Madras High Court
Thavamani vs The Internal Audit Officer (Pension) on 6 July, 2015
Author: S.Vaidyanathan
Bench: S.Vaidyanathan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 06.07.2015
CORAM
THE HON'BLE MR.JUSTICE S.VAIDYANATHAN
W.P.(MD) No.8739 of 2015
Thavamani ... Petitioner
-vs-
1. The Internal Audit Officer (Pension),
Audit Branch,
NPKRR Maaligai-1st Floor,
No.144, Annasalai,
Chennai-2.
2. The Superintendent Engineer,
Tamil Nadu Power Generation and
Distribution Corporation (TANGEDCO),
Madurai Electricity Distribution Circle,
Madurai-7. ... Respondents
Prayer
Writ Petition is filed under Article 226 of the Constitution of India
praying for the issuance of a writ of Certiorarified Mandamus, calling for
the records relating to the impugned order made in
Lr.No.9313/240/F8/F81/PPO.34453/2015 dated 27.04.2015 passed by the 1st
respondent, quash the same as illegal and arbitrary and consequently direct
the respondents to provide family pension to the petitioner with arrears.
!For Petitioner : Mr.M.Thirunavukkarasu
^For R1 : Mr.S.Kumar
Addl. Govt. Pleader
For R2 : Mr.S.Dhayalan
:O R D E R
The petitioner has filed this writ petition, seeking to quash the order of the 1st respondent dated 27.04.2015 passed in Lr.No.9313/240/F8/F81/PPO.34453/2015 in and by which it was communicated to the petitioner that her application for family pension cannot be entertained till the production of the original marriage certificate of the year 1977. The petitioner also sought a direction to the respondents to provide family pension to the petitioner with arrears.
2. The case of the petitioner is as follows:
i) The petitioner has submitted that she is the 2nd wife of late Raju and that her husband had worked under the 2nd respondent as a Revenue Supervisor in Samayanallur Division, Vikramangalam Section and retired from service on 31.05.2000 on attaining superannuation. Her husband was getting pension from the 1st respondent till his death on 05.09.2014 and his 1st wife, namely, Durgai Ammal, who was a Headmistress in Harijan Welfare Single Teacher School, also died on 27.05.1997, leaving her son by name Vijayasuresh. Due to the death of the 1st wife, the husband of the petitioner received Rs.10,000/- vide proceedings of the District Harijan Welfare Officer, Ramanathapuram in R.O.C.T10 and 181074/77 dated 03.10.1977.
ii) The petitioner has further submitted that she married her husband after three months of the demise of his first wife and their marriage was also solemnized on 26.08.1977 as per Hindu Rites and Customs at Subramaniyasamy Temple, Peraiyur in the presence of their relatives, elders and other family members. Out of their wedlock, they had three sons and all lived together including the son born through the 1st wife under the same roof till the death of her husband and thus, it is pleaded that she is a legally wedded wife of her husband.
iii) The petitioner has also submitted that the fact remains so, she applied for family pension on 20.09.2014 after the death of her husband to the 2nd respondent, which in turn was forwarded to the 1st respondent after verifying all the records, on receipt of which, the 1st respondent also sought a confirmation on 19.12.2014 as to whether the petitioner was the 1st wife or the 2nd wife. Thereafter, the 2nd respondent, taking into consideration the pension payment order bearing No.34453 of her husband and considering the fact that her name was duly entered as nominee in the respective column and upon appreciating the material facts that their family photo consisting of her husband and herself was affixed by her husband in his pension book, attested by her, had forwarded her pension application to the 1st respondent for further action. However, the 1st respondent, without considering all these factors, simply rejected her claim for family pension, which, on the fact of it, is illegal and is liable to be set aside.
iv) It is her plea that after her husband's death, she is starving for food and the family pension could not be denied on mere technicalities so as to defeat the real object of the family pension. The 1st respondent failed to see that the Tamil Nadu Registration of Marriages Act, 2009 came into force only with effect from 24.11.2009 and prior to that, there was no such compulsion. Neither there is a dispute with regard to her marriage with her husband nor there is any rival claim of family pension. Hence, it is pleaded that the impugned order is against the provisions of the Tamil Nadu Pension Rules, 1978.
3. Though no counter affidavit has been filed by the respondents in this case, they have submitted that since the petitioner is the 2nd wife of late Raju and no marriage certificate is produced by the petitioner in proof of her marriage with the said late Raju, the family pension could not be extended to the petitioner, as the said certificate is required under the provisions of the Tamil Nadu Registration of Marriages Act, 2009.
4. The petitioner has filed nearly 12 documents in the typedset of papers, in which one such document is the marriage invitation of the petitioner to prove that her marriage had taken place on 26.08.1977 with late Raju. The argument of the respondents that marriage certificate is mandatory and that unless or until the same is produced by the petitioner, the benefit as sought could not be extended, is not acceptable, firstly for the reason that the enactment of the Tamil Nadu Registration of Marriages Act, 2009 came into force only in the year 2009, whereas her marriage with the deceased employee was solemnized in 1977 itself. For the sake of convenience, Sections 3 and 23 of the said Act, read as under:
?3. Marriages to be compulsorily registered:- Every marriage performed on and from the date of commencement of this Act shall be registered under this Act notwithstanding the fact that the said marriage had been entered in the marriage registers governed by any other personal laws of the parties to the marriage or custom or usage or tradition.
23. Non-registration not to invalidate marriage:- No marriage performed in this State to which this Act applies shall be deemed to be invalid solely by reason of the fact that it was not registered under this Act.?
5. Even though Section 3 of the Act stipulates that marriage should be compulsorily registered, a bare reading of Section 23 states that non registration of the marriage will not invalidate its performance and thus, it gives an impression that registration of marriage is only optional to the parties. The petitioner also drew the attention of this Court to the provisions of Rule 5 of the Tamil Nadu Hindu Marriage Registration Rules and the Sub-Rule (1) was substituted with effect from 22.10.2007. For the purpose of clarity, the original Rule and the substituted rule are extracted below:
?Original Sub-Rule(1):
An application for the registration of a Hindu Marriage shall be in Form I. It shall be presented to the Marriage Registrar either in person by the husband or wife during the office hours on a working day or be sent to him by registered post, acknowledgment due.
Substituted Sub-Rule(1):
Every Hindu Marriage shall be registered with the Marriage Registrar, by the parties to the marriage within three months from the date of solemnization of the marriage. The application for the registration of Hindu Marriage shall be in Form-I affixed with the photographs of the parties to the marriage. It shall be presented to the Marriage Registrar in person either by the husband or wife during the office hours on a working day.?
6. A reading of Section 8 of the Hindu Marriage Act, 1955 coupled with the substituted Rule (supra) makes it vividly clear that registration of the marriage is only discretionary, not compulsory. Non registration of the marriage will not give right to any one of the spouses to contend or take a stand that there is no valid marriage and for the sake of argument, in case such a stand is taken, it will not only collapse the entire system of marriage, but also create problem to the children born through the said unregistered marriage. Though the intention of the legislature is appreciable, there is a loophole for avoidance of registration of the marriage.
7. In the present case, the petitioner has produced all the documents in support of her contention except the marriage certificate, which took place as early as in 1977. If we look at any angle, the act of the respondents in insisting upon the production of original marriage certificate is not justifiable in view of the provisions of Sections 3 r/w 23 of the Tamil Nadu Registration of Marriages Act, 2009. Moreover, the 1st respondent cannot expect the petitioner to register her marriage now, which will be next to impossible and ridiculous.
8. Therefore, finding force in the contention raised by the learned counsel for the petitioner, this writ petition is allowed and the impugned order is set aside. The 1st respondent is directed to take into account the documents, which have already been forwarded by the 2nd respondent and extend the family pension to the petitioner without insisting upon the S.VAIDYANATHAN,J., ar original marriage certificate. The benefits due to the petitioner shall be calculated and extended preferably within a period of two months from the date of receipt of a copy of this order. No costs.
To:
1. The Internal Audit Officer (Pension), Audit Branch, NPKRR Maaligai-1st Floor, No.144, Annasalai, Chennai-2.
2. The Superintendent Engineer, Tamil Nadu Power Generation and Distribution Corporation (TANGEDCO), Madurai Electricity Distribution Circle, Madurai-7.
.