Manorama Barik vs Kaibalya Barik & Anr
2023 Latest Caselaw 2246 Ori

                    IN THE HIGH COURT OF ORISSA AT CUTTACK
                                    W.P.(C) No. 25462 of 2017

            Manorama Barik                            ....                Petitioner
                                                           Mr. Ajit Kumar Tripathy,
                                                                              Adv.
                                             -Versus -
            Kaibalya Barik & Anr.                     ....            Opposite Party
                                                                    Mr. P.K. Panda,
                                                               SC for S & ME Dept.

                                                                 Mr. P.S. Das, Adv.
                                                             (for O.P. Nos. 1 and 2)

                          CORAM:
                            JUSTICE SASHIKANTA MISHRA

ORDER_ 20.03.2023

I.A. No. 5431 of 2022

Order No. 1. This matter is taken up through hybrid mode.

06.

2. In view of the order proposed to be passed in the writ petition, it is felt not proper at this stage to allow the petition for substitution leaving it open to the proposed legal heirs of the deceased opposite party No.1 to seek variance of this order, if any cause of action arises.

3. I.A. stands rejected.

(Sashikanta Mishra) Judge W.P.(C) No. 25462 of 2017

Order No.

07. 1. The petitioner has approached this court claiming the

following relief:

"Under these circumstances, the petitioner prays that, Your Lordships would be graciously pleased to admit this writ application, issue notice to the Opposite Parties, after hearing quash the Annexure-4 with a direction to the Controller of Accounts, Odisha, Bhubaneswar, and District Education Officer, Keonjhar to give family pension to the petitioner in the event of the death of the Opposite party No.1.

And/or to pass such other order/orders, direction/directions as this Hon'ble Court deems just, fit, equitable and proper in the facts and circumstances of the present case;"

2. The facts of the case are that the petitioner claims to have married the deceased opposite party no.1, Kaibalya Barik more than 50 years ago. A daughter by name Tilotama Barik was born out of such wedlock.

3. It is alleged that opposite party No.1 married opposite party no.2 in the year 1981. A son was born out of such marriage. The present writ petition was filed as the Controller of Accounts, vide the order impugned, sanctioned family pension of Rs. 2970/- in favour of opposite party No.2. It is submitted that such order is completely contrary to law, inasmuch as law does not recognize second marriage of a person during subsistence of his first marriage. The petitioner had earlier approached the Judge, Family Court, Keonjhar in Crl. Proceeding No. 54 of 2013 claiming maintenance against her husband. By judgment passed on 30.09.2015 (enclosed as Annexure-1), learned Judge, Family Court allowed the application by directing the husband of the petitioner to pay

Rs.9,000/- towards maintenance along with litigation cost of Rs. 20,000/-. While deciding such application, the learned Judge, Family Court took note of the second marriage of the husband of the petitioner and held as follows:

"Here in this case, what ever may be the reason, the O.P. married for the second time to one Rebati Barik during the subsistence of first marriage with the petitioner for which the petitioner suffered from mental agony and felt herself neglected and for that reason the petitioner is entitled to get maintenance of her status.

The other reason to get maintenance is that the O.P. neglected the first wife after marrying for the second time to Rebati and the negligence of the husband towards the first wife, the petitioner is entitled to get maintenance."

4. As it appears, the factum of second marriage promoted the Judge, Family Court to award maintenance in favour of the petitioner. The judgment of the Judge, Family Court was carried in appeal before this Court in RPFAM No. 182 of 2015. By order dated 19.01.2016 this Court dismissed the same as being devoid of any merit. There is thus, a finding by a competent court of law regarding the factum of second marriage of the petitioner's husband.

5. In the instructions obtained by the learned State Counsel, it is mentioned that the Controller of Accounts has no scope to know as to who is the legally married wife of the opposite party No.1. It is a matter to be decided by the District Education Officer (opposite party No.6) being the pension sanctioning authority.

6. Such being the factual and legal position, the writ petition is disposed of directing the opposite party No.-6 to take a decision in the matter after taking into account the judgment passed by the Judge Family Court, Keonjhar, as confirmed by this Court. A decision in this regard shall be taken within four weeks from the date of communication of this order or on production of certified copy thereof by the petitioner.

(Sashikanta Mishra) Judge A.K. Rana