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2015 DIGILAW 1086 (PAT)

Divya Prakash v. State of Bihar

2015-08-23

NAVANITI PRASAD SINGH

body2015
ORDER : 1. The dispute in these three writ petitions is essentially with regard to apportionment of death-cum-retiral dues of one Prakash Kumar Gupta, who died in harness in an accident on 17.3.2012 while posted as Block Welfare Officer, Lalganj, District Vaishali under the State Government. 2. Pleadings being complete, with consent of all the parties, these writ petitions have been finally heard for the disposal at this stage itself. 3. CWJC No. 13838 of 2012 was filed by Divya Prakash claiming 50% of family pension and retiral dues as a consequence of death in harness of her father, Prakash Kumar Gupta aforesaid. Initially only State and its officials were made respondents but, subsequently, with leave of the Court respondent nos. 7 to 10 were added. They are Smt. Sushma Kumari @ Sushma Gupta, the second wife of late Prakash Kumar Gupta, Priyanka Twinkal, minor daughter of Smt. Sushma Kumari, Sidhi Vinayak, minor son of Smt. Sushma Kumari and Sushri Durga, minor daughter of Smt. Sushma Kumari respectively. The minor private-respondents have been represented by their mother Smt. Sushma Kumari who has contested the claim of the petitioner. CWJC No. 18042 of 2012 has been filed by Smt. Sushma Kumari @ Sushma Gupta claiming family pension as a consequence of death in harness of her husband Sri Prakash Kumar Gupta. Divya Prakash has been added as respondent No. 7 later on in the proceedings. CWJC No. 19985 of 2012 has again been filed by Smt. Sushma Kumari @ Sushma Gupta for death-cum- retiral dues of her late husband Prakash Kumar Gupta and respondent No. 9 in this writ petition is Divya Prakash. 4. Prakash Kumar Gupta was selected by Bihar Public Service Commission and appointed by the State Government as Block Welfare Officer and his first posting was at Turpa in Ranchi in 1990. On 9.3.1990 Prakash Kumar Gupta married one Rita Gupta and from this wedlock in December, 1992 Divya Prakash, a daughter, was born. It appears that in 1997 Rita Gupta filed a matrimonial suit, being Matrimonial Case No. 6 of 1997, for divorce before the learned Principal Judge, Family Court, Ranchi, which was allowed, inter alia, granting a decree of divorce by judgment and order dated 13.6.2003. It appears that in 1997 Rita Gupta filed a matrimonial suit, being Matrimonial Case No. 6 of 1997, for divorce before the learned Principal Judge, Family Court, Ranchi, which was allowed, inter alia, granting a decree of divorce by judgment and order dated 13.6.2003. In the divorce decree, it was further, inter alia, stipulated that investment in name of Divya Prakash would enure to the benefit of Divya Prakash and her mother Rita Gupta who was further entitled to Rs. 50,000.00 in lieu of her gold ornaments and both mother and daughter combined would be entitled to Rs. 4,000.00 per month as alimony. Divya Prakash being minor her custody was given to her mother Rita Gupta. The order of the Principal Family Judge dated 13.6.2003 is Annexure-1 to the first writ petition. For execution of monetary relief granted in the divorce decree Rita Gupta has filed Execution Case No. 6 of 2003 on 29.9.2003 before the Principal Judge, Family Court, Ranchi, which is pending. 5. After the decree of divorce dated 13.6.2003, on 8.12.2003 Prakash Kumar Gupta married Smt. Sushma Kumari @ Sushma Gupta. From this second marriage, this couple had three children, namely, Priyanka Twinkle, Sidhi Vinayak and Sushri Durga, all of whom are minors and represented, as noted above, by their mother Smt. Sushma Kumari @ Sushma Gupta. 6. Rita Gupta, the divorced first wife of Prakash Kumar Gupta, along with her daughter Divya Prakash have been living separately at Ranchi since at least 1992, whereas Prakash Kumar Gupta after his second marriage with Smt. Sushma Kumari @ Sushma Gupta on 8.12.2003 have been living together and had three children, as noted above, till his untimely death in harness on 17.3.2012. 7. From the facts aforesaid which are not in dispute, it would be seen that right from the time Divya Prakash was born she and her mother Rita Gupta were living separately from Prakash Kumar Gupta who thereafter was living with Smt. Sushma Kumari and their children till he died. It is on these facts that the two sides are claiming for death-cum-retiral dues of late Prakash Kumar Gupta. 8. It is on these facts that the two sides are claiming for death-cum-retiral dues of late Prakash Kumar Gupta. 8. One other incidental fact that may be noticed is that on coming to know of death of Prakash Kumar Gupta, Rita Gupta, the divorced wife, filed a writ petition, being CWJC No. 12013 of 2012, before this Court claiming death-cum-retiral dues of her late ex-husband, Prakash Kumar Gupta which after some argument was dismissed as withdrawn by order dated 13.7.2012. Obviously, she having been divorced long back could not claim to succeed to the estate of Prakash Kumar Gupta. Soon thereafter, on 30.7.2012 the first writ petition was filed by her daughter, Divya Prakash followed by the two other writ petitions by Smt. Sushma Kumari @ Sushma Gupta making conflicting claims. 9. Sri Sujeet Kumar Sinha, learned counsel appearing for the Divya Prakash in all the three writ petitions contended vehemently that the second marriage of Prakash Kumar Gupta was void and, as such, Sushma Kumari @ Sushma Gupta, the step mother, would not be entitled to any claim. The death-cum-retiral dues including family pension would be then divided half share to Divya Prakash and the remaining half share to the three minor children from the second marriage and similar would be the position with other death-cum-retiral dues. 10. On behalf of Smt. Sushma Kumari @ Sushma Gupta and on behalf of her three minor children, it was submitted that the second marriage was perfectly valid as it was solemnized after first wife Rita Gupta had obtained divorce. The divorce decree being 13.6.2003 and the second marriage being solemnized on 8.12.2003. Her further contention would be that as Rita Gupta, the divorced first wife, having walked out of the life of Prakash Kumar Gupta in 1992 itself and had got various monetary relief in the matrimonial case for which execution case was pending, she and her daughter would not be entitled to any claim from the death-cum-retiral dues of late Prakash Kumar Gupta which in entirety must come to them. Alternatively, in view of Sections-8, 9 & 10 of the Hindu Succession Act, 1956, Smt. Sushma Kumari @ Sushma Gupta and all the four children of Prakash Kumar Gupta, i.e. from the first and second marriage solemnized, would have equal share in the family pension and death-cum-retiral dues. Alternatively, in view of Sections-8, 9 & 10 of the Hindu Succession Act, 1956, Smt. Sushma Kumari @ Sushma Gupta and all the four children of Prakash Kumar Gupta, i.e. from the first and second marriage solemnized, would have equal share in the family pension and death-cum-retiral dues. Thus, all that had to be divided in five equal shares one enuring to the benefit of Divya Prakash and four to the benefit of Smt. Sushma Kumari @ Sushma Gupta and her children. In other words, Divya Prakash would be entitled to 20% and Sushma Kumari to balance 80%. 11. Sri Sujeet Kumar Sinha, learned counsel for the Divya Prakash vehemently and passionately argued that Prakash Kumar Gupta having been divorced by his wife Rita Gupta by judgment and decree dated 13.6.2003, after marrying Sushma Kumari @ Sushma Gupta on 8.12.2003, he filed a first appeal against the divorce decree in the Jharkhand High Court at Ranchi on 22.12.2003, which appeal was dismissed by the High Court on 29.7.2004. The submission would be that having solemnized second marriage and then filed appeal against the decree of divorce, the second marriage to Smt. Sushma Kumari @ Sushma Gupta would be in contravention of Section-15 of the Hindu Marriage Act, 1955 and, thus, would be void. For this, learned counsel relied on several judgments of the Apex Court, namely, in the case of Chandra Mohini Srivastava vs. Avinash Prasad Srivastava and Another, AIR 1967 SC 581 , in the case of Smt. Lila Gupta vs. Laxmi Narain and Others, AIR 1978 SC 1351 , in the case of Rmeshwari Devi vs. State of Bihar and Others, (2002) 2 SCC 431, in the case of Savitri Pandey vs. Prem Chandra Pandey, AIR 2002 SC 591 and in the case of Jinia Keotin and Others vs. Kumar Sitaram Manjhi and Others, (2003) 1 SCC 730 and two judgments of this Court being in the case of Ram Sayani Devi and Another vs. Ram Kumari Devi and Others, 2001 (4) PLJR 724 and in the case of Amlawati Devi vs. State of Bihar and Others, 2003 (2) PLJR 218 . 12. In my view, none of the judgments aforesaid have any application in the facts of the present case to void the second marriage of Prakash Kumar Gupta. 12. In my view, none of the judgments aforesaid have any application in the facts of the present case to void the second marriage of Prakash Kumar Gupta. In substance, what the aforesaid judgments say and what the provisions of Section-15 of the Hindu Marriage Act is that if the divorce proceedings are sub judice, the appeal being in continuation of the original proceedings, parties cannot solemnize another marriage because obviously if the decree of divorce is reversed it would gave rise to a very anomalous situation where the first marriage subsists and there is a second marriage as well which is not any more permissible after the Hindu Marriage Act, 1955. Sri Sinha's submissions would be that Prakash Kumar Gupta, after the second marriage, himself filed an appeal against the decree of divorce which rendered his second marriage after the decree of divorce void. In my view, this is not correct. The correct legal view would be that Prakash Kumar Gupta, having suffered decree of divorce at the instance of first wife, Rita Gupta and having married second time after the decree of divorce, he could not have been permitted to file and maintain the appeal having forfeited his right to contest the divorce by reason of his second marriage. The appeal was itself not maintainable. By his act of second marriage he has frustrated and forfeited his right to appeal against the decree of divorce by his own conduct. In any view of the matter, the appeal having been dismissed, the divorce having stood confirmed and attained finality effective from the date prior to the second marriage. Thus, in my view, it is futile to contend that the second marriage was void for any reason. 13. I may notice one other thing that is laid down in the judgments referred to by Sri Sujeet Kumar Sinha, learned counsel appearing for Divya Prakash that is that even if the second marriage is void the children from the second marriage would still be entitled to be treated at par as legitimate children. 14. 13. I may notice one other thing that is laid down in the judgments referred to by Sri Sujeet Kumar Sinha, learned counsel appearing for Divya Prakash that is that even if the second marriage is void the children from the second marriage would still be entitled to be treated at par as legitimate children. 14. Thus seen, Sushma Kumari @ Sushma Gupta has to be treated as lawfully wedded wife of late Prakash Kumar Gupta at the time of his death and Rita Gupta, the divorced first wife, having forfeited her right in the death-cum-retiral dues of late Prakash Kumar Gupta by virtue of divorce, subject to the outcome of the matrimonial execution case which are independent proceedings. 15. Thus, as provided by Sections-8, 9 & 10 of the Hindu Succession Act, 1956, Prakash Kumar Gupta would be deemed to have died intestate on 17.3.2012 living behind five class-I heirs, i.e. his widow, Smt. Sushma Kumari @ Sushma Gupta, Priyanka Twinkle, Sidhi Vinayak and Sushri Durga, minor children from the second marriage and Divya Prakash, daughter from the first marriage. Thus, they would in terms of the provisions aforesaid entitled to equal shares in the death-cum-retiral dues of late Prakash Kumar Gupta. In other words, Divya Prakash would be entitled to 20% of the family pension and other death-cum-retiral dues and Smt. Sushma Kumari @ Sushma Gupta would be entitled to 80% of the family pension and other retiral dues, which she receives for herself and the minor children. Family pension would, however, be subject to the conditions stipulated by the State Government whereby on Divya Prakash marrying or attaining the age of 25 years she would not be entitled to any further family pension which then would be paid as a whole to Smt. Sushma Kumari @ Sushma Gupta. 16. In fairness to the learned counsel appearing for Smt. Sushma Kumari @ Sushma Gupta, I must notice one submission made with reference to the judgment in the case of Vidhyadhari and Others vs. Sukhrana Bai and Others, AIR 2008 SC 1420 the Apex Court has tried to balance equities between the legitimate wife and the living wife. But, in my view, the said decision is of no assistance inasmuch as the present case is neither the case of nomination nor conflict between the interest of a legitimate wife and second living wife. 17. But, in my view, the said decision is of no assistance inasmuch as the present case is neither the case of nomination nor conflict between the interest of a legitimate wife and second living wife. 17. Before closing, I may note that State has filed a counter affidavit justifying the stand directing the parties to seek a succession certificate in view of nature of dispute. Ordinarily, this Court would have relegated the parties to that forum, but, considering that the litigants are ladies and minors requiring quick resolution of the dispute and there being no dispute on fact, this Court in larger interest of justice has decided the issue of succession to the death-cum-retiral dues of late Prakash Kumar Gupta in these proceedings itself. The second stand taken in the counter affidavit was that at the time of death of Prakash Kumar Gupta he had been allegedly given certain scholarship money for being distributed, till the time of his death he had submitted some vouchers but had not fully accounted for all the money advanced to him, as such Prakash Kumar Gupta was liable to account for the same. It is not disputed that no proceeding had even been initiated or contemplated for recovery of the money because of untimely sudden death of Prakash Kumar Gupta. In view of the aforesaid facts and in view of the judgment of this Court in the case of Manju Jaiswal vs. State of Bihar and Others, 2009 (3) PLJR 560 now no steps for recovery of the amount, allegedly due from Prakash Kumar Gupta, can be taken as no steps in this regard can be taken against a dead person and no proceeding can be initiated against a dead person. 18. With the above observations and directions, the writ petitions are disposed of. The respondent State and its official must now act accordingly so that the death-cum-retiral dues are paid to the respective claimants, as noted above, at the earliest and not later than three months from today.