Research › Search › Judgment

Tripura High Court · body

2022 DIGILAW 143 (TRI)

Joyeeta Dey v. State of Tripura

2022-03-21

INDRAJIT MAHANTY, S.G.CHATTOPADHYAY

body2022
JUDGMENT S.G. Chattopadhyay, J. - The present writ appeal arises from the order dated 10.01.2022 passed by the learned Single Judge in WP(C) No. 339 of 2021. 2. The factual background of the case is as under: The appellant (respondent No. 4 in the writ petition) was the wife of Debasish Deb Choudhury @ Debasish Choudhury who was a Wireless Operator (ASI) in Tripura police. She filed a divorce petition against her husband in the court of the Additional District Judge, North Tripura, Dharmanagar which was registered as Title Suit (Divorce) No. 15 of 2014. During the pendency of the divorce proceedings before the court, the spouses together filed a compromise petition setting out the terms of compromise and they sought for a compromise decree in the divorce case. Their marriage was dissolved by the learned Additional District Judge by a decree of divorce dated 16.06.2014 based on the terms of compromise set out in their petition. The terms of settlement, inter alia, were as under: '(1) The respondent husband will pay Rs. 4,000/- against monthly alimony to the petitioner wife. (2) The monthly alimony will be paid in the first week of each and every English calendar month by way of deducting the said amount from the salary of the respondent husband by the authority concern and it will be deposited in the bank account of the petitioner wife (A/C No. 33659535727) in the State Bank of India, Dharmanagar Branch. The respondent husband will take necessary steps before this authority for having the deduction of the monthly alimony from his salary and to deposit the same in the account of Smt. Jayeeta Dey. (3) The respondent husband shall handover all the 'stridhana' and all the articles which the respondent received in the bridal procession at the time of marriage to the petitioner wife. The petitioner wife acknowledges the receipt of the all articles handed over by the respondent husband.' 3. Thereafter, said Debasish Choudhury died on 11.01.2017 in harness. Before his death, he bequeathed all his movable and immovable property in favour of his full blooded brother Asutosh Deb Choudhury @ Asutosh Choudhury by a registered WILL dated 07.12.2016. It was categorically stated in the WILL that said Asutosh Deb Choudhury would also be entitled to the retiral benefits accrued from the death of Debasish Deb Choudhury. Before his death, he bequeathed all his movable and immovable property in favour of his full blooded brother Asutosh Deb Choudhury @ Asutosh Choudhury by a registered WILL dated 07.12.2016. It was categorically stated in the WILL that said Asutosh Deb Choudhury would also be entitled to the retiral benefits accrued from the death of Debasish Deb Choudhury. But, after the death of her divorced husband, the appellant filed a petition in the court of the District Judge, North Tripura District at Dharmanagar under section 28A of the Hindu Marriage Act, 1955 claiming release of the arrears of alimony which fell due to her under order dated 16.06.2014 of the Additional District Judge, Dharmanagar and other service benefits accruing from the death of her ex-husband. Her petition was registered in the court of the District Judge as Civil Misc.20 of 2017. The learned District Judge by judgment and order dated 31.08.2020 dismissed her petition on the ground that marital relationship between the appellant and her husband was snapped by a decree of divorce. Therefore, the appellant was not entitled to any benefit from the property of her ex-husband. 4. Brother of the petitioner who is respondent No. 7 in this writ appeal then approached the Superintendent of Police (Communication), West Tripura, Agartala by filing a petition dated 30.09.2020 claiming all retiral benefits accrued from the death of his brother Debasish Choudhury. He relied on the registered WILL dated 07.12.2016 whereby his deceased brother bequeathed his entire movable and immovable property including retiral benefits in favour of him. He also relied on the judgment dated 31.08.2020 passed by the District Judge, North Tripura, Dharmangar rejecting the claim of the divorced wife (appellant herein) of his deceased brother. 5. In reply, the Superintendent of Police (Communication) by his letter dated 01.12.2020 informed Asutosh Deb Choudhury (writ petitioner and present respondent No. 7) that his prayer could not be entertained because the divorced wife of the deceased employee raised an objection through her advocate against the release of the service benefits of his deceased brother. 6. 5. In reply, the Superintendent of Police (Communication) by his letter dated 01.12.2020 informed Asutosh Deb Choudhury (writ petitioner and present respondent No. 7) that his prayer could not be entertained because the divorced wife of the deceased employee raised an objection through her advocate against the release of the service benefits of his deceased brother. 6. Asutosh Deb Choudhury, being the petitioner challenged the said communication dated 01.12.2020 by filing WP(C) No. 339 of 2021 claiming the following reliefs: '(i) Issue RULE NISI; (ii) Issue Rule NIS calling upon the State Respondents or each of them to show cause as to why a Writ of Mandamus shall not be issued directing/commanding/mandating the State Respondents to immediately release the service benefit accrued on the death of late Debasish Deb Chowdhury, Ex-Wireless Operator to the petitioner; (iii) Issue Rule calling upon the Respondents calling upon the Respondents and each one of them to cause as to why a writ of Certiorari shall not be issued quashing/cancelling/setting aside the communication No. 6273/RSV/LC/COMN/ 2018, dated 01.12.2020 (Annexure-8) supra; (iv) Issue of a writ calling upon the Respondents or each one of them shall not be issued directing them to give full and complete relief to the Petitioner and in case the Respondents show cause or not, make the Rule absolute in terms of the prayer Nos. (i),(ii) & (iii) above; AND As to why such other order/orders shall not be passed so as to give full relief to the Petitioner.' 7. In his petition, the writ petitioner impleaded the State of Tripura represented by the Home Secretary as respondent No. 1, the Director General of Police as respondent No. 2 and the Superintendent of Police (Communication) as respondent No. 3. Ex-wife of the deceased employee was impleaded as respondent No. 4. 8. Respondents contested the writ petition by filing counter affidavit Respondent No. 4 (appellant) pleaded that she had a right to claim the benefits for death of her ex-husband Debasish Deb Choudhury and accordingly she filed a petition before the Superintendent of Police (respondent No. 3) not to release the benefits accruing from the death of her late husband in favour of the writ petitioner. She also pleaded in her counter affidavit that she was awarded alimony by the Additional District Judge, North Tripura in case No. Title Suit (Divorce) No. 15 of 2014 and huge amount of alimony was due to her and moreover she was also entitled to the death-cum-retirement gratuity and other benefits arising out of death of her husband in harness. 9. Petitioners' counsel submitted before the learned Single Judge that petitioner was entitled to all movable and immovable property left by his deceased brother pursuant to the registered WILL executed by him during his lifetime. It was also contended by the counsel of the petitioner that with the decree of divorce, marital tie between the appellant and her husband came to an end and therefore she was not entitled to any benefit arising out of death of her ex-husband since no legal relationship survived between them after the decree of divorce was passed. 10. Counsel appearing for the State respondents argued before the learned Single Judge that the appellant wife was not entitled to any benefit except the arrears of alimony to which she was entitled till the date of death of her former husband. There was no challenge from the side of the State respondents to the categorical findings of the District Judge, North Tripura that immediate to the pronouncement of decree of divorce, no legal relationship between the spouses was operative and as such there was no question of her having any benefit from the property of her former husband. Counsel contended before the learned Single Judge that the judgment dated 31.08.2020 passed by the learned District Judge, North Tripura was binding on the parties since the same was not challenged in appeal. 11. Counsel appearing for the appellant argued before the learned Single Judge that the appellant being the divorced wife of her late husband was entitled to monthly alimony of a sum of Rs. 4,000/- in terms of the order dated 16.06.2014 passed by the Additional District Judge, North Tripura, Dharmanagar in case No. Title Suit (Divorce) No. 15 of 2014 and she was also entitled to the service benefits of her former husband accruing from his death. But, the learned Single Judge allowed the writ petition filed by the brother of the deceased observing as under: '11. But, the learned Single Judge allowed the writ petition filed by the brother of the deceased observing as under: '11. This Court has scrutinized the Will, execution of which has not been challenged by any party in the proceeding. From a bare reading of the said Will, it appears that the deceased employee bequeathed all properties including a piece of land and service benefits in favour of the petitioner. Even, in the entire counter affidavit filed by the respondent No. 4, there is no challenge against execution of the Will by the deceased employee, the former husband of the respondent No. 4 nor any murmur has uttered against the legality of the order of the District Judge, North Tripura, Dharmanagar as quoted above. It may be so the District Judge has directed his consideration in a different dimension. It may also be so the proposition as laid down in the said order is not a good law. But the respondent No. 4, as noted earlier, appears not aggrieved by the said order. 12. In such circumstances, under the jurisdiction conferred under Article 226 of the Constitution of India, this Court cannot travel beyond the said judgment and order which has brought an end to the civil dispute or the execution of the compromise decree of divorce. Even if, the law as proposed by the District Judge is contrary to the said decision of the Apex Court, unless, the respondent No. 4 advances challenge against the judgment, this Court cannot examine the legality of the said judgment and order. The respondent No. 4 had the remedy to challenge the said judgment but from a reading of the counter affidavit, it appears that she is not at all aggrieved by the said judgment. When a Civil Court by the judgment and order has brought a dispute to resolution or nullified any prayer the propriety demands that this Court should not act as the revisional or the appellate Court. Hence, the said order cannot intervened under the jurisdiction conferred by Article 226 of the Constitution of India. In terms of the above, it is observed that the arrear maintenance till the death of the deceased employee shall be paid to the respondent No. 4 from the proceeds that the petitioner would receive for the death of the said employee, as the propounder of the will. 13. In terms of the above, it is observed that the arrear maintenance till the death of the deceased employee shall be paid to the respondent No. 4 from the proceeds that the petitioner would receive for the death of the said employee, as the propounder of the will. 13. Thus, it is directed that the respondents No. 1, 2 and 3 shall release the benefits that has accrued for the death of the deceased employee namely Debasish Deb Chowdhury @ Jahar after deducting the amount that is payable to the respondent No. 4 within a period of three months from today in terms of the judgment and order dated 16.06.2014, if any, and the remaining amount shall be paid to the petitioner. It is observed that this order is based on the finality of the judgment and order dated 31.08.2020. In terms of the above, this petition stands allowed. There shall be no order as to costs.' This order of the learned Single Judge is in appeal before us. 12. Heard Mr. A.K. Pal, counsel appearing along with Mr. D.C. Roy and Mr. T.K. Bhattacharjee, learned advocates for the appellant. Heard Mr. P.K. Dhar, learned Senior Government Advocate appearing along with Mr. Anujit Dey, advocate for the respondents. We have perused the entire record. 13. Counsel appearing for the appellant contends that as the divorced wife of the deceased employee, appellant is entitled to alimony @ Rs. 4,000/- per month in terms of the judgment and decree dated 16.06.2014 passed by the Additional District Judge, North Tripura, Dharmanagar in Title Suit (Divorce) No. 15 of 2014 and as a divorced wife, she is also entitled to the service benefits accruing from the death of her former husband. 14. Mr. P.K. Dhar, learned Senior Government Advocate appearing for the respondents on the other hand submits that judgment passed by the District Judge, North Tripura, Dharmanagar in Civil Misc.20 of 2017 denying such benefit to the appellant has attained finality since the said judgment has not been assailed in appeal by the appellant. Counsel submits that since the marital tie between the appellant and her husband has been severed by a decree of divorce, the appellant is not entitled to any benefit accruing from the death of her former husband. It is also contended by Mr. Counsel submits that since the marital tie between the appellant and her husband has been severed by a decree of divorce, the appellant is not entitled to any benefit accruing from the death of her former husband. It is also contended by Mr. Dhar, learned Senior Government Advocate that former husband of the appellant executed the registered WILL during his lifetime bequeathing all his movable and immovable properties in favour of his brother Asutosh Deb Choudhury which has become operative after his death. Counsel contends that the appellant never challenged the said WILL. In these circumstances, counsel urged for dismissal of the appeal. 15. Admittedly, marriage between the appellant and her deceased husband was dissolved by a decree of divorce dated 16.06.2014 and obviously it was a consented decree based on the compromise petition filed by the appellant jointly with her former husband before the Additional District Judge, Dharmanagar in case No. Title Suit (Divorce) No. 15 of 2014. It is not also disputed that after the death of her husband, appellant filed petition under section 28A of the Hindu Marriage Act claiming the service benefits accruing from the death of her former husband which was rejected by the District Judge by judgment and order dated 31.08.2020 observing as under: '6. .........................It is a settled principle of law that a wife is entitled to get back her 'Streedhan', given to the husband at the time of marriage, under the Protection of Women from Domestic Violence Act even after the dissolution of the marriage. But in the given case the petitioner did not claim to get return of any such 'Streedhan' and or any other properties given at the time of their marriage to her deceased husband. As such the matter of returning any 'Streedhan' is not the matter of discussion. It is quite clear from a catena of judgements that there is a distinction between a decree for divorce and decree of judicial separation. In the former, there is a severance of status and the parties do not remain as husband and wife, whereas in the latter, the relationship between husband and wife continues and the legal relationship continues as it has not been snapped. In the former, there is a severance of status and the parties do not remain as husband and wife, whereas in the latter, the relationship between husband and wife continues and the legal relationship continues as it has not been snapped. In the given case there was a decree of divorce and thus owing to the severance of status, the parties do not remain as husband and wife and immediate to the pronouncement of the decree of divorce no legal relationship remains within the parties. As such the award of alimony whether monthly or permanently ends immediately after the death of the ex-husband and since no legal relationship remains in existence there is no question to get any benefit from the property of her ex-husband. 7. In the result, the petition filed by the petitioner have no merit and thus dismissed in limine.......................' 16. The appellant did not challenge the said findings of the learned District Judge, North Tripura, Dharmanagar. Moreover, the registered WILL dated 07.12.2016 whereunder the deceased former husband of the appellant bequeathed his movable and immovable property including his service benefits in favour of his brother Asutosh Deb Choudhury also stands valid and operative. The appellant never challenged the authenticity of the said document. 17. Situated thus, we are in complete agreement with the findings of the learned Single Judge that the appellant is only entitled to the arrears of alimony @ Rs. 4,000/- per month in terms of the order dated 16.06.2014 of the learned Additional District Judge, North Tripura, Dharmanagar in Title Suit (Divorce) No. 15 of 2014 till the death of her former husband namely, Debasish Deb Choudhury from the proceeds that Asutosh Deb Choudhury (respondent No. 7) would receive for the death of his brother Debasish Deb Choudhury in harness as the propounder of the registered WILL dated 07.12.2016. 18. In terms of the above, the writ appeal stands dismissed and the matter is disposed of. Pending application(s), if any, shall also stand disposed of.