Madhya Pradesh High Court
Smt. Sudha Mishra vs The State Of Madhya Pradesh on 15 March, 2024
Author: Vishal Dhagat
Bench: Vishal Dhagat
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VISHAL DHAGAT
ON THE 15 th OF MARCH, 2024
WRIT PETITION No. 14499 of 2020
BETWEEN:-
SMT. SUDHA MISHRA W/O LATE SHRI SATANAND
MISHRA, AGED ABOUT 64 YEARS, OCCUPATION:
HOUSEWIFE C/O HOUSE OF VIMLESH GUPTA IN FRONT
OF AKSH KIRANA STORE, GRAM CHHIJAWAR, J.P.
NAGAR, TAH HUZOOR, REWA DISTT. REWA M.P.
(MADHYA PRADESH)
.....PETITIONER
(BY SHRI D. K. TRIPATHI, ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH THROUGH
PRINCIPAL SECRETARY MANTRALAYA VALLABH
BHAWAN BHOPAL (MADHYA PRADESH)
2. ENGINEER IN CHIEF PUBLIC WORKS
D EPARTM EN T SATPUDA BHAWAN BHOPAL
(MADHYA PRADESH)
3. CHIEF ENGINEER PUBLIC WORKS DEPARTMENT
DISTT.REWA (MADHYA PRADESH)
4. EXECUTIVE ENGINEER PUBLIC WORKS
D EPA R TM EN T DIVISION SATNA (MADHYA
PRADESH)
5. DIVISIONAL PENSION OFFICER REWA
DISTT.REWA (MADHYA PRADESH)
6. DISTRICT PENSION OFFICER REWA DISTT.REWA
(MADHYA PRADESH)
7. DISTRICT PENSION OFFICER SATNA
DISTT.SATNA (MADHYA PRADESH)
8. ASHA MISHRA W/O NOT KNOWN BEHIND
Signature Not Verified
Signed by: MONSI
MANNAKUNNIL SIMON
Signing time: 21-03-2024
17:10:48
2
MOTHER TERASA SCHOOL WARD NO. 4
A.G.COLLEGE ROAD PADRA (MADHYA PRADESH)
.....RESPONDENTS
(BY MS. SHWETA YADAV, GOVT. ADVOCATE)
Th is petition coming on for hearing this day, th e court passed the
following:
ORDER
Petitioner has filed this petition under Article 226 of Constitution of India, praying for the following reliefs:-
"(i) to direct the respondent no.1 to 7 to give the benefit of family pension to the petitioner.
(ii) to direct the respondent no.1 to 7 not to release the family pension in favour of respondent no.8 as she is second wife of deceased and not entitled to get the benefit of the family pension.
(iii) to direct the respondents to take decision on the application as filed by the petitioner for granting family pension in her favour."
2. Learned counsel for petitioner submitted that petitioner is legally wedded wife of Late Shri Satanand Mishra, as per provisions of M.P. Civil Service (Pension) Rules, 1976 (hereinafter referred to as 'the Pension Rules"). Petitioner being the first legally wedded wife is entitled to get family pension after the death of her husband. Second wife is not entitled to get family pension. It is submitted that husband of petitioner retired on 30.11.2011 from the post of SDO and he died on 1.7.2020. Husband of petitioner, without giving divorce to petitioner, performed second marriage with respondent no.8. Respondent no.8 is having 2 sons and 2 daughters out of the wedlock. Deceased Satanand Signature Not Verified Signed by: MONSI MANNAKUNNIL SIMON Signing time: 21-03-2024 17:10:48 3 Mishra, in his service record, gave nomination in favour of respondent no.8 whereas it is an admitted fact that petitioner is first legally wedded wife of Satanand Mishra and without giving divorce to petitioner, he performed second marriage with respondent no.8. It is submitted that second marriage is void as per Section 5 of Hindu Marriage Act, therefore, petitioner is entitled to get family pension after death of Satanand Mishra. Learned counsel for the petitioner also relied on judgement passed by Division Bench of this Court in the case of Sita Bai Sinodia and others vs. Regional Provident Fund Commissioner and others, 2002 (3) MPLJ 116 and judgement passed by Single Bench in the case of Smt. Koushalya Bai vs. M.P. State Electricity Board and others, 2006 (1) MPHT 257.
3. On strength of aforesaid judgments, learned counsel for the petitioner prayed for allowing the writ petition filed by petitioner.
4. Learned counsel for respondent no.5 and 6 submitted that respondents had a limited role in this petition. Thereafter second reply was filed by respondent nos.1 to 7. It is submitted that petitioner superannuated from service on 30.11.2011 in the capacity of Sub Engineer in the establishment of P.W.D. During the life time of Government servant, petitioner has not raised any grievance before the answering respondents in respect of second marriage of deceased Govt. employee with respondent no.8. Deceased Govt. employee has submitted a nomination under Section 46 of the Pension Rules and has mentioned the name of respondent no.8 in capacity of his wife. Since the name of respondent no.8 is mentioned in nomination form submitted by deceased Govt. employee, therefore, after his death according to nomination done by him, respondent no.8 is entitled for family pension unless and until nomination made by deceased Govt. employee is set aside by court of competent Signature Not Verified Signed by: MONSI MANNAKUNNIL SIMON Signing time: 21-03-2024 17:10:48 4 jurisdiction or petitioner is declared as legally wedded wife of deceased Govt. employee. It is submitted that as per Rule 69(2)(a)(i) of Pension Rules, person whose name is mentioned in nomination form submitted by deceased Govt. employee, that person shall be entitled for payment of death-cum-retirement gratuity. Rule 69 of the Pension Rules specifically mentions that death-cum- retirement gratuity or family pension or both is or are payable in respect of the deceased Govt. employee. Entitlement of family pension will be covered under Rule 69(2)(a)(i) of Pension Rules, 1976. As per nomination submitted by Government employee, respondent no.8 is entitled to family pension. In addition to aforesaid, it is further submitted that Sub-rule (2) of Rule 44 of Pension Rules, specifically mentions that the person specified in Sub-Rule (1) of Rule 45 will be entitled for the amount of gratuity and pension. Rule 45 also lays down that person on whom right to receive is conferred by means of a nomination under Rule 46 is entitled to receive pension. Petitioner is required to challenge nomination of respondent no.8 and get the relief of declaring that she is legally wedded wife and is entitled to family pension. It is submitted that petition involves highly disputed questions and facts. Facts and issues can only be decided by leading oral and documentary evidence before court of competent jurisdiction. In view of same, writ petition filed by the petitioner is not maintainable and deserves to be dismissed.
5. None appears for respondent no.8. Learned counsel for the petitioner submitted that petitioner has taken various steps for issuing notice to respondent no.8. Publication in newspaper was also made and as per report of High Court also respondent no.8 has refused to accept notice on 15.12.2023. Witnesses have testified of refusal to accept notice. Publication was made in Signature Not Verified Signed by: MONSI MANNAKUNNIL SIMON Signing time: 21-03-2024 17:10:48 5 the newspaper on 10.5.2022, thereafter efforts were made to serve hamdust notice on respondent no.8 and two witnesses have stated that respondent no.8 has refused to accept notice, therefore, respondent no.8 is treated to be served. In view of aforesaid fact, respondent no.8 is proceeded exparte.
6. Heard the learned counsel for the parties.
7. Petitioner has placed on record order passed by Judicial Magistrate First Class dated 9.12.2015. Said order was passed in the case for grant of maintenance. In said case, deceased Satanand Mishra has not denied that he was not married to petitioner. He also admitted that he had done second marriage with Asha Devi and thereafter has two sons and two daughters from her. It has not been stated that there was divorce between Satanand Mishra and petitioner. Deceased Satanand Mishra took second wife when first wife was alive without taking divorce.
8. Similar matter came up before this Court in W.P(S) No.910/2005 decided on 27.4.2005 in the case of Smt. Koushalya Bai vs. M.P. State Electricity Board and others, 2006 (1) MPHT 257. Relevant part of order dated 27.4.2005 is quoted as under (Paras 3 & 4):-
"3. The question agitated is about the 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, Signature Not Verified Signed by: MONSI MANNAKUNNIL SIMON Signing time: 21-03-2024 17:10:48 6
(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 sister,
(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 nomi- nation 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 Signature Not Verified Signed by: MONSI MANNAKUNNIL SIMON Signing time: 21-03-2024 17:10:48 7 Apex Court in Rameshwari Devi Vs. State of Bihar and others, 2000(3) M.P.H.T. 60 (SC) = AIR 2000 SC 735, 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 Signature Not Verified Signed by: MONSI MANNAKUNNIL SIMON Signing time: 21-03-2024 17:10:48 8 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 mar- riage between Yogmaya Devi and Narain Lal in accordance with Hindu rights. That would, however, not debar the State Govern- ment 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 others. Other documentary evidence were also collected which showed Yogmaya Devi and Narain Lal Signature Not Verified Signed by: MONSI MANNAKUNNIL SIMON Signing time: 21-03-2024 17:10:48 9 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."
9. Division Bench of this Court in the case of Sita Bai Sinodia and others vs. Regional Provident Fund commissioner, 2002 (3) MPLJ 116 , held that law of succession would not be applicable in cases where disbursement of family pension is condition of Pension Rules.
10. On going through aforesaid order passed by Single Bench and Division Bench of this Court, it is clear that second wife is not included in the definition of family. Second marriage during lifetime of first wife is void. Nomination made by employee in favour of second wife in accordance with Rule 46 of Pension Rules shall not be in favour of any person or persons other than the members of his family as defined in Rule 44 of Pension Rules.
11. Since second marriage is void and department may also initiate departmental inquiry if a person has performed second marriage when first wife was alive and is not divorced, therefore, nomination in favour of respondent no.8 does not find favour with this Court. Respondent authorities ought to have conducted an inquiry and if it is found that petitioner is first married wife on basis of evidence and documents placed before it, then petitioner is entitled to family pension and other retiral benefits.
12. In view of above writ petition, filed by petitioner, is disposed off directing respondent authorities to conduct a short enquiry on basis of documents, affidavit and evidence which will be filed by petitioner and respondent no.8. After receipt of said evidence in said inquiry, respondent authorities shall take up all efforts to ascertain whether petitioner is first married wife of deceased and whether there was any divorce between deceased and Signature Not Verified Signed by: MONSI MANNAKUNNIL SIMON Signing time: 21-03-2024 17:10:48 10 petitioner before marriage of deceased with respondent no.8. Said enquiry be completed within period of 3 months and thereafter reasonable and speaking order be passed within further period of one month. Order passed by the respondent authorities be communicated to petitioner and respondent no.8.
13. With the aforesaid direction, writ petition is disposed off.
(VISHAL DHAGAT) JUDGE mms Signature Not Verified Signed by: MONSI MANNAKUNNIL SIMON Signing time: 21-03-2024 17:10:48