Sanichariya Devi @ Orain vs Chhaya Devi
2022 Latest Caselaw 1272 Jhar

     IN THE HIGH COURT OF JHARKHAND AT RANCHI
                        M.A. No. 164 of 2011
 1. Sanichariya Devi @ Orain, widow of Late Rur Singh
 2. Punam Kumari, daughter of Late Rur Singh
 3. Banti Kumar @ Banty Singh, son of Late Rur Singh
 4. Gopal Kumar @ Sanny Singh son of Late Rur Singh
                                            ..... .....           Appellants
                        Versus
  Chhaya Devi, widow of Late Rur Singh, resident of village- Patuara,
  P.O. & P.S.- Patuara, Dist- Purulia (West Bengal).
                                            .... ....             Respondent
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CORAM :HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY

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For the Appellants       : Mr. A.K. Sahani, Advocate
For the Respondent       :
CAV ON 08. 02.2022                       PRONOUNCED ON 30 .03.2022

1. This appeal has been filed under section 384(1) of the Indian Succession Act, 1925 against order/judgment dated 19.02.2011 passed by Additional Judicial Commissioner, FTC-VIII, Ranchi in Succession Case No. 228/1996 declining the grant of succession certificate in favour of appellant no. 1 while allowing the prayer for 50% of the retiral benefits in favour of her children Appellants nos. 2 to 4 and right of maintenance till her death or her re-marriage.

2. The application for succession certificate with respect to the retiral and other dues of late Rur Singh who died in harness on 14.8.1994, while serving as a driver in Bihar Electricity Board Ranchi, has unfortunately not attained its finality in almost 17 years. Earlier the succession case was disposed of vide order dated 7th May, 2004 against which M.A. No.138 of 2004 was preferred by the applicant Sanichariya Devi. One Chhaya Devi preferred W.P.(S) No.1625 of 2006 claiming herself to be the legally married wife of Late Rur Singh. The Hon'ble Court vide order dated 12.05.2006 , while hearing M.A. No. 138/04 with W.P.(S) No. 1625/06 set aside the judgment dated 07.05.2004 passed by Ld. A.J.C., Ranchi in Succession Case No. 228/1996. The matter was remitted back to the court below for passing judgment afresh after considering all aspects of the matter and the law to that effect.

3. Learned Court below passed order afresh in Succession Case No. 228/1996 vide order dated 19.2.2011 the order of which is under challenge in the present appeal.

4. Appellant's application for succession certificate has been denied on the ground that she was not the legally married wife of the Rur Singh. The case of the appellant / petitioner is that she was married to Rur Singh on 12.01.1985 under Special Marriage Act before the Marriage Officer, Ranchi. Out of their wedlock two sons and one daughter were born who are appellant nos. 2, 3 and 4. After death of Rur Singh the petitioner applied for death benefit on account of death of Rur Singh. Chaya Devi (O.P) has falsely represented herself as wife of Rur Singh and tried to illegally obtain the death benefits from the Electricity Board. Nobody was mentioned as nominee in the service book of Rur Singh.

5. The order of the learned Court below has been assailed on the ground that the court below wrongly relied upon passbooks (Ext. B and B/1) and Ext.C (deposit receipts) which do not create any evidentiary value to support and establish the fact of marriage between the deceased and respondent. It is also argued that mere photograph of Chaya Devi (OP) with the deceased cannot be a proof of the marriage of the deceased with her. Apportionment of only 50% share to petitioner nos. 2 to 4 was inequitable and it should have been 75%. The order of compassionate appointment in favour of Chaya Devi has also been assailed.

6. In view of the provision of Sections 5(i) and 11 of the Hindu Marriage Act, 1955 (hereinafter called Marriage Act) the marital status of a Hindu woman marrying a Hindu male with a living spouse is null and void without the requirement of a specific declaration made by the Court of law to that effect. However, the children begotten from the union shall be legitimate in view of Section 16 of the Marriage Act. Legal position has been illustrated in M.M. Malhotra v. Union of India, (2005) 8 SCC 351 wherein it has been held that Section 11 of the Marriage Act declares such a marriage as null and void in the following terms:

"11. Void marriages.--Any marriage solemnised after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto against the other party, be so declared by a decree of nullity if it contravenes any one of the conditions specified in clauses (i), (iv) and (v) of Section 5."

Clause (i) of Section 5 lays down, for a lawful marriage, the necessary condition that neither party should have a spouse living at the time of the

marriage. A marriage in contravention of this condition, therefore, is null and void. The marriages covered by Section 11 are void ipso jure, that is, void from the very inception, and have to be ignored as not existing in law at all, if and when such a question arises. Although the section permits a formal declaration to be made on the presentation of a petition, it is not essential to obtain in advance such a formal declaration from a court in a proceeding specifically commenced for the purpose. The provisions of Section 16, which is quoted below, also throw light on this aspect: "16. Legitimacy of children of void and voidable marriages.--(1) 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, whether such child is born before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976), and whether or not a decree of nullity is granted in respect of that marriage under this Act and whether or not the marriage is held to be void otherwise than on a petition under this Act.

(2) Where a decree of nullity is granted in respect of a voidable marriage under Section 12, any child begotten or conceived before the decree is made, who would have been the legitimate child of the parties to the marriage if at the date of the decree it had been dissolved instead of being annulled, shall be deemed to be their legitimate child notwithstanding the decree of nullity.

(3) Nothing contained in sub-section (1) or sub-section (2) shall be construed as conferring upon any child of a marriage which is null and void or which is annulled by a decree of nullity under Section 12, any rights in or to the property of any person, other than the parents, in any case where, but for the passing of this Act, such child would have been incapable of possessing or acquiring any such rights by reason of his not being the legitimate child of his parents."

Sub-section (1), by using the words italicised above clearly implies that a void marriage can be held to be so without a prior formal declaration by a court in a proceeding. It is also to be seen that while the legislature has considered it advisable to uphold the legitimacy of the paternity of a child born out of a void marriage, it has not extended a similar protection in

respect of the mother of the child. The marriage of the appellant must, therefore, be treated as null and void from its very inception."

7. From the above it follows that marriage of appellant no.1 Sanichariya Devi to Rur Singh during the life time of his first spouse Chaya Devi was a void marriage.

8. On the basis of documentary like transfer certificates of Punam Kumari and Banti Kumar (Ext.1 and 1/1) issued by Principal Modern School, Block Road, Bundu and other evidence on record the Court below has held that father of applicant nos. 2 to 4 was Rur Singh and the children were born from the wedlock of Sanicharian Devi. I do not find any infirmity on this count in the impugned order.

9. Main point for determination is whether the appellants are entitled to succession certificate and if so then to what share in debt, security and retiral dues of the late Rur Singh?

10. In view of Section 16 (1) of the Hindu Marriage Act, 1955 the appellant 2 to 4 are to be treated as legitimate children of Rur Singh. This provision reads as under:--(1) 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, whether such child is born before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976), and whether or not a decree of nullity is granted in respect of that marriage under this Act and whether or not the marriage is held to be void otherwise than on a petition under this Act.

In view of the express provision above noted there cannot be a shred doubt that the appellant nos.2 to 4 are the legitimate children of Rur Singh.

11. Under section 8 of the Hindu Succession Act 1956, the property of a male Hindu dying interstate shall devolve firstly on class I heirs in exclusion of other heirs. The class I heir as per schedule to the Hindu Succession Act includes widow, daughters and sons. The distribution of property among heirs in Class-I has been provided under Section 10. According to it --The property of an intestate shall be divided among the heirs in Class I of the Schedule in accordance with the following rules:

Rule 1.--The intestate's widow, or if there are more widows than one, all the widows together, shall take one share.

Rule 2.--The surviving sons and daughters and the mother of the intestate shall each take one share.

12. From the above, it follows that Chaya Devi and appellant nos. 2 to 4 shall be entitled to succession certificate in equal share being Class-I heir of late Rur Singh.

13. Now the matter for consideration is whether appellant no.1 being the second wife and her marriage being void, she will be entitled to any share in the estate of the deceased or not?

It is indisputable that she was married to deceased under Special Marriage Act, 1954 and she gave companionship to the deceased and also bore him three children. It has been held in Vidhyadhari v. Sukhrana Bai, (2008) 2 SCC 238 the order of succession certificate was allowed in favour second wife as she was the nominee. It was held that the law is clear on this issue that a nominee like Vidhyadhari who was claiming the death benefits arising out of the employment can always file an application under Section 372 of the Succession Act as there is nothing in that section to prevent such a nominee from claiming the certificate on the basis of nomination.

14. Here in the instant case, applicant no.1 Sanicharian has not been named as the nominee. Nevertheless it will inequitable to deny her any share in the debt, securities and retiral benefits of the deceased, since she was married to him.

Under the circumstance, applicant no.1 Sanicharian Devi is allowed 10% of the debts, securities and retiral dues of the deceased and of the remaining amount, Chaya Devi the widow of late Rur Singh shall take one share and appellant nos. 2 to 4 shall together take one share each. Thus Chaya Devi shall take 22.25% of the share and appellant nos. 2 to 4 shall each take 22.25%. Let the Succession certificate be drawn, accordingly.

With this modification in the Judgment the appeal is allowed. Consequently, I.A. No. 2608 of 2011 stands disposed of.

(Gautam Kumar Choudhary, J.)

Jharkhand High Court, Ranchi Dated the 30th March, 2022 AFR / Anit