THE HON'BLE MR JUSTICE L.NARASIMHA REDDY C.M.A.No.2952 of 2002 JUDGMENT: The respondents herein filed O.P.No.974 of 1999 in the Court of District Judge, Adilabad under Section 372 of the Indian Succession Act with a prayer to issue succession certificate in respect of death-cum-terminal benefits of late Bashu. It was pleaded that Bashu was employed as Lineman in the then A.P. Electricity Board and that he died on 02.02.1999 while in service. According to them, respondents 1 and 2 are the wives of Bashu and respondents 3 and 4 are his children through the 2nd respondent. It was alleged that though the appellant herein was married to Bashu, he divorced her long back and thereafter married respondents 1 and 2. The O.P. was opposed by the appellant alone. She pleaded that she was never divorced by Bashu and on the other hand, marriages of respondents 1 and 2 with Bashu are illegal, since he contracted those marriages while in service. The trail Court allowed the O.P. through its order, dated 27.04.2002. The same is challenged in this appeal. Learned counsel for the appellant submits that the respondents admitted the marriage of his client with Bashu and the trial Court has inferred divorce. He contends that the fact, which brings about separation of matrimonial relations must be proved beyond any reasonable doubt, particularly when the other partner to the marriage is not alive. Learned counsel submits that strictly speaking the marriage of Bashu with respondents 1 and 2 is prohibited under the relevant service rules. Learned counsel for the respondents on the other hand submits that though the appellant was married to Bashu, she was divorced before he married respondents 1 and 2 and that the same is evident from the fact that the appellant did not live for several decades with Bashu, till he died. The trial Court framed the following issues for its consideration: 1. Whether the petitioners are alone legal heirs of late Bashu? 2. whether the first respondent still continues to be the legally wedded wife of late Bashu? On behalf of the respondents, P.Ws.1 to 3 were examined and Exs.A.1 to A.3 were filed. On behalf of the appellant, R.Ws.1 and 2 were examined and Exs.B.1 and B.2 were filed. The trial Court answered all the issues in favour of the respondents. The entire controversy in this C.M.A. turns around the question as to whether the appellant was divorced by late Bashu. As a matter of fact, the marriage is evidenced by Ex.B.1-marriage certificate. The respondents did not dispute the marriage between the appellant and the deceased. However, they pleaded that the appellant was divorced by Bashu and in that view of the matter, they alone become entitled for the terminal benefits. The divorce is not evidenced by any written document. It may be true that under Muslim Personal Law, divorce can take place without intervention of the Court and it need not be evidenced by any written document. An extra-ordinary prerogative is conferred upon a male spouse to a marriage to pronounce talak and bring about divorce from his wife. The authenticated version thereof can come forward, only from such a spouse. If he is no more, the circumstantial evidence must be strong enough to draw the interference, as to this. P.W.1 is the 1st respondent and her version cannot be taken into account. The reason is that she came into picture long after the so-called divorce. P.W.2 is the sister of the deceased. She does not even state that the so-called divorce has taken place in her presence. So is the case with P.W.3. It was pleaded that divorce took place in the presence of one Mr.Gudusaheb and he was not alive by the time the proceedings took place. The result is that the so-called divorce was not, and in fact could not have been proved. Further, if there exists any doubt in this regard, it must be given to the appellant. A divorce cannot be inferred by giving benefit of doubt, when the evidence is very fluid. One fact, which weighed with the trial Court was that the appellant was living separately. Even if that is so, it cannot lead to an inference that she was divorced. Therefore, the C.M.A. is allowed and the order under appeal is modified to the effect that the appellant shall also be entitled to be extended her share in the terminal benefits of late Bashu with the respondents in accordance with the principles of succession under Muslim Law. There shall be no order as to costs. _________ 26.08.2010 JSU THE HON'BLE MR JUSTICE L.NARASIMHA REDDY C.M.A.No.2952 of 2002 Date: 26.08.2010 JSU