Mostt. Gita Devi vs The State Of Bihar
2023 Latest Caselaw 5178 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                  Civil Writ Jurisdiction Case No.12968 of 2021
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Mostt. Gita Devi, W/o Late Sunil Kumar @ Sunil Singh, R/o Rewa, Post - Saray, P.S. - Maner, Distt.- Patna.

... ... Petitioner/s Versus

1. The State of Bihar, through the Secretary Education Department, Government of Bihar, Patna.

2. The Director Primary, New Secretariat, Government of Bihar, Patna.

3. The District Education Officer, Saidpur, Rajendra Nagar, Patna.

4. District Programme Officer, Establishment, Patna.

5. The Block Education Officer, Punpun Block, District - Patna.

6. The Headmaster Cum Drawing and Disbursing Officer, Middle School, Jawaharpur, Punpun, Patna, Pin Code - 804453.

7. The Accountant General, Bihar, Patna.

8. Smt. Soni Devi, D/o Late Birju Singh, At present residing in the House of Late Sunil Kumar @ Sunil Singh, North Shastri Nagar, Professor Colony, Near Lal Babu Market, P.S. Shashtrinagar, District - Patna. Pin Code No. 800023.

... ... Respondent/s ====================================================== Appearance :

     For the Petitioner/s    :       Mr. Jai Prakash Verma, Advocate
     For the State           :       Mr. Jitendra Kumar Roy ( SC-13 )
                                     Mr. U.K. Singh, AC to SC-13
     For A.G.                :       Ms. Ritika Rani, Advocate

====================================================== CORAM: HONOURABLE MR. JUSTICE PURNENDU SINGH ORAL JUDGMENT Date : 09-10-2023 Heard Mr. Jai Prakash Verma, learned counsel

appearing on behalf of the petitioner; Mr. Jitendra Kumar Roy,

learned SC-13 appearing on behalf of the State and Ms. Ritika

Rani, learned counsel for the Accountant General, Bihar.

2. Learned counsel appearing on behalf of the Patna High Court CWJC No.12968 of 2021 dt.09-10-2023

petitioner informs this Court that the family pension to which

the petitioner is entitled has been withheld for the alleged reason

that respondent no. 8, who also claims to be the legally wedded

wife of the deceased employee namely, Late Sunil Kumar @

Sunil Singh, has objected to petitioner's claim. Learned counsel

further submitted that a statement has been made in paragraph

no. 6 to the writ petition that in absence of any decree of divorce

by a competent Court, there cannot be any valid presumption

made that the marriage between the petitioner and the deceased

employee had dissolved. Moreover, there is no evidence of

performance of marriage between the deceased employee and

respondent no. 8. He further submitted that law is well settled

with respect to the entitlement of share in the property of the

husband. The petitioner is the one entitled to receive family

pension after her husband's death. The Provision of Article 300

(A) of the Constitution of India mandates that pension is

property. In several decision, the Apex Court and this Hon'ble

Court has held that the wife of the deceased employee is entitled

for family pension.

3. Learned counsel further submitted that, the

petitioner was also receiving maintenance from her husband in

light of the judgment passed in Maintenance Case No. 7(M) of Patna High Court CWJC No.12968 of 2021 dt.09-10-2023

1994 order dated 23.09.1995, by the learned Principle Judge,

Family Court, Patna , in which vide para-5, it has been held that

the petitioner and the deceased employee are legally married

wife and husband. (Annexure 2)

4. Per contra, learned counsel appearing on behalf

of the respondent no. 8, submitted that she had married the

deceased employee in the year 1988, and has two children out of

the wedlock. He further submits that, although the marriage

between the petitioner and the deceased employee had

solemnized on 10.03.1992, however, within a week of the

marriage, the petitioner deserted her husband, and it was

respondent no.8 who lived along with the deceased employee

till his death in harness due to Corona virus on 25.04.2021

(Annexure 1 to the writ petition).

5. Learned counsel further submitted that,

documents such as the School Certificates of the children, the

Voter list and the Death Certificate of the deceased employee

(Annexure 1 to the writ petition), are all proof of the fact that

respondent no.8 and the deceased employee were indeed

husband and wife.

6. A counter affidavit has also been filed on behalf

of the State-Respondent nos. 3 and 4, in which it is stated in Patna High Court CWJC No.12968 of 2021 dt.09-10-2023

para-4 that the controversy with regard to entitlement of pension

arose due to the Death Certificate which bears the name of

respondent no.8 as wife of the deceased employee. In para no.-

6, it has been stated that the pension papers were forwarded by

the Principal of the School along with the Death Certificate and

list of dependents(PAriwarik Suchi), in which again, the name

of respondent no. 8 finds mention as wife of the deceased

employee. Therefore, vide Letter No. 6067 dated 23.07.2022,

the petitioner as well as respondent no.8, was asked to submit

Succession Certificate along with list of family for the final

settlement of the entitlement to the retiral benefits of the

deceased employee in accordance with law (Annexure-B). It

has further been stated that no information was given by the

deceased employee during his lifetime to any of the higher

authority with respect to obtaining permission for second

marriage nor any evidence to substantiate the statement that the

deceased employee was separated from the petitioner and she

was living with her son and getting maintenance.

7. Dispute relates to entitlement of the petitioner to

receive family pension, which has not been paid due to the

objection of respondent no. 8, who has also claimed to be the

wife of the deceased employee. However, the respondent no. 3 Patna High Court CWJC No.12968 of 2021 dt.09-10-2023

and 4 have proceeded to issue letter no. 6067 dated 23.07.2022,

to the petitioner and respondent no. 8, to submit a succession

certificate, in spite of the fact that in a dispute between two

wives for declaration of valid marriage, that matter can only be

decided by the competent Civil Court.

8. Having considered the rival submissions made

on behalf of the parties, as well as, the fact, which has to be

deprecated as stated in counter affidavit filed on behalf of the

respondents no. 3 and 4, who without authority of law have

proceeded to direct the respondent no. 8 and the petitioner, to

submit succession certificate along with list of family members

for claiming death-cum-retiral benefits, which has delayed the

entitlement of the petitioner for receiving family pension. No

reference has been made in the counter affidavit filed by

respondent no.3 and 4, with respect to the fact that before

making such statement in the counter affidavit, the authority

concerned have referred to the several government circulars

with respect to the entitlement of family pension and entitlement

of the biological sons and daughters of the deceased employee,

out of void marriage. In the present case, respondent no. 8

appears not to be legally wedded wife of the deceased employee

in absence of any legal documents, whereas, the petitioner has Patna High Court CWJC No.12968 of 2021 dt.09-10-2023

brought on record a decree passed in Maintenance Case No.

7(M) of 1994 vide order dated 23.09.1995, which proves the

fact that the petitioner is the legally wedded wife of the

deceased employee. The respondent no. 8 in her counter

affidavit, has not disputed the fact nor has brought decree of

divorce with respect to the fact that the deceased employee had

divorced the petitioner during his lifetime.

9. Law in this regard is well settled by the Apex

Court so far as the entitlement of family pension is concerned

that it can only be claimed by a legally wedded wife and

relationship of the deceased employee with respondent no. 8

will not entitle her to receive family pension in absence of valid

divorce decree. Several circulars of the State Government from

time to time has clarified the position that the second marriage

being void, the claim of second wife to receive family pension is

not sustainable. It is, however, settled that the biological sons

and daughters of the deceased employee either born out of

cohabitation with the first wife or with the second wife (in this

case, respondent no. 8) are entitled for pensionary benefit in

equal shares in accordance with law. Death Certificate, which

has been annexed as 'Annexure-1' to the writ petition is only an

evidence, whereas, 'Annexure-2' is a decree passed after Patna High Court CWJC No.12968 of 2021 dt.09-10-2023

adjudication. Therefore, 'Annexure-2', which proves that the

petitioner was legally wedded wife, will have legal force.

10. Learned counsel appearing on behalf of the

respondent no. 8 submitted that some compassion be shown by

the petitioner considering the fact that even though she was not

legally married, but she had taken care of the deceased

employee with love and affection till his last breath, so that,

some amicable settlement with respect to the distribution of

pensionary benefit can be arrived at.

11. The law is well settled that in case of dispute

between two parties claiming themselves to be entitled for

family pension, remedy for such claim is before the competent

civil court having jurisdiction or in alternative, they can settle

the issue amicably.

12. This Court finds that, with regard to the

peculiar facts of the case, the parties may enter into amicable

settlement to settle their dispute.

13. So far as retiral benefits which have not been

paid to the deceased employee, the biological sons and

daughters of the deceased employee are entitled for the same.

The concerned respondent is directed to forthwith verify about

the biological sons and daughters, who have taken birth out of Patna High Court CWJC No.12968 of 2021 dt.09-10-2023

cohabitation from two wives of the deceased employee and

make payment of retiral benefits, which have not been paid to

the deceased employee to be distributed, in equal share, among

the biological sons and daughters of the deceased employee, in

accordance with the government circulars, within a period of six

weeks from the date of communication of this order.

14. Accordingly, the present writ petition is

disposed of.

(Purnendu Singh, J)

Niraj/-

AFR/NAFR                N.A.F.R.
CAV DATE                N/A
Uploading Date          16.10.2023
Transmission Date       N/A