Rehana Khatoon vs The State of Bihar & Ors

Heard learned counsel for the petitioner; State; Accountant General and respondent no. 12.

The petitioner had originally moved the Court for the following reliefs:

“(i) For issuance of writ/writs, order/orders, direction/directions in the nature of mandamus commanding the respondent authorities to make the

payment of death-cum-retiral benefits along with statutory interest to the petitioner and to start the family pension of the petitioner as well as to make

payment of arrears of family pension since the death of her husband in service period.

(ii) For issuance of any other appropriate writ/writs, order/orders, direction/directions which your lordships may deem fit and proper in the facts and

circumstances of the petitioner’s case.â€​

By various orders, as the respondent no. 12 had taken the entire death-cum-retiral benefits of his son, whom the petitioner claims to be her husband,

on the ground that the petitioner was not the wife of the deceased and even her two sons were not fathered by the deceased employee, the Court had

got D.N.A. test conducted of the two sons of the petitioner and the respondent no. 12. The result of the test is that there is complete match in the

D.N.A. sequence of all the three persons, meaning thereby that the two sons of the petitioner were from the lineage of the respondent no. 12. Under

such circumstances, the Court, in its earlier order, had held that since there is nothing to the contrary to prove that the petitioner was not married to the

deceased employee and her two sons having been found to have been fathered by the deceased employee, the law would come in support of

legitimacy, rather than illegitimacy and on such established principle of law, the Court had declared the petitioner to be the legally wedded wife of the

deceased and obviously the concerned two sons to be the legitimate children of the deceased and the petitioner. Further, under various orders, once

the Court had upheld the claim of the petitioner to be the wife of the deceased employee, namely Jamal Ahmed, in law, she being the first claimant to

family pension, the authorities have now paid the family pension with up-to-date arrears.

The controversy does not rest here. The employee died in harness on 21.05.2015 and soon thereafter the petitioner represented before the

respondent no.10 on 20.06.2015 for payment of death-cum-retiral benefits. Though some enquiry was conducted, but the authorities paid the dues to

the respondent no. 12, due to which the petitioner filed the present writ petition.

Learned counsel for the petitioner submitted that she being the wife and there being two sons from the deceased employee, in law, they are entitled

to all his death-cum-retiral benefits, including family pension, and the amount wrongly taken by the respondent no. 12 is required to be paid to the

petitioner. It was further submitted that despite there being a representation before the authorities making claim for payment, without taking such

enquiry to its logical conclusion, in a hurry, the authorities have paid the amount to the respondent no. 12. It was further submitted that the petitioner

has filed a Succession Case before the District Judge, Samastipur in July, 2015, which is still pending and, thus, when the authorities had already been

approached for making payment to the petitioner and the petitioner had also filed a Succession Case with full knowledge to the authorities, payment

being made much after that to the respondent no. 12 is both mala fide and collusive. Learned counsel submitted that the petitioner and her two sons

have no other means of support as they were fully dependant on the deceased employee and further that there has been an application for

appointment of one of her sons, born out of the wedlock to the deceased, for compassionate appointment, which is still pending consideration.

Learned counsel for the State submitted that the payments made to the respondent no. 12 were in terms of the nomination made by the deceased in

his favour. However, on a direct query of the Court as to why the authorities were in such a hurry, when they were aware about the claim of the

petitioner and of a Succession Case having been filed in the matter, learned counsel had no reply. Learned counsel submitted that now the family

pension has been sanctioned to the petitioner and also paid with up-to-date arrears.

Learned counsel for the Accountant General, who has also filed affidavit, submitted that pursuant to the sanction order received from the

authorities, the authority letter in favour of the petitioner relating to family pension has already been issued.

Learned counsel for the respondent no. 12 submitted that the payments made to him were valid and that the petitioner is not the legally wedded

wife of his deceased son. It was further submitted that the money received by him has already been used. At this stage, when the Court made a direct

query to learned counsel as to why it should not be ordered for him to return the amount in view of findings recorded in the earlier orders, especially in

the background of matching of D.N.A. of the two sons of the petitioner with the respondent no. 12, which initially in the proceedings was hotly

contested and categorically denied, but later on established through D.N.A. test, learned counsel submitted that the money received has been spent on

various purposes.

Having considered the facts and circumstances of the case and submissions of learned counsel for the parties, in the present extraordinary,

prerogative and discretionary jurisdiction of the High Court, under Article 226 of the Constitution of India, the Court is inclined to interfere in the

matter to the extent indicated hereinbelow:

As the Court has given a definite finding in favour of the petitioner holding her to be the lawful wife of the deceased and legitimacy of the two

sons of the petitioner from the deceased employee, all death-cum-retiral benefits which, in law, were required to be paid to the petitioner and her sons,

having been taken by the respondent no. 12, he cannot be allowed to retain the same.

Accordingly, the respondent no. 12 is directed to return whatever amount he has taken by way of death-cum-retiral benefits of his deceased son

Jamal Ahmed to the respondent no. 7 within three months from today. If the same is not done, the authorities, especially the respondent no. 5, i.e., the

District Magistrate, Samastipur shall get the amount recovered as a public demand under the Bihar and Orissa Public Demands Recovery Act, 1914

treating it as arrear of revenue. Upon the same being received, it shall be paid to the petitioner within one month from the date the amount is

deposited/recovered from the respondent no. 12.

The Court has passed the order being conscious of the fact that there is a Succession Case pending before the Civil Court, but in its extraordinary

jurisdiction under Article 226 of the Constitution of India, once pursuant to a scientific test, it has been held beyond doubt that the two sons of the

petitioner have been fathered by the deceased employee, who is the son of the respondent no. 12, the natural corollary, in law, based on the settled

principles, that is of deeming the marriage and children to be legitimate, the proceeding before the Civil Court in the Succession Case becomes

redundant. Thus, under such special and peculiar facts and circumstances of the present case, this order has been passed.

As the original report of the D.N.A. test has been sent to the Court, since it is of no use to the Court, a copy of it be retained on record and the

original be handed over to learned counsel for the petitioner for use in future, as and when it may be required.

The writ petition stands disposed off in the aforementioned terms.