Bombay High Court
Union Of India Through General Manager, ... vs Smt. Ganeshibai Alias Sunderibai, W/O ... on 15 April, 2020
Equivalent citations: AIRONLINE 2020 BOM 421
Author: Vinay Joshi
Bench: A. S. Chandurkar, Vinay Joshi
Judgment wp6973.16
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 6973 OF 2016.
1. Union of India,
through General Manager,
South East Central Railway,
Bilaspur (C.G.)
2. Divisional Railway Manager,
South East Central Railway,
Nagpur Division, Nagpur. .... PETITIONERS.
VERSUS
Smt. Ganeshibai Alias Sunderibai
w/o Late Shri Ghasiram s/o Arjun
Gond, residing at c/o. Shanti Yadav
Gang Quarters, Behind Bhola School
Motibagh, Nagpur 440004. .... RESPONDENT.
----------------
Shri N.P. Lambat, Advocate for Petitioners.
Shri R.D. Dhande, Advocate for the Respondent.
-----------------
CORAM : A. S. CHANDURKAR
& VINAY JOSHI, JJ.
CLOSED FOR JUDGMENT ON : 05.03.2020
JUDGMENT PRONOUNCED ON : 15.04.2020
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Judgment wp6973.16
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JUDGMENT (PER VINAY JOSHI, J) :
Challenge in this petition is by petitioners Union of India through it General Manager, South East Central Railway (SECR) to the legality and correctness of the order dated 18.07.2016, passed by the Central Administrative Tribunal, Mumbai Bench, Camp at Nagpur [CAT] in Original Application No.2090/2015, by which the CAT has directed to release family pension to the then applicant/respondent herein.
2. The facts giving rise to the present petition in brief are that one Ghasiram was working as a Gangman with SECR. He retired on superannuation on 30.06.2001. He had a wife namely Sunderbai, who died on 25.08.2002, whilst Ghasiram died on 12.03.2003. One Ganeshibai / respondent claimed to be second wife of Ghasiram and accordingly she had claimed family pension from petitioners by issuing various communications and particularly legal notice dated 21.03.2008. It was her claim that she being widow of Ghasiram in the capacity of legally wedded wife, is entitled for family pension after demise of Ghasiram. Pension claim of Ganeshibai came to be rejected by petitioners SECR vide communication dated 11.03.2006. It was informed that the ::: Uploaded on - 15/04/2020 ::: Downloaded on - 16/04/2020 06:13:01 ::: Judgment wp6973.16 3 Railways through Section Personal Inspector investigated the pension claim and found that Ganeshibai was second wife of deceased employee - Ghasiram, and therefore, she is not entitled for pension. It is stated that though pension papers submitted by Ghasiram bears a joint photograph of Ganeshibai with Ghasiram, however, Ghasiram misrepresented by stating her name as Sunderbai. Precisely, the claim was Ganeshibai was rejected on the count that she is not legally weeded wife of Ghasiram.
3. Being aggrieved by the said communication dated 11.03.2008, respondent preferred Original Application No.2133/2012, claiming family pension. In said round of litigation, respondent claimed that she belongs to a tribal community namely 'Gond', and her late husband also belong to said community. As per the custom prevailing in said community, second marriage is permissible, and therefore, her marriage is legal and she is entitled for family pension. The CAT observed that during enquiry the railway department itself found that the deceased employee had married twice during his life time and Ganeshibai/respondent, is his second wife. The Tribunal referred to Rule 75 of the Railway Services (Pension) Rules, 1993 (1993 Rules), wherein sub-rule [7][i] [a] of Rule 75 of the 1993 Rules, stipulates that where the family ::: Uploaded on - 15/04/2020 ::: Downloaded on - 16/04/2020 06:13:01 ::: Judgment wp6973.16 4 pension is payable to more widows than one, the family pension shall be paid to widows in equal shares. In view of that the Tribunal directed petitioners to consider the case of respondent afresh in adherence to Sub-rule [7][i][a] of Rule 75 of the 1993 Rules, and also in the light of the relevant provisions of Hindu Marriage Act, 1955 and judgment delivered by the Madhya Pradesh High Court in case of Kumari Bai .vrs. Anandrao.
4. The said order was challenged by petitioners before this Court in Writ Petition No.6608/2014, however, the same came to be dismissed vide order dated 10.12.2014. In the wake of such position, petitioners have reconsidered the claim of respondent and vide impugned communication dated 06.01.2015, was pleased to reject the claim. Petitioners Railway observed that Ganeshibai belongs to Gond Scheduled Tribe, and as per the custom, second marriage is permissible in the said community. The authority though accepted said view expressed by the Madhya Pradesh High Court in Kumaribai's case, however, held that unless husband has divorced his first wife, second marriage is not permissible. The authority further stated that the deceased employee has not complied with Rule 21 of the Railway Servants Conduct Rules, 1966 (1966 Rules), which imposes restriction regarding marriage, as no railway servant ::: Uploaded on - 15/04/2020 ::: Downloaded on - 16/04/2020 06:13:01 ::: Judgment wp6973.16 5 shall enter into marriage with any person have spouse living, unless requisite permission is sought by the Railway servant on satisfying that such marriage is permissible under the personal law applicable to him and other party to the marriage. Said Rule 21 of the 1966 Rules, reads as under :
"21. Restrictions regarding marriage : [1] No railway servant shall enter into, or contract a marriage with a person having spouse living and, [2] No railway servant, having a spouse living shall enter into, or contract, a marriage with any person.
[3] A railway servant who has married or married a person other than of Indian Nationality shall forthwith intimate the fact to the Government. Provided that the government may permit a railway servant to enter into, or contract, any such marriage as is 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 railway servant and other party to the marriage; and [b] there are other grounds for so doing."
5. The authority contended that no such permission was sought by deceased Ghasiram, nor he has informed the railway administration about second marriage and therefore, due to breach of Rule 21 of 1966 Rules, the claim for family pension would not sustain. Moreover, it is also contended that the deceased railway ::: Uploaded on - 15/04/2020 ::: Downloaded on - 16/04/2020 06:13:01 ::: Judgment wp6973.16 6 employee has misrepresented the railways by affixing photograph of respondent on provisional pension papers by naming her as Sunderabai, who was first wife.
6. It is apparent from the record that the deceased employee has claimed to be belonging to Gond community, a Scheduled tribe and it is an admitted fact. Moreover, petitioners have also admitted that respondent is second wife. There is reference in the earlier communication dated 11.03.2008, that the railway department has conducted an enquiry wherein it was found that Ganeshibai is second wife of the deceased employee. In view of such an admitted fact, we have gone through the judgment delivered by the Madhya Pradesh High Court in case of Kumaribai, wherein it is held that the second marriage was permissible in Gond community. Contextually, we have also gone through the provisions of Section 2[ii] of the Hindu Marriage Act, which provides exception to Scheduled Tribes about applicability of the provisions of the Hindu Marriage Act. Moreover, said position is well accepted by petitioners in their impugned communication dated 06.01.2015. While rejecting the claim of respondent, the authority has held that though Madhya Pradesh High Court approved customary second marriage in Gond community, however, it was subject to the ::: Uploaded on - 15/04/2020 ::: Downloaded on - 16/04/2020 06:13:01 ::: Judgment wp6973.16 7 preceding divorce. Apparently, the authority has misdirected itself by conjointly reading two separate aspects of the judgment rendered by the Madhya Pradesh High Court. The relevant portion of paragraph no.6 of the judgment delivered by Madhya Pradesh High Court in case of Kumaribai is reproduced hereinbelow :
"6. In view of the conflicting finding of fact by the trial Magistrate ad the first revisional Court, it appears clear that this Court should go into certain aspects of the statements of the witnesses to assess what are their versions regarding marriage between the petitioner and respondent. It is not in dispute that provisions of Hindu Marriage Act do not apply to these parties. These are people of Aboriginal Tribe of Gonds, so they are governed by the local customs with regard to marriages. Among them it is now well accepted that ceremony of marriage need not be performed as formally as in Shastrik Hindu Law. They have their customary forms of marriages. At least in second marriages which are common among them, they follow the custom of offering Churi to the bride by bridegroom. There is also accepted custom of leaving the wife and this results in divorce when there is an express agreement to divorce."
7. It is thus crystal clear that the Madhya Pradesh High Court ruled that the provisions of Hindu Marriage Act do not apply to the people belonging to Gond community, which is a Scheduled ::: Uploaded on - 15/04/2020 ::: Downloaded on - 16/04/2020 06:13:01 ::: Judgment wp6973.16 8 tribe. They have their customary forms of marriage. Thus second marriage is common among them, they follow the custom of offering Churi to the bride by bridegroom. In same case, the Madhya Pradesh High Court also noted another accepted custom followed in Gond community which is about divorce. In that regard, it is stated that there is also accepted custom of leaving the wife and this results in divorce. Apparently, there is no connection in between the custom followed amongst Gond about performing second marriage and another custom of taking divorce. Both factors are distinct, and is a reiteration of two different customs followed in the community. The Madhya Pradesh High Court never stated that unless there is customary divorce there can be no customary second marriage in Gond community. The authority has totally misread the observations of the Madhya Pradesh High Court. The CAT has well explained the said position in the impugned judgment and rejected the reasoning furnished by petitioners on said count.
8. The next question is about non informing about second marriage to railway department and non compliance of Rule 21 of the 1966 Rules. True, the deceased railway employee had not complied with the said provisions by seeking prior permission or by informing the same to the authority. It is equally true that during ::: Uploaded on - 15/04/2020 ::: Downloaded on - 16/04/2020 06:13:01 ::: Judgment wp6973.16 9 life time of deceased employee, the railway department had not taken any action about misconduct which cannot be invoked after his demise. The crucial aspect is whether non compliance of Rule 21 would vitiate the claim of family pension.
9. Reverting to Rule 75 [7][i][a] of 1993 Rules, it stipulates that where pension is payable to more widows than one, the family pension shall be paid to the widows in equal share. Therefore, it is apparent that the rule making authority has made provision for payment of family pension to second wife in certain contingency. Though Rule 21 of the 1966 Rules, mandates to take prior permission for second marriage, however, non obtaining of such permission would not change the status of said marriage. Notably, the parties belong to Gond community to whom the provisions of Hindu Marriage Act are not applicable. The personal law applicable to them permits customary second marriage. In this situation, mere non obtaining prior permission from railway department would not ipso facto make the marriage void which was otherwise legal as per the personal law. At the most non compliance of Rule 21 of obtaining prior permission would be an irregularity, but, it would not change the status of marriage. The converse situation can be hypothetically seen that if the parties are governed ::: Uploaded on - 15/04/2020 ::: Downloaded on - 16/04/2020 06:13:01 ::: Judgment wp6973.16 10 by the provisions of Hindu Marriage Act, then such permission obtained under Rule 21 from the railway department would not legalize the marriage which is otherwise void under the provisions of the Act.
10. We have no doubt in our mind that the provisions of Rule 75 of the 1993 Rules are beneficial social legislation and purposely the said provision was made to provide pension to more than one widow, if law permits. To summarize the position, the deceased employee and respondent belong to Gond community which is a Scheduled Tribe to whom the provisions of Hindu Marriage Act are not applicable. Admittedly, customary second marriage is permissible in the community, and therefore, their marriage is not void and as such respondent Ganeshibai can be called as a widow of the deceased railway employee. Mere non obtaining prior permission for such marriage in terms of Rule 21 would not change the status of marriage, which is otherwise legal and valid as per the prevailing custom in the community. Therefore, respondent Ganeshibai is entitled to pensionary benefits.
11. The CAT while allowing the family pension claim of respondent has relied on the decision of this Court in case of Union of India .vrs. Jaywantibai Ramdao Kewoo - 2015 (2) Mh.L.J.328, ::: Uploaded on - 15/04/2020 ::: Downloaded on - 16/04/2020 06:13:01 ::: Judgment wp6973.16 11 wherein the Division Bench of this Court considered the provisions of Rule 75 and ultimately held that second wife is entitled to pensionary benefits. As against this, petitioners have brought to our notice another Division Bench judgment of this Court in case of Chanda Hinglas Bharati .vrs. State of Maharashtra and others - 2016 (2) Bom CR 623, wherein this Court held that second wife is not entitled for pensionary benefits, since she cannot be termed as widow in legal conspectus. Petitioners also took us through another Division Bench judgment of this Court in case of Ramabai Gulabrao Jamnik .vrs. State of Maharashtra and others (Writ Petition No.874/2017, decided on 20.06.2017), wherein this Court approved the view expressed by this Court in case of Chanda [supra], and ruled that second wife is not entitled for pensionary benefits.
12. In view of these conflicting decisions, the matter was referred to Full Bench of this Court in case of Kamlabai .vrs. State of Maharashtra - 2019 (3) Mh.L.J. 921. The prime question for consideration was whether second wife is entitled for pensionary benefits. In that context, the Full Bench has answered the issue that the family pension cannot be claimed by second wife if she is not a legally wedded wife, and if the second wife is legally wedded wife, then she would be entitled for family pension. Infact all these ::: Uploaded on - 15/04/2020 ::: Downloaded on - 16/04/2020 06:13:01 ::: Judgment wp6973.16 12 decisions relate to parties who are governed by the provisions of Hindu Marriage Act. Apparently, any marriage solemnized in contravention to the conditions specified in Clauses [i], [iv] and [v] of Section 5 would be void marriage within the meaning of Section 11 of the Hindu Marriage Act. In that context, it is expressed that a second wife is not a legally wedded wife and therefore, she cannot be called as a widow and therefore, she is not entitled to family pension. However, the Full Bench has clarified that if the second wife is legally wedded wife, then she is entitled for family pension. As elaborated above, the parties are from Gond community where second marriage is permissible in custom. The said marriage is not void, and therefore, the second marriage being legal, the second wife Ganeshibai can be termed as widow of Ghasiram, deceased railway employee, and in view of Rule 75 of the 1993 Rules, she is entitled to family pension.
13. In view of above, we do not find any error committed by the Central Administrative Tribunal in allowing the original application filed by the respondent. The Writ Petition being devoid of any merit is dismissed. Rule discharged. No costs.
JUDGE JUDGE
Rgd.
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