{"id":149470,"date":"2010-06-29T00:00:00","date_gmt":"2010-06-28T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/smt-vijayshree-sharma-vs-union-of-india-and-others-on-29-june-2010"},"modified":"2017-10-04T23:47:12","modified_gmt":"2017-10-04T18:17:12","slug":"smt-vijayshree-sharma-vs-union-of-india-and-others-on-29-june-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/smt-vijayshree-sharma-vs-union-of-india-and-others-on-29-june-2010","title":{"rendered":"Smt. Vijayshree Sharma vs Union Of India And Others on 29 June, 2010"},"content":{"rendered":"
Chattisgarh High Court<\/div>\n
Smt. Vijayshree Sharma vs Union Of India And Others on 29 June, 2010<\/div>\n
       \n\n  \n\n  \n\n \n \n          HIGH COURT OF CHATTISGARH AT BILASPUR       \n\n\n\n               WRIT PETITION No.2435 OF 2009\n\n\n\n            Smt. Vijayshree Sharma\n                                ...Petitioners\n\n\n\n                                        Vs\n\n\n             Union of India and others\n                                           ...Respondents<\/pre>\n
WRIT PETITION UNDER ARTICLE 227 OF THE CONSTITUTION  OF
\nINDIA <\/p>\n
!     Mr. H.S.Ahluwalia, counsel for the Petitioner<\/p>\n
^     Mrs. Fouzia Mirza, counsel for respondent no.1, 3, 4 & 5
\n      Mrs. Hamida Siddiqui, counsel for respondent no.6.<\/p>\n
HONBLE I.M. QUDDUSI,HONBLE N.K. AGRAWAL, JJ          <\/p>\n
       Dated:29\/06\/2010<\/p>\n
:       Judgment<\/p>\n
                            (29.06.2010)<\/p>\n
Per I.M. QUDDUSI  <\/p>\n
1.   This  writ  petition has been  filed  against  the<\/p>\n
     impugned order dated 23rd January, 2009 passed  by<\/p>\n
     the   Central  Administrative  Tribunal,  Jabalpur<\/p>\n
     Bench,    Circuit    Court   at    Bilaspur,    in<\/p>\n
     O.A.No.420\/2003  whereby the original  application<\/p>\n
     filed by respondent no.6 Smt. Jayashree Sharma for<\/p>\n
     grant of family pension to her has been allowed.<\/p>\n
2.   Brief facts of the case are as under:<\/p>\n
     (i)  Deceased R.N. Sharma was working as News Editor in
\n          the respondent Department.  He took voluntary
\n          retirement on 16th Sept. 2002 due to illness and
\n          thereafter within a few days he died on 13.11.2002.
\n          Respondent no.6 has filed Original Application before
\n          the Tribunal on the ground that she was legally wedded
\n          wife of late R.N. Sharma, out of the wedlock two
\n          children were born and thereafter, he deserted her and
\n          started living separately with another woman. She
\n          further stated that in the year 2001, R.N. Sharma filed
\n          a divorce petition seeking divorce from her in the
\n          court of 5th Addl. District Judge, Raipur, under
\n          section 13 of the Hindu Marriage Act.  During the
\n          pendency of the divorce petition, he expired on
\n          13.11.2002  and the said petition has  become
\n          infructuous. A legal notice has been issued by her to
\n          the concerned department for granting her family
\n          pension and other retrial dues of late R.N. Sharma.
\n          The official respondents replied that the pensionary
\n          benefits of the deceased employee have already been
\n          paid to petitioner Vijayshee Sharma and necessary PPO
\n          has also been issued in her favour.\n<\/p><\/blockquote>\n
     (ii) According to petitioner Vijayshree Sharma, on
\n          24.05.1971  she  got married with  late  R.N.
\n          Sharma  and after marriage both were residing
\n          together  and  out of wedlock  they  had  two
\n          children   namely  Akash  Sharma  (son)   and
\n          daughter  Ku.  Priyanka  Sharma.  Late   R.N.
\n          Sharma  has submitted his pension papers  for
\n          grant   of  pensionary  benefits.   He   also
\n          enclosed  nomination  Form  No.3  under  Rule
\n          54(12)   of   the   Central  Civil   Services
\n          (Pension) Rules showing the petitioner as his
\n          wife.   After  death  of  her  husband,   the
\n          department  disbursed the family  pension  to
\n          her,  being the legally wedded wife.   Having
\n          come  to  know  about the release  of  family
\n          pension  to petitioner Vijayshree, respondent
\n          no.6 Jayshree filed O.A. bearing No. 420\/2003
\n          in  which  the  petitioner was  impleaded  as
\n          party\/respondent no.5.  The Tribunal by order
\n          dated   23.01.2009   allowed   the   original
\n          application  of respondent no.6 and  directed
\n          the  respondents- department to grant  family
\n          pension in favour of respondent no.6.\n<\/p><\/blockquote>\n
3.   Mr.   H.S.  Ahluwalia,  learned  counsel  for  the<\/p>\n
     petitioner submits that late R.N. Sharma  executed<\/p>\n
     a   registered   will  dated  02.03.2002   whereby<\/p>\n
     moveable and immoveable properties including  bank<\/p>\n
     account   have  been  bequeathed  in   favour   of<\/p>\n
     petitioner as successor, therefore, the petitioner<\/p>\n
     is  entitled  for  the pensionary  benefits  being<\/p>\n
     legally wedded wife.\n<\/p>\n<\/p>\n
4.   Mrs.   Hamida   Siddiqui,  learned   counsel   for<\/p>\n
     respondent no.6 on the other hand submits that the<\/p>\n
     petitioner even if nominated by the deceased could<\/p>\n
     not  claim status of a legally wedded wife  during<\/p>\n
     subsistence  of  earlier marriage with  respondent<\/p>\n
     no.6.   She  placed  reliance  on  a  decision  in<\/p>\n
     Rameshwari  Devi  Vs. State of Bihar  reported  in<\/p>\n
     (2000)  2  SCC 431 and Vidyadhari and  others  Vs.<\/p>\n
     Sukharna Bai and others AIR SCW 910 and emphasized   <\/p>\n
     that the denial of claim to legally wedded wife to<\/p>\n
     the  exclusion not only of the nominee of deceased<\/p>\n
     but  also to the exclusion of his legitimate legal<\/p>\n
     heirs  would  be illegal.  Respondent  no.6  being<\/p>\n
     legally wedded wife is also one of the legal heirs<\/p>\n
     under  the Hindu Marriage Act\/Succession  Act  and<\/p>\n
     therefore  she  is entitled to pension  and  other<\/p>\n
     terminal benefits.\n<\/p>\n<\/p>\n
5.   The learned Tribunal, after considering the entire<\/p>\n
     material  on  record,  has  mainly  recorded   the<\/p>\n
     following  findings in his order vide paras  11  &<\/p>\n
     12.<\/p>\n
          (i)  That   the  Will  dated  02  March  2002
\n               executed  by  deceased  R.N.  Sharma  in
\n               favour  of petitioner Vijayshree  Sharma
\n               nowhere depicted the petitioner  as  his
\n               wife much less than legally wedded wife.
\n               On   the  other  hand,  respondent  no.6
\n               Jayshree  Sharma  was referred  as  wife
\n               with  whom  he  had two issues  and  the
\n               deceased and respondent no.6 were living
\n               separately for the past 27 years as they
\n               had no cordial relations.\n<\/p>\n
          (ii) That deceased R.N. Sharma filed a divorce petition
\n               in the year 2001 before the Court of 5th Addl. District
\n               Judge, Raipur, under the Hindu Marriage Act seeking
\n               divorce from respondent no.6 Jayshree Sharma and after
\n               death of R.N. Sharma, the said proceedings were
\n               dismissed as infructuous meaning thereby that the
\n               marriage of deceased with Jayshree Sharma subsisted as
\n               divorce proceedings could not be finalized during his
\n               lifetime and Jayshree Sharma was the legally wedded
\n               wife and the children born to her from R.N. Singh are
\n               legitimate.\n<\/p>\n
          (iii)      In view of the above, mere submission of
\n               details of family members by deceased R.N. Singh
\n               describing the petitioner Vijayshree Sharma as his wife
\n               on 20th & 25th Sept.2002 after he stood voluntarily
\n               retired will not erase or undermine the mandate of
\n               providing details of family when he entered the
\n               Government Service.\n<\/p>\n
     The  learned  Tribunal on the basis of  the  above<\/p>\n
     findings allowed the O.A. filed by respondent no.6<\/p>\n
     and  directed the respondent authorities to  grant<\/p>\n
     family pension in favour of respondent no.6 w.e.f.<\/p>\n
     13.11.2002 alongwith arrears within the stipulated<\/p>\n
     period.\n<\/p>\n<\/p>\n
6.   A  perusal of the will dated 02.03.2002 shows that<\/p>\n
     the   marriage  of  deceased  was  performed  with<\/p>\n
     respondent  no.6  Jayshree and two  children  were<\/p>\n
     born  to  her from R.N. Singh, but to due lack  of<\/p>\n
     cordial  relations between them, they were  living<\/p>\n
     separately for a long time.  Therefore,  the  fact<\/p>\n
     which  emerged from the said Will that  respondent<\/p>\n
     no.6  namely  Smt.  Jaishree  Sharma  was  legally<\/p>\n
     wedded wife of deceased late R.N. Sharma cannot be<\/p>\n
     denied.  Further it is also matter of record  that<\/p>\n
     R.N.  Sharma himself filed divorce petition  which<\/p>\n
     was  pending  seeking divorce from  Jayshree,  but<\/p>\n
     during  the pendency of that petition, R.N. Sharma<\/p>\n
     died  and  as such it cannot be said that Jayshree<\/p>\n
     is a divorcee for all purposes. She is legal widow<\/p>\n
     of late R.N. Sharma.  Therefore, there is no doubt<\/p>\n
     that Jayshree and her two children are entitled to<\/p>\n
     get  family  pension.   Besides  this,  petitioner<\/p>\n
     Vajayshree Sharma is also having two children  but<\/p>\n
     they are illegitimate children of the deceased  as<\/p>\n
     she  is  not legally wedded wife of the  deceased.<\/p>\n
     Under  the Hindu Law, second marriage is void  and<\/p>\n
     therefore even if late R.N.Sharma at any point  of<\/p>\n
     time had performed second marriage with petitioner<\/p>\n
     Vijayshree Sharma that is void in the eye of  law.<\/p>\n
     Hence,  it  cannot be said that the petitioner  is<\/p>\n
     legally  wedded  wife  or widow  of  R.N.  Sharma.<\/p>\n
     However,  children born out of  void  or  voidable<\/p>\n
     marriage,  according  to the Hindu  Marriage  Act,<\/p>\n
     1956  were  legitimate though the marriage  itself<\/p>\n
     was void.\n<\/p>\n<\/p>\n
7.   So far as entitlement of the illegitimate children<\/p>\n
     is  concerned,  section 16 of Hindu Marriage  Act,<\/p>\n
     1956 is relevant here which is quoted below:<\/p>\n
           16.  Legitimacy of children of void and voidable
\n                marriages.-(1) Notwithstanding that marriage is null
\n                and void under section 11, any child of such marriage
\n                who would have been legitimate if the marriage had been
\n                valid, shall be legitimate, whether such child is born
\n                before or after the commencement of Marriage Laws
\n                (Amendment) Act, 1976 (68 of 1976), and  whether or not
\n                a decree of nullity is granted in respect of that
\n                marriage under this Act and whether or not the marriage
\n                is held to be void otherwise than on a petition under
\n                this Act.\n<\/p><\/blockquote>\n
                    (2)   Where a decree of nullity  is
\n               granted   in   respect  of  a   voidable
\n               marriage  under section  12,  any  child
\n               begotten or conceived before the  decree
\n               is   made,  who  would  have  been   the
\n               legitimate child of the parties  to  the
\n               marriage if at the date of the decree it
\n               had  been  dissolved  instead  of  being
\n               annulled,  shall be deemed to  be  their
\n               legitimate  child  notwithstanding   the
\n               decree of nullity.\n<\/p><\/blockquote>\n
                    (3)    Nothing  contained  in  sub-\n<\/p><\/blockquote>\n
               section (1) or sub-section (2) shall  be
\n               construed  as conferring upon any  child
\n               of  a marriage which is null and void or
\n               which is annulled by a decree of nullity
\n               under  section 12, any rights in  or  to
\n               the  property of any person, other  than
\n               the  parents, in any case where, but for
\n               the  passing  of  this Act,  such  child
\n               would  have been incapable of possessing
\n               or  acquiring any such rights by  reason
\n               of his not being the legitimate child of
\n               his parents.\n<\/p><\/blockquote>\n
8.   The  point as to whether illegitimate children are<\/p>\n
     entitled to get  share in parents property came up<\/p>\n
     for  consideration  before the  Supreme  Court  in<\/p>\n
     Jinia  Keotin and others -vs- Kumar Sitaram Manjhi<\/p>\n
     and  others, (2003) 1 SCC 730 wherein it has  been<\/p>\n
     held  that  in view of the provisions  of  section<\/p>\n
     16(3)  of  the Act, the children born of  void  or<\/p>\n
     voidable  marriage  are  not  entitled  to   claim<\/p>\n
     inheritance in ancestral co-parcenary property but<\/p>\n
     entitled  to  claim  inheritance  in  property  of<\/p>\n
     parents (See Placitam).\n<\/p>\n<\/p>\n
9.   Therefore,  we  are of the opinion  that  Jayshree<\/p>\n
     Sharma and her two children being legal widow  and<\/p>\n
     legitimate children of the deceased R.N. Sharma as<\/p>\n
     also  the two children of Vijayshree (all five  in<\/p>\n
     total)  are entitled to get the family pension  in<\/p>\n
     accordance  with  the rules made  for  payment  of<\/p>\n
     Family Pension and Gratuity to the legal heirs  of<\/p>\n
     the  deceased. Therefore, we dispose of this  writ<\/p>\n
     petition  modifying the impugned order  passed  by<\/p>\n
     the   Tribunal   and  direct  that  the   children<\/p>\n
     legitimate  and illegitimate both as well  as  the<\/p>\n
     legal  widow  of  the deceased  late  R.N.  Sharma<\/p>\n
     namely  Smt.  Jayashree, respondent  no.6  herein,<\/p>\n
     shall  be  entitled  to  get  family  pension  and<\/p>\n
     gratuity and as such the official respondents  are<\/p>\n
     directed to grant family pension in their  favour.<\/p>\n
     This   direction  shall  be  carried  out  without<\/p>\n
     further delay preferably within 3 months from  the<\/p>\n
     date  of  production  of certified  copy  of  this<\/p>\n
     order.\n<\/p>\n<\/p>\n
     Judge                                   Judge\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Chattisgarh High Court Smt. Vijayshree Sharma vs Union Of India And Others on 29 June, 2010 HIGH COURT OF CHATTISGARH AT BILASPUR WRIT PETITION No.2435 OF 2009 Smt. Vijayshree Sharma …Petitioners Vs Union of India and others …Respondents WRIT PETITION UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA ! Mr. H.S.Ahluwalia, counsel for the Petitioner […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[12,8],"tags":[],"class_list":["post-149470","post","type-post","status-publish","format-standard","hentry","category-chattisgarh-high-court","category-high-court"],"yoast_head":"\nSmt. 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