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2002 DIGILAW 233 (ORI)

KANAKALATA MAHARANA v. SHANTILATA MAHARANA

2002-04-15

M.PAPANNA, PRADIPTA RAY

body2002
JUDGMENT : Pradipta Ray, J. - One Durga Charan Maharana died in harness on June 15, 1996 while he was working as a lineman-B under Grid Corporation of Orissa. Kanaklata Maharana, the widow of Durga Charan Maharana, the present appellant, submitted claims before the concerned authority to receive death benefits like family pension, gratuity, provident fund etc. She also obtained a legal heir certificate from the Tahasildar, Khurda in support of her claim. 2. Shantilata Maharana and her son Sri Dukhabandhua Maharana, respondent Nos. 1 & 2 herein, put forward a claim before the authority that she was married to Durga Charan in 1973 and she is his first wife and that Dukhabandhu, respondent No. 1, was born out of the wedlock between her and Durga Charan. According to them, during subsistence of the first marriage with her, Durga Charan married Kanaklata and such second marriage being void, Kanaklata and her children cannot have any claim to any death benefit of Durga Charan. 3. As the dispute before the authorities remained unresolved, Shantilata and Dukhabandhu filed civil proceeding No. 268 of 1996 in the Family Court, Cuttack, for a declaration that Shantilata is the legally married wife of Durga Charan and Dukhabandhu is his legitimate son through her. Kanaklata, defendant No. 1, in the said civil proceeding, contested the suit by filing a written statement. In her written statement she denied the alleged first marriage with Shantilata and claimed to be the only legally married wife of Durga Charan. Kanaklata has also alleged that Shantilata was married to one Sadasiva before her alleged marriage with Durga Charan. 4. By judgment and decree dated September 27, 1999, the Family Court, Cuttack, upheld the claim of Shantilata and Dukhabandhu are entitled to get the death benefits of deceased Durga Charan Maharana. Being aggrieved, Kanaklata Maharana has filed this appeal. 5. In course of hearing, the learned Advocate for the appellant on instruction from Kanaklata, who is personally present in Court, states that she does not want to pursue the dispute regarding the marriage of Shantilata. It is, however, pointed our that under the provisions of Hindu Marriage Act even if Kanaklata is the second wife and marriage is void, the children born out of second marriage are legitimate children and they are entitled to their share in the death benefits of their father. It is, however, pointed our that under the provisions of Hindu Marriage Act even if Kanaklata is the second wife and marriage is void, the children born out of second marriage are legitimate children and they are entitled to their share in the death benefits of their father. It is pointed out that the dispute has been going on since 1996 and it has become difficult for Kanaklata and her children to maintain themselves without receiving any part of the death benefit. 6. Before the Family Court both the sides have led evidence. On consideration of the materials on record, the Family Court has found that Shantilata was married to Durga Charan in 1973. Even ignoring the concession of the present appellant, we do not find any substantial error in the finding of the Family Court regarding the marriage of Durga Charan with Shantilata. Marriage with Kanaklata appears to have been admitted. Even the witnesses of Shantilata have stated that Durga Charan married Kanaklata subsequently. Three children-two daughters and a son, have been born out of the said marriage between Durga Charan and Kanaklata. Thus, we uphold the finding that Shantilata married Durga Charan before Kanaklata and that he married Kanaklata thereafter and was living with her. Section 16 of the Hindu Marriage Act has laid down : "16. Legitimacy of children of void and voidable marriage.: (1) Notwithstanding that a marriage is null and void u/s 11, any child of such marriage who would have been legitimate if the marriage had been valid, shall be legitimate, whether such child is born before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976), and whether or not a decree of nullity is granted in respect of that marriage under this Act and whether or not the marriage is held to be void otherwise than on a petition under this Act. (2) Where a decree of nullity is granted in respect of a voidable marriage u/s 12, any child begotten or conceived before the decree is made, who would have been the legitimate child of the parties to the marriage if at the date of the decree it had been dissolved instead of being annulled, shall be deemed to be their legitimate child notwithstanding the decree of nullity. (3) Nothing contained in Sub-section (1) or Sub-section (2) shall be construed as conferring upon any child of a marriage which is null and void or which is annulled by a decree of nullity u/s 12, any rights in or to the property of any person, other than the parents, in any case where, but for the passing of this Act, such child would have been incapable of possessing or acquiring any such rights by reason of his not being the legitimate child of his parent. 7. In view of the aforesaid provisions there cannot be any doubt that the children of Durga Charan born through Kanakalata are also the legitimate children of Durga Charan and entitled to shares as sons in the death benefits and properties left by their father, Durga Charan. The Supreme Court in Rameshwari Devi v. State of Bihar and Ors. AIR 2000 SCW 273 has also laid down that the children born out of a second marriage performed during the subsistence of the previous marriage are entitled to their legal share in the death benefits of the father even though the second marriage is otherwise void in law. The Family Court has not at all applied its mind to the provisions of Section 16 of the Hindu Marriage Act and fell into error in holding that only Shantilata and her son are entitled to the statutory service benefits of deceased Durga Charan Maharana. The said part of the declaration is thus set aside. 8. Learned Advocate appearing for the Respondent No. 3 namely, Executive Engineer, Electrical Division, Khurda, states that the Orissa Civil Service (Commutation of Pension) Rules, 1992 governed the case of Durga Charan at the time of his death as the said Rule was adopted by the employer. Rule 55 of the Orissa Civil Service Pension Rules deals with the family pension. Upon consideration of the Rule 55 particularly, the Sub-rules (6)(c) and (12)(a), we have no doubt that the children born through Kanakalata are also entitled to share of the family pension. The exact share of the said children will be determined by the employer in accordance with the Family Pension Rules. 9. After death of Durga Charan, Shantilata, her son Dukhabandhu and the three children of Durga Charan born through Kanakalata are entitled to get other benefits, like gratuity, provident fund and unutilised leave salary in equal shares. 10. The exact share of the said children will be determined by the employer in accordance with the Family Pension Rules. 9. After death of Durga Charan, Shantilata, her son Dukhabandhu and the three children of Durga Charan born through Kanakalata are entitled to get other benefits, like gratuity, provident fund and unutilised leave salary in equal shares. 10. It is pointed out that Durga Charan during his life time incurred loan from Khurda Electrical Division Employees' Co-operative Credit Society. The said loan and any other loan amount outstanding against Durga Charan will first be realised from the gratuity of Durga Charan and, thereafter, the balance will be distributed among the heirs as held herein. 11. Thus we hold that Shantilata, her son Dukhabandhu and three children of Durga Charan born through the appellant Kanakalata are entitled to get family pension in accordance with the provisions of the Orissa Civil Services (Commutation of Pension) Rules, 1992. Exact share of the said entitled persons will be determined by the Employer in accordance with the Family Pension Rules. 12. We also hold that Shantilata, her son Dukhabandhu and the three children of Durga Charan born through Kanakalata are entitled to get other death benefits including gratuity, provident fund, unutilised leave salary. Out of the gratuity outstanding loan of Durga Charan would be paid off first and thereafter the balance gratuity amount would be released in favour of the heirs as held herein. 13. In view of the fact that the dispute has been continuing since 1996, we desire that the Employer would release the benefits as early as possible after complying with the required formalities. Appeal is thus disposed of. M. Papanna, J. 14. I agree.