IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.7514 of 2008 BANANI SINHA @ BINA SINHA &ANR Versus THE STATE OF BIHAR & ORS ----------- For the petitioner : Mr. Bishnu Kant Dubey, Adv. For Private Resp. : Dr. Uma Shankar Prasad, Senior Adv. & Mr. K.K.Tiwari,Adv. For A.G.(Res.No.9) : Mr. D.Chaubey, Adv. For State : Mr. Bhaskar Shankar, J.C. to G.P.XII. 4 15.09.2008 Heard learned counsel for the petitioner, learned counsel for the respondent no. 12, learned counsel for the Accountant General and learned counsel for the State. Petitioner no. 1 is the second wife and petitioner no. 2 is the minor son of late Ajay Kumar Sinha, a Clerk of a School, who died in harness. The petitioners claim that the petitioner no. 2, being the son of the second wife is entitled for apportionment of Death-cum-Retirement benefits of the late employee. In this context, learned counsel for the petitioner has referred to a decision of the Apex Court in the case of Rameshwari Devi versus The State of Bihar, reported in 2000(2) PLJR 15 (SC). In that case, there was genuine dispute between the two wives and the writ application of the second wife was 2 allowed to the extent that the son of the second wife held entitled to apportionment of retiral benefits of the employee. The said case ultimately travelled to the Apex Court and Apex Court approved the decision rendered by the learned Single Judge of the High Court as well as Division Bench of the High Court approving the same view. The Apex Court accepted the view of the learned Single Judge as well as Division Bench of the High Court that although, the second wife not being the legitimate wife under the law, was not entitled to any benefit, but the children born out of the wedlock were entitled for the apportionment of the same. As it was claimed by the first wife that the deceased employee had not married the second wife, direction was issued to the authorities to hold an enquiry for the same. In the present case also, the dispute is the same. However, learned counsel for the respondent no. 12, the first wife has drawn the attention of this Court that divorce suit was filed by the deceased in 3 1992 in which he had claimed that he was made impotent by the first wife in 1982 itself. The said divorce suit was said to be dismissed due to non prosecution. Thereafter, another divorce suit was again filed in 1999 by the deceased employee reiterating his stand. A copy of the plaint of divorce suit has been annexed as Annexure-D to the counter affidavit of respondent no. 12, in paragraph no. 16 whereof, it is stated that the deceased employee had become completely incapable of sexual inter-course. The petitioner no. 1 claims herself to have married the deceased employee in 1993 and petitioner no. 2 is said to have born out of the wedlock in 1996. In view of this dispute the respondent District Education Officer directed the petitioners to get a succession certificate from a competent Court of law. Pursuant to the same, the Petitioners have filed suit in the Court of Munsif-II, Bhojpur at Arrah, namely, suit no. 102 of 2007. In the suit the petitioners have prayed for a declaration that the petitioner no. 2 is the only son of the deceased employee and 4 therefore he is the legal heir. Since now a substantive suit has been filed by the petitioners, this court is of the view that it will not be appropriate at this stage to direct the authorities of the department to enquire into the matter and come to a conclusion with regard to legal claims of the petitioner no. 2 in terms of the judgments of the Apex Court as relied upon by the petitioners as the same may amount to pre-empt the issue raised by the petitioners themselves in the competent Court of law. However, learned counsel for the petitioners submits that during the pendency of the suit which may take long time get decided, the respondent no. 12, first wife may draw all the legal pensionary benefits in respect of the deceased employee and therefore irreparable injury may be caused to the petitioner. In the circumstances, this writ application is disposed of with a direction to the official respondents, that if the first wife wants to withdraw the legal 5 benefits in respect of her deceased husband they shall obtain bond from her that in case the entitlement of the petitioner no. 2 is decided finally by a competent Court of law, she shall apportion the benefits received by her in such percentage as the authorities may decide in the matter and pay the same to the petitioner no. 2 as per the directions of the authorities. In addition the petitioners are also given liberty to file an injunction petition before the trial court. In case the same is filed it shall be decided by the Court concerned expeditiously in accordance with law preferably within a period of three months from the date of filing of the same even if, respondent no. 12 the first wife does not appear in the suit to context the same. Arvind/ ( J. N. Singh , J. )