HIGH COURT OF CHATTISGARH AT BILASPUR
WRIT PETITION No.2435 OF 2009
Smt. Vijayshree Sharma
...Petitioners
Vs
Union of India and others
...RespondentsWRIT PETITION UNDER ARTICLE 227 OF THE CONSTITUTION OF
INDIA
! Mr. H.S.Ahluwalia, counsel for the Petitioner
^ Mrs. Fouzia Mirza, counsel for respondent no.1, 3, 4 & 5
Mrs. Hamida Siddiqui, counsel for respondent no.6.
HONBLE I.M. QUDDUSI,HONBLE N.K. AGRAWAL, JJ
Dated:29/06/2010
: Judgment
(29.06.2010)
Per I.M. QUDDUSI
1. This writ petition has been filed against the
impugned order dated 23rd January, 2009 passed by
the Central Administrative Tribunal, Jabalpur
Bench, Circuit Court at Bilaspur, in
O.A.No.420/2003 whereby the original application
filed by respondent no.6 Smt. Jayashree Sharma for
grant of family pension to her has been allowed.
2. Brief facts of the case are as under:
(i) Deceased R.N. Sharma was working as News Editor in
the respondent Department. He took voluntary
retirement on 16th Sept. 2002 due to illness and
thereafter within a few days he died on 13.11.2002.
Respondent no.6 has filed Original Application before
the Tribunal on the ground that she was legally wedded
wife of late R.N. Sharma, out of the wedlock two
children were born and thereafter, he deserted her and
started living separately with another woman. She
further stated that in the year 2001, R.N. Sharma filed
a divorce petition seeking divorce from her in the
court of 5th Addl. District Judge, Raipur, under
section 13 of the Hindu Marriage Act. During the
pendency of the divorce petition, he expired on
13.11.2002 and the said petition has become
infructuous. A legal notice has been issued by her to
the concerned department for granting her family
pension and other retrial dues of late R.N. Sharma.
The official respondents replied that the pensionary
benefits of the deceased employee have already been
paid to petitioner Vijayshee Sharma and necessary PPO
has also been issued in her favour.
(ii) According to petitioner Vijayshree Sharma, on
24.05.1971 she got married with late R.N.
Sharma and after marriage both were residing
together and out of wedlock they had two
children namely Akash Sharma (son) and
daughter Ku. Priyanka Sharma. Late R.N.
Sharma has submitted his pension papers for
grant of pensionary benefits. He also
enclosed nomination Form No.3 under Rule
54(12) of the Central Civil Services
(Pension) Rules showing the petitioner as his
wife. After death of her husband, the
department disbursed the family pension to
her, being the legally wedded wife. Having
come to know about the release of family
pension to petitioner Vijayshree, respondent
no.6 Jayshree filed O.A. bearing No. 420/2003
in which the petitioner was impleaded as
party/respondent no.5. The Tribunal by order
dated 23.01.2009 allowed the original
application of respondent no.6 and directed
the respondents- department to grant family
pension in favour of respondent no.6.
3. Mr. H.S. Ahluwalia, learned counsel for the
petitioner submits that late R.N. Sharma executed
a registered will dated 02.03.2002 whereby
moveable and immoveable properties including bank
account have been bequeathed in favour of
petitioner as successor, therefore, the petitioner
is entitled for the pensionary benefits being
legally wedded wife.
4. Mrs. Hamida Siddiqui, learned counsel for
respondent no.6 on the other hand submits that the
petitioner even if nominated by the deceased could
not claim status of a legally wedded wife during
subsistence of earlier marriage with respondent
no.6. She placed reliance on a decision in
Rameshwari Devi Vs. State of Bihar reported in
(2000) 2 SCC 431 and Vidyadhari and others Vs.
Sukharna Bai and others AIR SCW 910 and emphasized
that the denial of claim to legally wedded wife to
the exclusion not only of the nominee of deceased
but also to the exclusion of his legitimate legal
heirs would be illegal. Respondent no.6 being
legally wedded wife is also one of the legal heirs
under the Hindu Marriage Act/Succession Act and
therefore she is entitled to pension and other
terminal benefits.
5. The learned Tribunal, after considering the entire
material on record, has mainly recorded the
following findings in his order vide paras 11 &
12.
(i) That the Will dated 02 March 2002
executed by deceased R.N. Sharma in
favour of petitioner Vijayshree Sharma
nowhere depicted the petitioner as his
wife much less than legally wedded wife.
On the other hand, respondent no.6
Jayshree Sharma was referred as wife
with whom he had two issues and the
deceased and respondent no.6 were living
separately for the past 27 years as they
had no cordial relations.
(ii) That deceased R.N. Sharma filed a divorce petition
in the year 2001 before the Court of 5th Addl. District
Judge, Raipur, under the Hindu Marriage Act seeking
divorce from respondent no.6 Jayshree Sharma and after
death of R.N. Sharma, the said proceedings were
dismissed as infructuous meaning thereby that the
marriage of deceased with Jayshree Sharma subsisted as
divorce proceedings could not be finalized during his
lifetime and Jayshree Sharma was the legally wedded
wife and the children born to her from R.N. Singh are
legitimate.
(iii) In view of the above, mere submission of
details of family members by deceased R.N. Singh
describing the petitioner Vijayshree Sharma as his wife
on 20th & 25th Sept.2002 after he stood voluntarily
retired will not erase or undermine the mandate of
providing details of family when he entered the
Government Service.
The learned Tribunal on the basis of the above
findings allowed the O.A. filed by respondent no.6
and directed the respondent authorities to grant
family pension in favour of respondent no.6 w.e.f.
13.11.2002 alongwith arrears within the stipulated
period.
6. A perusal of the will dated 02.03.2002 shows that
the marriage of deceased was performed with
respondent no.6 Jayshree and two children were
born to her from R.N. Singh, but to due lack of
cordial relations between them, they were living
separately for a long time. Therefore, the fact
which emerged from the said Will that respondent
no.6 namely Smt. Jaishree Sharma was legally
wedded wife of deceased late R.N. Sharma cannot be
denied. Further it is also matter of record that
R.N. Sharma himself filed divorce petition which
was pending seeking divorce from Jayshree, but
during the pendency of that petition, R.N. Sharma
died and as such it cannot be said that Jayshree
is a divorcee for all purposes. She is legal widow
of late R.N. Sharma. Therefore, there is no doubt
that Jayshree and her two children are entitled to
get family pension. Besides this, petitioner
Vajayshree Sharma is also having two children but
they are illegitimate children of the deceased as
she is not legally wedded wife of the deceased.
Under the Hindu Law, second marriage is void and
therefore even if late R.N.Sharma at any point of
time had performed second marriage with petitioner
Vijayshree Sharma that is void in the eye of law.
Hence, it cannot be said that the petitioner is
legally wedded wife or widow of R.N. Sharma.
However, children born out of void or voidable
marriage, according to the Hindu Marriage Act,
1956 were legitimate though the marriage itself
was void.
7. So far as entitlement of the illegitimate children
is concerned, section 16 of Hindu Marriage Act,
1956 is relevant here which is quoted below:
16. Legitimacy of children of void and voidable
marriages.-(1) Notwithstanding that 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 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.
8. The point as to whether illegitimate children are
entitled to get share in parents property came up
for consideration before the Supreme Court in
Jinia Keotin and others -vs- Kumar Sitaram Manjhi
and others, (2003) 1 SCC 730 wherein it has been
held that in view of the provisions of section
16(3) of the Act, the children born of void or
voidable marriage are not entitled to claim
inheritance in ancestral co-parcenary property but
entitled to claim inheritance in property of
parents (See Placitam).
9. Therefore, we are of the opinion that Jayshree
Sharma and her two children being legal widow and
legitimate children of the deceased R.N. Sharma as
also the two children of Vijayshree (all five in
total) are entitled to get the family pension in
accordance with the rules made for payment of
Family Pension and Gratuity to the legal heirs of
the deceased. Therefore, we dispose of this writ
petition modifying the impugned order passed by
the Tribunal and direct that the children
legitimate and illegitimate both as well as the
legal widow of the deceased late R.N. Sharma
namely Smt. Jayashree, respondent no.6 herein,
shall be entitled to get family pension and
gratuity and as such the official respondents are
directed to grant family pension in their favour.
This direction shall be carried out without
further delay preferably within 3 months from the
date of production of certified copy of this
order.
Judge Judge