Partly allowed

Rudrappa S/O Basappa Lakkundi, v. Smt. Susheela Claiming W/O Rudrappa Lakkundi

Karnataka HC13 Dec 2019MFA/102505/2017

Case brief

AI extract

What is this about?

The High Court allowed an appeal partly. While upholding the Family Court's declaration that the appellant is the legally wedded wife, it set aside the order directing the government to alter service records and pension nominations, holding the Family Court lacked jurisdiction over service conditions.

What did the court decide?

Direction to rectify service records and grant nomination/pension benefits was set aside. Declaration of marital status is upheld.

Rudrappa S/O Basappa Lakkundi, Vs Smt. Susheela… — Matrimonial and Divorce | Karnataka HC (2019)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 13^th DAY OF DECEMBER, 2019

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PRESENT

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THE HON’BLE MR. JUSTICE P.B.BAJANTHRI AND

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THE HON’BLE MR. JUSTICE NATARAJ RANGASWAMY

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MFA NO.102505/2017 (FC)

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BETWEEN:

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RUDRAPPA S/O. BASAPPA LAKKUNDI, AGE 62 YEARS, OCC: RETD, GOVT. SERVANT, NOW R/O. AWARADI, TQ. BAILHONGAL, BELAGAVI.

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... PETITIONER

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(BY SRI. DINESH M. KULKARNI, ADVOCATE)

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AND:

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SMT. SUSHEELA CLAIMING W/O. RUDRAPPA LAKKUNDI, AGE 58 YEARS, OCC: HOUSEHOLD, R/O. KARIMSAB MENASINKAI BUILDING, H.NO.1, ISHWAR NAGAR, OPP-APMC, BHAIRIDEVARAKOPPA, HUBBALLI, DIST. DHARWAD.

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THE GOVT. OF KARNATAKA, REP. BY IT’S THE CHIEF SECRETARY, VIDHANSOUDHA, BENGALURU.

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THE DIRECTOR INSPECTOR GENERAL OF POLICE, (DIG), BENGALURU.

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THE ACCOUNTANT GENERAL (PENSION) BENGALURU.

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THE DEPUTY COMMISSIONER, DHARWAD.

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THE SUPERINTENDENT OF POLICE, DHARWAD.

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THE POLICE SUB INSPECTOR, FOREST WING, NEAR NORTH TRAFFIC, POLICE STATION, NEW COTTON MARKET, HUBBALLI.

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SMT. LALITHA SHOWN AS W/O. RUDRAPPA LAKKUNDI, AGE 48 YEARS, OCC: HOUSEHOLD, H.NO.25, SANMATHI NAGAR, VEERABHADRESHWAR COLONY, UNKAL, HUBBALLI, DIST. DHARWAD.

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... RESPONDENTS

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(BY SRI. S.S.NIRANJAN, ADV. FOR R1; SRI. VINAYAK KULKARNI, AGA FOR R2 TO R7)

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THIS MFA IS FILED UNDER SECTION 19(1) OF FAMILY COURTS ACT, AGAINST THE JUDGMENT AND AWARD DATED 27.06.2017 PASSED IN O.S.NO.39/2015 ON THE FILE OF THE PRINCIPAL JUDGE, FAMILY COURT, HUBBALLI, DECREEING THE SUIT FILED FOR DECLARATION AND INJUNCTION.

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THIS MFA COMING ON FOR FINAL HEARING, HAVING BEEN HEARD AND RESERVED ON 04.12.2019, THIS DAY, P.B.BAJANTHRI, J. PRONOUNCED THE FOLLOWING:

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JUDGMENT

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The appellant has assailed the Judgment and decree dated 27.06.2017 passed in O.S.No.39/2015 on the file of the Principal Judge, Family Court, Hubballi.

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The parties are referred in the present appeal to their status in O.S.No.39/2015 as plaintiff and defendants respectively.

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The defendant No.7 was working as a Head Constable in the Office of the Police Sub-Inspector, Forest Wing, Hubballi. While, he was in service, he had married plaintiff and so also he had alleged to have married defendant No.8, while nominating defendant No.8 as his legally wedded wife in the service record of the defendant No.7 so as to avail certain service benefits/monitory benefits. In this regard, the plaintiff feeling aggrieved by such nomination, she has filed suit against defendant Nos.1 to 8 and sought for declaration and mandatory injunction. She has also prayed for declaration that, she is

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a legally wedded wife of defendant No.7 and also sought

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for entering her name in the service records of defendant No.7 as a nominee as wife.

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The plaintiff and defendant no.7 were married on 05.05.1981 at Ulavi Chanbasaveshwar Temple, Dharwad. There were certain domestic problems among the plaintiff and defendant No.7 which has resulted in living separately. Under this circumstance, defendant No.7 is stated to have relationship with defendant No.8. Plaintiff had filed Criminal Miscellaneous No.40/2012 for maintenance and she was awarded maintenance of a sum of Rs.3,000/- per month from 18.12.2013. She had also filed for enhancement of maintenance in Criminal Miscellaneous No.127/2014 against defendant No.7. In the aforesaid case, the defendant No.7 admitted in his cross-examination relating to entry of defendant No.8 name in the service records as a nominee and also admitted that he is due for retirement in the month of

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February, 2016. Even though the plaintiff is legally wedded wife of the defendant No.1, defendant No.7 has illegally entered the name of defendant No.8 in the service records instead of plaintiff’s name.

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In O.S.No.39/2015, defendant No.8 remained

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exparte. The Trial Court in O.S.No.39/2015 has framed the following issues:

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i) Whether the plaintiff proves that she is the legally wedded wife of defendant No.7?

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ii) Whether the plaintiff proves that she has not led marital life with the defendant No.7 for 20 years?

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iii) Whether the defendant No.7 proves that in the year 1981 the plaintiff voluntarily deserted defendant No.7.

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iv) Whether the defendant No.7 further proves that plaintiff on her own volition refused to join defendant No.7 and freed the defendant No.7 at the cost of getting Rs.350/- p.m. and Two sarees per year and in this regard the plaintiff executed the document as contended in para-11 of the written statement?

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v) Whether the suit of the plaintiff is barred by Indian Limitation Act and Specific Relief Act and further suit is maintainable?

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vi) Whether the plaintiff is entitled for the relief of mandatory injunction?

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vii) What order and decree?

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The plaintiff examined herself as PW-1 and

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produced five documents i.e. Exs.P1 to P5, whereas from defendant side, DW-1 & DW-2 were examined and four documents were marked as Exs.D1 to D4. The Court below answered Issue No.1, 2 & 6 in affirmative, whereas, Issue No.3 & 4 in negative. The Court below has taken note of depositions on behalf of DWs-1 & 2 and further examined PW-1 as Ex.P1 in Criminal Miscellaneous No.22/2009 and further deposition in Criminal Miscellaneous No.127/2004 so also document of Income

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Tax Register. The appellant failed to apprise the Court below that, the defendant No.8 is legally wedded wife and not the plaintiff. Thus, the Court below proceeded to decree the suit with costs and further holding that the

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plaintiff is declared that she is a legally wedded wife of the defendant No.7 and further declared that the nomination made by the defendant No.7 in his service records mentioning the name of defendant No.8 is illegal. Defendant No.5 is directed to enter the name of the plaintiff in the service book as the nominee of the defendant No.7 and further to forward the pension papers to the higher authorities for consideration. The appellant feeling aggrieved by the Judgment and decree passed in O.S.No.39/2015 contended that, the Court below has not applied its judicial mind, miss-read the case and wrongly decreed the suit and the family Court has exceeded its jurisdiction. The suit was not maintainable, plaintiff has failed to prove her case with reference to Exs.P-1 to P5 documents and further in terms of Rule 302(vi)(b) of KCSR Rules, it is the discretion of the servant insofar as making nomination.

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Per contra, the learned counsel for the

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respondent supported the Judgment and decree passed in O.S.No.39/2015. Undisputedly, defendant No.8 remained exparte. To the support, defendant No.7’s version that he had legally wedded defendant No.8 and in the plaintiff he has not produced any material. That apart, it is evident from defendant No.7’s deposition in Criminal Miscellaneous No.22/2009 read with deposition in Criminal Miscellaneous No.127/2014 and three other documents. Thus, the appellant has not made out a case

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so as to interfere with the Judgment and decree in O.S.No.39/2015.

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Heard the learned counsel for the parties.

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In O.S.No.39/2015, two issues would arise

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namely, Whether the plaintiff is legally wedded wife of defendant No.7 or defendant Nos.7 & 8 are legally wedded couples ? Undisputedly defendant No.8 remained exparte in O.S.No.39/2015 so also in the present appeal. The

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contentions of the appellant are very bald and vague and not supported by any documentary evidence insofar as declaration that defendant No.8 is legally wedded wife of the defendant No.7. The plaintiff is entitled to relief of whether she is legally wedded wife of defendant No.7 or not. Further she is not entitled to seek a rectification of service records of the defendant No.7 to nominate her name or change the name of defendant No.8 to that of plaintiff for the reasons that Family Court has no jurisdiction to alter service records of the defendant No.7 in the State Government records. Such matter would fall under the definition of service conditions of Government employee. Thus, Family Court has exceeded its jurisdiction in directing the concerned defendant to rectify the nomination papers in the service records to the extent of changing the name of defendant No.8 to that of plaintiff and further grant of pensionary benefits on behalf of defendant No.7. Thus, Family Court, Hubballi erred in ordering “……further declared that the nomination made by

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the defendant No.7 in his service records mentioning the name of defendant No.8 is illegal. Defendant No.5 is directed to enter the name of plaintiff in the service book as nominee of the defendant No.7. Thereafter send the pension papers to the higher authorities for consideration.” Such direction is in the absence of any statutory provisions vested with the Family Court. Thus, the appellant has made out prima facie case so as to interfere with the aforesaid direction. In other words, there is no infirmity or illegality insofar as declaration that the plaintiff is legally wedded wife of defendant No.7. In view of these facts and circumstances, plaintiff is permitted to approach appropriate authorities/forum seeking for change of nomination with reference to declaration that she is legally wedded wife of defendant No.7 and consequential benefits if any, available to her. Liberty is given to the plaintiff/1^st respondent to approach State Administrative Tribunal to carry out necessary entry of her name in the service book

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as a nominee of the defendant No.7 and seek further necessary relief.

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In the result, the appeal is allowed in-part to the extent of setting aside the direction that “ ……further declared that the nomination made by the defendant No.7 in his service records mentioning the name of defendant No.8 is illegal. Defendant No.5 is directed to enter the name of plaintiff in the service book as nominee of the defendant No.7. Thereafter send the pension papers to the higher authorities for consideration.”. The Judgment and Decree declaring that plaintiff is legally wedded wife of the defendant No.7 is upheld.

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The appeal stands allowed in-part.

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Sd/JUDGE

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Sd/JUDGE

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*Svh/-

Rudrappa S/O Basappa Lakkundi, v. Smt. Susheela Claiming W/O Rudrappa Lakkundi

Case brief

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Rudrappa S/O Basappa Lakkundi, v. Smt. Susheela Claiming W/O Rudrappa Lakkundi

Case brief

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What did the court decide?

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