Kaneez Fatima, Wife of Late Dr. Md. Afzal vs The State of Bihar

Heard learned counsel for the petitioner; State and

respondent no. 5.

The petitioner has moved the Court seeking the

following reliefs:

"i) For issuance of an appropriate writ/s, direction/s order/s, in the nature of mandamus commanding the respondent/s to pay entire death cum-retiral benefit/s of her deceased husband, to the petitioner.

ii) For issuance of an appropriate writ/s,

direction/s, order/s, in the nature of mandamus commanding the respondent/s to pay the entire amount of family pension, general provident fund, gratuity, leave encashment group insurance etc. with interest to the petitioner.

iii) For any other relief/s for which the petitioner may found entitle."

During the proceeding, the Court had directed the

Senior Superintendent of Police, Patna to submit a report with regard

to the claim of the petitioner as to whether she was the wife of the

deceased employee. The Court had noted in its order dated

11.12.2017, and the same is not being repeated in this order, with

regard to the report submitted which may indicate that the petitioner

may be the second wife of the deceased employee.

A second supplementary counter affidavit has been

filed on behalf of respondent no. 1, in which the stand is that neither

the Department under which the late employee was working nor the

G.P.F. Directorate of the State Government nor the Accountant

General has any record in which there is any mentioning or entry

relating to nomination.

From the above, it is clear that the undisputed position

is that the respondents no. 5 to 7 are the children from the first wife,

which the petitioner also admits. However, with regard to there being

marriage with the petitioner only two witnesses have stated the same

that too during an enquiry by the police. Once such position emerges,

the petitioner has to prove, in accordance with law, that she is the

legally wedded second wife where the contesting parties have a right

to adduce evidence and then the Court would be required to consider

such evidence and materials and then record a finding. In the present

proceeding under Article 226 of the Constitution of India, the Court

does not feel any occasion to go into such aspect and record a finding

in favour of either of the parties. Thus, for the limited purpose of the

present writ petition, unless the petitioner is held to be the legal

second wife of the deceased employee, no relief can be granted to

her.

Accordingly, the writ petition stands disposed off

with liberty to the petitioner to move before the Civil Court of

competent jurisdiction to get a declaration in her favour that she is the

legally wedded wife of the deceased employee and further for getting

her share in the estate of the deceased employee, which includes

death-cum-retiral benefits.