Madras High Court
Tamilselvi vs The Accountant General (Accounts And ... on 22 July, 2014
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 22.07.2014 CORAM THE HONOURABLE MR.JUSTICE S.NAGAMUTHU W.P.(MD)No.9374 of 2010 and M.P.(MD)No.1 of 2010 Tamilselvi ... Petitioner Vs. The Accountant General (Accounts and Entitlements), Tamil Nadu, Chennai-18. ... Respondent Writ Petition filed under Article 226 of the Constitution of India praying for issuance of a Writ of Certiorarified Mandamus calling for the records pertaining to the order passed by the respondent in his Proceedings in Pen 23/III/608/0809/402 dated 16.02.2009 and quash the same and consequently directing the respondent to restore the half share of family pension issued to the deceased 1st wife Amsavalli, to the petitioner within a stipulated time as may be fixed by this Court. !For petitioner : Mr.T.A.Ebenezer ^For respondent : Mr.P.Gunasekaran :ORDER
One Mr.K.S.Raju was working as Second Grade Warden in Central Prison, Madurai. He died on 19.04.1988 while in service. One Mrs.Amsavalli was his first wife. When the marriage between Mr.Raju and Mrs.Amsavalli was in subsistence, Mr.Raju married the petitioner as his second wife. There are children born to the petitioner and her husband.
2.After the demise of Mr.Raju, as per Rule 49 of the Tamil Nadu Pension Rules, 1978, the family pension payable on account of the demise of Mr.Raju was shared between Mrs.Amsavalli and the petitioner. In other words, 50% of the pension was paid to the petitioner, while the other 50% was paid to Mrs.Amsavalli. Mrs.Amsavalli died on 19.11.2002. Even thereafter, the petitioner has been paid only the + of pension. In this regard, the petitioner made a representation to the respondent for payment of full pension including 50%, which was previously paid to Mrs.Amsavalli. The Accountant General (Accounts and Entitlements), by his Proceedings, Pen 23/III/608/0809/402 dated 16.02.2009, has rejected the said request and has informed the petitioner that 50% family pension which was paid to the first wife ? Mrs.Amsavalli will lapse to Government and the same is not payable to the petitioner as per Government Letter No.120770/92/A/Fin(Pen) dated 27.04.1993. Challenging the said order, the petitioner is before this Court with this writ petition.
3.I have heard the learned counsel for the petitioner and the learned counsel for the respondent and also perused the records carefully.
4.The learned counsel for the petitioner would submit that as per Rule 49(6) of the Tamil Nadu Pension Rules, 1978, the petitioner is entitled for full pension. He would further refer to Rule 49(7)(a) which states that where family pension is payable to more widows than one, the family pension shall be paid to widows in equal shares and on the death of the widow, her share of the family pension shall become payable to her eligible child, provided that if the widow is not survived by any child, her share of family pension shall be payable to the other widows in equal shares, or if there is only one such widow, in full to her.
5.The learned counsel for the petitioner would further submit that Mrs.Amsavalli has a son, but since he is married, he is not eligible to get the 50% share of pension which is paid hitherto to Mrs.Amsavalli.
6.But the learned counsel for the respondent would stoutly oppose this writ petition. He would refer to the explanation appended to Rule 49(7) which states that ?for the purpose of this Rule, the second wife shall be eligible for the benefits of family pension only if the second marriage-(i) solemnised as per the customary law prevailed among the community before the date of commencement of the Hindu Marriage Act, 1955 (Central Act 25 of 1955); or
(ii) solemnised under the Mohammadan Law in which bigamy is permissible. Referring to this explanation, which is introduced by amending the Rule with effect from 02.06.1992, according to the respondent, the petitioner is not entitled for the rest of 50%.
7.The learned counsel for the respondent would rely on a Division Bench judgment of this Court in A.S.No.154 of 2004 dated 07.03.2012, (Krishnaveni and others vs. Meera @ Devaki and others), wherein, the Division Bench has held that the children born to the second wife, whose marriage is void, are eligible for family pension, whereas the wife of the void marriage is not entitled for family pension.
8.But the learned counsel for the petitioner would rely on a recent judgment of a learned single Judge of this Court in W.P.(MD)No.13372 of 2012, dated 04.04.2014, wherein in paragraph-22 of the judgment, the learned Judge (Hon'ble Justice R.Mahadevan), has held as follows:
?The relationship between the fifth respondent would certainly fall under the definition as the deceased N.Stanunthan Thambi and the 5th respondent have lived together as husband and wife for 47 years now. The fact that he has declared the fifth respondent as his wife in the nomination column could itself be taken as pubic disclosure. The purpose of enacting such a law could only to make way for a maintenance for not only a legally wedded wife but also to a second wife or concubine. The concept of paying pension to the family members is to enable them to lead a decent life after the life time of the pensioner. Therefore, under the facts and circumstances, the memorandum of compromise is accepted and recorded. The respondent 1 to 4 are directed to disburse the pension in equal share to the petitioner and the fifth respondent until the life time of both of them and in case of death of either one of them, the surviving party shall be entitled to full pension. With the above directions, the writ petition is disposed of. No costs.?
9.I have considered the above submissions.
10.The learned counsel for the respondent would refer to a judgment of the Hon'ble Supreme Court in Yamunabai Anantrao Adhav v. Anantrao Shivram Adhav, reported in 1988 SCC (Cri) 182, wherein the Hon'ble Supreme Court has held that the wife of a void marriage is not entitled for maintenance under Section 125 Cr.P.C. The learned counsel for the respondent would further rely on a judgment of the Hon'ble Supreme Court in Rameshwari Devi v. State of Bihar, reported in (2000) 2 SCC 431, wherein the Hon'ble Supreme Court has held that the children born out of void marriage are entitled family pension, whereas the wife of the void marriage is not entitled for such pension.
11.I have heard the above submissions.
12.As I have already pointed out, so far as Tamil Nadu State is concerned, family pension is governed by the Tamil Nadu Pension Rules, 1978, which is a statutory Rule. As per Sub-Rule (7)(a) of Rule 49, it is crystal clear that if there are more than one wife to a Government Servant who died, they are entitled for family pension in equal moieties, until the amendment which was brought into force on 02.06.1992 did not prohibit the wife of a bigamous marriage from getting a share in the family pension. The explanation to the said Rule was introduced by amending the Rule only with effect from 02.06.1992. Therefore, on or after 02.06.1992, if any Government Servant dies, then, the wife of a bigamous marriage, which is void, is not entitled for family pension. This Rule, in my considered opinion, is prospective in operation. In the case on hand, the deceased died in the year 1988. That is the reason why the family pension was shared between Mrs.Amsavalli and the petitioner in equal moieties.
13.Now the question is as to whether the petitioner is entitled for getting the remaining 50% of pension which was hitherto paid to Mrs.Amsavalli. As I had already extracted, the second proviso to Sub-Rule 7(a)(i) of Rule 49 makes it very clear that if the widow is survived by a child, her share of the family pension shall be payable to her child, if the child is eligible. If there is no child, who is eligible to get pension, the share which was hitherto paid to the widow would cease. This proviso was in force only until 14th October 1991. Thereafter, the same was substituted by the proviso which reads as under:
?Provided that the widow is not survived by any child, her share of family pension shall be payable to the other widows in equal shares, or if there is only one such widow, in full to her.?
14.Here in this case, the first wife, Mrs.Amsavalli had a child and therefore, this proviso is not applicable to the petitioner so as to insist for payment of full pension.
15.Now, turning to the judgment of the Division Bench of this Court in A.S.No.154 of 2004 dated 07.03.2012, (Krishnaveni and others vs. Meera @ Devaki and others), relied on by the learned counsel for the respondent, it is not applicable to the facts of the present case. In that case, the deceased died subsequent to the amendment, by which explanation was introduced with effect from 02.06.1992. It was in those circumstances, applying the explanation, the Division Bench held that the wife of the bigamous marriage which is void, is not entitled for family pension. In this case, the deceased died even before the amendment and that is the reason why the second wife, viz. the petitioner, has been paid 50% of pension.
16.Now, turning to Rameshwari Devi's case, cited supra, relied on by the learned counsel for the respondent, it cannot be taken as a precedent to govern the issue involved in this case. In that case, obviously there was no Rule which enables the wife of a void marriage to get a share in the pension. It was in those circumstances, the Hon'ble Supreme Court held that the wife of a void marriage is not entitled for pension. But so far as Tamil Nadu State is concerned, as I have already pointed out, the Tamil Nadu Pension Rules, 1978, has made a specific provision to enable the wife of a void marriage to get pension. Therefore, that judgment is not applicable.
17.In Yamunabai's case, the entitlement of the wife of a void marriage for maintenance under Section 125 Cr.P.C., was considered. That cannot be imported to the facts of the present case. Here, in this case, there is a specific Rule which entitles the wife of a void marriage to get pension. Though I am holding so, I am of the further view that in the instant case, the petitioner is not entitled for the balance 50% of pension which was hitherto paid to Mrs.Amsavalli, because Mrs.Amsavalli had a child.
18.In view of all the above, the petitioner is not entitled for the relief as prayed for.
19.In the result, the writ petition fails and accordingly it is dismissed. Consequently, the connected miscellaneous petition is closed. No costs.
Index : Yes/No 22.07.2014 Internet : Yes/No KM To
The Accountant General (Accounts and Entitlements), Tamil Nadu, Chennai-18.
S.NAGAMUTHU, J.
KM W.P.(MD)No.9374 of 2010 and M.P.(MD)No.1 of 2010 22.07.2014