Shri Ashutosh Deb Chowdhury vs The State Of Tripura
2022 Latest Caselaw 28 Tri

                          HIGH COURT OF TRIPURA
                                AGARTALA
                             WP(C)No.339 of 2021

Shri Ashutosh Deb Chowdhury,
son of late Soroj Kumar Deb Chowdhury,
resident of Churibari, P.O. & P.S. Churaibari,
Sub-Division-Dharmanagar, District : North Tripura

                                                                 ..........Petitioner(s)

                                     VERSUS

1. The State of Tripura,
represented by the Secretary to the
Government of Tripura, Department of Home,
New Secretariat Complex,
P.O. & P.S. New Capital Complex,
District : West Tripura, PIN : 799010

2. The Director General of Police,
Tripura, Agartala

3. The Superintendent of Police (Communication),
West Tripura, Agartala

4. Smti. Jayeeta Dey @ Khushi,
daughter of Shri Manik Lal Dey,
resident of Post Office Road,
P.O. & P.S. Dharmanagar, District : North Tripura

                                                            ..........Respondent(s)

For Petitioner(s)                : Mr. B.N. Majumder, Sr. Adv.
                                   Mr. S.C. Sen, Adv.
For Respondent(s)                : Mr. P.K. Dhar, Sr. G.A.
                                   Mr. A, Dey, Adv.
                                   Mr. A.K. Pal, Adv.

                    HON'BLE MR. JUSTICE S. TALAPATRA

                                     Order

10/01/2022

Heard Mr. B.N. Majumder, learned senior counsel assisted by Mr.

S.C. Sen, learned counsel appearing for the petitioner as well as Mr. P.K. Dhar,

learned Sr. G.A. assisted by Mr. A. Dey, learned counsel appearing for the

respondents No.1, 2 and 3 and Mr. A.K. Pal, learned counsel appearing for the

respondent No.4.

2. By means of this writ petition, the petitioner the propounder of the

will dated 07.12.2016 [Annexure-6 to the writ petition] has urged this Court to

direct the respondents No.1 to 3 for releasing the service benefits accrued on

account of death of Debasish Deb Chowdhury, Ex-Wireless Operator and the

executor of the will by setting aside the decision, contained in the communication

dated 01.12.2020 [Annexure-8 to the writ petition]. By the said communication,

the Superintendent of Police [Communication], the respondent No.3 has apprised

the petitioner that his prayer for releasing those benefits cannot be acceded to as

the respondent No.4, the divorced wife of the deceased employee has raised

objection. In the emerged circumstances, the petitioner has approached this

Court.

3. There is no dispute that the respondent No.4 was married to the

deceased employee and later on, by a decree of divorce, their marriage was

dissolved. For purpose of reference, the order dated 16.06.2014 may be referred

to. The marriage was dissolved based on the settlement and the conditions of

settlement had been filed before the Additional District Judge, North Tripura,

Dharmanagar [as he then was] in T.S.(Divorce)15 of 2014. Conditions of

settlement inter alia read as under :

"1) The respondent husband will pay Rs.4,000/- against monthly alimony to the petitioner wife.

2) The monthly alimony will be paid in the first week of each and every English calendar month by way of deducting the said amount from the salary of the respondent husband by the authority concern and it will be deposited in the bank account of the petitioner wife (A/C No.33659535727) in the State Bank of India, Dharmanagar Branch. The respondent husband will take necessary steps before this authority for having the deduction of

the monthly alimony from his salary and to deposit the same in the account of Smt. Jayeeta Dey.

3) The respondent husband shall handover all the "stridhana" and all the articles which the respondent received in the bridal procession at the time of marriage to the petitioner wife. The petitioner wife acknowledges the receipt of the all articles handed over by the respondent husband."

4. It is apparent that no "stridhana" was lying with the family of the

deceased employee. It is also not in dispute that at the instance of the respondent

No.3 who filed an application for claiming the benefits that will accrue from the

death of her deceased husband and for release of the regular maintenance.

5. After hearing, the said petition being Civil Misc. 20 of 2017 filed

under Section 28A of the Hindu Marriage Act, 1955 was allowed by the District

Judge, North Tripura, Dharmanagar by his judgment and order having observed

as follows :

"It is quite clear from a catena of judgments that there is a distinction between a decree for divorce and decree of judicial separation. In the former, there is a severance of status and the parties do not remain as husband and wife, whereas in the latter, the relationship between husband and wife, whereas in the latter, the relationship between husband and wife continues and the legal relationship continues as it has not been snapped. In the given case there was a decree of divorce and thus owing to the severance of status, the parties do not remain as husband and wife and immediate to the pronouncement of the decree of divorce no legal relationship remains within the parties. As such the award of alimony whether monthly or permanently ends immediately after the death of the ex-husband and since no legal relationship remains in existence there is no question to get any benefit from the property of her ex-husband."

6. It is also an admitted fact that the said judgment and order has not

been challenged before any superior forum and it has reached its finality. Even,

this fact has been admitted by the respondent No.4 in the counter affidavit filed in

this proceeding on 27.08.2021. For purpose of reference, the crux of the reply

which is available in para-10 of the said counter affidavit may be referred. In

response to Para 8 of the petition, the proforma respondent [the respondent No.4]

has contended that she has right to claim the benefits for death of her late

husband Debasish Deb Chowdhury and she filed a petition before the respondents

urging to not release the said benefits to the petitioner as the proforma

respondent is legally entitled to get monthly anomaly [sic. alimony] which has

been awarded by the Additional District Judge, North Tripura, Dharmanagar in

case No.T.S.(Divorce)15/2014 . The proforma respondent [the respondent No.4]

has claimed the amount of the Death-cum-Retirement Gratuity (DCRG) benefits

against her deceased husband, Debasish Deb Chowdhury.

It is therefore clearly discernible that the respondent No.4 is not

aggrieved by the decision of the District Judge, North Tripura, Dharmanagar.

According to her perception, the District Judge, North Tripura, Dharmanagar has

decided that she is legally entitled to get the monthly anomaly [sic. alimony].

7. Mr. A.K. Pal, learned counsel for the respondent No.4 has submitted

that the apex Court in Mrs. Aruna Basu Mullick versus Mrs. Dorothea Mitra

reported in AIR 1983 SC 916 has decided as follows :

"13. We are inclined to agree with the view of the Calcutta High Court that the decree in the instant case was not extinguished with the death of Prafulla Kumar Mitra and the assets left behind by him are liable to be proceeded against in the hands of his legal heirs for satisfaction of the decree for maintenance.

14. Before the Calcutta High Court it had been contended that the phrase 'at the instance of either party' occurring in sub- section (2) of Section 37 would cover the husband and the wife and no one else and on this meaning given to the phrase, support was sought for the contention that the order of maintenance was intended to continue only during the life of the husband. This question was left open by the High Court. We, however, see no justification for the view that the phrase should be confined to the spouses. There is no dispute that the order for maintenance can be varied or rescinded with change of circumstances. Sub-section (3) clearly provides that on remarriage or on a finding that the wife is not leading a chaste life, the order of maintenance can be rescinded. Upon the husband's death his estate passes on to his legal heirs and the intention of the Legislature being clear that upon remarriage or non-leading of a chaste life, the benefit conferred by the statute should empire and the estate should become free from the liability of satisfying the decree for maintenance, the application for varying, modifying or rescinding the order for maintenance can be made even by those who have succeeded to the husband's estate and the estate can be freed from the liability. There is nothing in the provision to support the view that the words 'either party' should be confined to the spouses.

Examining the scheme of the statute and the purpose for which such a provision has been made, we are inclined to agree with the learned counsel for the respondent that the words 'either party' would also cover the legal heirs who have stepped into the shoes of the spouses under the law and such persons would also be competent to ask for variation, modification or rescission of the order for maintenance. That term would also include the holders of the estate with lawful title for the time being. Once such a meaning is given to the phrase, the support which Mr. Ghosh wanted to draw by restricting the phrase to spouses and contending that it indicated the legislative intention that the order of maintenance should survive only until the life time of the husband, loses force."

[Emphasis added]

8. It is apparent on a bare reading of para-14 of the said report that

the apex Court has interpreted the words "either party" and it has been observed

that those words should not be confined to the spouse/s only. That also covers

the legal heirs who have stepped into the shoes of the spouse/s under law. Such

persons would also be competent to ask for variation, modification or rescission of

the order for maintenance.

9. The fact of that case is very relevant to understand the proposition

of law as propounded by the apex Court. The dispute arose in that action from

execution of the order of maintenance for a period after the death of the husband.

The prayer was opposed by the legal heirs by contending with the death of the

husband, any right to claim the maintenance has extinguished. The executing

court overruled that objection and directed execution of the order. When the same

was challenged in the revision, the said order was also maintained by a Division

Bench of Calcutta High Court. Thereafter, the aggrieved party had approached the

Apex Court when the above decision was returned.

10. Mr. P.K. Dhar, learned Sr. G.A. appearing for the respondents No.1,

2 and 3 has submitted that in the present context, the respondent No.4 cannot

get any benefit, except the arrear maintenance that is entitled to her till the date

of death of her former husband. That apart, the respondent No.4 did not

challenge the categorical finding of the District Judge, North Tripura,

Dharmanagar that immediate to the pronouncement of decree of divorce, no legal

relationship remains with the parties and as such, the word "alimony" whether

monthly or permanently ends immediately after the death of her ex-husband and

since, no legal relationship remains in existence, there is no question of having

any benefit from the property of her ex-husband. The said order is binding on the

parties.

11. This Court has scrutinized the Will, execution of which has not been

challenged by any party in the proceeding. From a bare reading of the said Will, it

appears that the deceased employee bequeathed all properties including a piece

of land and service benefits in favour of the petitioner. Even, in the entire counter

affidavit filed by the respondent No.4, there is no challenge against execution of

the Will by the deceased employee, the former husband of the respondent No.4

nor any murmur has uttered against the legality of the order of the District Judge,

North Tripura, Dharmanagar as quoted above. It may be so the District Judge has

directed his consideration in a different dimension. It may also be so the

proposition as laid down in the said order is not a good law. But the respondent

No.4, as noted earlier, appears not aggrieved by the said order.

12. In such circumstances, under the jurisdiction conferred under Article

226 of the Constitution of India, this Court cannot travel beyond the said

judgment and order which has brought an end to the civil dispute or the execution

of the compromise decree of divorce. Even if, the law as proposed by the District

Judge is contrary to the said decision of the Apex Court, unless, the respondent

No.4 advances challenge against the judgment, this Court cannot examine the

legality of the said judgment and order. The respondent No.4 had the remedy to

challenge the said judgment but from a reading of the counter affidavit, it appears

that she is not at all aggrieved by the said judgment.

When a Civil Court by the judgment and order has brought a dispute

to resolution or nullified any prayer the propriety demands that this Court should

not act as the revisional or the appellate Court. Hence, the said order cannot

intervened under the jurisdiction conferred by Article 226 of the Constitution of

India.

In terms of the above, it is observed that the arrear maintenance till

the death of the deceased employee shall be paid to the respondent No.4 from

the proceeds that the petitioner would receive for the death of the said employee,

as the propounder of the will.

13. Thus, it is directed that the respondents No.1, 2 and 3 shall release

the benefits that has accrued for the death of the deceased employee namely

Debasish Deb Chowdhury @ Jahar after deducting the amount that is payable to

the respondent No.4 within a period of three months from today in terms of the

judgment and order dated 16.06.2014, if any, and the remaining amount shall be

paid to the petitioner. It is observed that this order is based on the finality of the

judgment and order dated 31.08.2020.

In terms of the above, this petition stands allowed.

There shall be no order as to costs.

JUDGE

Sabyasachi B