Madras High Court
P. Velammal vs The Additional Assistant Elementary on 26 April, 2016
Author: Pushpa Sathyanarayana
Bench: Pushpa Sathyanarayana
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 26.04.2016
CORAM
THE HONOURABLE SMT. JUSTICE PUSHPA SATHYANARAYANA
Writ Petition (MD) No. 3096 of 2016
P. Velammal .. Petitioner
vs.
1. The Additional Assistant Elementary
Educational Office
Sivagangai District
2. The Principal Accountant General
(Accounts and Entitlements)
No. 361 Anna Salai
Teynampet
Chennai ? 18 .. Respondents
Petition filed under Article 226 of the Constitution of India to issue a Writ
of Certiorarified Mandamus calling for the records pertaining to the impugned
order Pen13/IV/Pt.13284/2015-16 dated 08.10.2015 on the file of the
respondent No. 2 and quash the same as illegal and consequently to direct the
respondents to provide the family pension to the petitioner within the time
stipulated by this Court.
!For Petitioner : Mr. T. Lajapathy Roy
^For R 1 : Mr. S. Sadeskumar, AGP
For R 2 : Mr. P. Gunasekaran
:ORDER
Smt. Velammal has invoked the jurisdiction of this Court under Article 226 of the Constitution of India challenging the order dated 08.10.2015 issued by the Office of the Accountant General (Accounts & Entitlements), Tamil Nadu, whereby her claim for family pension has been turned down. She has, inter alia, prayed for quashing of the same in addition to seeking for direction to the second respondent Principal Accountant General to provide her family pension.
2. The case was listed for admission and with the consent of all the learned counsel for contesting parties, it was taken up for final disposal at the stage of admission. I have, accordingly, heard the elaborate arguments advanced on behalf of the parties and also perused the pleadings and records of this case.
3. The material facts as narrated in the pleadings of the petition, indicate that the petitioner is the second wife of late Panchavarnam, who was employed as Assistant Teacher, Panchayat Union Middle School, Malampatti, Sivagangai District. Late Panchavarnam got retired on 30.6.2002 and expired on 17.4.2015. He was survived by the petitioner and her two sons.
4. The further facts of the case are that late Panchavarnam earlier married the elder sister of the petitioner and since she was issueless, he married her as the second wife in the presence of her elder sister and other friends and relatives, as per the Hindu rituals and customs on 26.5.1985 of which she begot 2 male children, who are aged about 27 years and 24 years. The grievance of the petitioner is that when she approached the first respondent to provide her family pension, though the proposal was sent, the same was rejected by the second respondent by order dated 08.10.2015 stating that since her marriage was performed during the subsistence of the previous marriage, she was not entitled for family pension. The said order is impugned in the instant Writ Petition.
5. Learned counsel for the petitioner submitted that even after the second marriage, the petitioner's elder sister and her husband and her sons all lived together under one roof as a single family. Assailing the impugned order, learned counsel submitted that as per Rule 49(7)(a)(i) of the Tamil Nadu Pension Rules, 1978, the second wife is also entitled for pension and sought for the interference of this Court.
6. Opposing the contentions of the petitioner, learned counsel representing the second respondent countered stating that family pension is payable to the legally wedded wife. Learned counsel submitted that as per the rules in force, the petitioner, who is the second wife is not entitled to the family pension of the deceased as her marriage was performed during the lifetime of legally wedded wife. He submitted that the marriage of the petitioner with the deceased is against the Hindu Marriages Act and shall have to be treated as nullity as per the personal law since the matter relates to the persons belonging to Hindu community and as such, according to him, the impugned order requires no interference.
7. As far as the factual aspect of the matter is concerned, it is the admitted position of this case that the petitioner is the second wife of late Panchavarnam, who got married first with the elder sister of the petitioner and the marriage subsisted till the death of latter in 2012. To be noted, family pension is a right of a widow and not the estate of a deceased Government servant and is, therefore, not subject to testamentary deposition. In other words, even the Government servant has no control over the family pension since the exclusive right of the family pension is that of a widow alone due to her widowhood. The family pension is payable to a legally wedded wife alone. In this view of the matter, the family pension cannot be divided or distributed. Therefore, the relief claimed in this petition, as such, cannot be granted.
8. However, I would venture to deal with the other aspect of this case for the reason that the learned counsel for the petitioner relied on the following decisions of this Court to support his contention that second wife is also entitled for family pension in the light of Rule 49(7)(a)(i) of the Pension Rules.
(i) Tamilselvi vs. The Accountant General [W.P. No. 9374 of 2010 disposed of on 22.07.2014]
(ii) S. Kamatchi vs. The Accountant General [W.P. No. 31990 of 2012 disposed of on 06.08.2014]
(iii) P. Visalakshiamma vs. The Director of Schools, Higher Education, Chennai [2014 WLR 478]
(iv) P.S. Shanthi Balakrishnan vs. The Director of Medical Education [W.P. No. 9856 of 2015 disposed of on 02.11.2015]
9. Rule 49(7)(a)(i) of the Pension Rules reads as follows:-
?Where family pension is payable to more widows than one, the family pension shall be paid to widows in equal shares.
.................... ......................... ...............................
.................... ......................... ...............................
[Explanation:- For the purpose of this rule, the second wife shall be eligible for the benefits of family pension only if the second marriage -
(i) solemnised as per the customary law prevailed among the community before the date of commencement of the Hindu Marriage Act, 1955 (Central Act 25 of 1955); or
(ii) solemnised under the Mohammadan Law in which bigamy is permissible.]?
The above explanation to the Rule was introduced by G.O. Ms. No. 906, Finance (Pension) Department dated 06.12.1995 with effect from 2nd June 1992 as per which if any Government servant dies on or after 02.6.1992, the wife of a bigamous marriage, which is void, would not be entitled for family pension. To be noted, in the instant petition, the husband of the petitioner died in 2015 and as such, Rule 49(7)(a)(i) is not applicable.
10. The above explanation to the Rule has been taken into consideration by the learned Judges of this Court in the above cases. In the unreported decision in S.Kamatchi vs. The Accountant General (cited supra), the learned Judge has stated with regard to the same in paragraph 5 of the order and the relevant portion is usefully re-produced hereunder:-
Para 5 : ?...................... ......................... ............................
The second wife gets the status of legal wife in two cases viz., (1) second marriage solemnised as per the customary law prevailed among the community before coming into force of the Hindu Marriage Act, 1955 and (2) the second marriage solemnised as per the legal requirements in the case of persons governed by Mohammadan Law where bigamy is permissible. Hence there are two cases where second marriage is to be considered as valid and second wife is eligible for the benefit available to the widow under the Pension Rules.?
(emphasis supplied)
11. Even in the penultimate paragraph, the learned Judge has stated that though the Parliament has enacted the Protection of Women from Domestic Violence Act, 2005 to protect the interest of women, neither the legislative nor the Court has encouraged the second marriage under the Personal Law except under Mohammedan Law.
12. Law is settled that two Hindus cannot contract marriage after the enforcement of the Hindu Marriage Act and if any of them is having a living spouse, the marriage would be a nullity and would also not be protected under the Conduct Rules, as well as, the pension rules. Therefore, the "second wife" as referred to under the pension rules would only include second wife whose marriage is permissible under the Personal Law, but in the case of Hindus, the second wife will have no right, whatsoever, as the law prohibits second marriage, as long as, the Government servant has a spouse who is alive. Thus for harmonious construction of the Rules governing pension, wherever, the rule provides for wives, it has to be interpreted as per the law governing marriage as applicable to the Government servant and in cases where the second marriage is void under the law, second wife will have no status of a widow of the Government servant and relying on Protection of Women from Domestic Violence Act, 2005, in the opinion of this Court, is only taking a shelter.
13. Even if the claim of the petitioner is to be granted in the light of Section 49(7)(a)(i) of the Rules, as was done in the above cases, the same is only to be rejected for the reason that nowhere in the affidavit nor before this Court it was her case that nominations for Gratuity and Provident Fund were made in respect of the petitioner and her children. Moreover, this Court is at a loss to understand as to why the deceased had failed to nominate the petitioner and her sons in respect of Gratuity and Provident Fund. This Court also cannot take an implied meaning that the deceased was not aware of the Rules since basically, he was a Teacher educating the younger generation. On the other hand, it is to be held that the deceased knowing fully well that the Rule forbids a Government servant to marry second time without the permission of the Government, has avoided to take the risk. Here, the deceased being a Hindu, could never have been granted permission by the Government to marry a second time because of his Personal Law forbidding such marriage. In fact, it would warrant a conviction for bigamy under Section 494 IPC.
14. After the coming into force of the Hindu Marriage Act, 1955, a Hindu male or female cannot marry again during the subsistence of the first marriage and such a marriage would be void ab initio. Section 11 of the Act provides that any marriage solemnized after the commencement of the Act shall be null and void and can be annulled against the other party by a decree of nullity if the same contravenes any of the conditions specified in Clauses
(iv), (iv) and (v) of Section 5 of the Act. Section 5(1) stipulates that the marriage cannot be legally solemnized when either party has a spouse living at the time of such marriage. Therefore, any second marriage by a Hindu Male after the commencement of 1955 Act during the life time of his first wife, will be a nullity and have no legal effect. Such marriage cannot be valid on the ground of any custom. In fact, a custom opposed to an expressed provision of law is of no legal effect. So under these circumstances, the second wife will not be entitled to the family pension as a legally wedded wife.
15. Applying the aforesaid rules / instructions to the facts of this case, I am of the view that the marriage of the petitioner with the deceased during the lifetime of the first wife of the deceased, though blood related, is not valid in the eye of law and, therefore, she cannot be termed as a widow in the strict sense as per Rule 49(7)(a)(i) of the Pension Rules and thus would not be entitled for the family pension as a legally wedded wife. The misplaced sympathy can never take stride over the legislative enactments. No fault can be fastened with the action of the official respondents and the impugned order is unimpeachable.
16. As regards the illegitimate children, since the elder son of the petitioner has crossed 25 years, he will not be eligible for any benefit and it is also not the claim of the petitioner as well. Regarding the younger son of the petitioner, since he is 24 years, the official respondents have not raised any objection.
In view of the foregoing discussion, this Writ Petition fails and the same stands dismissed. However, in the circumstances of the case, there shall be no order as to cost.
To
1. The Additional Assistant Elementary Educational Office Sivagangai District
2. The Principal Accountant General (Accounts and Entitlements) No. 361 Anna Salai Teynampet Chennai ? 18.