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Madhya Pradesh High Court

Smt.Geeta Bai vs Union Of India on 9 February, 2017

     HIGH COURT OF MADHYA PRADESH, PRINCIPAL SEAT AT
                       JABALPUR.

SINGLE BENCH:           JUSTICE SUJOY PAUL
                            WP. No.12437/2012

                               Smt. Geeta Bai
                                     Vs.
                           Union of India & Ors.
____________________________________________________________
     Shri Neeraj Dubey, learned counsel for the petitioner.
       Shri Vikram Singh, learned counsel for the respondents.

____________________________________________________________ (Order) 09/02/2017 In this petition filed under Article 226 of the Constitution, the petitioner Smt. Geeta Bai, the second wife of Late Omkar Prasad Singh prayed for a direction to grant her family pension and set aside the order dated 16-03-2012 (Annexure P/10) whereby her claim to grant family pension was rejected by the respondents.

2. The case of the petitioner is that marriage of the petitioner was solemnized with deceased-employee under the Special Marriage Act on 23- 02-1983. Admittedly, first wife of deceased-employee was alive when aforesaid marriage was solemnized. The first wife died on 05-09-1992. Shri Omkar Prasad Singh also expired on 14-07-2011. The petitioner submitted her claim for grant of family pension by contending that being the second wife, she has a right to claim family pension.

3. Shri Neeraj Dubey, learned counsel for the petitioner fairly submits that for the purpose of examining entitlement of the petitioner Pension Regulations for the Army, 1961 (hereinafter called as Regulations) would be relevant and CCS (Pension) Rules are not applicable. By placing

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reliance on various provisions of the regulations, it is contended by Shri Dubey that the petitioner being the second wife is entitled to get family pension. In support of his contention, he relied on a Single Bench Judgment of Madras High Court in the case of S. Kamatchi vs. Accountant General.

4. Prayer is opposed by Shri Vikram Singh, learned counsel for the other side by placing reliance on certain provisions of regulations. He submits that the second marriage of the petitioner is solemnized when first wife was alive. Hence, the said marriage is a void marriage and, therefore, the petitioner cannot be treated to be a member of the "family". Since she does not fall within the ambit of definition of "Family", she is not entitled to get family pension. In support of his contention, he relied on (2000) 2 SCC 431 (Rameshwari Devi vs. State of Bihar & Ors.) and the judgment of Madras High Court in the case of P. Velammal vs. The Additional Assistant. He also relied on a judgment passed by Armed Forces Tribunal, Kolkata Bench in the case of Pramila Devi vs. Union of India & Ors.

5. No other point is pressed by the parties.

6. I have heard the parties at length and perused the record.

7. Before dealing with rival contentions of the parties, it is condign to refer certain provisions of regulations. Regulation 5 (c)(explanation) makes it clear that the word pension is wide enough to include Retiring/Service, disability, invalid or family pension, as the case may be. Section (iv) deals with "Family Pensionary Award". Regulation 9 (a) reads as under:-

"9(a) Where an individual is survived by more eligible widow than one the family pension is paid to them in equal shares. The principle of minimum pension of Rs.375 is applicable to the original family pension and not to the divided share of each widow. On the death of a widow, her share of pension becomes payable to her eligible child. If at the time of death, a widow leaves no eligible child, the payment of her share of pension is payable to other widows in equal share or if-there is only on such widow in full to her.

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(b) Where an individual is survived by a widow but has left behind an eligible child from another wife who is not alive or divorced the eligible child is paid the share of pension which her mother would have received if she had been alive/not been divorced at the time of death of Govt servant/pensioner."

Regulation 97 reads as under:-

"97. Where the family pension is payable to more widows than one, the family pension shall be paid to the widows in equal shares. On the death of a 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 the family pension shall not lapse but shall be payable to the other widows in equal shares, or if there is only one such other widow, in full, to her.)"

Relevant Portion of Regulation 98 reads as under:-

"98. Ordinary or special family pension granted to the widow of a deceased officer shall discontinued under the following circumstances

(a) if she proves unworthy of it; or

(b) if she remarries.

Note: condition in clause (b) will not apply to widow in receipt of special family pension who remarries her deceased husband's real brother and continues to live a communal life with and/or contributes to the support of the other dependents of the deceased husband.

In the case of remarriage, pension shall cease from the date following that of remarriage and in other cases, from such date as the President may decide."

On the strength of these regulations, learned counsel for the petitioner contended that the family pension can be granted to the second wife.

8. The respondents relied on Regulation 216 and 219. Relevant portion of Regulation 216 and 219 reads as under:-

"Eligible members of the family

216. The following members of the family of a deceased individual shall be viewed as eligible for the grant of a special family pension, provided that they are otherwise qualified:-

(a) widow/widower lawfully married. It includes a widow who was married after individuals' release/ retirement/ discharge/ invalidment.

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(b) Son actual and legitimate/including validly adopted.

(c)Daughter, actual and legitimate/(including validly adopted).

(d) Father.

(e) Mother.

(f) Brother

(g) Sister Note 1- The term "widow" used in the above or any other regulation in this sub-section in respect of special family pensionary awards shall be deemed to include such a widow who was married after the individual's discharge/invalidment."

"Conditions of eligibility for a family pension 219 A relative specified in Regulation 216 shall be eligible for the grant of family pension, provided; General

(i) he or she is not in receipt of another pension from Government;

(ii) he or she is not employed under Government Widow

(iii) a widow has not remarried.

This condition shall not apply to a widow who remarried her deceased husband's brother, and continues to live a communal life with and/or contributes to the support of the other living eligible heirs."

9. The core issue in this case is whether the second wife is entitled to get family pension. Regulation 216 in no uncertain terms makes it clear that widow/widower is entitled to get pension if he/she is "lawfully" married. The Apex Court in the case of Rameshwari Devi (supra) opined that the claimant Yogmaya Devi cannot be described as a widow of Narain Lal, her marriage with Narain Lal being void. The Apex Court applied the test flowing from Section 5 of the Hindu Marriage Act and opined that such second marriage when first spouse was alive is a void marriage. The said principle was followed by this Court in 2006 (1) MPHT 257 (Smt. Koushalya Bai vs. M.P. State Electricity Board & Ors.). This Court considered Rule 44 of M.P. Civil Services (Pension) Rules, 1976 and opined that second wife is not entitled to get pension. A Division Bench of this Court in 2002 (3) MPLJ 116 ( Sita Bai Sinodia & Ors. vs. Regional Provident Fund Commissioner) opined that where second marriage is

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prohibited, payment of pension is to be made to the wife whose marriage is legal. Second wife in such cases is not entitled to get pension. This Court made it clear that the said principle may not be applicable in the case of Muslims where taking of more than one wife is not prohibited and in that case pension can be distributed in equal shares. In (2015) 14 SCC 511 (Raj Kumari & Anr. vs. Krishna & Ors.), the Apex Court opined that normally pension is given to the legally wedded wife of a deceased employee. By no stretch of imagination can one say that the plaintiff Smt. Krishna was the legally wedded wife of late Shri Atam Parkash, especially when he had a wife, who was alive when he married another woman in Arya Samaj temple, as submitted by the learned counsel appearing for the appellants.

10. In my view, the Regulations provided benefit of family pension to such widows whose marriage is lawful. Thus, in cases of widow, who belong to Muslim community or to a community where second marriage is permissible as per the customs etc, family pension can be granted. However, in the present case, family pension cannot be granted to the petitioner whose marriage was a void marriage as per Hindu Marriage Act, 1955. The same view is taken by Madras High Court in P. Velammal (supra). So far as the judgment of S. Kamatchi (supra) relied upon by Shri Dubey is concerned, suffice it to say that in view of judgment of Supreme Court in Rameshwari Devi, Raj Kumari and judgment of this Court, the judgment of Madras High Court relied upon by Shri Dubey is of no assistance to him.

11. As per foregoing analysis, I am unable to hold that the petitioner is entitled to get family pension. Consequently, this petition is dismissed. No cost.

(Sujoy Paul) Judge mohsin/