Additional Court), Port Blair.

22.

The observations made herein above are as per the prevailing law as it stands as on date. We have not considered the correctness of the facts or the evidence and as such, any observations made

herein, shall not influence the learned Civil Judge Junior Division (Additional Court), Port Blair while adjudicating the Other Suit No.54 of 2018.

Re: MAT/1/2026 23.

In view of the detailed judgment passed in MAT/62/2025, this appeal, being MAT/1/2026 also stand disposed of. 24.

It is made clear that in the event it is held that the marriage between S. Kedaramma and M. Kurma Rao was not dissolved, it will be open to the parties to re-agitate this point before the appropriate authority.

25.

Urgent Photostat certified copy of this judgment, if applied for, shall be granted to the parties as expeditiously as possible, upon compliance of all formalities.

( ARINDAM MUKHERJEE, J. ) I agree ( DINESH KUMAR SHARMA, J. )