Madras High Court
Smt.S.Kamatchi vs The Accountant General on 6 August, 2014
Author: S.Vaidyanathan
Bench: S.Vaidyanathan
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 06-08-2014 CORAM THE HONOURABLE MR. JUSTICE S.VAIDYANATHAN W.P.No.31990 of 2012 and M.P.No.1 of 2012 Smt.S.Kamatchi .. Petitioner vs. 1.The Accountant General, O/o.Principal Accountant General, (Accounts and Entitlements) Tamil Nadu, 361, Anna Salai, Chennai-600 018. 2.The Assistant Elementary Educational Officer, Thiruvarur. .. Respondents Writ Petition is filed under Article 226 of the Constitution of India, praying for the issue of a Writ of Certiorarified Mandamus, calling for the records pertaining to Pen.33/7/Pt.4099/11-12/150-1450-92 dated 12.12.2011 passed by the first respondent and quash the same and further direct the respondents to disburse the family pension and other related pensionary benefits including the life time pending arrears to the petitioner pending disposal of the above writ petition. For Petitioner : Ms.S.Hemalatha for Ms.S.S.Jayanthi. For Respondent-1 : Ms.J.Sreevidya For Respondent-2 : Mr.RM.Muthukumar, Government Advocate. O R D E R
The petitioner has filed this writ petition for the issuance of a Writ of Certiorarified Mandamus, calling for the records pertaining to Pen.33/7/Pt.4099/11-12/150-1450-92 dated 12.12.2011 passed by the first respondent and quash the same and further direct the respondents to disburse the family pension and other related pensionary benefits including the life time pending arrears to the petitioner pending disposal of the above writ petition.
2. Heard Ms.S.Hemalatha, learned counsel appearing for the petitioner, Ms.J.Sreevidya, learned counsel appearing for the first respondent and Mr.RM.Muthukumar, learned Government Advocate for the second respondent.
3. The second wife is before this Court seeking pension due to her husband Subramanian who died on 5.2.2010. The case of the petitioner is that she got married one Subramanian on 3.7.1981 and gave birth to a son. Subsequently she came to know that her husband already married one Saroja. The petitioner submitted that through Saroja, her husband got two children. The case of the petitioner is that all the 3 children are aged above 25 years and they are not entitled to any pension. Her husband Subramanian died on 5.2.2010. The case of the petitioner is that after the demise of Saroja, the name of the petitioner has been incorporated in the service records wherein the husband has nominated the name of the second wife as a nominee along with other children. The nomination was given at the time of voluntary retirement of the petitioner's husband, on 31.3.2003. The petitioner has produced the legal heir certificate showing the name of the 3 children born to the deceased Subramanian through the first wife and the second wife and that the children are above 25 years of age and that the daughter is already married. The case of the petitioner is that she is entitled to pension in terms of the Tamil Nadu Pension Rules 49 (7) (a) (i), which reads as follows:
(7)(a)(i) Where family pension is payable to more widows than one, the family pension shall be paid to widows in equal shares.
4. Therefore, the petitioner is entitled to pension and that the family pension shall be paid to more than one widow, but it should be in equal shares. The case of the petitioner is that when the deceased at the time of retirement had declared the second wife viz., the petitioner herein, as a nominee and that the first wife was no more, the petitioner is entitled to the family pension in full. The second respondent has not filed any counter, but referred to a letter stating that they have recommended the case of the family pension to the petitioner as the first wife was not alive. In that letter they have stated that the first wife died on 19.9.1989 and that Subramanian died on 5.2.2010. The petitioner further submitted that even though Subramanian had taken photograph along with the petitioner for getting the pensionary benefits and forwarded the same to the second respondent, there is no entry in the records to show that Saroja, the first wife of Subramanian, is no more. They have also stated that family pension has been paid to the person.
5. The first respondent filed a detailed counter stating that there is no legal marriage between the petitioner and the deceased Subramanian showing the marriage had taken place during the subsistence of the first marriage and hence it is not a valid marriage in terms of the law of Hindu Marriage Act. The petitioner also relied upon an order dated 2.6.1992, clarifying the benefits that flow to the wives provided the personal law permits and the relevant portion is extracted below:-
The second wife gets the status of legal wife in two cases viz., (1) second marriage solemnised as per the customary law among the Community before coming into force of the Hindu Marriages Act, 1955 and (2) the second marriage solemnised as per legal requirements in the case of persons governed by Mohammedan Law where bigamy is permissible. Hence these are the 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.
6. The counsel also relied upon a decision of this Court in W.P.No.45 of 1996 dated 14.9.2001 contended that this Court has dismissed the reliefs to the second wife on the ground that she got married to the Government Servant during the subsistence of the earlier marriage. The second respondent also relied upon a decision of the Supreme Court in Rameshwari Devi vs. State of Bihar {2000 (2) SCC 431} to state that the second wife, who got married to the Government Servant during the subsistence of the earlier marriage, is not entitled to the family pension. The contention of the second respondent is that if there are more than one wife, the person should be legally wedded wife and the children born out of the second marriage are even though illegitimate, they are entitled to pension benefits provided the children should not have crossed the age of 25 years and further the conditions laid down in Rule 49 of the Pension Rules should be followed.
7. In an unreported judgment of the Madurai Bench of this Court in W.P.(MD) No.13372 of 2012 dated 4.4.2014 wherein the first wife has filed the said writ petition claiming pensionary and other benefits due to the late husband and that the second wife will not be entitled to any benefits. My brother Judge Mr. Justice R.Mahadevan, has granted the relief to both the wives relying upon Rule 49(6) and held that both the wives are entitled to the benefit of pension in equal shares.
8. In the present case, the second wife has come before this Court and the contention of the first respondent is that when there is a subsistence of marriage, the marriage of the petitioner with Subramanian during the lifetime of the first wife, was illegal and hence she is not entitled to any benefit. For the sake of convenience, this Court would like to refer to the provisions of the Domestic Violation Act, 2005.
9. The Parliament to protect the interest of women, who end up as a second wife or a concubine as a result of long living with a male companion, has enacted the Protection of Women from Domestic Violence Act, 2005. Section 2(f) of the said Act reads as follows:-
Domestic Relationship means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family.
10. The Parliament in order to protect the interest of women, has enacted this Act. But neither the legislative nor the Court has encouraged the second marriage under the Personal Law except under Mohammedan Law. After the demise of the first wife on 19.9.1989, the petitioner and Subramanian have lived together for more than 11 years and thereby the living relationship of the petitioner with Subramanian has been established. The second respondent has recommended the case of the petitioner. The deceased Subramanian also has included the name of the petitioner as a nominee on the date of his retirement in the requisite forms to enable him and the family members to get pension or other terminal benefits in case of his demise.
11. A glance at Rule 49 makes it very clear that the provisions of the Hindu Marriage Act, Rule 49 is independent. Even the children born to the first wife are excluded to get the pensionary benefits during the life time of the first wife. The Rule has been enacted to give protection to the women who are almost on streets after the demise of the employee/bread winner of the family. The second marriage at the time of subsistence of the first marriage may be illegal. De hors the Personal Law, the Government Rules permits the second wife to get pensionary benefits that has been held to be valid by the Madurai Bench of this Court in W.P.(MD) No.13372 of 2012 dated 4.4.2014. In that case, after the demise of the person, two wives were survival. In this case, the first wife is no more. The first respondent has recognised the petitioner as the wife of the deceased Subramanian.
12. Taking note of the above said Rule, I find much force in the contention of the writ petitioner and the writ petition is allowed and the impugned order is set aside. The first respondent is directed to consider the claim of the writ petitioner and grant all benefits to the petitioner from the date of demise of her husband Subramanian on 5.2.2010 if not already paid, within a period of 3 months from the date of receipt of a copy of this order.
13. The writ petition is disposed of on the above terms. No costs. Consequently connected miscellaneous petition is closed.
06-08-2014 Index : Yes/No. Internet: Yes/No. Svn To
1.The Accountant General, O/o.Principal Accountant General, (Accounts and Entitlements) Tamil Nadu, 361, Anna Salai, Chennai-600 018.
2.The Assistant Elementary Educational Officer, Thiruvarur.
S.VAIDYANATHAN, J.
Svn W.P.No.31990 of 2012 06-08-2014