Krishnakant vs Kamla Devi And Ors

Petitioner has preferred this writ petition under Article 226 & 227 of the Constitution to challenge order dated 5th of January 2019, passed by District Judge, Rajsamand (for short, 'learned Court below'). The learned Court below, by the order impugned, rejected application of the petitioner for his impleadment as family member or near relative of deceased Purshottam Gurjar, in respect of whose debts and securities first respondent-applicant has claimed succession certificate as widow.

Facts, in brief, are that first respondent-applicant filed an application before learned Court below under Section 372 of the Indian Succession Act, 1925 (for short, 'Act') for issuance of succession certificate. It is, inter-alia, averred in the application that she being widow of Late Purshottam Gurjar is entitled to get succession certificate with respect to debts and securities existing in the name of deceased. The factum of matrimony and subsistence of said relationship uptil death of Purshottam Gurjar was also pleaded in the application.

The learned Court below issued notices to general public by publishing the same in newspaper. In response thereto, on behalf of petitioner, an endeavour was made to contest the application. It is pleaded by the petitioner that although marriage was solemnized between applicant Kamla and Late Purshottam on 9th of December, 1984 but the marital relations remained streamlined hardly for four years and thereafter she voluntarily left matrimonial home. A fact is also pleaded that marriage between first respondent-applicant and Purshottam Gurjar was dissolved on 30th of August, 1998 because an affidavit to this effect was sworn by her. Some facts about acrimony between spouses was also pleaded in the application and it is alleged that Purshottam Gurjar during his lifetime had filed a petition against respondent-applicant for dissolution of marriage. The application is contested by respondent-applicant. Learned Court below, after hearing arguments, recorded its definite finding that mere swearing of affidavit cannot dissolve marriage between the parties as under the Hindu Marriage Act, 1995 for dissolution of marriage, decree of a competent Court is required. Learned Court below also found that applicant-respondent being widow and Class-I heir is having preferential claim for succession certificate vis-a-vis the petitioner, who happens to be the brother of deceased because as per Section 8 and Schedule to the Hindu Succession Act, 1956 a widow is Class-I heir whereas brother is Class-II heir of a deceased.

I have heard learned counsel for the petitioner, perused the impugned order and other materials available on record.

At the outset, it may be observed that the entire basis of application submitted on behalf of the petitioner is so called dissolution of marriage between applicant-respondent and Late Purshottam Gurjar. As per the version of the petitioner, marriage was dissolved in the year 1998 as a consequence of swearing of an affidavit by the applicant-respondent. I am at loss to say that how and in what manner a Hindu marriage can be dissolved by mere swearing of an affidavit. Any marriage solemnized under the Act of 1955 can be annulled only by a decree passed by a Court of competent jurisdiction. It is also noteworthy that Purshottam Gurjar himself was quite conscious that mere swearing of alleged affidavit by applicant-respondent has not dissolved the marriage between them and therefore he filed a petition for divorce under Section 13 of the Act of 1955. However, that petition was dismissed in default and till his death acrimony between applicant-respondent and deceased Purshottam Gurjar subsisted.

In view of subsistence of matrimony between applicant-respondent and Late Purshottam Gurjar, the learned Court below has rightly disallowed the prayer of petitioner to intervene in the matter he being a Class-II heir.

Upon examining the impugned order, in my view, the learned Court below has not committed any jurisdictional error or an error apparent on the face of record requiring interference in exercise of supervisory jurisdiction of this Court. Moreover, the learned Court below, while passing the impugned order, has not acted in dereliction of its duties, or committed flagrant violation of law.

Resultantly, the petition fails and same is hereby rejected.