Barkha Mishra And Another vs State Of U.P. Thru. Prin. Secy. Deptt. Agriculture

petitioner no.1(Smt. Barkha Mishra) is the mother of deceased Yash Mishra who passed away in harness

16.03.2025 whereafter applications compassionate appointment preferred opposite party no.4 (Nitya Tiwari) and the petitioner no.2 (Astha Mishra) but the application of opposite party no.4 has been allowed while 2 WRIA No. 11932 of 2025 rejecting that of petitioner no.2.

4. Learned counsel for petitioners on the basis of instructions submits that the marriage of deceased was solemnized with opposite party no.4 on

01.05.2018 whereafter the deceased and opposite party no.4 entered into a divorce agreement notarized on 15.03.2024. It is therefore submitted that once divorce has been effected between the deceased and opposite party no.4, she ceases to be his wife and was therefore dis-entitled for compassionate appointment.

5. Learned counsel for opposite party no.4 has refuted submissions advanced by learned counsel for petitioners with the submission that the petitioner no.2 admittedly is the married sister of deceased. He has adverted to paragraph 15 of the counter affidavit dated 27.10.2025 filed on behalf of opposite party no.4 to submit that the answering opposite party gives an undertaking that she will take care of petitioners and will perform all liabilities of her husband towards mother and sister. He has also refuted the assertion of divorce between the parties and submits that there is no provision under law for divorce being effected by notarized agreement.

6. Upon consideration of submissions advanced by learned counsel for parties and perusal of material on record, it is admitted that by means of impugned order, application compassionate appointment submitted by opposite party no.4(Nitya Tiwari) has been allowed while rejecting that of petitioner no.2 who is admittedly the married sister of deceased.

7. A perusal of Rule 2(c) of the Rules of 1974 3 WRIA No. 11932 of 2025 clearly makes it evident that in the definition pertaining to family, the spouse of deceased has a primacy over claims made by other family members of the deceased. In such circumstances, the claim of opposite party no.4. would have precedence over that of either of petitioners.

8. So far as the aspect of assertion in the petition of a divorce having been effected between the deceased and opposite party no.4 is concerned, the averment made in paragraph 13 of the writ petition does not indicate any decree for divorce having been granted by any court of competent jurisdiction. The assertion made is only of a notarized affidavit dated 15.03.2024 with regard to such divorce by mutual consent.

9. Learned counsel for petitioners was unable to advert to any provision of law or statute whereby divorce between two Hindu persons can be effected by means of a notarized agreement.

10. The provisions of law pertaining to same are clearly laid down in the Hindu Marriage Act and indicates the procedure whereby only, a divorce decree can be granted by a Court of competent jurisdiction. The relevant sections of Hindu Marriage Act, 1955 are as follows:

13. Divorce.—(1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party— 1[(i) has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; or 4 WRIA No. 11932 of 2025 (ia) has, after the solemnization of the marriage, treated the petitioner with cruelty; (ib) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or] (ii) has ceased to be a Hindu by conversion to another religion; or 1[(iii) has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent. Explanation.—In this clause,— (a) the expression “mental disorder” means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and includes schizophrenia; (b) the expression “psychopathic disorder” means a persistent disorder or disability of mind (whether or not including sub—normality of intelligence) results abnormally aggressive or seriously irresponsible conduct on the part of the other party, and whether or not it requires or is susceptible to medical treatment; or] (iv) 2[******] (v) has 3[ * * *] been suffering from venereal disease in a communicable form; or (vi) has renounced the world by entering any religious order; or (vii) has not been heard of as being alive for a 5 WRIA No. 11932 of 2025 period of seven years or more by those persons who would naturally have heard of it, had that party been alive; 4[ ***] (viii) 5[* * * * * *] (ix) 5[* * * * * *] 6[Explanation.—In sub-section, expression “desertion” means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the wilful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly.] 7[(1A) Either party to a marriage, whether solemnized before or after the commencement of this Act, may also present a petition for the dissolution of the marriage by a decree of divorce on the ground— (i) that there has been no resumption of cohabitation as between the parties to the marriage for a period of 8 [one year] or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties; or (ii) that there has been no restitution of conjugal rights as between the parties to the marriage for a period of 1[one year] or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties.] (2) A wife may also present a petition for the 6 WRIA No. 11932 of 2025 dissolution of her marriage by a decree of divorce on the ground,— (i) in the case of any marriage solemnized before the commencement of this Act, that the husband had married again before such commencement or that any other wife of the husband married before such commencement was alive at the time of the solemnization of the marriage of the petitioner: Provided that in either case the other wife is alive at the time of the presentation of the petition; or (ii) husband has, solemnization of the marriage, been guilty of rape, sodomy or 1 [bestiality; or] 3[(iii) that in a suit under section 18 of the Hindu Adoptions and Maintenance Act, 1956 (78 of 1956), or in a proceeding under section 125 of the Code of Criminal Procedure, 1973 (2 of 1974) (or under the corresponding section 488 of the Code of Criminal Procedure, 1898 (5 of 1898), a decree or order, as the case may be, has been passed against the husband awarding maintenance to the wife notwithstanding that she was living apart and that since the passing of such decree or order, cohabitation between the parties has not been resumed for one year or upwards; (iv) that her marriage (whether consummated or not) was solemnized before she attained the age of fifteen years and she has repudiated the marriage after attaining that age but before attaining the age of eighteen years. Explanation.—This clause applies whether the 7 WRIA No. 11932 of 2025 marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976).] 13B. Divorce by mutual consent.—(1) Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be presented to the district court by both the parties to a marriage together, whether such marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976), on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved. (2) On the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in sub- section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree.]

11. In such circumstances, the aspect of divorce as claimed by petitioners is clearly nullified in view of statutory provisions, which do not provide for a divorce through notarized affidavit.

12. In view of aforesaid facts and circumstances, it is held that there was in fact no divorce between the deceased (Yash Mishra) and the opposite 8 WRIA No. 11932 of 2025 party no.4 (Nitya Tiwari) and in view of Rule 2 of the Rules of 1974, precedence has rightly been granted to opposite party no.4 for compassionate appointment.

13. So far as the aforesaid aspects are concerned, this Court does not find any good ground to interfere with the order impugned.

14. Nonetheless, it is also an aspect under Rule 5(iii) of the Rules of 1974 that every appointment made under Sub-Rule (i) thereof is subject to condition that the person appointed shall maintain other members of the family of deceased government servant who were dependent upon the deceased government servant immediately before his death and are unable to maintain themselves.

15. In view of aforesaid provision and particularly in view of undertaking given by opposite party no.4 in paragraph 15 of the counter affidavit, it is directed that in terms of such undertaking, it shall be the responsibility of opposite party no.4 (Nitya Tiwari)to maintain the petitioner no.1 (Smt.Barkha Mishra).

16. The authorities concerned are directed to require petitioners to submit an affidavit to that effect prior to her joining in the service on the basis of impugned order.

17. Considering aforesaid facts and circumstances and with the direction indicated here-in-above, the petition stands disposed of. November 6, 2025 Subodh/- (Manish Mathur,J.) SUBODH KUMAR SINGH High Court of Judicature at Allahabad, Lucknow Bench

petitioner no.1(Smt. Barkha Mishra) is the mother of deceased Yash Mishra who passed away in harness

16.03.2025 whereafter applications compassionate appointment preferred opposite party no.4 (Nitya Tiwari) and the petitioner no.2 (Astha Mishra) but the application of opposite party no.4 has been allowed while 2 WRIA No. 11932 of 2025 rejecting that of petitioner no.2.

4. Learned counsel for petitioners on the basis of instructions submits that the marriage of deceased was solemnized with opposite party no.4 on

01.05.2018 whereafter the deceased and opposite party no.4 entered into a divorce agreement notarized on 15.03.2024. It is therefore submitted that once divorce has been effected between the deceased and opposite party no.4, she ceases to be his wife and was therefore dis-entitled for compassionate appointment.

5. Learned counsel for opposite party no.4 has refuted submissions advanced by learned counsel for petitioners with the submission that the petitioner no.2 admittedly is the married sister of deceased. He has adverted to paragraph 15 of the counter affidavit dated 27.10.2025 filed on behalf of opposite party no.4 to submit that the answering opposite party gives an undertaking that she will take care of petitioners and will perform all liabilities of her husband towards mother and sister. He has also refuted the assertion of divorce between the parties and submits that there is no provision under law for divorce being effected by notarized agreement.

6. Upon consideration of submissions advanced by learned counsel for parties and perusal of material on record, it is admitted that by means of impugned order, application compassionate appointment submitted by opposite party no.4(Nitya Tiwari) has been allowed while rejecting that of petitioner no.2 who is admittedly the married sister of deceased.

7. A perusal of Rule 2(c) of the Rules of 1974 3 WRIA No. 11932 of 2025 clearly makes it evident that in the definition pertaining to family, the spouse of deceased has a primacy over claims made by other family members of the deceased. In such circumstances, the claim of opposite party no.4. would have precedence over that of either of petitioners.

8. So far as the aspect of assertion in the petition of a divorce having been effected between the deceased and opposite party no.4 is concerned, the averment made in paragraph 13 of the writ petition does not indicate any decree for divorce having been granted by any court of competent jurisdiction. The assertion made is only of a notarized affidavit dated 15.03.2024 with regard to such divorce by mutual consent.

9. Learned counsel for petitioners was unable to advert to any provision of law or statute whereby divorce between two Hindu persons can be effected by means of a notarized agreement.

10. The provisions of law pertaining to same are clearly laid down in the Hindu Marriage Act and indicates the procedure whereby only, a divorce decree can be granted by a Court of competent jurisdiction. The relevant sections of Hindu Marriage Act, 1955 are as follows:

13. Divorce.—(1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party— 1[(i) has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; or 4 WRIA No. 11932 of 2025 (ia) has, after the solemnization of the marriage, treated the petitioner with cruelty; (ib) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or] (ii) has ceased to be a Hindu by conversion to another religion; or 1[(iii) has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent. Explanation.—In this clause,— (a) the expression “mental disorder” means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and includes schizophrenia; (b) the expression “psychopathic disorder” means a persistent disorder or disability of mind (whether or not including sub—normality of intelligence) results abnormally aggressive or seriously irresponsible conduct on the part of the other party, and whether or not it requires or is susceptible to medical treatment; or] (iv) 2[******] (v) has 3[ * * *] been suffering from venereal disease in a communicable form; or (vi) has renounced the world by entering any religious order; or (vii) has not been heard of as being alive for a 5 WRIA No. 11932 of 2025 period of seven years or more by those persons who would naturally have heard of it, had that party been alive; 4[ ***] (viii) 5[* * * * * *] (ix) 5[* * * * * *] 6[Explanation.—In sub-section, expression “desertion” means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the wilful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly.] 7[(1A) Either party to a marriage, whether solemnized before or after the commencement of this Act, may also present a petition for the dissolution of the marriage by a decree of divorce on the ground— (i) that there has been no resumption of cohabitation as between the parties to the marriage for a period of 8 [one year] or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties; or (ii) that there has been no restitution of conjugal rights as between the parties to the marriage for a period of 1[one year] or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties.] (2) A wife may also present a petition for the 6 WRIA No. 11932 of 2025 dissolution of her marriage by a decree of divorce on the ground,— (i) in the case of any marriage solemnized before the commencement of this Act, that the husband had married again before such commencement or that any other wife of the husband married before such commencement was alive at the time of the solemnization of the marriage of the petitioner: Provided that in either case the other wife is alive at the time of the presentation of the petition; or (ii) husband has, solemnization of the marriage, been guilty of rape, sodomy or 1 [bestiality; or] 3[(iii) that in a suit under section 18 of the Hindu Adoptions and Maintenance Act, 1956 (78 of 1956), or in a proceeding under section 125 of the Code of Criminal Procedure, 1973 (2 of 1974) (or under the corresponding section 488 of the Code of Criminal Procedure, 1898 (5 of 1898), a decree or order, as the case may be, has been passed against the husband awarding maintenance to the wife notwithstanding that she was living apart and that since the passing of such decree or order, cohabitation between the parties has not been resumed for one year or upwards; (iv) that her marriage (whether consummated or not) was solemnized before she attained the age of fifteen years and she has repudiated the marriage after attaining that age but before attaining the age of eighteen years. Explanation.—This clause applies whether the 7 WRIA No. 11932 of 2025 marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976).] 13B. Divorce by mutual consent.—(1) Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be presented to the district court by both the parties to a marriage together, whether such marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976), on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved. (2) On the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in sub- section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree.]

11. In such circumstances, the aspect of divorce as claimed by petitioners is clearly nullified in view of statutory provisions, which do not provide for a divorce through notarized affidavit.

12. In view of aforesaid facts and circumstances, it is held that there was in fact no divorce between the deceased (Yash Mishra) and the opposite 8 WRIA No. 11932 of 2025 party no.4 (Nitya Tiwari) and in view of Rule 2 of the Rules of 1974, precedence has rightly been granted to opposite party no.4 for compassionate appointment.

13. So far as the aforesaid aspects are concerned, this Court does not find any good ground to interfere with the order impugned.

14. Nonetheless, it is also an aspect under Rule 5(iii) of the Rules of 1974 that every appointment made under Sub-Rule (i) thereof is subject to condition that the person appointed shall maintain other members of the family of deceased government servant who were dependent upon the deceased government servant immediately before his death and are unable to maintain themselves.

15. In view of aforesaid provision and particularly in view of undertaking given by opposite party no.4 in paragraph 15 of the counter affidavit, it is directed that in terms of such undertaking, it shall be the responsibility of opposite party no.4 (Nitya Tiwari)to maintain the petitioner no.1 (Smt.Barkha Mishra).

16. The authorities concerned are directed to require petitioners to submit an affidavit to that effect prior to her joining in the service on the basis of impugned order.

17. Considering aforesaid facts and circumstances and with the direction indicated here-in-above, the petition stands disposed of. November 6, 2025 Subodh/- (Manish Mathur,J.) SUBODH KUMAR SINGH High Court of Judicature at Allahabad, Lucknow Bench