- (1.) NARAYAN Shukla, J. Heard Mr. Tribhuwan Joshi, learned Counsel for the petitioner and learned Standing Counsel for the respondents.
(2.) BY means of the present writ petition the petitioner has prayed for issuance of a writ of mandamus commanding the opposite parties to provide Family pension and all dues payable to the petitioner after the death of the petitioner's husband late Shri Anil Kumar Banerjee, Postman, Rajendra Nagar Post Office, Lucknow as well as to register the name of petitioner and her daughter Kumari Deep Mala Banerjee in the service book of the petitioner's husband, late Shri Anil Kumar Banerjee. The petitioner submits that she is the second wife of her husband and after death of his first wife she was duly married with Mr. Anil Kumar Banerjee according to Hindu rites and rituals on 20-7-1995 at Lucknow and thereafter both of them enjoyed their matrimonial life peacefully. The petitioner's husband was suffering from Tuberculosis since before the petitioner's marriage and first wife never took care of her husband rather used to quarrel with the husband on one or the other pretext and she never took pain to take medical care of her husband. The petitioner's husband was a low income employee as well as keeping in view of his illness the first wife Smt. Reena Banarjee filed a divorce petition before the Additional Principal Judge, Family Court, Lucknow, bearing its No. 192/93, under Section 13 of the Hindu Marriage Act, 1955, in which the Court ordered to dissolve the marriage of the parties by a decree of divorce as it is impossible for them to live as husband and wife. After obtaining the divorce the first wife Smt. Reena Banarjee alongwith her daughter Kumari Shilpi Banerjee left the State of U. P. and went to State of West Bengal and since then their whereabouts is not known to the petitioner neither in the life time of petitioner's husband late Anil Kumar Banarjee Km. Shilpi Banerjee came to know about the well being of her father. After marriage with the petitioner the petitioner's husband late Anil Kumar Banerjee, who was a Postman in the Rajendra Nagar Post Office, Lucknow wrote a letter dated 21-9- 1996 to the Post master, Chowk H. O. Chowk, Lucknow through S. P. M. (HSGH) Rajendra Nagar Post Office, Lucknow for changing the name of the petitioner and her daughter Km. Deep Mala in place of Smt. Reena Banarjee and Kumari Shilpi Banerjee as the petitioner's husband's marriage was already dissolved by the decree of divorce. The aforesaid letter was duly received by the office of the petitioner's husband and it is in the record therein. After the aforesaid letter of the petitioner's husband the opposite parties did not enquire anything regarding the marriage of the petitioner neither sent any kind of letter to show the legal proof of the marriage. The opposite party No. 3 even issued the card to the petitioner's husband to avail the medical facility by which the medical benefits could be availed by the petitioner and her daughter Km. Deepmala Banerjee. In the Ration Card of the petitioner's husband late Anil Kumar Banerjee, the petitioner and her daughter's name Kumari Deep Mala Banerjee is shown which clearly reveals that the petitioner is the wife of her late husband. The petitioner made all her efforts to take care of her husband and provided all help and support and medical assistance, but after long treatment the petitioner could not save her husband's life and the petitioner's husband left for heavenly abode on 22-5-2005 at K. G. M. C. , Chowk, Lucknow. The death certificate issued by the Lucknow Nagar Nigam dated 27-7-2005 has been brought on record as Annexure No. 6 to this writ petition. After the death of the petitioner's husband the petitioner moved an application dated 3-8-2005 before the Senior Superintendent of Post Office, Lucknow Division, Lucknow i. e. opposite party No. 3 to pay the family pension to the petitioner so that the petitioner could meet out the hardship of her life and her daughter. Again on 8-8-2005 the petitioner submitted an application for payment of family pension. In reply to the petitioner's letter dated 8-8-2005 the opposite party No. 3 vide letter dated 14-10-2005 called upon the petitioner to show legal certificate showing her to be the wife of late Anil Kumar Banerjee Ex Postman, Rajendra Nagar, Post Office, Lucknow and thus the opposite parties are demanding the legal certificate showing the wife of late Anil Kumar Banerjee, which is arbitrary, unjust, unfair and unreasonable. A counter-affidavit has been filed on behalf of the respondents stating therein that Shri Anil Kumar Banerjee was an employee of the postal department who died on 22-7-2005, in which it has been admitted that late Shri Anil Kumar Banerjee during his life time has divorced his wife Smt. Reena Banerjee on 6-7-1995 and had submitted a certified copy of the Court's order. He has also submitted a letter dated 21-9-1996 for change of entries in nomination and change of nomination as under : First Nomination (i) Smt. Reena Banerjee. (ii) Km. Shilpi Banerjee. Second Nomination. (i) Smt. Kona Banerjee. (ii) K. Deepmala Banerjee. However, in the service book the change of nomination has not been recorded as such the validity of nomination is not confirmed. It has been further submitted that late Anil Kumar Banerjee vide his letter dated 16-9-1998 and 9-4-2003 has written the name of Smt. Kona Banerjee and Km. Deepmala Banerjee as his wife and daughter but has not specified their date of birth. He has also not submitted any proof of marriage with Smt. Kona Banerjee. He also not submitted any proof confirming the wedding of Kona Banerjee and it is also reported that Km. Deepmala is not the daughter of Late Shri A. K. Banerjee. A report from the Public Relation Inspector (Postal), Rajendra Nagar, Lucknow was called upon by the department, who submitted his report dated 10-10-2005 to the effect that Smt. Kona Banerjee could not produce anything to show that she is the wife of late A. K. Banerjee. On being enquired from the neighbours nobody confirmed about the marriage of Smt. Kona Banerjee with late A. K. Banerjee and it is reported that Smt. Kona Banerjee was not the wife of Late A. K. Banerjee. Under the circumstances in absence of any specific order of a competent Court of law confirming the marriage of the petitioner with Late Anil Kumar Banerjee as well as the proof that Km. Deepmala is also the daughter of Late Anil Kumar Banerjee no amount whatsoever including any pension can be released in favour of the petitioner.
(3.) THE petitioner has filed a rejoinder affidavit reiterating the facts of the writ petition. In addition to the facts that her late husband himself has written letter to the department for nomination of the petitioner as his wife as well as for the daughter as Km. Deepmala Banerjee, which has not been denied by the respondents. From a perusal of the records on arrive at the conclusion that the decree of divorce granted by the Court of competent jurisdiction has not been denied by the respondents and it has been admitted that the petitioner's husband himself had written the letters to the department to endorse the petitioner as well as her daughter Km. Deepmala Banerjee as nominee in place of the first nominee. It is settled law that after decree of divorce the relationship of husband and wife ceased to operate, accordingly the first wife of the petitioner's husband has no right for any claim of benefits arising from the service of late Shri A. K. Banerjee and since late Shri A. K. Banerjee himself has nominated the petitioner for the service benefits there is no reason at all to call for the proof by the respondents as if the nominee is other than the legal heirs he/she has a right over and above to the legal heirs for the benefits for which he/she has been nominated. The respondents have admitted that the letters for nomination were submitted by the deceased late Shri A. K. Banerjee but the same were not endorsed in the record, which was not the fault of Mr. A. K. Banerjee, who expressed his intention to extend the service benefits by nominating the petitioner Smt. Kona Banerjee as nominee.;