1 IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.16954 of 2007 PUJA DEVI, wife of late Parmeshwar Prasad, resident of village Nura, P.S. Masaurhi, District Patna … Petitioner Versus 1. THE STATE OF BIHAR 2. The Secretary cum Commissioner, Irrigation Department, Govt. of Bihar, Patna 3. The Deputy Secretary, Irrigation Department, Govt. of Bihar, Patna 4. The District Magistrate, Rohtas at Sasaram 5. The Chief Engineer, Irrigation Department, Dehari, Rohtas at Sasaram 6. The Chairman of District Compassionate Appointment Committee, Rohtas at Sasaram 7. The Superintending Engineer, Durgawati Construction, Bhitari Bandh, Dihari at Rohtas (Sasaram) 8. The Executive Engineer, Ganga Dam Nahar Pariyojana No.1, Munger … Respondents ----------- 2. 15.4.2011 Heard counsel for the petitioner and the counsel for the State. The petitioner‟s claim for appointment on compassionate ground has been rejected by the competent authority on the ground that she was not the wife of the deceased employee. Counsel for the petitioner, however, would submit that true it is that the marriage of the petitioner was solemnized in the life time of the first wife of her husband but the first wife in an affidavit sworn after the death of her husband, deceased employee, had given 2 consent for employment of the petitioner in capacity of the wife of her husband. He would further explain that the Chief Engineer also had recommended the case of the petitioner for appointment on compassionate ground to the State Government and therefore, when there is also a precedent in form of an order of this Court dated 15.5.2000 in C.W.J.C.No. 3990/2000 (Smt. Rubbi Kumari @ Rubhi Devi vs. State of Bihar & ors.), the decision of the respondents in rejecting the case of the petitioner for her appointment on compassionate ground cannot be sustained either on fact or in law. In the considered opinion of this Court such submission of the counsel for the petitioner has to be only noted for its being rejected. First of all it is a requirement of the policy of the Government dated 5.10.1991 that only a wife or a son or an unmarried daughter or a widow of pre- deceased son can be appointed on compassionate ground. The expression „wife‟, therefore, used in the Government policy will always mean a legally wedded wife. A 3 concubine or a lady in live in relationship or a kept would not get the status of a wife only because she was being treated by the deceased employee as a wife either with or without consent of the first and only legally wedded wife. It is in this context that one has to take into account the provision of Section 5 of the Hindu Marriage Act which prohibits marriage of either of the Hindu spouse in the life time of either spouse. Section 5 in fact reads as follows: “5. 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; (ii) at the time of the marriage, either party- (a) is incapable of giving a valid consent to it in consequence of unsoundness of mind; or (b)though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or (c) has been subject to recurrent attacks of insanity. 4 (iii) the bridegroom has completed the age of twenty five years and the bride, the age of eighteen years at the time of the marriage; (iv) the parties are not within the degrees of prohibited relationship, unless the custom or usage governing each of them permits of a marriage between the two; (v) the parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two;” The consequence of such marriage if solemnized by any Hindu spouse in the life time of the other spouse has also been again clearly mentioned under section 11 of the Act which clearly lays down That:- “11. 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.” Once this aspect becomes clear that the petitioner had married the deceased employee in the life time of Most. Shanti 5 Devi, first wife, who in fact is still alive even on the death of her husband, the deceased employee, the alleged claim of marriage by the petitioner has to be held as a void marriage conferring no right of her wife in terms of the policy decision of the State Government for appointment on compassionate ground. Judged from this background the recommendation of the Chief Engineer in his letter dated 12.7.2006 has to be also understood in the context it was written, inasmuch as the Chief Engineer also has only mentioned that a decision for compassionate appointment as with regard to the petitioner should be taken strictly in accordance with law. Thus, this recommendation of the Chief Engineer by itself also does not support the case of the petitioner as was sought to be projected by the learned counsel for the petitioner. As with regard to the ratio laid down in the order dated 15.5.2000 in Rubbi Kumari‟s case (supra) all that has to be recorded is that neither the said order has noticed the provisions of the Hindu Marriage 6 Act nor the policy of the State Government dated 5.10.1991 as with regard to appointment on compassionate ground has been taken into consideration. Thus, the aforementioned order of the learned Single Judge has to be held per incurium and not binding on this Court. This Court, therefore, would find that the petitioner being ineligible for appointment on compassionate ground was rightly not given such appointment and consequently the decision taken by the authorities does not suffer from any error. Before parting with it is made clear that nothing said in this order will come in the way of the children of the petitioner in claiming their legitimate right as with regard to getting their share in the properties or even retirement benefit of the deceased employee, the alleged husband of the petitioner, inasmuch as the law is again well settled that even if the second wife on account of marriage being illegitimate, she will not be entitled for any right the Children out of such marriage will have all the rights to claim parity as 7 with the other legitimate issues from the first marriage. With the aforementioned observation this application is dismissed. (Mihir Kumar Jha,J.) Surendra/