1 2025:CGHC:50670 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR FA No. 102 of 2010 1 – Smt. Melani Sao, Widow of Late Kanhaiyalal Sao, aged about 43 years, occupation service 2 – Kamlesh Sao, S/o Late Kanhyaiyalal Sao, aged about 18 years, occupation student 3 – Ku. Chhaya Sao, D/o Late Kanhaiyalal Sao, aged about 15 years, occupation student Through Guardian Mother Smt. Melani Sao, Widow of Late Kanhaiyalal Sao, Aged about 43 years (Appellant No.1) All are residing in Village Kudumkela, Tahsil Gharghora, District Raigarh, Chhattisgarh --- Appellants versus 1 – Smt. Kevra Bai, Widow of Late Kanhaiyalal Sao, aged about 45 years, Caste Teli, occupation Housewife, 2 – Ku. Jyoti Sao, D/o Late Kanhaiyalal Sao, aged about 27 years, occupation service, Digitally signed by GOPAL SINGH Date: 2025.10.13 17:05:28 +0530 2 3 – Ku. Chetna Sao, D/o Late Kanhaiyalal Sao, aged about 19 years, All are residing in Village Kudumkela, Tahsil Gharghora, District Raigarh, Chhattisgarh 4 – District Education Officer, Raigarh, District Raigarh, Chhattisgarh 5 – Collector, Raigarh, District Raigarh, Chhattisgarh --- Respondents For Appellants : Shri Roop Naik, Advocate For Respondents No.1 to 3 : Shri Rajkumar Pali, Advocate For Respondents No.4 and 5 : None (Single Bench) Hon’ble Shri Justice Sanjay K. Agrawal Judgment on Board 10/10/2025 1. The appellants/plaintiffs have preferred this appeal under Section 96 of the Code of Civil Procedure challenging the judgment and decree dated 8.12.2006 passed by the 1st Additional District Judge, Raigarh in Civil Suit No.1-A/2006 claiming that they are the successors of late Kanhaiyalal Sao and entitled for 1/5th share in the retiral dues of deceased Kanhaiyalal Sao, who died on 3.6.2002 while working as an Assistant Teacher in Primary School, Pusalda, Block Development Gharghora. He died during the service tenure. 3 The aforesaid challenge has been made on following factual background: 2. Deceased Kanhaiyalal Sao was working as an Assistant Teacher and he died during the service tenure on 3.6.2002. Defendant No.1/Respondent No.1 Kevra Bai is legally wedded wife of Kanhaiyalal Sao and defendants No.2 and 3/respondents No.2 and 3, namely, Jyoti Sao and Chetna Sao, respectively are two daughters born out of wedlock of Kanhaiyalal Sao and Defendant No.1/Respondent No.1 Kevra Bai. It is the case of the plaintiffs that late Kanhaiyalal Sao has divorced defendant No.1/respondent No.1 Kevra Bai during his lifetime and entered into marriage with plaintiff No.1/appellant No.1 Melani Sao and out of their wedlock plaintiff No.2/appellant No.2 Kamlesh Sao (son) and plaintiff No.3/appellant No.3 Chhaya Sao (daughter) are born out. Upon death of Kanhaiyalal Sao, they are also entitled for 1/5th share in the retiral dues of deceased Kanhaiyalal Sao. However, defendants No.1 to 3 by collusion with defendants No.4 and 5/respondents No.4 and 5 got the retiral dues of deceased Kanhaiyalal Sao disbursed on or before 18.7.2005, i.e., before filing of the civil suit claiming share in the retiral dues. 4 3. Defendants No.1 to 3 filed written statement and submitted that plaintiff No.1 is not legally wedded wife of Kanhaiyalal Sao and divorce has not taken place between defendant No.1 Kevra Bai and Kanhaiyalal Sao, as such the plaintiffs are not entitled for any share in the retiral dues of Kanhaiyalal Sao. 4. Defendants No.4 and 5, i.e., the District Education Officer and the Collector filed written statement and submitted that by order dated 29.8.2004 the retiral dues of Kanhaiyalal Sao have been paid to defendant No.1 Kevra Bai as per departmental dues. They further submitted that plaintiff No.1 is not legally wedded wife of Kanhaiyalal Sao. 5. The Trial Court framed issues and answered as under: “ dzekad okniz’u fu"d"kZ 1 क्या वादिनी क्र 0 1 कन्हैयालाल की दिवधवा एवं वाी क्र 0 2 एवं 3 स्व० कन्हैयालाल साव के संतान है\ izekf.kr ugha- 2 क्या मृतक कन्हैया एवं प्रतित० क्र 0 1 के मध्य दिवतिधवत तलाक सन् 1985 मे हो चुका है \ प्रमाणि#त नहीं- 3 क्या मृतक कन्हैयालाल के स्वत्वों का संाय प्रतित० क्र 0 1 मृतक कन्हैयालाल के स्वत्वों का संाय 5 से 3 को अवैध रूप से दिकया गया है\ प्रतितवाी क्रं 1 से 3 को अवैध रूप से नहीं दिकया गया है- 4 क्या वाीग# वांणि+त अनुतोष प्राप्त करने के हकार है\ वाीग# वा में वांणि+त अनुतोष प्राप्त करने का हकार नहीं है- 5 सहायता एवं व्यय \ दिन#1य की कं ति2का-17 अनुसार वाीग# का ावा सव्यय खारिरज दिकया गया ।” 6. In sum and substance, the Trial Court held that plaintiff No.1 is not legally wedded wife of Kanhaiyalal Sao and divorce has not taken place between Kanhaiyalal Sao and defendant No.1 and marriage between plaintiff No.1 and Kanhaiyalal Sao has not taken place. Therefore, the plaintiffs are not entitled for any share in the retiral dues of Kanhaiyalal Sao. 7. Questioning the aforesaid judgment of the Trial Court, the instant appeal has been preferred. 8. Shri Roop Naik, learned counsel appearing for the appellants/plaintiffs would submit that the finding recorded by 6 the Trial Court that plaintiff No.1 is not legally wedded wife of Kanhaiyalal Sao after divorce having taken place between Kanhaiyalal Sao and defendant No.1 is a perverse finding of fact, therefore, it is liable to be reversed. He would further submit that even otherwise plaintiffs No.2 and 3 are entitled for share in the retiral dues being the son and daughter born out of second marriage of Kanhaiyalal Sao with plaintiff No.1. He relied upon a decision of the Supreme Court in the matter of Vidhyadhari and others v. Sukhrana Bai and others, (2008) 2 SCC 238. 9. Shri Rajkumar Pali, learned counsel appearing for respondents No.1 to 3/defendants No.1 to 3 would submit that the finding recorded by the Trial Court holding that divorce never took place between Kanhaiyalal Sao and defendant No.1 is correct finding of fact based on evidence available on record. Even the fact of marriage between Kanhaiyalal Sao and plaintiff No.1 has not been established. Therefore, the instant appeal deserves to be dismissed. 10. Though no one appeared on behalf of respondents No.4 and 5/defendants No.4 and 5 before this Court, in their written statement, defendants No.4 and 5 have stated that the retiral 7 dues, being the departmental dues, have rightly been disbursed to defendant No.1 vide the Collector’s order dated 29.8.2004. 11. I have heard learned counsel appearing for the parties, considered the rival submissions and gone through the record minutely. 12. The point for determination in this appeal would be whether the Trial Court is justified in holding that divorce has not taken place between Kanhaiyalal Sao and defendant No.1 and no marriage has taken place between Kanhaiyalal Sao and plaintiff No.1. 13. Admittedly, defendant No.1 is the legally wedded wife of Kanhaiyalal Sao and defendants No.2 and 3 are two daughters born out of the wedlock of Kanhaiyalal Sao and defendant No.1. Further case of the plaintiffs is that in the year 1985 divorce has taken place between Kanhaiyalal Sao and defendant No.1. However, plaintiff No.1 Melani (PW1), in paragraph 3 of her statement has categorically admitted that defendant No.1 is legally wedded wife of Kanhaiyalal Sao, however, in same breath, she has stated that divorce has taken place between Kanhaiyalal Sao and defendant No.1. But, there is nothing on record much less documentary evidence on 8 record to hold that divorce has taken place between Kanhaiyalal Sao and defendant No.1. As such, the finding recorded by the Trial Court that defendant No.1 is the legally wedded wife of Kanhaiyalal Sao is a correct finding of fact based on evidence available on record. 14. Now, the question is whether divorce has taken place between Kanhaiyalal Sao and defendant No.1. There is no evidence on record much less documentary evidence that divorce has taken place between Kanhaiyalal Sao and defendant No.1. However, in this regard, PW2 Chandanmati, PW3 Chiniram and PW4 Nandram have been examined and after appreciating the documentary evidence on record, the Trial Court came to the conclusion that marriage between Kanhaiyalal Sao and plaintiff No.1 has not been established. I have gone through the statements of the aforesaid witnesses and it is well settled that the fact of marriage has to be proved strictly, however, there is nothing on record to hold that marriage between Kanhaiyalal Sao and plaintiff No.1 had taken place. The said finding recorded by the Trial Court is also based on evidence available on record. 15. Since divorce between Kanhaiyalal Sao and defendant No.1 is 9 not established and further second marriage of Kanhaiyalal Sao with plaintiff No.1 is also not established, the Trial Court has rightly refused grant of relief(s) in favour of the plaintiffs. 16. Furthermore, the amount in dispute has already been disbursed to defendant No.1 long back vide the Collector’s order dated 29.8.2004. 17. Consequently, I do not find any merit in the instant appeal. The appeal deserves to be and is accordingly dismissed. The parties shall bear their own costs. 18. A decree be drawn up accordingly. Sd/- (Sanjay K. Agrawal) JUDGE Gopal