Kashmir Kaur Vs. the Union of India and Others - Court Judgment

SooperKanoon Citationsooperkanoon.com/1159245
CourtPunjab and Haryana High Court
Decided OnJul-10-2014
AppellantKashmir Kaur
RespondentThe Union of India and Others
Excerpt:
in the high court of punjab & haryana at chandigarh civil writ petition no.3757 of 2012 date of decision: july 10, 2014 kashmir kaur ….petitioner versus the union of india and others ….respondents coram: hon’ble mr.justice hemant gupta hon’ble mr.justice fateh deep singh 1. whether the reporters of local papers may be allowed to see the judgment ?. 2. to be referred to the reporters or not ?. 3. whether the judgment should be reported in the digest ?. present: ms.rakhi sharma, advocate, for the petitioner ms.puneeta sehti, senior panel counsel for union of india and other respondents fateh deep singh, j. petitioner kashmir kaur after repeated set-backs in her arduous journey through the legal maze has ended up before this court in this writ petition challenging orders dated 12.9.2011 (annexure p/7) of the armed forces tribunal, chandigarh regional bench, at chandimandir (in short, the tribunal) to assert her claim that she is the legally wedded and widow of tiwana dalbir singh 2014.08.02 10:05 i attest to the accuracy and integrity of this document. high court, chandigarh civil writ petition no.3757 of 2012 2 late pioneer corps (pnr) darshan singh bearing no.621542 and thus was entitled to continuation of family pension. the essential facts that deserve to be highlighted are that initially kashmir kaur instituted a suit before the learned additional civil judge (senior division) seeking a declaration in this regard and the learned court through judgment and decree dated 29.4.2009 (annexure p/5) dismissed the suit of the plaintiff. aggrieved over these findings the then plaintiff now petitioner assailed the same before the firs.appellate court of learned district judge. consequent upon enforcement of the armed forces tribunal act, the matter was transferred to the tribunal. it was through the impugned findings, her claim was declined. hence, the petitioner has sought her relief under articles 226/227 of the constitution of india by way of writ of certiorari for quashing these orders of the learned civil judge (senior division) and tribunal in which she has challenged the orders dated 10.11.2005 (annexure p/1) whereby the authorities had refused to continue and ordered recovery of family pension from her. we have heard at length ms.rakhi sharma, advocate, for the petitioner and ms.puneeta sehti, senior panel counsel for union of india and other respondents and have perused the record of the case. undisputedly late pnr darshan singh was enrolled in indian army prior to the year 1946 and was discharged on 26.6.1946 and consequently died on 18.8.1998. petitioner claiming to be the widow of the deceased army man having solemnized marriage with him on 15.12.1956 claimed that she was entitled to family pension on account of death of her tiwana dalbir singh 2014.08.02 10:05 i attest to the accuracy and integrity of this document. high court, chandigarh civil writ petition no.3757 of 2012 3 husband and further illustrated that children were born out of this wedlock. it is further alleged that on the basis of unsubstantiated allegations by inimical ex-servicemen of her village, the authorities without affording her any opportunity stopped the pension being so granted to her in june, 2005 and vide orders dated 10.11.2005 ordered the recovery of the same and hence has led to this lis. during the cours.of arguments, ms.puneeta sethi has not in any manner assailed that the petitioner is around 70 years of age. counsel for both the sides have conceded that stand of the authorities is based on some complaint purported to have been made by ex.risaldar kulwant singh and ex. subedar rattan singh, and some sort of inquiry by the authorities at the back of the petitioner and who have never testified in court thereby holding that in fact the petitioner was legally wedded wife of piara singh yougher brother of deceased darshan singh. it is an admitted fact on the record that consequent upon death of the ex-serviceman, the petitioner was granted family pension in terms of regulation 218 of the pension regulations for the army, 1961 and since apparently the petitioner qualifies as eligible member of the family defined in regulation 216 of the pension regulations for the army, 1961 and her name stands incorporated with effect from 15.12.1956 in the sheet roll and therefore, cannot deny her right to this family pension. apparently it is certainly based on some sort of nomination that might have been made by the deceased ex. army man which has prompted the authorities to process her claim for the award of this pension. ms.rakhi sharma, counsel for the petitioner has rightly argued tiwana dalbir singh 2014.08.02 10:05 i attest to the accuracy and integrity of this document. high court, chandigarh civil writ petition no.3757 of 2012 4 that no such document has been proved on the record during the cours.of trial before the civil judge (senior division) and which certainly is to the detriment of the army authorities. it is further contended by her that only reason of this denial of relief to her is based on the entry in the ration card and voters list whereby she has admitted as pw1 that the same reflects her to be wife of piara singh. the courts below have laid much emphasis on such documents which are certainly not of impeachable credence. even these documents have not been legally proved on the record through the concerned official of the department and therefore, not much weight can be assigned to them. she has even examined her son balwinder singh as pw4 born out of her wedlock with the deceased. it needs to be taken care that the petitioner appears to be an aged lady from a remote border belt apparently illiterate and it is often seen that such class of people in those years way back in 1956 rarely make endeavour to have their marriage photographs snapped or to keep such documentary proof. even if for the sake of arguments, it is accepted that as has been argued by ms.puneeta sehi, counsel for the respondents that the petitioner was wife of piara singh, brother of the deceased army man and it is often seen amongst the jats of erstwhile punjab the institution of marriage was not covered by such caste-iron rules as the marriages are under brahmanical system. the well recognized rattigan’s customary law acknowledges that according to custom amongst jats, a woman can remarry by chadar-andazi, if she has been abandoned or turned out by her husband or on death of her husband to his brother. even sharing of a wife by brothers had been a tiwana dalbir singh 2014.08.02 10:05 i attest to the accuracy and integrity of this document. high court, chandigarh civil writ petition no.3757 of 2012 5 strong prevalent custom in the remote areas of punjab. since there is no tangible evidence led by the authorities to establish that the army man did not nominate her and it is highly unthinkable that a woman would come forward in this indian society to claim to be another’s wife. it is writ large on the record that the petitioner in her evidence before the learned trial court had examined piaro as pw5, ex. subedar major daler singh as pw2 and gopal singh as pw3 who claimed to have the knowledge and were acquainted with such facts. together with the stand of the petitioner as pw1 and her claim that she had been issued pension certificate by the army authorities on the basis of the records and have been issued identity card of widows and canteen card by the army authorities, copies of which have been placed on the records of the case and even the copy of some ration card placed on the record substantiates it so. the same could not be controverted by the counsel for the respondents. thus, from it all ensues that even in terms of sections 50 and 32(5) of the evidence act that such a marriage may be proved by the evidence of the person holding the opinion or by other persons acquainted with such facts evidencing such a factum of marriage. more-so where a man and a woman live together for a long period of time as husband and wife that a presumption certainly arises in law of legality or marriage existing between the two. reliance placed on prem kaur versus sadhu singh (deceased) 1998(1) plr749 though the same is rebutable but nothing has been proved on record to rebut it by the other side. certainly there is no other claimant to claim so is certainly another distressing feature for the respondents keeping in view the beneficial tiwana dalbir singh 2014.08.02 10:05 i attest to the accuracy and integrity of this document. high court, chandigarh civil writ petition no.3757 of 2012 6 intent of such provisions of pension. even if assumed this marriage is void even then in terms of section 16 of hindu marriage act, 1955, children born out of such a wedlock are legitimate under the law and thus are entitled to inheritance of the estate of the parents and hence this pension as well. in view of the foregoing discussions, in the absence of any cogent and reliable evidence of the authorities, the impugned findings certainly cannot sustain in the eyes of law and therefore, the impugned findings so assailed in the petition are set aside by way of allowing this petition. however, no order as to costs. (hemant gupta) judge (fateh deep singh) july 10, 2014 judge 'tiwana' tiwana dalbir singh 2014.08.02 10:05 i attest to the accuracy and integrity of this document. high court, chandigarh civil writ petition no.3757 of 2012 7 tiwana dalbir singh 2014.08.02 10:05 i attest to the accuracy and integrity of this document. high court, chandigarh
Judgment:

IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Civil Writ Petition No.3757 of 2012 Date of decision: July 10, 2014 Kashmir Kaur ….Petitioner Versus The Union of India and others ….Respondents Coram: Hon’ble Mr.Justice Hemant Gupta Hon’ble Mr.Justice Fateh Deep Singh 1.

Whether the Reporters of local papers may be allowed to see the judgment ?.

2.

To be referred to the Reporters or not ?.

3.

Whether the judgment should be reported in the Digest ?.

Present: Ms.Rakhi Sharma, Advocate, for the petitioner Ms.Puneeta Sehti, Senior Panel Counsel for Union of India and other respondents Fateh Deep Singh, J.

Petitioner Kashmir Kaur after repeated set-backs in her arduous journey through the legal maze has ended up before this Court in this writ petition challenging orders dated 12.9.2011 (Annexure P/7) of the Armed Forces Tribunal, Chandigarh Regional Bench, at Chandimandir (in short, the Tribunal) to assert her claim that she is the legally wedded and widow of Tiwana Dalbir Singh 2014.08.02 10:05 I attest to the accuracy and integrity of this document.

High Court, Chandigarh Civil Writ Petition No.3757 of 2012 2 late Pioneer Corps (PNR) Darshan Singh bearing No.621542 and thus was entitled to continuation of family pension.

The essential facts that deserve to be highlighted are that initially Kashmir Kaur instituted a suit before the learned Additional Civil Judge (Senior Division) seeking a declaration in this regard and the learned court through judgment and decree dated 29.4.2009 (Annexure P/5) dismissed the suit of the plaintiff.

Aggrieved over these findings the then plaintiff now petitioner assailed the same before the fiRs.appellate court of learned District Judge.

Consequent upon enforcement of the Armed Forces Tribunal Act, the matter was transferred to the Tribunal.

It was through the impugned findings, her claim was declined.

Hence, the petitioner has sought her relief under Articles 226/227 of the Constitution of India by way of writ of certiorari for quashing these orders of the learned Civil Judge (Senior Division) and Tribunal in which she has challenged the orders dated 10.11.2005 (Annexure P/1) whereby the authorities had refused to continue and ordered recovery of family pension from her.

We have heard at length Ms.Rakhi Sharma, Advocate, for the petitioner and Ms.Puneeta Sehti, Senior Panel Counsel for Union of India and other respondents and have perused the record of the case.

Undisputedly late PNR Darshan Singh was enrolled in Indian Army prior to the year 1946 and was discharged on 26.6.1946 and consequently died on 18.8.1998.

Petitioner claiming to be the widow of the deceased Army man having solemnized marriage with him on 15.12.1956 claimed that she was entitled to family pension on account of death of her Tiwana Dalbir Singh 2014.08.02 10:05 I attest to the accuracy and integrity of this document.

High Court, Chandigarh Civil Writ Petition No.3757 of 2012 3 husband and further illustrated that children were born out of this wedlock.

It is further alleged that on the basis of unsubstantiated allegations by inimical Ex-servicemen of her village, the authorities without affording her any opportunity stopped the pension being so granted to her in June, 2005 and vide orders dated 10.11.2005 ordered the recovery of the same and hence has led to this lis.

During the couRs.of arguments, Ms.Puneeta Sethi has not in any manner assailed that the petitioner is around 70 years of age.

Counsel for both the sides have conceded that stand of the authorities is based on some complaint purported to have been made by Ex.Risaldar Kulwant Singh and Ex.

Subedar Rattan Singh, and some sort of inquiry by the authorities at the back of the petitioner and who have never testified in court thereby holding that in fact the petitioner was legally wedded wife of Piara Singh yougher brother of deceased Darshan Singh.

It is an admitted fact on the record that consequent upon death of the Ex-serviceman, the petitioner was granted family pension in terms of Regulation 218 of the Pension Regulations for the Army, 1961 and since apparently the petitioner qualifies as eligible member of the family defined in Regulation 216 of the Pension Regulations for the Army, 1961 and her name stands incorporated with effect from 15.12.1956 in the Sheet Roll and therefore, cannot deny her right to this family pension.

Apparently it is certainly based on some sort of nomination that might have been made by the deceased Ex.

Army man which has prompted the authorities to process her claim for the award of this pension.

Ms.Rakhi Sharma, counsel for the petitioner has rightly argued Tiwana Dalbir Singh 2014.08.02 10:05 I attest to the accuracy and integrity of this document.

High Court, Chandigarh Civil Writ Petition No.3757 of 2012 4 that no such document has been proved on the record during the couRs.of trial before the Civil Judge (Senior Division) and which certainly is to the detriment of the Army Authorities.

It is further contended by her that only reason of this denial of relief to her is based on the entry in the ration card and voters list whereby she has admitted as PW1 that the same reflects her to be wife of Piara Singh.

The Courts below have laid much emphasis on such documents which are certainly not of impeachable credence.

Even these documents have not been legally proved on the record through the concerned official of the department and therefore, not much weight can be assigned to them.

She has even examined her son Balwinder Singh as PW4 born out of her wedlock with the deceased.

It needs to be taken care that the petitioner appears to be an aged lady from a remote border belt apparently illiterate and it is often seen that such class of people in those years way back in 1956 rarely make endeavour to have their marriage photographs snapped or to keep such documentary proof.

Even if for the sake of arguments, it is accepted that as has been argued by Ms.Puneeta Sehi, counsel for the respondents that the petitioner was wife of Piara Singh, brother of the deceased Army man and it is often seen amongst the Jats of erstwhile Punjab the institution of marriage was not covered by such caste-iron rules as the marriages are under Brahmanical system.

The well recognized Rattigan’s Customary Law acknowledges that according to custom amongst Jats, a woman can remarry by chadar-andazi, if she has been abandoned or turned out by her husband or on death of her husband to his brother.

Even sharing of a wife by brothers had been a Tiwana Dalbir Singh 2014.08.02 10:05 I attest to the accuracy and integrity of this document.

High Court, Chandigarh Civil Writ Petition No.3757 of 2012 5 strong prevalent custom in the remote areas of Punjab.

Since there is no tangible evidence led by the authorities to establish that the Army man did not nominate her and it is highly unthinkable that a woman would come forward in this Indian society to claim to be another’s wife.

It is writ large on the record that the petitioner in her evidence before the learned trial court had examined Piaro as PW5, Ex.

Subedar Major Daler Singh as PW2 and Gopal Singh as PW3 who claimed to have the knowledge and were acquainted with such facts.

Together with the stand of the petitioner as PW1 and her claim that she had been issued pension certificate by the Army authorities on the basis of the records and have been issued identity card of Widows and Canteen Card by the Army authorities, copies of which have been placed on the records of the case and even the copy of some ration card placed on the record substantiates it so.

The same could not be controverted by the counsel for the respondents.

Thus, from it all ensues that even in terms of sections 50 and 32(5) of the Evidence Act that such a marriage may be proved by the evidence of the person holding the opinion or by other persons acquainted with such facts evidencing such a factum of marriage.

More-so where a man and a woman live together for a long period of time as husband and wife that a presumption certainly arises in law of legality or marriage existing between the two.

Reliance placed on Prem Kaur versus Sadhu Singh (deceased) 1998(1) PLR749 Though the same is rebutable but nothing has been proved on record to rebut it by the other side.

Certainly there is no other claimant to claim so is certainly another distressing feature for the respondents keeping in view the beneficial Tiwana Dalbir Singh 2014.08.02 10:05 I attest to the accuracy and integrity of this document.

High Court, Chandigarh Civil Writ Petition No.3757 of 2012 6 intent of such provisions of pension.

Even if assumed this marriage is void even then in terms of section 16 of Hindu Marriage Act, 1955, children born out of such a wedlock are legitimate under the law and thus are entitled to inheritance of the estate of the parents and hence this pension as well.

In view of the foregoing discussions, in the absence of any cogent and reliable evidence of the Authorities, the impugned findings certainly cannot sustain in the eyes of law and therefore, the impugned findings so assailed in the petition are set aside by way of allowing this petition.

However, no order as to costs.

(Hemant Gupta) Judge (Fateh Deep Singh) July 10, 2014 Judge 'tiwana' Tiwana Dalbir Singh 2014.08.02 10:05 I attest to the accuracy and integrity of this document.

High Court, Chandigarh Civil Writ Petition No.3757 of 2012 7 Tiwana Dalbir Singh 2014.08.02 10:05 I attest to the accuracy and integrity of this document.

High Court, Chandigarh