Bombay High Court
Ramabai Gulabrao Jamnik vs State Of Maharashtra, Through ... on 20 June, 2017
Author: Rohit B. Deo
Bench: B.P. Dharmadhikari, Rohit B. Deo
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION. 874 OF 2017
Ramabai Gulabrao Jamnik,
Aged 55 years, Occu. - Nil,
R/o Rahul Nagar, Near Bichchu
Tekadi, Camp, Amravati,
Tq. District Amravati. .... PETITIONER
VERSUS
1) State of Maharashtra,
through Secretary,
Ministry of Finance, Mumbai-400032.
2) The Accountant General
(Accounts & Entitlement)-II,
(Pension Branch) Maharashtra,
Nagpur, 440 001, P.B.No.114,
G.P.O., Near Ravibhavan, Nagpur,
Tq. District Nagpur.
3) Hon'ble Principal District and
Sessions Judge, Yavatmal,
Tq. District Yavatmal. .... RESPONDENTS
______________________________________________________________
Shri S.P. Panditkar, Advocate for the petitioner,
Shri N.H. Joshi, Assistant Government Pleader for respondent Nos.1
and 2,
Shri A.M. Kukdey, Advocate for respondent No.3.
______________________________________________________________
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CORAM : B.P. DHARMADHIKARI AND
ROHIT B. DEO, JJ.
DATED : 20-06-2017
ORAL JUDGMENT : (PER : ROHIT B. DEO, J.)
1. Heard Shri S.P. Panditkar, learned Advocate for the petitioner, Shri N.H. Joshi, learned Assistant Government Pleader for respondent Nos.1 and 2 and Shri A.M. Kukdey, learned Advocate for respondent No.3. By their consent, writ petition is taken up for final hearing by issuing Rule, making the same returnable forthwith.
2. Petitioner Ramabai Gulabrao Jamnik is assailing the refusal of Family Pension reflected in communication dated 04-06-2014 (Annexure-A) issued by respondent 2-Accountant General (Accounts and entitlement) II to respondent 3-Principal District Judge, Yavatmal. The refusal of Family Pension is on the premise that Ramabai married the deceased employee Gulab Jamnik during the life time of the first wife one Mankarna and the marriage is null and void in view of the provisions of Section 5 read with Sections 11 and 17 of the Hindu Marriage Act, 1955 ("Act of 1955" for short) . ::: Uploaded on - 03/08/2017 ::: Downloaded on - 28/08/2017 06:48:05 :::
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3. Ramabai asserts in paragraph 2 of the petition that it was only after the demise of first wife Smt. Mankarna that late Gulabrao married her. She further avers that since Gulabrao suffered a Paralytic attack, he could not complete the formality of nomination of the name of the petitioner for Family Pension. She avers that Gulabrao expired on 17-2-2011 leaving behind him, the petitioner, Ganesh who is son born from the wedlock between Gulab and first wife late Mankarna, Sau. Vaishali Gavai and Prashant, who are respectively the daughter and son born from the petitioner's wedlock with Gulab.
4. The assertion that petitioner Ramabai married late Gulab after the demise of first wife Mankarna is obviously incorrect. Respondent 2 in affidavit in reply has stated that Smt. Mankarna Jamnik the first wife of Gulabrao Jamnik expired on 11-12-1988. It is further stated that Gulabrao Jamnik took voluntary retirement on 30-04-1988. The pension proposal incorporating the details of his family was submitted by respondent 3 to respondent 2 which reveals that the name of the wife of Gulabrao Jamnik is mentioned as Mankarna. Respondent 2 further asserts that the documents inter alia the Birth Certificates of children born to the petitioner and Gulab reveal that the birth date of Ganesh, the son born to Gulab and his first ::: Uploaded on - 03/08/2017 ::: Downloaded on - 28/08/2017 06:48:05 ::: 4 wp874.17 wife Mankarna, is 01-09-1976 and Vaishali and Prashant who are children of Gulab and petitioner Ramabai are born on 01-07-1979 and 19-01-1985 respectively.
5. In view of the death of Mankarna the first wife on 11-12-1988, we have no hesitation in proceeding on the premise that petitioner Ramabai married Gulab during the life time of first wife Mankarna and that her marriage is void in view of the provisions of Hindu Marriage Act, 1955 referred to supra. We must record, that in all fairness the learned Counsel for the petitioner has not seriously contended that Ramabai's marriage with Gulab was valid. Au contraire, the submission of the learned Counsel is that in view of the provisions of Rule 116(6)(a)(i) of the Maharashtra Civil Services (Pension) Rules, 1982 ("Rules" for short) Ramabai is entitled to Family Pension notwithstanding that her marriage with the deceased employee is null and void.
6. Shri Panditkar, learned Counsel for the petitioner would urge that issue is not res integra and is covered by the Division Bench Judgment of this Court reported in Union of India and another vs. Jaywantabai wd/o Ramrao Kewoo, 2015(2) Mh.L.J. 328. The ::: Uploaded on - 03/08/2017 ::: Downloaded on - 28/08/2017 06:48:05 ::: 5 wp874.17 learned Counsel submits that Rule 75 of the Railways Services Pension Rules, 1993, which is pari materia with Rule 116(6)(a)(i) of the Pension Rules fell for consideration before the Division Bench in Union of India and another vs. Jaywantabai wd/o Ramrao Kewoo and invites our attention to the following observations of the Division Bench.
"8. We cannot be oblivious of what is going on in the society and a further fact that during subsistence of the first marriage, the husband performs the second marriage by practising fraud indulging in cheating with the second woman who, thus, falls an easy prey to such person for no fault of her. Such cases are myriad. But then, since the parties are Hindus, Section 11 of the Hindu Marriage Act holds such marriages void. It is true that the Courts or the Tribunals should not enforce or make any order or decree contrary to law, and in this case, Section 11 of the Act. But the next question is whether such a second wife/widow, after the death of her husband, in this case, the railway employee, should be left to starve by giving all the pensionary and terminal benefits of his service to first wife only? This question will have to be answered with all seriousness and in the light of the revolution for emancipation of women. We feel that though Hindu Personal Law may not be strictly interpreted on the anvil of the Constitution of India or the fundamental rights, and should not be denigrated by the Courts, fact remains that the constitutional provisions can be pressed into service for interpretation of laws/Rules for achieving the ultimate object of the constitutional goal.
9. Article 15 of the Constitution prohibits discrimination on the ground of sex, while Article 39(a) provides for securing adequate means of livelihood for men and women equally. Article 39(e) provides for ensuring health and strength for women. Keeping in mind the "Laxman Rekha"::: Uploaded on - 03/08/2017 ::: Downloaded on - 28/08/2017 06:48:05 :::
6 wp874.17 in the matter of interpretation of provisions of Personal Laws - qua the Constitution, we find that the above constitutional provisions obligate the State for uplifting the women and secure descent living for them. What we find is that Rule 75 provides for grant of pension even to the second wife/widow of a deceased railway servant along with first wife. In our opinion, this provision of Rule 75 made by the Indian Railways cannot be held to be in conflict or interdiction with Section 11 of the Hindu Marriage Act. On the contrary, in our opinion, for achieving the constitutional goal, as aforesaid, even for the unfortunate second wife/widow, Rule 75 provides for grant of pension to her for her survival in life. At any rate, it must be seen that by virtue of Rule 75, the payment of pension to the two widows is required to be made in equal share, which clearly shows that there is no burden on the treasury or the Indian Railways by inserting the said noble idea. There is no reason for us to hold that Rule 75 violates Section 11 of the Hindu Marriage Act, or that it is contrary to the Hindu Marriage Act, since it does not even remotely provides for any contradiction or interdiction therewith. We, therefore, hold that Rule 75 has been brought in the Rule book by the Indian Railways fully in consonance with the aforesaid constitutional provision. In our opinion, Indian Railways must be complimented for making such a provision for such type of women-widows who unfortunately fall in the trap of males in performing with them what is called "illegal or void marriage" within the meaning of Section 11 of the Hindu Marriage Act. The Indian Railways deserve applauds for incorporating such a rule which is seldom found in Service/ Pension Rules of en number of Organizations and the Governments. In our opinion, the Central Administrative Tribunal has rightly found that the object of Rule 75 is nothing but to provide relief to such a woman who is ensnared in void marriage. We find that such an unfortunate woman is provided minimum food and shelter and that too not at the cost of Indian Railways or the taxpayers, but the pension is equally divided amongst the widows by virtue of the said Rule 75. To repeat, provision of Rule 75 is a step in furtherance of the revolution for emancipation of women. ::: Uploaded on - 03/08/2017 ::: Downloaded on - 28/08/2017 06:48:05 :::
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7. Shri Panditkar, learned Counsel for the petitioner Ramabai would urge that consistent with the reasoning of the Division Bench in Union of India and another vs. Jaywantabai wd/o Ramrao Kewoo, our interpretation of Rule 116(6)(a)(i) of the Pension Rules should be guided by the philosophy underlying Article 15 and Article 39(a) of the Constitution of India.
8. Shri N.H. Joshi, learned Assistant Government Pleader for respondent 1 and 2 would submit that the Division Bench of this Court in Smt. Chanda Hinglas Bharti vs. State of Maharashtra reported at 2016(1) ABR 550, after considering the Division Bench judgment in Union of India and another vs. Jaywantabai wd/o Ramrao Kewoo, has interpreted Rule 116(6)(a)(i) of the Pension Rules which interpretation is conclusive of the issue involved in this petition. We shall advert to the view taken by the Division Bench in Chanda Hinglas Bharti at a later stage in the judgment.
9. The determination of the controversy hinges on the interpretation of Rule 116(6)(a)(i) of the Pension Rules, which reads thus :
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8 wp874.17 "16(6)(a)(i) Where the Family Pension is payable to more widows than one, the Family Pension shall be paid to the widows in equal shares."(emphasis supplied) Rule 116(6)(a)(i) of the Pension Rules cannot be read in isolation and it would be necessary to consider certain provisions of the Maharashtra Civil Services (General Conditions of Services) Rules, 1981 and the Maharashtra Civil Services (Conduct) Rules, 1979 and the relevant provisions of the Act of 1955, to understand the legislative intent.
10. Rule 9(16) of the Maharashtra Civil Services (General Conditions of Services) Rules, 1981 defines 'family' thus :-
"9(16). Family means a Government servant's wife or husband, as the case may be, residing with the Government servant and legitimate children and step-children residing with the wholly dependent upon the Government servant. It includes, in addition, parents, sisters and minor brothers if residing with and wholly dependent upon the Government servant.
Note 1. Not more than one wife is included in the term family: for the purpose of these rules."
Rule 26 of the Maharashtra Civil Services (Conduct) Rules, 1979 reads thus :
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9 wp874.17 "26. Contracting of Marriages -(1) No Government servant shall enter into, or contract, a marriage with a person having a spouse living; and (2) No Government servant, having a spouse living, shall enter into, or contract, a marriage with any person :
Provided that the Government may permit a Government servant to enter into, or contract, any such marriage as it referred to in clause (1) of clause (2), if it is satisfied that -
(a) Such marriage is permissible under the personal law applicable to such Government servant and the other party to the marriage ; and
(b) there are other grounds for so doing.
(3) A Government servant who has married or marries a person other than of Indian Nationality shall forthwith intimate the fact to the Government."
A holistic reading of the statutory scheme would reveal that a marriage by a Government servant, having a spouse living, shall ordinarily be viewed as a misconduct unless such a marriage is permitted by the Government upon being satisfied that such marriage is permissible under the personal law applicable to the Government servant and that there are other grounds justifying such marriage. The statutory scheme of the Service Rules is a manifestation of the intent of discouraging marriages during the life time of spouse unless the ::: Uploaded on - 03/08/2017 ::: Downloaded on - 28/08/2017 06:48:05 ::: 10 wp874.17 applicable personal law permits such marriage.
11. Gulab, the late husband of petitioner Ramabai has indisputably married Ramabai in contravention of the provisions of Section 5 of the Act of 1955, which reads thus :
"5. Conditions for a Hindu marriage - A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely -
(i) neither party has a spouse living at the time of the marriage;
(ii) at the time of the marriage, neither party -
(a) is incapable of giving a valid consent to it in consequence of unsoundness of mind; or
(b) though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or
(c) has been subject to recurrent attacks of insanity.
(iii) the bridegroom has completed the age of (twenty-one years) and the bride, the age of (eighteen years) at the time of the marriage.
(iv) the parties are not within the degrees of prohibited relationship, unless the custom or usage governing each of them permits of a marriage between the two;
(v) the parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two;"::: Uploaded on - 03/08/2017 ::: Downloaded on - 28/08/2017 06:48:05 :::
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12. Both Ramabai and late Gulab are Hindus and their marriage which is solemnized after coming into force the Act of 1955 is clearly void in view of the provisions of Sections 11 and 17, which read thus :
"11. Void marriage - Any marriage solemnized after the commencement of this Act be null and void an may, on a petition presented by either party thereto, (against the other party ), be so declared by a decree of nullity if it contravenes any one of the conditions specified in clauses (I), (iv) and (v) of Section 5.
17. Punishment of bigamy - Any marriage between two Hindus solemnized after the commencement of this Act is void if at the date of such marriage either party had a husband or wife living; and the provisions of sections 494 and 495 of the Indian Penal Code shall apply accordingly."
Shri Panditkar, learned Counsel for the petitioner would urge that notwithstanding that the marriage is void, Rules 116(6)(a)(i) of the Pension Rules envisage payment of pension to more widows than one and provides that the pension shall be paid to widows more than one in equal shares. He would urge that the provisions of Rule 116(6)(a)(i) of the Pension Rules is a piece of beneficial welfare legislation and must be interpreted liberally lest the object and purpose of the beneficial legislation is nullified. He would further urge that Rule 116(6)(a)(i) of the Pension Rules must not be construed and ::: Uploaded on - 03/08/2017 ::: Downloaded on - 28/08/2017 06:48:05 ::: 12 wp874.17 interpreted technically or narrowly and that a purposive interpretation which would ensure that the intended beneficiaries are not deprived of pension must be adopted.
13. We have no quarrel with the proposition that Rule 116(6)
(a)(i) of the Pension Rules is a beneficial social welfare legislation and that if two interpretations are possible, an interpretation which would fructify the object and purpose of the legislation must be adopted. It is well settled that pension is not a bounty or a gratuitous payment depending upon the sweet will or grace of the employer. The Constitution Bench of the Hon'ble Supreme Court in D.S. Nakara and others vs. Union of India reported in AIR 1983 SC 130 observes thus :-
"20. The antiquated notion of pension being a bounty, a gratuitous payment depending upon the sweet will or grace of the employer not claimable as a right and, therefore, no right to pension can be enforced through Court has been swept under the carpet by the decision of the Constitution Bench in Deoki Nandan Prasad vs. State of Bihar, 1971 (supp) SCR 634 : (AIR 1971 SC 1409) where this Court authoritatively ruled that pension is a right and the payment of it does not depend upon the discretion of the Government but is governed by the rules and a Government servant coming within those rules is entitled to claim pension. It was further held that the grant of pension does not depend upon anyone's discretion. It is only for the purpose of quantifying the amount having regard to service and other allied matters that it may be ::: Uploaded on - 03/08/2017 ::: Downloaded on - 28/08/2017 06:48:05 ::: 13 wp874.17 necessary for the authority to pass an order to that effect but the right to receive pension flows to the officer not because of any such order but by virtue of the rules. This view was reaffirmed in State of Punjab v. Iqbal singh, (1976) 3 SCR 360: (AIR 1976 SC 667)"
The rule of liberal construction of a beneficial or social welfare legislation is too well entrenched in the Indian Jurisprudence to be subjected to any debate or demur. In Workmen of American Express International Banking Corporation vs. Management of American Express International Banking Corporation reported in (1985) 4 SCC 71, the Supreme Court observes thus :-
"4. The principles of statutory construction are well settled. Words occurring in statues of liberal import such as social welfare legislation and human rights' legislation are not to be put in Procrustean beds or shrunk to Lilliputian dimensions. In construing these legislations the imposture of literal construction must be avoided and the prodigality of its misappropriation must be recognized and reduced. Judges ought to be more concerned with the 'colour', the 'content' and the 'context' of such statues (we have borrowed the words from Lord Wilberforce's opinion in Prenn v. Simmonds). In the same opinion Lord Wilberforce pointed out that law is not to be left behind in some island of liberal interpretation but is to enquire beyond the language, unisolated from the matrix of facts in which they are set; the law is not to be interpreted purely on internal linguistic considerations. In one of the cases cited before us, that is, Surendra Kumar Verma v. Central Government Industrial Tribunal-cum-Labour Court, we had occasion to say, ::: Uploaded on - 03/08/2017 ::: Downloaded on - 28/08/2017 06:48:05 :::
14 wp874.17 Semantic Luxuries are misplaced in the interpretation of "bread and butter" Statutes. Welfare statutes must, of necessity, receive a broad interpretation. Where legislation is designed to give relief against certain kinds of mischief, the Court is not to make inroads by making etymological excursions."
In Lalappa Lingappa and others vs. Laxmi Vishnu Textile Mills Ltd. reported in AIR 1981 SC 852 while propounding that while interpreting a social welfare legislation, the Court should adopt a beneficent rule of construction, the Hon'ble Supreme Court was pleased to caution that when language is plain and unambiguous, the same must be given effect to whatever may be the consequences. The relevant observations of the Hon'ble Apex Court read thus :
"13. In constructing a social welfare legislation, the court should adopt a beneficent rule of construction; if a Section is capable of two constructions, that construction should be preferred which fulfils the policy of the Act, and is more beneficial to the persons in whose interest the Act has been passed. When, however, the language is plain and unambiguous, as here, we must give effect to it whatever may be the consequences, for, in that case, the words of the statute speak the intention of the legislature. When the language is explicit, its consequences are for the legislature and not for the courts to consider. The argument of inconvenience and hardship is a dangerous one and is only admissible in construction where the meaning of the statute is obscure and there are two methods of ::: Uploaded on - 03/08/2017 ::: Downloaded on - 28/08/2017 06:48:05 :::
15 wp874.17 construction. In their anxiety to advance beneficent purpose of legislation, the courts must not yield to the temptation of seeking ambiguity when there is none."
In Hindustan Lever Ltd. vs. Ashok Vishnu Kate and others reported in (1995) 6 SCC 326, the Hon'ble Supreme Court took note of the decisions in Workmen of American Express International Banking Corporation vs. Management of American Express International Banking Corporation and Surendra Kumar Verma v. Central Government Industrial Tribunal-cum-Labour Court reported in (1980) 4 SCC 443 in paragraphs 41 and 42, which read thus :-
"41. In this connection, we may usefully turn to the decision of this Court in Workmen vs. American Express International Banking Corpn. wherein Chinnappa Reddy, J. in para 4 of the Report has made the following observations : (SCC p.76) The principles of statutory construction are well settled. Words occurring in statues of liberal import such as social welfare legislation and human rights' legislation are not to be put in Procrustean beds or shrunk to Lilliputian dimensions. In construing these legislations the imposture of literal construction must be avoided and the prodigality of its misappropriation must be recognized and reduced. Judges ought to be more concerned with the 'colour', the 'content' and the 'context' of such statues (we have borrowed the words from Lord Wilberforce's opinion in Prenn v. Simmonds). In the same opinion Lord Wilberforce pointed out that law is not to be left behind in some island of liberal interpretation but is to enquire beyond the language, ::: Uploaded on - 03/08/2017 ::: Downloaded on - 28/08/2017 06:48:05 :::
16 wp874.17 unisolated from the matrix of facts in which they are set; the law is not to be interpreted purely on internal linguistic considerations. In one of the cases cited before us, that is, Surendra Kumar Verma v. Central Government Industrial Tribunal-cum-Labour Court, we had occasion to say, Semantic Luxuries are misplaced in the interpretation of "bread and butter" Statutes. Welfare statutes must, of necessity, receive a broad interpretation. Where legislation is designed to give relief against certain kinds of mischief, the Court is not to make inroads by making etymological excursions.
42. Francis Bennion in his Statutory Interpretation Second Edn., has dealt with the Functional Construction Rule in Part XV of his book. The nature of purposive construction is dealt with in Part XX at p.659 thus :
"A purposive construction of an enactment is one which gives effect to the legislative purpose by -
(a) following the literal meaning of the enactment where that meaning is in accordance with the legislative purpose (in this Code called a purposive-and-literal construction), or
(b) applying a strained meaning where the literal meaning is not in accordance with the legislative purpose (in the Code called a purposive-and-strained construction)."
At P.661 of the same book, the author has considered the topic of "Purposive Construction" in contrast with liberal construction. The learned author has observed as under :
"Contrast with literal construction - Although the term 'purposive construction' is not new, its entry into fashion betokens a swing by the appellate courts away from literal construction. Lord Diplock said in 1975: 'If one looks back to the actual decisions of the (House of Lords) on questions of statutory construction over the last 30 years one cannot fail to be struck by the evidence of a trend away from the purely literal towards the purposive construction of statutory provisions'. The matter was summed up by Lord Diplock in this way-
...I am not reluctant to adopt a purposive construction where to apply the literal meaning of the ::: Uploaded on - 03/08/2017 ::: Downloaded on - 28/08/2017 06:48:05 ::: 17 wp874.17 legislative language used would lead to results which would clearly defeat the purposes of the Act. But in doing so the task on which a court of justice is engaged remains one of construction, even where this involves reading into the Act words which are not expressly included in it."
14. Useful reference may also be made to the observations of the Constitution Bench of the Hon'ble Supreme Court in Steel Authority of India Ltd. and others etc. etc. vs. National Union Water Front Workers and others reported in AIR 2001 SC 3527 in paragraphs 9 and 25 of the report which read thus:
"9. After the advent of the Constitution of India, the State is under an obligation to improve the lot of the work force. Article 23 prohibits, inter alia, begar and other similar forms of forced labour. The Directive Principle of State Policy incorporated in Art. 38 mandates the State to secure a social order for promotion of welfare of the people and to establish an egalitarian society. Article 39 enumerates the principles of policy of the State which include welfare measures for the workers. The State policy embodied in Article 43 mandates the State to endeavour to secure, by a suitable legislation or economic organization or in any other way for all workers, agricultural, industrial or otherwise work, a living wage, conditions of work ensuring a decent standard of life and full enjoyment of leisure and social and Cultural opportunities. Article 43A enjoins on the State to take steps by suitable legislation or in any other way to secure the participation of workers in the management of undertakings, establishment, or other organizations engaged in any industry. The fundamental rights enshrined in Articles 14 and 16 guarantee equality before the law and equality of opportunity in public employment. Of course, the preamble to the Constitution is ::: Uploaded on - 03/08/2017 ::: Downloaded on - 28/08/2017 06:48:05 ::: 18 wp874.17 the lodestar and guides those who find themselves in a grey area while dealing with its provisions. It is now well settled that in interpreting a beneficial legislation enacted to give effect to directive principles of the State policy which is otherwise constitutionally valid, the consideration of the Court cannot be divorced from those objectives. In a case of ambiguity in the language of a beneficial labour legislation, the Courts have to resolve the quandary in favour of conferment of, rather than denial of, a benefit on the labour by the legislature but without rewriting and/or doing violence to the provisions of the enactment.
25. It is well-settled proposition of law that the function of the Court is to interpret the Statute to ascertain the intent of the legislature-parliament. Where the language of the Statute is clear and explicit the Court must give effect to it because in that case words of the Statute unequivocally speak the intention of the legislature. This rule of literal interpretation has to be adhered to and a provision in the Statute has to be understood in its ordinary natural sense unless the Court finds that the provisions sought to be interpreted is vague or obscurely worded in which event the other principles of interpretation may be called in aid. A plain reading of the said phrase, under interpretation, shows that it is lucid and clear. There is no obscurity, no ambiguity and no abstruseness. Therefore the words used there in must be construed in their natural ordinary meaning as commonly understood."
15. The Division Bench in Chanda Hinglas Bharati vs. State of Maharashtra and others considered the statutory scheme and the interplay between the Pension Rules, the Maharashtra Civil Services (General Conditions of Service ) Rules, Rule 26 of the Maharashtra Civil Services (Conduct), Rules, 1979 and Sections 5, 11 and 17 of the ::: Uploaded on - 03/08/2017 ::: Downloaded on - 28/08/2017 06:48:05 ::: 19 wp874.17 Hindu Marriage Act, 1955. The Division Bench in Chanda Hinglas Bharati vs. State of Maharashtra and others held that while pension may be payable to more than one widows, if the marriage during the life time of a spouse is permissible and legal under the personal law applicable to both the parties to the marriage, for example to more than one Mohammedan widows or to more than one Hindu widows if the marriage between Hindu Male Government servant and to widows whose marriage was performed before the coming into the force of the Hindu Marriage Act, 1955, pension is not payable to a woman whose marriage is void. The Division Bench in Chanda Hinglas Bharati vs. State of Maharashtra and others concluded that Rule 116(6)(a)(i) of the Pension Rules cannot be invoked by a Hindu Woman whose marriage to the male Hindu Government servant is solemnized during the life time of his wife, such marriage being indisputably void. The Division Bench further held that the woman whose marriage with a Hindu Government Servant during the life time of his wife is void, cannot be said to be "widow" within the meaning of expression "widows" employed in 116(6)(a)(i) of the Pension Rules. The Division Bench drew support from the following observations in Rameshwari Devi Vs. State of Bihar and others reported in (2000) 2 SCC 431, which read thus :-
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20 wp874.17 "14. It cannot be disputed that the marriage between Narain Lal and Yogmaya Devi was in contravention of clause (i) of Section 5 of the Hindu Marriage Act and was a void marriage. Under Section 16 of this Act, children of a void marriage are legitimate. Under the Hindu Succession Act, 1956, property of a male Hindu dying intestate devolves first on heirs in clause (1) which include the widow and son. Among the widow and son, they all get shares (see Sections 8, 10 and the Schedule to the Hindu Succession Act, 1956). Yogmaya Devi cannot be described as a widow of Narain Lal, her marriage with Narain Lal being void. The sons of the marriage between Narain Lal and Yogmaya Devi being the legitimate sons of Narain Lal would be entitled to the property of Narain Lal in equal share along with that of Rameshwari Devi and the son born from the marriage of Rameshwari Devi with Narain lal. That is, however, the legal position when a Hindu male does intestate. Here, however, we are concerned with the family pension and death-cum-retirement gratuity payments which are governed by the relevant rules. It is not disputed before us that if the legal position as aforesaid is correct, there is no error with the directions issued by the learned Single Judge in the judgment which is upheld by the Division Bench in LPA by the impugned judgment."
16. The Division Bench held that if Rule 116(6)(a)(i) of the Pension Rules is interpreted as conferring a right to a woman to share pension even if her marriage is void, such interpretation would not only militate against the statutory scheme of the Hindu Marriage Act and the service Rules, such interpretation would further deprive the legitimate wife of a right to receive full family pension and if a Hindu Government employee performs a void marriage several times, the ::: Uploaded on - 03/08/2017 ::: Downloaded on - 28/08/2017 06:48:05 ::: 21 wp874.17 legitimate wife may receive a minuscule portion of the family pension.
17. The facts in Rameshwari Devi V. State of Bihar and others reveal that the learned Single Judge of the Patna High Court held that the second wife of the Hindu Government employee one Yogmayadevi was not entitled to share the Family Pension and Death- Cum-Retirement Gratuity since her marriage on 10-4-1963 was void since marriage was solemnized during the life time of wife of the Hindu Government employee. The learned Single Judge, however, held that while the second wife would not be entitled to any share in the Family Pension, the children born from the wedlock would be entitled to share notwithstanding that the wedlock was void. The said judgment was assailed before the Division Bench which dismissed the appeal. The Hon'ble Supreme Court did not find any error in the view taken by the learned Single Judge and the Division Bench of Patna High Court.
18. We are in respectful agreement with the view of the Division Bench in Chanda Hinglas Bharati vs. State of Maharashtra and others. The liberal rule of construction of a beneficial or social welfare legislation is subject to the rider that the construction or ::: Uploaded on - 03/08/2017 ::: Downloaded on - 28/08/2017 06:48:05 ::: 22 wp874.17 interpretation must not do violence to the language. While a technical or pedantic or narrow approach must be shunned, if the intention of the legislature is manifest from the language of the provision and two interpretations thereof are not possible, the rule of liberal interpretation would not permit the Court from giving an artificial expansion to the category of beneficiaries envisaged in the welfare legislation. We concur with the view of the Division Bench in Chanda Hinglas Bharati vs. State of Maharashtra and others that the expression "widow" would not take within its sweep a woman whose marriage with a Hindu male Government servant is void.
19. Rule 116(6)(a)(i) of the Pension Rules employs the expression "Where pension is payable". P. Ayyar's Law Lexicon refers to the ordinary meaning of the word "payable" as "the word payable is a descriptive word, meaning capable of being paid, suitable to be paid, admitting or demanding payment, justly due, legally enforceable. A holistic and harmonious reading of the Service Rules would reveal that a marriage by a Government employee during the life time of the spouse is treated as a misconduct unless such marriage is with the permission of the Government which is contingent upon the personal law applicable and other relevant factors and the intent and purpose of ::: Uploaded on - 03/08/2017 ::: Downloaded on - 28/08/2017 06:48:05 ::: 23 wp874.17 the statutory scheme is to clear discourage a Government employee from entering into a wedlock during the life time of the spouse. We, therefore, have no hesitation in holding that a woman whose marriage to a male Hindu Government employee is void, is not a widow for whose benefit Rule 116(6)(a)(i) of the Pension Rules is enacted and pension to such a woman is not payable.
20. We have given due considerations to the observations of the Division Bench in Union of India vs. Jaywantabai wd/o Ramrao Kewoo, which interpreted Rule 75 of the Railway Services Pension Rules, 1993. With deepest respect to the said view, we are persuaded to concur with the view of the Division Bench in Chanda Hinglas Bharati vs. State of Maharashtra and others which considered and interpreted Rule 116(6)(a)(i) of the Pension Rules inter alia noting and drawing support from the observations of the Hon'ble Supreme Court in Rameshwari Devi V. State of Bihar and others.
21. We are not in a position to hold that exclusion of a woman, whose marriage is void for reasons spelt out supra, from the beneficent umbrella of Rule 116(6)(a)(i) of the Pension Rules militates against the Constitutional philosophy underlying Articles 15 and 39 of ::: Uploaded on - 03/08/2017 ::: Downloaded on - 28/08/2017 06:48:05 ::: 24 wp874.17 the Constitution. The interpretation which we have given, consistent with the view in Chanda Hinglas Bharati vs. State of Maharashtra and others would effectuate the legislative intent and object and purpose of the provision and the rights, expectations and aspirations of the legitimate wife would stand protected.
22. In view of the view which we have taken, the petition is sans merits and is accordingly dismissed. Rule stands discharged. No order as to costs.
JUDGE JUDGE
adgokar
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