Madhya Pradesh High Court
Smt. Koushalya Bai vs M.P. State Electricity Board And Ors. on 27 April, 2005
Equivalent citations: 2006(1)MPHT257
Author: Arun Mishra
Bench: Arun Mishra
ORDER Arun Mishra, J.
1. In this writ petition, petitioner is admittedly second wife of the deceased employee. It is also not in dispute that her marriage was performed with deceased Shri Rambahori during the lifetime of the first wife. First wife had died in the year 1994 and the second marriage was performed in the year 1990.
2. Petitioner is claiming family pension after death of her husband namely Shri Rambahori Pyasi. Shri Rambahori Pyasi has died on 17-8-2001. Petitioner has been denied the family pension by the M.P. State Electricity Board. Death cum Retirement Gratuity has been kept in Bank deposit to be paid to the sons of the petitioner on their attaining the age of maturity.
3. The question agitated is about the entitlement of the petitioner for pension and gratuity. Family has been defined in Sub-rule (5) of Rule 44 of M.P. Civil Services Pension Rules in relation to Govt. servant, which reads thus :-
(5) For the purpose of this Rule and Rules 45 and 46 'family' in relation to Government servant means :-
(i) Wife in the case of a male Government servant,
(ii) Husband, in the case of a female Government servant,
(iii) Sons including steps sons and adopted sons,
(iv) Unmarried daughters including step daughters and adopted daughters,
(v) Widowed daughters including step daughters and adopted daughters,
(vi) Father, including adoptive parents in the case of individuals,
(vii) Mothers, whose personal law permits adoption,
(viii) Brothers below the age of eighteen years including step brothers,
(ix) Unmarried sisters and widowed sisters including step sisters,
(x) Married daughters, and
(xi) Children of pre-deceased son.
It includes wife in case of male Govt. servant. Second wife is not included in the definition of family as in the lifetime of first wife, second marriage is void. In the instant case second marriage was performed admittedly in the lifetime of first wife. The children of the petitioner are in receipt of the family pension, is not in dispute. They are also entitled for Death Cum Retirement Gratuity on attaining the age of maturity. Though the nomination has been made in favour of the petitioner for receiving the gratuity, however as per Rule 46 the nomination shall not be in favour of any person or persons other than the members of his family as defined in Rule 44, in case such a members is available. It is not in dispute that such a member of family as defined in Rule 44(5) was available when nomination was made, as such nomination can not be held good for the purpose of payment of Death Cum Retirement Gratuity. It has to be paid to the children born to the deceased from the petitioner. It has been rightly kept in fixed deposit in Nationalized Bank. In the circumstances, it is directed that the fixed deposit be continued till it is disbursed to the children of the deceased born from the petitioner.
4. The question of payment of family pension is no more res Integra. The Apex Court in Rameshwari Devi v. State of Bihar and Ors. , has held thus :-
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 void marriage are legitimate. Under the Hindu Succession Act, 1956, property of a male Hindu dying intestate devolve firstly on heirs in Clause (1) which include 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 a widow of Narain Lal, her marriage with Narain Lal being void. 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 shares along with that of Rameshwari Devi and the son born from the marriage of Rameshwari Devi with Narain Lal. That is, however, legal position when Hindu male dies intestate. Here, however, we are concerned with the family pension and death-cum-retirement gratuity payments which is 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.
15. Rameshwari Devi has raised two principal objections : (1) marriage between Yogmaya Devi and Narain Lal has not been proved, meaning thereby that there is no witness to the actual performance of the marriage in accordance with the religious ceremonies required for a valid Hindu marriage and (2) without a Civil Court having pronounced upon the marriage between Yogmaya Devi and Narain Lal in accordance with Hindu rights, it cannot be held that the children of Yogmaya Devi with her marriage with Narain Lal would be legitimate under Section 16 of the Hindu Marriage Act. First objection we have discussed above and there is nothing said by Rameshwari Devi to rebut the presumption in favour of marriage duly performed between Yogmaya Devi and Narain Lal. On the second objection, it is correct that no Civil Court has pronounced if there was a marriage between Yogmaya Devi and Narain Lal in accordance with Hindu rights. That would, however, not debar the State Government from making an inquiry about the existence of such a marriage and act on that in order to grant pensionary and other benefits to the children of Yogmaya Devi. On this aspect we have already adverted to above. After the death of Narain Lal, inquiry was made by the State Government as to which of the wives of Narain Lal was his legal wife. This was on the basis of claims filed by Rameshwari Devi. Inquiry was quite detailed one and there are in fact two witnesses examined during the course of inquiry being- (1) Sant Prasad Sharma, teacher, DAV High School, Danapur and (2) Shri Basukinath Sharma, Shahpur Maner who testified to the marriage between Yogmaya Devi and Narain Lal having witnessed the same. That both Narain Lal and Yogmaya Devi were living as husband and wife and four sons were born to Yogmaya Devi from this wedlock has also been testified during the course of inquiry by Chandra Shekhar Singh, Rtd. District Judge, Bhagalpur, Smt. (Dr.) Arun Prasad, Sheohar, Smt. S.N. Sinha, w/o Shri S.N. Sinha, ADM and Ors.. Other documentary evidence were also collected which showed Yogmaya Devi and Narain Lal were living as husband and wife. Further, the sons of the marriage between Yogmaya Devi and Narain Lal were shown in records as sons of Narain Lal.
5. In view of the above discussion, I find that there is no merit in this petition, same is hereby dismissed. Parties to bear their own costs as incurred.