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2010 DIGILAW 1388 (CAL)

Saraswati Mondal v. UNION OF INDIA

2010-12-02

SAMBUDDHA CHAKRABARTI

body2010
Judgment : 1. Let the Affidavit-of-service filed by the Petitioner, be kept with the record. The learned advocate for all the Respondents has appeared. The learned advocate for the Respondent does not wish to file any Affidavit-in-opposition. She has instead produced the records. 2. This Writ Petition is directed against an order dated 20th May, 2009 passed by the Assistant Security Commissioner, R.P.F/Shalimar, South Eastern Railway rejecting the Petitioner No.1’s prayer for payment of death and service benefits to the Writ Petitioner No.1 arising out of the death of Late Ranjit Kumar Saha. Head Constable attached to South Eastern Railway, as also her prayer for compassionate appointment. This order has been annexed to the Writ Petition as annexure ‘P-7’. 3. The case of the Petitioners is that the Petitioner No. 1 was married to Late Ranjit Kumar Saha on 6th Baisakh, 1411 B.S. and a male child (i.e the Petitioner No.2) was born in the wedlock on 26th August, 2007. The husband of the Petitioner No.1 having died-in-harness on 28th November, 2007, she made a representation to the concerned Respondents for compassionate appointment as also for release of service benefits in her favour. The Respondents authorities not having given any reply to the representation, she filed a Writ Petition being W.P. 26531 (W) of 2008 before this Honourable Court, which was disposed of by a judgment and order dated 27th March, 2009 directing the Respondent No. 4 to the said Writ Petition to consider and dispose of the Petitioner No. 1’s prayer by passing an appropriate reasoned order in accordance with law within a period of four weeks from the date of the receipt of a copy of the order. The concerned Respondent was also directed to give her an opportunity of being heard herein had given a hearing to the Petitioner No.1. Ms. Madhumita Roy appearing for the Respondents has produced the records wherefrom it appears that the she attended the office on 15th May, 2009. 4. From the order impugned it appears that subsequent to the death of late Ranjit Kumar Saha, three ladies came to the office of the concerned Respondents for payment of the service dues of the deceased employee and for the compassionate appointment. All these ladies, as it appears from the order impugned, had claimed themselves to be wives of the deceased employee. The order passed by the Respondent No.4 is an elaborate one. All these ladies, as it appears from the order impugned, had claimed themselves to be wives of the deceased employee. The order passed by the Respondent No.4 is an elaborate one. It mentions their names: Smt. Shefali Saha, Smt. Minoti Saha and the Writ Petitioner No.1 i.e. Smt. Saraswati Mondal (Saha). The order impugned records that the Respondents had conducted an investigation through the Inspector who submitted two reports regarding the competing claims of marriage of the three ladies. So far as the claim of the first lady, Smt. Shefali Saha is concerned, the report disclosed that she was married to Late Ranjit Kumar Saha in the year 1980. This was a negotiated marriage according to Hindu rites and customs. It further appears that the father and the mother of the deceased employee recognized Smt. Shefali Saha as the wife of late Ranjit Kumar Saha. Various records during his service also evinced that late Ranjit Kumar Saha had nominated Smt. Shefali Saha as his wife. From the declaration in a Railway pass also, made by him as late as late as in 2006, it appeared that his wife was mentioned to be aged around 40 years which approximated the age of Smt.Shefali Saha. 5. Smt. Minoti Saha as per her own statement, was married to the deceased employee in 1991. She had submitted in support of her claim two certificates from the respective authorities. 6. So far as the Petitioner No.1 is concerned, her specific case was that she was married in 2004 to late Ranjit Kumar Saha and in support of the same, she submitted a certificate of the Pradhan of Nimdaha Gram Panchayat, Burdwan, and the Cremation Certificate of the deceased employee. The most interesting part was that she had frankly confessed before the concerned authorities that she had knowledge about the previous marriages of the deceased employee. In the Writ Petition she has nowhere challenged that this statement was wrongly recorded or improperly imputed to her in the impugned order. 7. Pursuant to the earlier order passed by this Court, when the present Petitioner No.1 had attended the office of the Respondent No.4, she was provided with a lady office Superintendent who assisted her for perusal of all the relevant documents and she was shown the relevant rules on the point and the opinion that the authorities had received on her claim. She was also shown the nomination made by the deceased employee in 2006. All these appear from the order impugned in this Writ Petition. It may be mentioned that the Writ Petitioner No.1 has not disputed the veracity of these statements recorded in the order impugned. 8. The learned Advocate for the Petitioners has taken me through the documents annexed to the Writ Petition to establish that the Petitioner No.1 was the wife of late Ranjit Kumar Saha. I have perused the documents and I am afraid that none of them establishes the claim of the Petitioner No.1 about her valid I marriage with the deceased employee. The claim of the Petitioner No.1 that in the Certificate of Birth issued to her son, the name of late Ranjit Kumar Saha was mentioned as the father of the child, is no conclusive proof of marriage. 9. The learned Advocate for the Petitioner also submitted that in view of Section 16 of the Hindu Marriage Act, child born of void and voidable marriages have been given the status of legitimacy and, therefore, the child is entitled to the service benefits of her deceased father. This aspect has not been gone into by the Respondents-Authorities in view of the competing claims. In the Application before the authorities the Petitioner No. 1 prayed for release of the service benefits of the deceased employee to her only. The authorities had accepted Smt. Shefali Saha as the wife of the deceased Ranjit Kumar Saha. They had concluded that the factum of this marriage had been substantiated by valid documents and the same has been supported by the parents of the deceased employee. Moreover, the deceased employee had executed nomination in favour of Smt. Shefali Saha, which, this Court has been informed by the learned Advocate for the Respondents, on instruction, had not been changed till he died. 10. Respondent No. 4 had thus rightly relied on Section 5 of the Hindu Marriage Act which lays down monogamy as one of the conditions for the solemnization of a valid marriage. Once the authorities had held from their investigation report as well as the official documents that Smt. Shefali Saha is the widow of Late Ranjit Kumar Saha they could not simultaneously recognize the Petitioner No.1 also as his wife. Once the authorities had held from their investigation report as well as the official documents that Smt. Shefali Saha is the widow of Late Ranjit Kumar Saha they could not simultaneously recognize the Petitioner No.1 also as his wife. As such they could not also settle any dues of the deceased employee in favour of the Petitioner No.1 nor could they offer compassionate appointment to her. 11. It has further been submitted by the learned Advocate for the Petitioners, relying on a passage from Mulla’s Hindu Law, that a Hindu may marry any number of wives even if he has a wife or wives living, except in those States where anti-bigamy Acts have been passed. The learned Advocate submitted that since no anti-bigamy Act has been passed in this State, there was nothing stopping a male Hindu from marrying against during the subsistence of the first marriage. 12. This is an entirely misplaced submission, Section 5(i) of the Hindu Marriage Act makes it a pre-condition for a valid solemnization of any Hindu marriage that neither party should have a spouse living at the time of marriage. This has introduced the principle of monogamy over the entire area to which this Act applies. Section 11 of the Act makes it clear that any Hindu marriage in contravention of this Act is void. 13. The learned Advocate while making the submission based on a text book clearly failed to appreciate that what was reproduced in the text was ratio of a judgment delivered by the Madras High Court in a case reported in 1863. True, in 1863 there was no restriction upon a Hindu male marrying any number of wives as he chose to, except in those States which introduced monogamy as the form of marriage. But, after passing of the Hindu Marriage Act monogamy is the only form of a valid Hindu marriage. There is hardly any scope now for making such a submission, more so when the order impugned in the Writ Petition had clearly referred to Section 5 of the Hindu Marriage Act. Now there is no scope for citing an archaic social practice in support of something which has been prohibited by legislation more than half a century ago. There is hardly any scope now for making such a submission, more so when the order impugned in the Writ Petition had clearly referred to Section 5 of the Hindu Marriage Act. Now there is no scope for citing an archaic social practice in support of something which has been prohibited by legislation more than half a century ago. The further submissions of the leaned Advocate for the Petitioners that there is no anti-bigamous Act in West Bengal, and therefore a Hindu may marry any number of wives, is very ingenious indeed, but not sustainable in law. 14. The Writ Petition is entirely devoid of merit and is dismissed. However, the same will not prevent the Writ Petitioners from obtaining a valid declaration about their status from a Competent Civil Court. The Respondents will be at liberty to make the payment of the service dues of the late Ranjit Saha to the person authorized to receive the same in accordance with the nomination. The person to whom such payment may be made shall hold the same in trust on behalf of all the heirs including the nominee herself. Urgent Xerox certified copy of this order, if applied for, be given to the parties.