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2007 DIGILAW 92 (PAT)

Mostt. Kunti Devi v. State Of Bihar

2007-01-12

S.K.KATRIAR

body2007
Judgment 1. Heard Mr. Sheojee Mishra for the petitioner, Mr. Piyush Lal, JC to AAG III, and Mr. J.P Karn for the Accountant General. The petitioner seeks a direction to the respondent authorities to make payment of family pension to her in the capacity of the widow and the second wife of the late employee. 2. According to the writ petition, the employee (late Raibansh Sahay) was in the services of the Bihar Government and died on 18.3.1995. His first wife, Smt. Sheo Kumari Devi, died on 4.7.1986. The petitioner claims to be the second wife and have got two children, namely. Pallu Kumar and Sushri Babita Kumari. The petitioner had earlier moved this Court by preferring CWJC No. 1181 of 2000 which was disposed of by order 24.4.2000 (Annexure 1), whereby she was directed to submit an appropriate representation before the Commissioner of Commercial Taxes to be disposed of by a reasoned order and ensure payment of the lawful dues. The Commissioner has disposed of the petitioners representation by order dated 17.6.2000 (Annexure 2). He has consequently issued the authorisation letter bearing no. 279, dated 26.6.2000 (Annexure 3). saying that the petitioner married the late employee while the first marriage was subsisting and, therefore, she is not entitled to any benefit. Their two children would be entitled to the benefit of family pension which shall be paid to them. It is further stated therein that the son has already attained the age of 18 years and is, therefore, not entitled to the benefit of family pension. The daughter (Sushri Babita Kumari) shall continue to draw family pension till the date of her marriage or 24 years of age, whichever is earlier. The petitioner challenges the validity of the order dt. 17.6.2000 (Annexure 2), and submits that the petitioner is entitled to the benefit of family pension. Learned counsel relies on the judgment of a learned single Judge of this Court reported in 1997(2) PLJR 416 (Shanta Sinha vs. State of Bihar & Ors.). 3. Learned Government Counsel has supported the impugned action. He submits that the admitted position is, has been so found by the Commissioner, that the petitioners so-called marriage with the late employee took place when the first wife was alive and, therefore, her marriage is void ab initio. It is, therefore, submitted that the petitioner is not entitled to the benefit of family pension. He submits that the admitted position is, has been so found by the Commissioner, that the petitioners so-called marriage with the late employee took place when the first wife was alive and, therefore, her marriage is void ab initio. It is, therefore, submitted that the petitioner is not entitled to the benefit of family pension. He relies on the judgment of the Supreme Court reported in AIR 2000 SC 735 [:2000(2) PLJR (SC)15] (Rameshwari Devi vs. State of Bihar & Ors). 4. I have perused the materials on record and considered the submissions of learned counsel for the parties. In pursuance of the order dated 24.4.2000 (Annexure-1) of this Court, the Commissioner of Commercial Taxes has disposed of the petitioners representation, wherein he has found as follows: (i) The employee had died on 18.3.1995. (ii) The employees first wife Sheo Kumari Devi died on 4.7.1986. (iii) The present petitioner was married to the employee while Sheo Kumari Devi was alive and, therefore, the allegedly second marriage is void ab initio. (iv) The late employee and the present petitioner had sired two children, namely, one son (Pappu Kumar) and one daughter (Sushri Babita Kumari), and both of them were unmarried on the date of the order. He has, therefore, directed that the petitioner will not be entitled to any benefit of family pension. Her two children will be entitled to the benefit of family pension till the son attains the age of 18 years, and the girl attains the age of 24 years or her marrige, whichever is earlier. Furthermore, the remaining unpaid items of post-retirement benefits shall be divided between all the children of the late employee in equal measure. The employee and the first wife sired four daughters. The consequential direction has, therefore, been issued by the Deputy Commissioner to the Accountant General for payment of family pension, vide letter dated 26.6.2000 (Annexure 3). The relevant portion of Annexure 3 is set out hereinbelow for the facility of quick reference: (LOCAL LANGUAGE) 5. Learned counsel has relied on the judgment of a learned single Judge of this Court in the case of Shanta Sinha vs. State of Bihar (supra) which does support the petitioners case. The relevant portion of Annexure 3 is set out hereinbelow for the facility of quick reference: (LOCAL LANGUAGE) 5. Learned counsel has relied on the judgment of a learned single Judge of this Court in the case of Shanta Sinha vs. State of Bihar (supra) which does support the petitioners case. That was a case where an employee of the Bihar Government had two wives simultaneously and this Court on contest had observed that the surviving family of the deceased Government servant cannot be deprived of full family pension only because the deceased Government servant had left more than one widow. The judgment on first flush seems to support the petitioners case but I express my inability to apply the same in support of the petitioners case for the reasons indicated hereinafter. 6. The judgment of this Court completely overlooks the provisions of Sec.11 of the Hindu Marriage Act, 1955 which is relevant in the present context and reproduced hereinbeiow: "11. Void marriages.Any marriage solemnized after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto (against the other party), be so declared by a decree of nullity if it contravenes anyone of the conditions specified in clauses (i), (iv) and (v) of Sec. 5." Section 5 of the Act provides the conditions for a Hindu marriage, and sub-section (i) provides that a Hindu marriage shall be valid provided neither party has a spouse living at the time of the marriage. The petitioners marriage with the late employee is on the very face of it hit by the provisions of Sec.11 read with Sec. 5(i) of the Act. The judgment also overlooks the provisio of Sec.16 of the Act, subsection (1) of which is relevant and reproduced hereinbeiow for the facility of quick reference: "16. Legitimacy of children of void and voidable marriages.(1) Notwithstanding that marriage is null and void under sec. 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." 7. It is thus manifest on a conjoint reading of Sections 11, 5(i) and 16(i) of the Act that illegitimate wife shall not be entitled to the benefit of family pension. However, law takes kindly to the illegitimate children and grants them the benefit. This position was noticed by the Supreme Court in its judgment in the case of Rameshwari vs. State of Bihar (supra) which fully supports the respondents case. 8. The orders marked Annexures 2 and 3 are entirely in consonance with the judgment of the Supreme Court in Rameshwari Devis case. That was a case where the employee had married twice and the second marriage had taken place while the first marriage was subsisting and, in a quarrel between the two wives after the demise of the employee, there was a contest for receipt of the post-retirement benefits. Repelling the contention of the second wife the Supreme Court held that she will not be entitled to any benefit at all. It thus appears to me that the judgment of the learned single Judge in Shanta Sinha vs. State of Bihar (supra) is Per Incuriam, having been rendered in violation of the mandatory provisions -of the Hindu Marriage Act. It also runs counter to the judgment of the Supreme Court. I must, however, sound a note of caution that the judgment of this Court was handed down on 10.12.1996, whereas the judgment of the Supreme Court is of a later date which was handed down on 27.1.2000. The learned single Judge, therefore, did not have the benefit of the judgment of the Supreme Court. 9. I must at this stage notice the submission advanced by learned counsel for the petitioner in an effort to distinguish the facts and circumstances of the present case in contradistinction to those of the Supreme Court. He submitted that in the case before the Supreme Court, both the wives were alive and there was a rival claim between the two. In his submission, on the other hand, in the present case, the first wife is already dead and there is no rival claim. He, therefore, proceeds to submit that the judgment of the Supreme Court is inapplicable to the facts and circumstances of the present case, and that of this Court is instead applicable to the present case. In his submission, on the other hand, in the present case, the first wife is already dead and there is no rival claim. He, therefore, proceeds to submit that the judgment of the Supreme Court is inapplicable to the facts and circumstances of the present case, and that of this Court is instead applicable to the present case. I am unable to accede to the submission for the reason that the change in the details of factual position makes no difference in so far as the position obtaining in law is concerned. As discussed hereinabove, a conjoint reading of the provisions of Sec.11, Sec. 5, and Sec.16(1) of the Hindu Marriage Act leads to the only conclusion that the second marriage taking place while the first one was still subsisting, is void ab initio. 10. The writ petition is without any merit. It is accordingly dismissed.