Madras High Court
S.Kamala vs The Senior Accounts Officer/Pension 34 on 18 July, 2022
Author: S.M.Subramaniam
Bench: S.M.Subramaniam
W.P.No.31684 of 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 18.07.2022
CORAM
THE HON'BLE MR.JUSTICE S.M.SUBRAMANIAM
W.P.No.31684 of 2014
S.Kamala ...Petitioner
-Vs-
1.The Senior Accounts Officer/Pension 34,
O/o. Principal Accountant General
(Accounts & Entitlement) Tamil Nadu,
No.301, Anna Salai, Teynampet,
Chennai - 600 018.
2.The Assistant Treasury Officer,
Special Treasury,
Polur - 606 803,
Tiruvannamalai District.
3.The Assistant Elementary Educational Officer,
O/o. The Assistant Elementary
Educational Officer,
Polur - 606 803,
Tiruvannamalai District. ...Respondents
Prayer: Writ Petition filed under Article 226 of the Constitution of India
praying to issue a Writ of Certiorarified Mandamus to call for the records
1/18
https://www.mhc.tn.gov.in/judis
W.P.No.31684 of 2014
relating to the Letter No.Pen34/4/13402892/ADK/562/182137, dated
24.03.2014 on the file of the first respondent, quash the same as illegal and
further direct the second respondent to sanction the family pension as per
the recommendation of the third respondent Letter No.374/A1/2014 dated
14.02.2014.
For Petitioner : Mr.G.Mohan
for Mr.S.Kumara Devan
For R1 : Mr.V.Murali
For R2 & R3 : Mr.M.Bindran
Additional Government Pleader
ORDER
The order of rejection dated 24.03.2014, rejecting the claim of the petitioner for grant of family pension on the ground that the marriage between Shri.V.N.Sivasankaran and Smt.Kamala (2nd wife) took place on 07.11.1973 before the death of Smt.Indirani, who is the 1st wife (on 02.01.2000), is under challenge in the present writ petition.
2. The petitioner states that her husband V.N.Sivasankaran was working as Secondary Grade Teacher and he retired from service on 31.05.1989 on attaining the age of superannuation. Thereafter, he was 2/18 https://www.mhc.tn.gov.in/judis W.P.No.31684 of 2014 receiving family pension, till his date of death i.e. 02.07.2013. The petitioner states that she is the second wife of late V.N.Sivasankaran and the marriage between them was solemnized on 07.11.1973. The husband of the petitioner married one Indirani in the year 1966 as first wife. Since the first wife suffered from some ill health, with the consent of said Indirani and the family members, the petitioner married the deceased employee. The first wife Indirani died on 02.01.2000, after a lapse of 27 years from the date of the second marriage.
3. As per the Service Rules, the deceased husband of the petitioner nominated his first wife as nominee for receiving family pension. However, the deceased employee did not change her name after her death in the nomination. Thus, after the death of the deceased employee, the petitioner submitted a representation for grant of family pension. The authorities competent rejected the claim mainly on the ground that the second marriage between the deceased employee and the petitioner was solemnized during the lifetime of the first wife and therefore, the second marriage is invalid.
Thus, the petitioner cannot be construed as a widow for the purpose of 3/18 https://www.mhc.tn.gov.in/judis W.P.No.31684 of 2014 granting family pension under the Tamil Nadu Pension Rules. Challenging the said order, the present writ petition is filed.
4. The learned counsel for the petitioner mainly contended that the second marriage was solemnized with the consent of the first wife and their family members. When the second marriage was solemnized with the consent of the first wife and the second wife is recognized as a wife for several years as far as the deceased employee is concerned, the family pension is to be granted to the petitioner.
5. The learned counsel for the first respondent/Principal Accountant General of Tamil Nadu objected the said contention by stating that once the second marriage became invalid, the second wife is not eligible for family pension under the Tamil Nadu Pension Rules.
6. As per the pension scheme, the family pension is to be paid only to the spouse i.e., legally wedded spouse of an employee. Once the authorities came to know that the family pensioner is not a legally wedded spouse of 4/18 https://www.mhc.tn.gov.in/judis W.P.No.31684 of 2014 the deceased employee, then they cannot sanction and pay the family pension. In such circumstances, the spouse has to establish that he/she is the legally wedded spouse of the deceased employee.
7. The scope of Tamil Nadu Pension Rules for grant of family pension under Rule 49 was elaborately considered by the Hon'ble Division Bench of this Court in the case of R.Rajathi Vs. The Superintendent Engineer dated 05.06.2018 in W.A.No.977 of 2017. That apart, Rule 49 (7) of Pension Rules contemplates the pension is payable for more than one widows. The language employed is “payable”. Thus, if more than one widow is eligible for family pension and such family pension is payable to the second widow, then only the question of sharing the pension under Rule 49 of the Pension Rules would arise, but not otherwise. The payability/eligibility of family pension for more than one widow would arise, only if two wives are permissible. Such a situation was considered by the Rule makers, since the marriage solemnized prior to Hindu Marriage Act, 1955 was considered as valid. Prior to the year 1955, contracting a second marriage during the lifetime of the first wife was permitted and 5/18 https://www.mhc.tn.gov.in/judis W.P.No.31684 of 2014 therefore, the sharing of family pension arouse and the provision was enacted. However, after 1955, second marriage is not only misconduct under the Government Servants Conduct Rules, but prohibited. Therefore, the question of now sharing of family pension in respect of invalid marriage would not arise at all.
8. Rule 49 of the Tamil Nadu Pension Rules deals with “Family Pension”. Rule 49 (7) (a) (i) contemplates that "Where family pension is payable to more widows than one, the family pension shall be paid to widows in equal shares."
9. Relying on the above provision, applications are filed by the second wives, seeking family pension after the death of the deceased employee.
10. Question arises, whether a pension can be shared under Rule 49(7)(a)(i) of the Tamil Nadu Pension Rules, 1978, when the marriage is invalid.
6/18https://www.mhc.tn.gov.in/judis W.P.No.31684 of 2014
11. The language employed in Rule 49(7)(a)(i) is that, “where family pension is 'payable' to more widows than one”. Therefore, if the family pension is payable to more widows than one, then alone, the family pension can be shared, but not otherwise.
12. Question of 'payability' would arise only if the applicant is the widow. The question of widow would arise only if the marriage is a valid marriage. Based on an invalid marriage, the second wife cannot claim the status as “widow”. When admittedly, the applicant is the second wife of the deceased employee and she is not a widow, then the family pension is not payable and the question of invoking Rule 49(7)(a)(i) would not arise.
13. Further question arises, why such a rule has been incorporated in the Tamil Nadu Pension Rules. It is obvious that at the time of framing the Rules, the employees, who have solemnized second marriage prior to the year 1955, i.e., before the Hindu Marriage Act, was considered as a valid marriage. In those circumstances, when the second marriage was a valid 7/18 https://www.mhc.tn.gov.in/judis W.P.No.31684 of 2014 marriage, the Rule contemplates sharing of the family pension. Therefore, only if the second marriage is valid under the Law, then alone, the pension is payable, which can be shared between two widows, but not otherwise.
When the Pension Rule was enacted, there were many such cases, where, employees had two wives and the marriage with the second wife was solemnized prior to the Hindu Marriage Act before the year 1955 and thus, this Court is of the considered opinion that those circumstances cannot be taken undue advantage by the second wife, whose marriage was solemnized after the Hindu Marriage Act and became invalid. Thus, the second marriage solemnized during the lifetime of the first wife is an invalid marriage and an invalid marriage would not provide the second wife status as “widow”. When she is not holding the status as 'widow', the family pension is not payable and consequently, the family pension cannot be shared or paid.
14. Even looking into the provisions independently, Rule 49(7)(a)(i) speaks about sharing of family pension between widows. It does not speak about sanctioning of family pension to the second wife. Rule 49(7)(a)(i) 8/18 https://www.mhc.tn.gov.in/judis W.P.No.31684 of 2014 says that, where family pension is payable to more widows than one, then it is to be divided in equal shares. When the provision is unambiguous regarding the sharing of family pension between two widows, the said provision cannot be applied for the purpose of sanctioning family pension for the second wife, whose marriage was not solemnized in accordance with law.
15. That apart, a Division Bench of the High Court of Bombay, in the case of Smt.Shamal Mahadeo Tate vs. District Collector, Solapur, Zilla Parishad Compound and others, reported in 2022 0 Supreme(Bom) 23, held as follows:-
"12 . In our considered opinion, the substantial issue elucidated hereinabove stands squarely answered by the Supreme Court in a catena of judgements and the position of law in this regard stands more than well- settled.
12.1 The Supreme Court, in Rameshwari Devi case (supra), has clearly opined that the putative second wife cannot be described as the widow of the deceased 9/18 https://www.mhc.tn.gov.in/judis W.P.No.31684 of 2014 government employee. The Supreme Court applied the statutory provisions under Section 5 (i) read with Section 11 of the HMA and held that the marriage of the deceased employee to the putative second wife is void as, at the time of such marriage, his first wife was alive and his marriage with her was still subsisting. That being the case, the Supreme Court ruled that the second wife in such cases is not entitled to family pension.
12.2 The Supreme Court in the case of Raj Kumari vs. Krishna, 2015 (14) SCC 511 similarly opined that normally, family pension is given to the legally wedded wife of a deceased government employee. In the aforesaid case, the deceased government employee had married the plaintiff therein while the former's first wife was alive and his marriage with her was still subsisting. As such, the Supreme Court held that the plaintiff could by no stretch of imagination be described as the legally wedded wife of the deceased government employee.
12.3 A view similar to the above has also been adopted by this Court in Draupada @ Draupadi Jaydev Pawar & Ors. vs. Indubai (supra). The learned Single Judge has, with authority, referred to the judgements passed in the 10/18 https://www.mhc.tn.gov.in/judis W.P.No.31684 of 2014 Chanda Hinglas Bharati (supra) and Rameshwari Devi (supra). The relevant excerpts are Paragraphs 35 to 37 and are reproduced hereinbelow:
"35. During the course of arguments of Chanda Hinglas Bharati (supra) in November, 2015 the counsel of second wife placed heavy reliance on the earlier judgment of the Division Bench in the case of Jaywantabai. The judgment of learned Single Judge in the case of "Kantabai" was not placed before the Division Bench. The learned Judges of the Division Bench in the case of Chanda Hinglas Bharati have considered number of judgments. The ratio laid down by the Division Bench is specific and clears all the doubts in respect of interpretation of Rule 116(6)(a)(i) of Maharashtra Civil Services (Pension) Rules and Rule 26 of Maharashtra Civil Services (Conduct) Rules. The Division Bench has referred and relied the cases of Rameshwari Devi (supra) and Vidyadhari v. Sukhrana Bai, reported in (2008) 2 SCC 238. The Division Bench has held thus:
"The Maharashtra Civil Services (Pension) Rules were brought into force in the year 1982. Rule 116 (6)(a)(i) opens with the clause, "Where the Family Pension is payable to more widows than one". The provisions of Sub-Rule 6(a) (i) of Rule 116 of the Rules would apply only in a case where the family pension is payable to more widows than one. The primary question would be, whether the family pension is payable to more widows than one. When would a second widow or more than one widows be entitled to pension. In our considered view, more widows than one would be 11/18 https://www.mhc.tn.gov.in/judis W.P.No.31684 of 2014 entitled to pension only if the Hindu employee has married the woman (widow) before the coming into force of the Hindu Marriage Act on 18.5.1955 and in case of employees where such marriage is permissible under the personal law applicable to the said employee or Government servant and the other party to the marriage. It appears from the provisions of Maharashtra Civil Services (Conduct) Rules that the marriage during the life time of a spouse could be accepted only if the marriage is permissible under the person law applicable to both the parties to the marriage."
36. In the said judgment, the Division Bench has rightly linked up meaning of widow to the status of wife who is a legally wedded wife. It considered section 5 which speaks about 'Conditions of Valid Marriage and section 11 on 'Void marriages and section 17 wherein 'Punishment for bigamy' is stated. It also took into account provisions of sections 494 and 495 of the Penal Code, 1860 pertaining to bigamy and also relied on Rule 26 of the Maharashtra Civil Services (Conduct) Rules, 1979, which states thus:
"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 12/18 https://www.mhc.tn.gov.in/judis W.P.No.31684 of 2014 such marriage as it referred to in clause (1) or 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."
37. The reasoning given by the Division Bench is consistent with the other provisions of law as mentioned above wherein the second marriage is held void. The Indian legal system has adopted monogamy as a legal structure of the marriage institution and, therefore, occasional fractures of second marriage in subsistence of first marriage are held void in law. The second woman cannot be given a status of a legally wedded wife and, as rightly observed by the Division bench, she is not a widow in true and legal sense. A wrong may exist in the Society on a large scale, however it cannot be justified as a righteous custom because of its magnitude. In order to buttress this point, it will not be out of place to give example of give and take of dowry which throws light on the wide gap between the legality and the reality. To take lenient view towards the wrong doers is contrary to law laid down by the legislature. Thus, gap should not be widened by the decision of the Court but it is to be bridged. It is mandatory for the Court to interpret a law which gives true effect to the legislative intent. The Division Bench in the case of Chanda Hinglas Bharati has referred to the relevant provisions under different acts regarding the consequences of second marriage and the status of second woman." [emphasis supplied] 13/18 https://www.mhc.tn.gov.in/judis W.P.No.31684 of 2014 12.4 We may state that the decision in the Jaywantabai case (supra) has been expressly overruled by a Full Judge Bench of this Court in the Kamalbai case (supra) in view of the decisions of the Supreme Court in the Rameshwari Devi case (supra) and the Raj Kumari case (supra). We may usefully refer to Paragraphs 13 and 14 of the said decision, which read thus:
"13. In the present matters, we are concerned with the entitlement of the second wife to family pension upon the death of the Government employee. For the purpose of family pension the word "family" will have to be interpreted. Subrule (5) of Rule 111 of the Pension Rules defines "family" in relation to the Government servant. Rule 111(5)(i) initially read as "wife or including judicially separated wife or wives in the case of male government servants". Under notification dated 18-1-2016 clause (i) has been amended and the word "wife" is substituted with the word, "legally wedded wife". The provision now is read as legally wedded wife or wives. Rule 111 deals with Retirement Gratuity/Death Gratuity. Rule 115 enables the Government servant to nominate one or more persons to receive the retirement gratuity/death gratuity. Proviso (I) to sub-rule (I) of Rule 115 restricts the right of the Government servant to nominate any person other than a member of his family in case he has family. The provision would make it clear that unless wife is legally wedded wife as provided under Rule 111(5)(i) of the Pension Rules, the government 14/18 https://www.mhc.tn.gov.in/judis W.P.No.31684 of 2014 servant has no right to nominate such a person. Rule 111(5) of the Pension Rules excludes a wife that is not a legally wedded wife from the definition of family. If the marriage is not legal and valid, the said woman would not be brought within contour of the definition "Family". Proviso
(ii) to Rule 115(1) enables the Government servant to nominate any other person if he has no family, but sub Rule 4 of Rule 115 of the Pension Rules further prescribes that if at the time the government servant had made nomination who had no "family" at the time of making it, same shall become invalid in the event of the government servant subsequently acquiring the "family". Reading Rules 111 and 115 of the Pension Rules conjointly the only irresistible conclusion that can be drawn is that a nomination can be made by a government servant only of a person who is member of the family, if the said Government servant has a family. The definition of family embodied in Rule 111(5)(i) specifically provides that legally wedded wife or wives only would be a member of the family. The one that is not a legally wedded wife is excluded from the definition of the term "family".
14. The family pension was initially governed by the Family Pension Scheme 1964 as contained in the Government Resolution dated 08th May, 1964. Same is incorporated in Rule 116. The nomenclature, "Family Pension" connotes payment of pension to the family, a woman who is not legally married cannot be included in the definition of family." [emphasis supplied] 15/18 https://www.mhc.tn.gov.in/judis W.P.No.31684 of 2014 12.5 Thus, in light of the judicial decisions as outlined hereinabove, the Petitioner in the present case would not be entitled to family pension under the Pension Rules notwithstanding the death of the first wife as the Petitioner's marriage to the deceased itself is void under the HMA."
16. Thus, the second wife of the deceased employee cannot be construed as a widow within the meaning of Tamil Nadu Pension Rules, 1978, in view of the fact that the second marriage was solemnized during the lifetime of the first wife. Thus, the order of rejection passed by the respondent is in consonance with the provisions of Tamil Nadu Pension Rules and there is no infirmity as such.
17. Accordingly, the Writ Petition is devoid of merits and hence, the same stands dismissed. No costs.
18.07.2022 Index:Yes Internet:Yes Speaking order hvk 16/18 https://www.mhc.tn.gov.in/judis W.P.No.31684 of 2014 To
1.The Senior Accounts Officer/Pension 34, O/o. Principal Accountant General (Accounts & Entitlement) Tamil Nadu, No.301, Anna Salai, Teynampet, Chennai - 600 018.
2.The Assistant Treasury Officer, Special Treasury, Polur - 606 803, Tiruvannamalai District.
3.The Assistant Elementary Educational Officer, O/o. The Assistant Elementary Educational Officer, Polur - 606 803, Tiruvannamalai District.
17/18https://www.mhc.tn.gov.in/judis W.P.No.31684 of 2014 S.M.SUBRAMANIAM, J.
hvk W.P.No.31684 of 2014 18.07.2022 18/18 https://www.mhc.tn.gov.in/judis