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Madhya Pradesh High Court

Durgesh Khare vs The State Of Madhya Pradesh on 4 September, 2023

Author: Gurpal Singh Ahluwalia

Bench: Gurpal Singh Ahluwalia

                            1                 WP No.13119/2021


IN THE HIGH COURT OF MADHYA PRADESH
            AT JABALPUR
                         BEFORE
     HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
              ON THE 4th OF SEPTEMBER, 2023
              WRIT PETITION No. 13119 of 2021
BETWEEN:-

DURGESH KHARE S/O LATE MANMOHAN LAL KHARE,
AGED ABOUT 30 YEARS, OCCUPATION: EDUCATED
UNEMPLOYED R/O WARD NO.7 NEAR KESHAV
BHAVAN SUSHMA BOOK DEPOT ORCHHA, DISTRICT
NIWARI (MADHYA PRADESH)



                                               .....PETITIONER
(BY SHRI SAMDARSHI TIWARI - ADVOCATE WITH SHRI LALJEE KHARE -
ADVOCATE)

AND

1.    THE STATE OF MADHYA PRADESH THR ITS
      SECRETARY PRINCIPAL SECRETARY FOREST
      DEPT MINISTRY VALLABH BHAWAN BHOPAL
      (MADHYA PRADESH)



2.    CHIEF CONSERVATOR OF FOREST, OFFICE NEAR
      BIJAWAR NAKA, CHHATARPUR (MADHYA
      PRADESH)



3.    DIVISIONAL FOREST  OFFICER       GENERAL
      FOREST DIVISION TIKAMGARH        (MADHYA
      PRADESH)



4.    MANJU KHARE C/O OFFICE OF        GENERAL
      FOREST DIVISION TIKAMGARH        (MADHYA
                                    2                   WP No.13119/2021


     PRADESH)



                                                      .....RESPONDENTS
(SHRI MOHAN SAUSARKAR - GOVERNMENT ADVOCATE FOR
RESPONDENTS NOS.1 TO 3/STATE, SHRI ANKIT SAXENA - ADVOCATE FOR
RESPONDENT NO.4)
      This petition coming on for admission this day, the court passed the

following:

                                 ORDER

This petition under Article 226 of Constitution of India has been filed seeking the following reliefs:

"(1) It is, therefore prayed that this Hon'ble Court may kindly be pleased to issue writ in the nature of mandamus and other appropriate writs by directing the respondents to entertain the petitioner's applications for grant of compassionate appointment as well as payment of entire dues of his late father within a time bound schedule, in the interest of justice.

OR In alternative and without prejudice to what has been stated above, since there is a dispute regarding the fact that whether respondent no.4 is legally wedded wife of petitioner's father viz. of the deceased employee, the respondents may kindly be restrained from entertaining the applications of respondent no.4 until and unless succession certificate granted by the competent court of law in favour of respondent no.4 is not produced by the respondent no.4 before the respondent authorities concerned, in the interest of justice.

(2) Any other writ, order or direction which this Hon'ble Court may deem fit and proper in the facts and circumstances of the case including cost of the 3 WP No.13119/2021 litigation may kindly be awarded in favour of the petitioner.

(3) To quash the impugned order dated 08.08.2022 (Ann. P-23) by issuance a writ in the nature Certiorari. (4) To declare that the Resp. No.4 is not entitled to get any family pension of petitioner father late Manmohan Lal Khare because she is not a legal or wedded wife, by issuance a writ in nature of Mandamus.

Following paras also be added in the head of Interim Relief During the pendency of the instant writ petition, the effect and operation of the impugned order dated 08.08.2022 (Ann.P-23) may kindly be stayed and the respondents may kindly be directed not to release or paid the family pension in favour of the Resp.No.4, in the interest of justice."

2. It is submitted by counsel for petitioner that father of petitioner had died in harness. Accordingly, petitioner as well as respondent No.4 Smt. Manju Khare have claimed benefits including appointment on compassionate ground. In view of dispute as to who is the legal heir of late Shri Manmohan Lal Khare the authorities have directed the respondent No.4 to obtain succession certificate. However this petition has been filed against the grant of provisional family pension to respondent No.4. It is submitted that both the parties have approached the Civil Court of competent jurisdiction and succession proceedings are pending. Accordingly, it is prayed that this petition may be disposed of with a direction to concerning Trial Court to decide succession proceedings as early as possible.

3. The aforesaid submission made by counsel for petitioner was vehemently opposed by counsel for respondent No.4. It is submitted that 4 WP No.13119/2021 petitioner has approached this Court by suppressing material facts. Petitioner is running a shop and therefore, his claim that he is an unemployed person is incorrect and in the writ petition address of respondent No.4 was wrongly mentioned so that she may not be heard in the present petition. It is further submitted that succession certificate will not govern the question of appointment on compassionate ground. Therefore, relegating the parties to Civil Court for obtaining succession certificate is contrary to law. To buttress his contention, counsel for respondent No.4 has relied upon judgment passed by High Court of Chhattisgarh in the case of Piyush Kumar Anchal vs. State of Chhattisgarh and others decided on 07.03.2022 in WP(S) No.1034/2022.

4. In reply, it is submitted by counsel for petitioner that petitioner is claiming to be legally wedded wife of late Shri Manmohan Lal Khare on the strength of certificate issued by Arya Samaj Mandir. It is submitted that Divisional Bench of this Court in the case of Rahul@Golu vs. State of Madhya Pradesh and others decided on 06.09.2022 in W.P. No.26227/2021 and in the case of Aary Mool Shankar Samaj Samiti vs. State of Madhya Pradesh and others decided on 08.10.2021 in W.A. No.95/2021 and this Court in the case of Smt. Astha Jain and another vs. State of M.P. and others decided on 06.07.2020 in W.P.No.9217/2020 have held that certificate issued by Arya Samaj Mandir has no sanctity in the eye of law. Therefore, it is submitted that respondent No.4 is being wrongly paid provisional family pension. It is further submitted that since respondent No.4 herself is of view that succession certificate is not required for appointment on compassionate ground, therefore, respondent No.4 must seek a declaration regarding 5 WP No.13119/2021 her status from the Civil Court of competent jurisdiction in a regular suit.

5. In reply, it is submitted by counsel for respondent No.4 that it is true that marriage certificate issued by Arya Samaj Mandir has no sanctity in eye of law but where the marriage was performed after observing Saptapadi, then no one can deny the marriage of respondent No.4 with late Shri Manmohan Lal Khare. Furthermore, marriage of respondent No.4 was performed with late Shri Manmohan Lal Khare after the death of his first wife. Thus, none of the parties were having living spouse at the time of marriage.

6. Heard learned counsel for parties.

7. It is the case of respondent No.4 that requirement of succession certificate for appointment on compassionate ground is not required. It is her case that she got married to late Shri Manmohan Lal Khare in Arya Samaj Mandir which is evident from certificate issued by Arya Samaj Mandir. A Division Bench in the case of Rahul@Golu (supra) has held as under:

"11. In the instant case, respondent no.6/Vivah Mandir has issued conversion certificate of Ms. Hina Khan from Muslim religion to Hindu as Annexure P/3 and marriage certificate of petitioner and Ms. Hina Khan as Annexure P/4. The Trust Deed (Annexure R/1) enlists twelve aims and objects and the one that comes a bit close to the aforementioned acts of respondent no.6, is only Clause "o" which declares to arrange marriage ceremonies according to the Vedic and Hindu rites and customs. The act of issuing conversion certificate is certainly way beyond the aims and objects of the respondent no.6/Trust. Further, from the Trust Deed (Annexure R/1), it is apparent that the Trust does not have any bylaws empowering it to conduct such conversions or 6 WP No.13119/2021 issue such certificates. That apart, issuance of conversion and marriage certificates by respondent no.6 only on the strength of affidavit of Ms. Hina Khan without verification of relevant facts even in the wake of a criminal case registered against the petitioner at Police Station Pichhore, District Shvpuri, definitely come within the realm of suspicious and vulnerable activities apparently carried out for collateral purposes. Besides, it cannot be lost sight of that petitioner and the corpus are both domicile of Madhya Pradesh and, therefore, the said act of issuing conversion certificate is also in stark violation of section 5 of the Madhya Pradesh Dharma Swatantrya Adhiniyam, 1968 that mandates intimation to the District Magistrate and also entails penal provision for its violation under sub-section (2). So far as issuance of marriage certificate (Annexure P/4) is concerned, clause "o", as indicated above, only talks of arranging marriage ceremonies according to hindu rites and customs and not performing/solemnizing them to issue marriage certificates. The Authorities empowered under an enactment or Rules are only competent to issue marriage certificates like those under the Special Marriage Act and Compulsory Registration of Marriage Rules. There is no provision for issuance of marriage certificates under the Hindu Marriage Act. The said Act recognizes rituals and ceremonies as legal sanctions for performance of marriage as per Saptapadi (Kindly see Ss.5 & 7 of the Hindu Marriage Act). There is no averment in the petition with regard to observance of such necessary rituals. Further, neither there is any evidence nor statement on affidavit that petitioner and Ms. Hina Khan are Arya Samajists, making the marriage vulnerable in terms of S.2 of the Arya Marriage Validation Act, 1937. It is also relevant to mention that the Apex Court vide interim order dated 17/12/2021 passed in Special Leave to Appeal No. 5315/2022 has directed strict adherence to the guidelines set out from page nos. 34 to 40 (Annexure P/5), guideline 9 whereof clearly lays down that information regarding solemnization of every marriage in writing must be sent to the Madhya Bhartiya Arya Pratinidhi Sabha within 7 7 WP No.13119/2021 days from the date of solemnization of marriage. In the instant case, there is nothing on record to suggest that either respondent no.6/Vivah Mandir is affiliated to or recognized by Madhya Bharat Arya Pratinidhi Sabha or had sent intimation to it in terms of guideline 9 above. Not only this, there is no averment to the effect that the said marriage has been registered either in Madhya Pradesh in compliance of the provisions of Rule 3 of the Madhya Pradesh Compulsory Registration of Marriage Rules, 2008, or for that matter, in Uttar Pradesh under Rule 4 of the Hindu Marriage Registration Rules, 1973. At this stage, it is pertinent to observe that there is substantial force in the submissions of Shri Raghuvanshi that the alleged Trust deed does not disclose as to under which provision the respondent no.6/Trust is registered. There is no registration certificate on record. As a matter of fact, the Indian Trust Act, 1882 begins with an exposition that it is an Act to define and amend the law relating to Private Trusts and Trustees. Further, the Apex Court in the case of Sheikh Abdul Kyum Vs. Mulla Alibhai (AIR 1963 SC 309) has observed that section 1 of the Indian Trusts Act makes provisions of the Act inapplicable to public or private religious or charitable endowments. In the instant case, the objectives as declared in the Trust deed (Anenxure R/1), do not suggest that the Trust falls within the domain of "Private Trusts", rather appears to be a religious endowment. As such, the Trust deed appears to be suspicious and serious question arises as regards its existence in the eyes of law. In view of the aforesaid, this Court has no hesitation in holding that the conversion certificate (Annexure P/3) and marriage certificate (Annexure P/4) are without any authority of law and, hence, null and void. In fact, the said activities of respondent no.6/ Vivah Mandir, tantamount to running marriage shops on commercial lines, and, are therefore vulnerable in the teeth of guideline 13 (Supra). The same are a serious threat to the sanctity attached to marriages recognized under personal laws, particularly Hindu Marriage Act.

In the result, question nos. 1 to 9 formulated above are answered in the negative, while those numbered 10 to 12 are answered in the affirmative."

8. Therefore, if the certificate of marriage issued by Arya Samaj Mandir has no sanctity in the eye of law, then respondent No.4 shall be required to prove that her marriage was performed after following the rituals of Satapadi.

9. This Court in exercise of power under Article 226 of Constitution of India cannot adjudicate the fact as to whether respondent No.4 is legally wedded wife of late Shri Manmohan Lal Khare or not? Accordingly, respondent No.4 is granted liberty to seek declaration of her status by filing a suit before competent Court of civil jurisdiction.

10. Since the question as to whether respondent No.4 is legally wedded wife of late Shri Manmohan Lal Khare is in dispute, therefore, respondents have wrongly started making payment of provisional family pension to respondent No.4. Accordingly, order dated 08.08.2022 by which permission was granted to pay family pension @ Rs.21,350/- per month to the respondent No.4 is hereby quashed.

11. Respondent No.4, if so advised may file a civil suit for declaration of her title.

12. So far as payment of other dues of late Shri Manmohan Lal Khare are concerned, it is the case of parties that they have already approached the competent Court of civil jurisdiction for issuance of succession certificate. Accordingly, concerning Court is directed to expedite disposal of succession proceedings and shall make an endeavour to decide the same within a period of 6 months from the date of receipt of certified copy of this order.

13. With aforesaid observations, petition is finally disposed of.

(G.S. AHLUWALIA) JUDGE vc VARSHA CHOURASIYA 2023.09.08 16:54:18 +05'30'