SUSHMA TOPPO Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) The petitioner in this application has prayed for issuance of a writ of mandamus commanding upon the respondents to forthwith make payment of the retiral dues of the petitioner of account of the death of her husband; such benefit being in the nature of GPF, gratuity, pension, leave encashment, etc. Further prayer has been made for quashing the order (Annexure -6) passed by the District and Sessions Judge, Palamau, communicated under memo no. 1348 -52 dated 4.4.2008 by which the claim of the petitioner in respect of retiral benefit has been rejected and a direction has been made to pay the retiral benefit to respondent no. 4.

(2.) FACTS of the case in brief is that the petitioner is the second wife of the deceased, who was a civil court employee. The marriage of the petitioner with the deceased was solemnized during the lifetime of his first wife. No nominee has been made by the deceased in his service record for the purpose of payment of his retiral benefit. The petitioner has claimed payment of the retiral benefit on the ground of her marriage with the deceased which is claimed to be legal since it was solemnized under the customary law prevailing in the community of the petitioner and the deceased.

(3.) LEARNED counsel for the petitioner has challenged the impugned order on the ground that the District and Sessions Judge has failed to consider that notwithstanding the fact that the deceased and the petitioner are converted Christians but they still follow and adopt the customary practices and are guided by the customary laws prevailing in their community, and therefore, it is the customary law which will prevail upon the general law. It is further argued that the District Judge has failed to take into consideration that even if the children of the second wife are deemed to be illegitimate, yet, the law of the land does not debar such children from their share in the properties of their father.