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2019 DIGILAW 1851 (JHR)

Babita Devi v. State of Jharkhand

2019-11-11

S.N.PATHAK

body2019
ORDER : 1. Heard the parties. 2. Petitioner has approached this Court with a prayer for a direction upon the respondents to pay the gratuity with interest on account of sudden death of her husband, who died on 2.8.2017 in a road accident, while posted as A.S.I. in Jaridih P.S. of Bokaro district. 3. At the very outset, Mr. Sudarshan Srivastava, learned counsel appearing for the respondent-Accountant General draws the attention of the Court towards para-4 of the counter-affidavit dated 19.7.2019 filed by respondent No. 6 and submits that already a decision has been taken on the basis of recommendation of the State and as authorization of pension and gratuity vide application dated 6.6.2019, has been made in favour of the petitioner as well as minor daughter, namely Miss Anushka Kumari, born from second wife of the deceased employee. 4. Mr. Samir Sahay, learned counsel appearing for the respondent-State adopts the arguments of. Mr. Srivastava and submits that as per the provisions of Family Pension Rules, 1964, the daughter born from second wife is also entitled to receive the death-cum-retiral benefits and in view of that, rightly the minor daughter of late Binod Kumar born from his second wife, was granted the said benefits along with the present petitioner. 5. Be that as it may, having heard the submissions of the parties, this Court finds strength in the arguments advanced by the learned counsel for the respondents. The Hon'ble Apex Court in case of Rameshwari Devi vs. State of Bihar and Others, (2000) 2 SCC 431 : 2000 (2) PLJR (SC) 15 has held that children of second void marriage legitimate and entitled to share family pension and death-cum-retirement gratuity along with wife and children of first marriage. Further, as per Service Law, in case of dispute of settlement of retiral benefits, the government could hold enquiry about factum of second marriage and disburse the benefits to first wife and their children as well as to children born from second wife. Relevant paras of the judgment passed in case of Rameshwari Devi (supra) is reproduced herein-below: “13. But then it is not necessary for us to consider if Narain Lal could have been charged of misconduct having contracted a second marriage when his first wife was living as no disciplinary proceedings were held against him during his lifetime. Relevant paras of the judgment passed in case of Rameshwari Devi (supra) is reproduced herein-below: “13. But then it is not necessary for us to consider if Narain Lal could have been charged of misconduct having contracted a second marriage when his first wife was living as no disciplinary proceedings were held against him during his lifetime. In the present case, we are concerned only with the question as to who is entitled to the family pension and death-cum-retirement gratuity on the death of Narain Lal. When there are two claimants to the pensionary benefits of a deceased employee and there is no nomination wherever required State Government has to hold an inquiry as to the rightful claimant. Disbursement of pension cannot wait till a civil court pronounces upon the respective rights of the parties. That would certainly be a long drawn affair. Doors of civil courts are always open to any party after and even before a decision is reached by the State Government as to who is entitled to pensionary benefits. Of course, inquiry conducted by the State Government cannot be a sham affair and it could also not be arbitrary. Decision has to be taken in a bona fide reasonable and rational manner. In the present case an inquiry was held which cannot be termed as sham. Result of the inquiry was that Yogmaya Devi and Narain Lal lived as husband and wife since 1963. A presumption does arise, therefore, that marriage of Yogmaya Devi with Narain Lal was in accordance with Hindu rites and all ceremonies connected with a valid Hindu marriage were performed. This presumption Rameshwari Devi has been unable to rebut. Nevertheless, that, however, does not make the marriage between Yogmaya Devi and Narain Lal as legal. Of course, when there is a charge of bigamy under Section 494 IPC strict proof of solemnisation of the second marriage with due observance of rituals and ceremonies had been insisted upon. 14. It cannot be disputed that the marriage between Narain Lal and Yogmaya Devi was in contravention of clause (i) of Section 5 of the Hindu Marriage Act and was a void marriage. Under Section 16 of this Act, children of void marriage are legitimate. Under the Hindu Succession Act, 1956, property of a male Hindu dying intestate devolve firstly on heirs in clause (1) which include widow and son. Under Section 16 of this Act, children of void marriage are legitimate. Under the Hindu Succession Act, 1956, property of a male Hindu dying intestate devolve firstly on heirs in clause (1) which include widow and son. Among the window and son, they all get shares (see Sections 8, 10 and the Schedule to the Hindu Succession Act, 1956). Yogmaya Devi cannot be described a widow of Narain Lal, her marriage with Narain Lal being void. Sons of the marriage between Narain Lal and Yogmaya Devi being the legitimate sons of Narain Lal would be entitled to the property of Narain Lal in equal shares along with that of Rameshwari Devi and the son born from the marriage of Rameshwari Devi with Narain Lal. That is, however, legal position when Hindu male dies intestate. Here, however, we are concerned with the family pension and death-cum-retirement Gratuity payments which is governed by the, relevant rules. It is not disputed before us that if the legal positions as aforesaid is correct, there is no error with the direction issued by the learned single Judge in the judgment which is upheld by the Division Bench in LPA by the impugned judgment.” 6. In view of the ratio laid down by the Hon'ble Apex Court in the aforesaid case, rightly the respondents have paid the death-cum-retiral benefits to the petitioner and to Anushka Kumari, who is the daughter of the deceased employee from second wife. 7. Resultantly, the writ petition stands disposed of. 8. As a sequitur to the disposal of the instant writ application, pending I.As. if any, also stand disposed of.