Rakhi Vs. Accountant General

Rakhi vs Accountant General

Disposition Petition allowed Court Kerala Decided Nov 10, 2009

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https://sooperkanoon.com/case/849054

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Citation: sooperkanoon.com/849054
Court: Kerala High Court
Judge: Antony Dominic, J.
Decided On: Nov 10, 2009
Case Number: W.P.(C) No. 29444 of 2009
Subject: Family;Service
Disposition: Petition allowed

Case Summary

AI-generated summary - not the official court judgment text.

- What remains to be seen is as to whether Pinki died an un-natural death within seven years of her marriage and whether her death was attributable to the demand of dowry and further whether she was dealt with cruelty soon before her death. If these ingredients are proved by the prosecution then the conviction of th...

Key legal issue: Family;Service
Outcome / disposition: Petition allowed
Acts & sections: Hindu Marriage Act, 1955 - Section 5; ;Kerala Service Rules, 1959 - Rule 90 and 90(6)

Parties & Advocates

Appellant / Petitioner

Rakhi

Advocate George Abraham, Adv.

Respondent

Accountant General

Advocate Anu Sivaraman, Government Pleader

Legal References

Acts: Hindu Marriage Act, 1955 - Section 5; ;Kerala Service Rules, 1959 - Rule 90 and 90(6)
Cases Referred: Rameshwari Devi v. State of Bihar and Ors.
Reported In: 2010(1)KLT50

Excerpt

- what remains to be seen is as to whether pinki died an un-natural death within seven years of her marriage and whether her death was attributable to the demand of dowry and further whether she was dealt with cruelty soon before her death. if these ingredients are proved by the prosecution then the conviction of the accused under section 304b, ipc will be complete.[para 9] the question is, in the absence of corpus delicti, could it be presumed that the accused persons alone were responsible for the death of pinki. we must hasten to add here that the accused persons have already been acquitted of the murder charge. [para 9] it is clear that pinki's death was caused because of the burns and not in the normal circumstances. the finding of the trial court and the appellate court in that behalf is correct. for this reason we are not impressed by the argument of the learned counsel that in the absence of corpus delicti, the conviction could not stand. [para10] it is clear that the prosecution has not only proved the offence under section 304b, ipc with the aid of section 113b, indian evidence act but also the offence under section 201, ipc. [para 15] held: we have gone through the judgments of the trial court as well as the appellate court carefully and we find that both the courts have fully considered all the aspects of this matter. we, therefore, find nothing wrong with the judgments and confirm the same. the appeal is, therefore, dismissed.[para 16].....sanctioned to the petitioner on condition that necessary certificates will be produced.7. it is stated that the matter reached the accountant general and that thereupon, by ext. p6, the accountant general raised the objection that in view of the fact that the petitioner's mother was not the legally wedded wife of the deceased raghavan, the petitioner is not eligible for family pension. it was at that stage, this writ petition was filed challenging ext. p6 order of the accountant general and seeking a declaration that the petitioner is entitled to be paid family pension.8. rule 90 of part iii k.s.r. (service rules, 1959 (kerala)) provides for family pension. 'family' has been defined in rule 90(6) and 'unmarried daughter' is included at clause (e) there of. it was accordingly that on the death of the government employee, smt. pennamma was getting family pension. once the wife goes out of the scene, if there is any other legal heir included within the definition of family, then that legal heir is eligible to receive family pension. it is on this basis, petitioner contends that with the death of smt. pennamma, she being the unmarried daughter of the deceased has become eligible for family pension.9. the only question further is whether in the absence of a legal marriage between her parents petitioner can claim family pension. counsel for the petitioner relied on the judgment of the apex court in rameshwari devi v. state of bihar and ors. : 2000(2) klt sn 29 (c. no. 33) sc : (2000) 2 scc 431, in which the apex court has upheld the claim for family pension of a child born in a second marriage, which has also been held to be a void marriage in view of section 5 of hindu marriage act, 1955. on facts there does not appear to any difference between the case of the petitioner and the case dealt with by the apex court. this judgment is a complete answer to the objection raised by the accountant general.10. further, after due enquiry and gazette publication, petitioner has.....

Full Judgment

Antony Dominic, J.

1. The claim in this Writ Petition is for family pension.

2. Sri. V.K. Raghavan, working as Villageman in Mattoor Village Office expired on 9th October, 1995. It is stated that he had initially married Smt. K.C. Pennamma. According to the petitioner, in that wedlock there were no issues and therefore, he contracted a second marriage with Smt. Ammini. In the second wedlock, apart from the petitioner, a son was also born.

3. On the death of Sri. Raghavan, only 50% of the family pension was paid to Smt. K.C. Pennamma. Thereupon, Smt. Pennamma and the petitioner's mother Smt. Ammini, the 2nd wife of the deceased, together filed Original Petition No. 2273 of 2003 before this Court contending that the first wife should be given the entire family pension. This Court considered the matter and by Ext.P1 judgment held that since the second marriage was not legal, Smt. Pennamma should get full family pension. Accordingly payment was made.

4. While so, Smt. Pennamma expired on 16.07.2007 and Ext. P2 is the death certificate. Thereupon the petitioner submitted Ext. P3 application claiming family pension, on the basis that she is the daughter of the deceased Raghavan and therefore is eligible for family pension. Petitioner also submits that her brother Sri. V.R. Rajesh has already been given employment, under the compassionate appointment scheme, recognising him as the son of the deceased.

5. Ext. P4 is a legal heirship certificate issued by the Tahsildar, after due enquiry and publication in the gazette, certifying that the petitioner and her brother are recognised as the legal heirs of the deceased. The name of the petitioner's mother is not included in Ext. P4 certificate presumably for the reason that the 2nd marriage was not a legal one.

6. The District Collector passed Ext.P5 order holding that the petitioner is the sole dependent of the deceased without any independent income and that being an unmarried daughter, she is entitled to family pension. On that basis family pension was sanctioned to the petitioner on condition that necessary certificates will be produced.

7. It is stated that the matter reached the Accountant General and that thereupon, by Ext. P6, the Accountant General raised the objection that in view of the fact that the petitioner's mother was not the legally wedded wife of the deceased Raghavan, the petitioner is not eligible for family pension. It was at that stage, this Writ Petition was filed challenging Ext. P6 order of the Accountant General and seeking a declaration that the petitioner is entitled to be paid family pension.

8. Rule 90 of Part III K.S.R. (Service Rules, 1959 (Kerala)) provides for family pension. 'Family' has been defined in Rule 90(6) and 'unmarried daughter' is included at Clause (e) there of. It was accordingly that on the death of the Government employee, Smt. Pennamma was getting family pension. Once the wife goes out of the scene, if there is any other legal heir included within the definition of family, then that legal heir is eligible to receive family pension. It is on this basis, petitioner contends that with the death of Smt. Pennamma, she being the unmarried daughter of the deceased has become eligible for family pension.

9. The only question further is whether in the absence of a legal marriage between her parents petitioner can claim family pension. Counsel for the petitioner relied on the judgment of the Apex Court in Rameshwari Devi v. State of Bihar and Ors. : 2000(2) KLT SN 29 (C. No. 33) SC : (2000) 2 SCC 431, in which the Apex Court has upheld the claim for family pension of a child born in a second marriage, which has also been held to be a void marriage in view of Section 5 of Hindu Marriage Act, 1955. On facts there does not appear to any difference between the case of the petitioner and the case dealt with by the Apex Court. This judgment is a complete answer to the objection raised by the Accountant General.

10. Further, after due enquiry and gazette publication, petitioner has been certified to be a legal heir of the deceased. Her brother has been given appointment under the dying-in-harness scheme. The District Collector has also sanctioned family pension to her. In these circumstances, the fact that marriage between the parents was not a legal marriage, will not defeat the claim of the petitioner for family pension. If so Ext. P6 objection of the Accountant General is unsustainable and is set aside.

11. It is directed that the respondents shall sanction and disburse family pension due to the petitioner. This shall be done as expeditiously as possible and at any rate within 2 months of receipt of a copy of the judgment.

Writ Petition is allowed as above.

Same Court & Year Kerala · 2009 Same Parties Rakhi vs Accountant General Same Subject Family;Service Same Judge Antony Dominic, J. Acts & Sections Hindu Marriage Act, 1955 - Section 5; ;Kerala Service Rules, ...

Family;Service