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2008 DIGILAW 941 (JHR)

Sushma Toppo v. State of Jharkhand

2008-08-14

D.G.R.PATNAIK

body2008
Order The petitioner in this application has prayed for issuance of a writ of mandamus commanding upon the respondents to forthwith make payment of the retiral dues of the petitioner of account of the death of her husband; such benefit being in the nature of GPF, gratuity, pension, leave encashment, etc. Further prayer has been made for quashing the order (Annexure-6) passed by the District & Sessions Judge, Palamau, communicated under memo no. 1348-52 dated 4.4.2008 by which the claim of the petitioner in respect of retiral benefit has been rejected and a direction has been made to pay the retiral benefit to respondent no. 4. 2. Facts of the case in brief is that the petitioner is the second wife of the deceased, who was a civil court employee. The marriage of the petitioner with the deceased was solemnized during the lifetime of his first wife. No nominee has been made by the deceased in his service record for the purpose of payment of his retiral benefit. The petitioner has claimed payment of the retiral benefit on the ground of her marriage with the deceased which is claimed to be legal since it was solemnized under the customary law prevailing in the community of the petitioner and the deceased. 3. By the impugned order (Annexure-6), the District & Sessions Judge, rejected the petitioner's claim on the ground that the petitioner belongs to the Christian community and is guided by Indian Divorce Act under which second marriage of any person during the lifetime of his/her previous spouse, is void and therefore the petitioner cannot claim any right whatsoever in the estate of the deceased. 4. Learned counsel for the petitioner has challenged the impugned order on the ground that the District & Sessions Judge has failed to consider that notwithstanding the fact that the deceased and the petitioner are converted Christians but they still follow and adopt the customary practices and are guided by the customary laws prevailing in their community, and therefore, it is the customary law which will prevail upon the general law. It is further argued that the District Judge has failed to take into consideration that even if the children of the second wife are deemed to be illegitimate, yet, the law of the land does not debar such children from their share in the properties of their father. 5. It is further argued that the District Judge has failed to take into consideration that even if the children of the second wife are deemed to be illegitimate, yet, the law of the land does not debar such children from their share in the properties of their father. 5. Learned counsel for the private respondent no. 4, who is the first wife of the deceased and on whose behalf a counter affidavit has been filed would explain that the parties are essentially Christians and as such, they are governed by law relating to their community and that any promise or agreement even if entered into by and between the parties which is contrary to law, cannot be sustained and cannot be acted upon. Learned counsel for the respondent- State also supports the contentions of the respondent no. 4. 6. As appearing from the facts and circumstances, the dispute essentially involves question of fact as to whether the petitioner is governed by the customary law, which was prevalent in their community, prior to her conversion to Christianity, on the issues relating to marriage, succession, etc. or by the law applicable under the Indian Divorce Act. This question involves evidences to be adduced and cannot be decided in writ jurisdiction. 7. The petitioner is therefore directed to obtain an appropriate order in respect of her claim of right in the context of the facts pleaded, from the competent court of law. However, till final decision is taken on the issue by the competent court of law, the District & Sessions Judge, Palamau, srall release 50 per cent of the payable pension and retiral benefit of the deceased to the first wife, and the remaining 50% shall be kept as reserved depending upon the decision of the competent court of law in respect of the claim of right of the petitioner. 8. With the above observations this application is disposed of.