Jharkhand High Court
Babita Devi vs The State Of Jharkhand on 30 August, 2022
Author: Shree Chandrashekhar
Bench: Shree Chandrashekhar, Ratnaker Bhengra
IN THE HIGH COURT OF JHARKHAND AT RANCHI
(Letters Patent Appellate Jurisdiction)
L.P.A. No. 36 of 2020
Babita Devi, wife of late Binod Kumar Singh, resident of Sanik Colony,
Dumardaga, PO-Booty, PS-Sadar (Khelgaon), District-Ranchi (Jharkhand)
......Appellant
Versus
1. The State of Jharkhand
2. Director General-cum-Inspector General of Police, having its office at
Police Headquarters, Project Bhawan, HEC Township, PO-Dhurwa, PS-
Dhurwa, District-Ranchi (Jharkhand)
3. Superintendent of Police, Bokaro, PO&PS-Bokaro, District-Bokaro
(Jharkhand)
4. Deputy Inspector General of Police, Coal Belt, having its office at
Bokaro, PO&PS-Bokaro, District-Bokaro (Jharkhand)
5. Deputy Inspector General of Police (Budget), having its office at Police
Headquarters, Project Bhawan, HEC Township, PO-Dhurwa, PS-Dhurwa,
District-Ranchi (Jharkhand)
6. Accountant General (E&O), Jharkhand, Ranchi, PO-Hinoo, PS-Doranda,
District-Ranchi (Jharkhand)
7. Anushka Kumari (minor), daughter of late Binod Kumar Singh,
represented through her natural guardian (mother) namely Nutan Kachhap,
daughter of Macchli Kachhap, R/o vill-Kalyanpur, PO&PS-Jagannathpur,
Dist.-Ranchi ..... Respondents
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PRESENT
HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
HON'BLE MR. JUSTICE RATNAKER BHENGRA
For the Appellant : Mr. Arpan Mishra, Advocate
For the State : Mr. Piyush Chitresh, AC to AG
For Respondent No.6 : Mr. Sunil Singh, Advocate
Mr. S. Shrivastava, Advocate
For Respondent No.7 : Mr. Rakesh Kumar Gupta, Advocate
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ORDER
th 30 August 2022 Per Shree Chandrashekhar, J.
The appellant who was the writ petitioner is aggrieved of the order dated 11th November 2019 passed in WP(S) No.2838 of 2019.
2. On account of a dispute between the appellant and Nutan Kachhap with whom the husband of the appellant had solemnized second marriage, WP(S) No.2838 of 2019 was instituted by the appellant with a prayer for payment of death-cum-retiral benefits including gratuity with 2 LPA No. 36 of 2020 interest payable to her on death of her husband who died in a road accident on 2nd August 2017. It appears that in the proceeding of WP(S) No.2838 of 2019, it was brought to the notice of the Court that Ms. Anushka Kumari was born out of wedlock between Binod Kumar Singh and Nutan Kachhap and, accordingly, the writ Court approved the decision of the competent authority to pay pension and death-cum-retiral benefits to the appellant and Ms. Anushka Kumari.
3. It is this decision of the writ Court to which the appellant has taken exception to on the ground that the death-cum-retiral benefits accrued on death of her husband should be distributed equally amongst all legal heirs.
4. By an order dated 6th October 2021, I.A No.3712 of 2020 which was filed by the appellant for arraying Ms. Anushka Kumari (minor) as respondent no.7 in the present proceeding was allowed.
5. Pursuant thereof, Mr. Rakesh Kumar Gupta, the learned counsel has put in his appearance in the present proceeding on behalf of the respondent no.7.
6. The writ Court passed the following order:
"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 & Ors., reported in (2000) 2 SCC 431 has held that children of second void marriage legitimate and entitled to share family pension and death-
cumretirement 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. 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 3 LPA No. 36 of 2020 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. 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."
7. There is no dispute and the law is well-settled that children born from a null and void marriage or the marriage which has been annulled by a decree of nullity under section 12 of the Hindu Marriage Act, 1955 would have rights in the property of the parents, notwithstanding such child 4 LPA No. 36 of 2020 having been incapable of possessing or acquiring such rights by reason of his not being the legitimate child of his parents.
8. In "Bhogadi Kannababu v. Vuggina Pydamma" (2006) 5 SCC 532 the Hon'ble Supreme Court has observed as under:
"14. ..... Therefore, considering that the marriage between Suryanarayana and Pydamma was a void marriage, the question that would now arise is whether their daughters, namely, Respondents 2 and 3 were entitled to inherit the properties in question, with the first wife, Chilakamma, on the death of Suryanarayana. In this connection, we may refer to Section 16 of the Act. Section 16 of the Act deals with legitimacy of children of void and voidable marriages. Sub-section (1) of Section 16 of the Act clearly says that notwithstanding that a marriage is null and void under Section 11, any child of such marriage who would have been legitimate if the marriage had been valid, shall be legitimate. (emphasis supplied) Therefore, in view of Section 16, it is clear that the daughters, namely, Respondents 2 and 3 inherited the properties in question, along with Chilakamma, on Suryanarayana's death. Accordingly, the High Court was justified in holding that on the death of Suryanarayana, the properties in question were inherited by his daughters......"
9. Section 6 of the Hindu Succession Act, 1956 provides the manner of devolution of interest in coparcenary property. By the Hindu Succession (Amendment) Act, 2005, section 6 was amended to give right to a daughter of a coparcenar in a joint Hindu family governed by the Mitakshara law to inherit property rights. Sub-section (2) to section 6 provides that any property to which a female Hindu becomes entitled by virtue of sub-section (1) shall be held by her with the incidents of coparcenary ownership and shall be regarded as her property capable of being disposed of by her by testamentary disposition. Clause (a) to sub- section (3) further provides that on commencement of the Hindu Succession (Amendment) Act, 2005 the daughter shall be allotted the same share as is allotted to a son.
10. From the aforesaid statutory provisions, there cannot be a doubt as regards right of the respondent no.7 to inherit property of late Binod Kumar Singh.
11. In the aforesaid context, we may take note of section 10 of the Hindu Succession Act, 1956 which provides the manner of distribution of property among heirs in Class I of the Schedule appended to the Act of 1956. It is clear from a reading of Rule 1 and Rule 2 to section 10 together that the appellant alongwith her children and the respondent no.7 all shall be 5 LPA No. 36 of 2020 entitled for a share in equal proportion in the property of late Binod Kumar Singh.
12. In "Rameshwari Devi v. State of Bihar and Others" (2000) 2 SCC 431 the Hon'ble Supreme Court has held that the children of the employee born from his marriage legitimate or illegitimate shall be entitled to share family pension and death-cum-retirement gratuity.
13. In "Rameshwari Devi" the Hon'ble Supreme Court has held as under:
"13. ..... 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 the 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. The 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. The 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 a sham. The result of the inquiry was that Yogmaya Devi and Narain Lal lived as husband and wife since 1963. A presumption does arise, therefore, that the 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 has 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 a void marriage are legitimate. Under the Hindu Succession Act, 1956, property of a male Hindu dying intestate devolves firstly on heirs in clause (1) which include the widow and son. Among the widow and son, they all get shares (see Sections 8, 10 and the Schedule to the Hindu Succession Act, 1956). Yogmaya Devi cannot be described as a widow of Narain Lal, her marriage with Narain Lal being void. The 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, the legal position when a Hindu male dies intestate. Here, however, we are concerned with the family pension and death-cum- retirement gratuity payments which are governed by the relevant rules. It is not disputed before us that if the legal position as aforesaid is correct, there is no error with the directions issued by the learned Single Judge in the judgment which is upheld by the Division Bench in LPA by the impugned judgment."
14. However, contrary to the aforesaid statutory provisions it 6 LPA No. 36 of 2020 appears that the writ Court held Ms. Anushka Kumari entitled for half of the amount of death-cum-retiral benefits including gratuity.
15. Mr. Piyush Chitresh, the learned AC to learned AG brings to our notice the office order issued by the Department of Finance, Government of Bihar through Memo dated 6 th September 1999 to support the writ Court's order to the extent that the respondent no.7 shall receive family pension till she attains majority.
16. Having held so, the order dated 11th November 2019 passed in WP(S) No.2838 of 2019 is set-aside. PPO, if any, issued by the Accountant General (E&O), Jharkhand shall be modified on receipt of a recommendation from the Superintendent of Police, Bokaro.
17. The appellant may approach the Superintendent of Police, Bokaro with an affidavit giving details of her children and Ms. Anushka Kumari. The Superintendent of Police shall act on such affidavit and would not insist on production of family tree/genealogical table issued by the Circle Officer or a succession certificate issued by the competent Court of civil jurisdiction, provided the appellant furnishes an indemnity bond on a non-judicial stamp paper indemnifying the State officials and owning the liability for any false information furnished by her in the affidavit.
18. LPA No.36 of 2020 is allowed to the aforesaid extent. I.A No.5127 of 2021 stands disposed of.
(Shree Chandrashekhar, J.) (Ratnaker Bhengra, J.) R.K.