KAMALA PANDA @ PANDIANI Vs. JUNHA PATEL

JUDGEMENT

(1.) Defendant in Title Suit No. 17 of 1987 of the Courtof Munsif, Sambalpur is the appellant in this appeal challenging the reversingjudgment passed by the Additional District Judge, Sambalpur in Title AppealNo. 36/11 of 1987/88. The plaintiff filed the aforesaid suit for a declarationthat she .is the wife of Bharat Patel (since dead) and she is entitled to get thefamily pension on account of the death of her husband. Bharat Patel was working as a Daftari in the Collectorate ofSambalpur. He died on 4.10.1975. After his death the plaintiff as the secondwife of late Bharat was Paid family pension, gratuity etc. for the period from 5.10.1975 to 28.2.1982. By order dated 12.3.1982 the Collector, Sambalpurwithheld the family pension sanctioned in favour of the plaintiff on the groundthat the plaintiff is not legally married wife of late Bharat Patel. The plaintiffmade a representation to the Collector as well as to the Accountant GeneralOrissa alleging that she is the legally married second wife of late Bharat Pateland is entitled to receive the family pension etc. Thereupon the plaintiff wasinstructed in March, 1986 to produce succession certificate from the competentCourt in support of her claim. The plaintiff thereafter filed this suit for theaforesaid declaration.

(2.) IT was alleged in the plaint Bharat Patel had married defendant in the year 1954 and there was a divorce between them in the year 1964.A document to that effect has been executed on 21.1.1964 by the defendantin presence of witnesses in favour of Bharat Patel and thus the marriage stooddissolved with effect from that date. It has also been alleged that the divorcewas effected on the consent of both parties, according to their caste customand social rites prevailing in their society. After the dissolution of marriagebetween Bharat Patel and the defendant, the defendant married on Dhaneswarof Modipara and had lived as husband and wife till the year 1969 It is theallegation of the plaintiff that Bharat thereafter married the plaintiff on2.7.1964 in 'Bandani form of marriage and both of them lived as husband andwife till the death of Bharat. In evidence of marriage of the plaintiff Bharatalso executed a document on 2.7.1964. In these circumstances, the plaintiffprays for the aforesaid declaration.

(3.) IT appears from the record that defendant appeared through anAdvocate on receipt of the summons issued in the suit, and applied for adjournment on 1.5.1987 to enable her to file her written statement. Time was grantedtill 1.7.1987, but the defendant did not appear on the adjourned date and wasset ex -parte. The Court thereafter called upon the plaintiff to adduce evidenceex -parte. On consideration of the ex -parte evidence, the Court was notsatisfied that the plaintiff has been able to establish the allegations made in theplaint. Consequently the suit was dismissed by the learned trial Court Theplaintiff thereafter carried up the matter in appeal and the appellate courtallowed the appeal recording a finding to the effect that the obsertion made byby the trial Court in the impugned judgment was contrary to law. The proposition of law was enunciated by the lower appellate Court that there is no baranywhere in any law for a widow getting married for the second time andafter a widow gets remarried all her claims and connection with the family ofthe deceased husband would automatically cease. Then the lower appellate Courtjumped to a conclusion that the finding of the trial Court is erroneous andreversed the same. Consequently the suit was decreed. Hence this appealby the defendant.