Smt. Nisha vs Smt. Seema

Rohit Arya, J.—The instant Civil Revision is directed against the order dated 29.04.2013 confirming the order passed by Civil Judge Class I in succession Case No. 9/2010 dated 26.11.2012 u/s 372 of Indian Succession Act, 1925. Facts necessary for disposal of the revision petition are that admittedly respondent Seema is legally wedded wife of late Anoop Sharma and out of this wedlock, one son Akhil Sharma was born. The applicant despite having knowledge of the aforesaid factual marital background of late Anoop Sharma, claimed to have married with late Anoop Sharma, with the consent of first wife and mother of late Anoop Sharma on 16.8.2009. Anoop Sharma was employed in Indian Army and was posted in Baramula (Shri Nagar) being one of member of 71 Medium Regiment 30 R.R. Battalion. He died at Dongarpur, district Baramula while fighting with terrorist and become martyr.

Applicant filed an application u/s 372 of Hindu Succession Act seeking certificate of succession to be entitled to receive benefits related to pension, Provident Fund, Insurance etc. to the extent of 1/3rd thereof. The application was refuted by the legally wedded first wife respondent no. 1 Smt. Seema Sharma who denied the alleged consent as pleaded by the applicant. Besides she filed documentary evidence to the effect that in Govt. records of concerned late Anoop Sharma, she has been named as nominee. In support of her valid marriage, she produced documents i.e. Exhibit D-1, marriage invitation, Exhibit D-2, The Identity Card issued by Election Commissioner, Exhibit D-3, Canteen Smart Card issued by the Indian Army, and Exhibit D-4, Identity Card issued by the Indian Army, which remain undisputed. The trial Court rejected the application on the ground that in the realm of the fact admittedly respondent no. 1 Smt. Seema Sharma is a legally wedded first wife of late Anoop Sharma. The second marriage of Anoop Sharma with the applicant as claimed by her is void in terms of Section 5 read with Section 11 of the Hindu Marriage Act.

Section 5(i) and Section 11 of Hindu Marriage Act are reproduced as under:-

Conditions for a Hindu marriage:- A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely:-

(i) neither party has a spouse living at the time of the marriage;

Void marriages:- Any marriage solemnized after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto (against the other party), be so declared by a decree of nullity if it contravenes any one of the conditions specified in clauses (i), (iv) and (v) of section 5.

That being so, she was held not entitled for any benefits accruing upon the death of late Anoop Sharma.

Being aggrieved thereby, the applicant preferred an appeal before 4th Additional District Judge, Bhind. The order of the trial Court was confirmed by the Appellate Court.

The applicant contended that though marriage with late Anoop Sharma was subsequent to the marriage of late Anoop Sharma with Seema Sharma, but since first wife and his mother had consented the second marriage, she has full right of proportionate distribution of benefits (1/3rd) accruing upon the death of late Anoop Sharma. The submission is devoid of substance and runs contrary to statutory provision contained in Section 5 and Section 11 of Hindu Marriage Act.

After hearing the counsel of the parties, this Court is of the opinion that both the Courts below have rightly rejected the application of applicant Nisha u/s 372 of the Hindu Succession Act. She has no right whatsoever, over the benefits accrued to the family by virtue of services rendered by late Anoop Sharma, employed in Indian Army, in view of the fact that the alleged marriage of the applicant with Anoop Sharma in the teeth of earlier valid marriage of late Anoop Sharma with non-applicant Seema Sharma in existence; an admitted position, is void. Accordingly, this Civil Revision is hereby dismissed.