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For The Presumption That Wife Who Is Not Seen For Seven Years Is Dead, Husband Has To First Approach Civil Court For Declaration : Karnataka HC

Mustafa Plumber
1 Sep 2019 4:40 AM GMT
For The Presumption That Wife Who Is Not Seen For Seven Years Is Dead, Husband Has To First Approach Civil Court For Declaration : Karnataka HC
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"There is no scope for presumption that wife would be dead, in case if she is not seen for about seven years. For the purpose of the said presumption law provides that the husband has to approach the civil court seeking declaration that his wife is dead. Instead of approaching the civil court and obtaining decree, respondent has presumed that she must have died and had contracted second marriage, which on the face of it is misconduct. "
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A retired railway employee who committed an act of bigamy, assuming that his first wife had dead since he had not seen her for seven years, has been found guilty of misconduct, as per service rules, by the Karnataka High Court and held liable for 50 percent reduction in pension amount. However, considering he has retired and solely dependent on pension amount, court reduced the punishment from five years to three years, period already undergone by him.

A division bench of Justice L Narayana Swamy and Justice R Devdas modified the order of Central Administrative Tribunal (CAT), passed in favour of K L Micheal. The tribunal had in October 2018, set aside the punishment imposed by Railways. Authority had after carrying out an enquiry imposed a punishment of reduction in pension benefits by 50 percent for five years, under the Railway (Services) Pension rules, for misconduct.

Railways, challenged the order of the Tribunal in the High Court, arguing that "Tribunal has made a discussion (in its order) to the extent that the respondent has committed an act of bigamy and when things are not disputed even by the respondent himself, setting aside the punishment order is contrary to principles of law."

Micheal opposed the appeal by saying "As the first wife has eloped, respondent (he) has waited for seven years and presumed that she had died, thereafter entered into a second marriage. There is no error committed by the tribunal." It was also pleaded by him that he has retired and is surviving on pension and punishment would affect his livelihood.

Bench observed:

"There is no scope for presumption that wife would be dead, in case if she is not seen for about seven years. For the purpose of the said presumption law provides that the husband has to approach the civil court seeking declaration that his wife is dead. Instead of approaching the civil court and obtaining decree, respondent has presumed that she must have died and had contracted second marriage, which on the face of it is misconduct. Under these circumstances, the order of the tribunal is to be set aside since the reason assigned is contrary to law and fact."

As regards reduction in punishment period bench said "Honorable Supreme Court has held that interference with the enquiry report and punishment is not for the courts. But in the facts and circumstances of the case that the respondent has retired from service and he is surviving only on pension, if it is deprived, it is nothing but deprival of livelihood of a person. If punishment would have been imposed upon respondent during the period of his service, that would have been a different thing. Under the circumstance, though we confirm the finding of the enquiry officer and the order of punishment, but the only interference to be is with regard to the reduction of period of five years to three years." 

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