In view of the admitted fact in the present case that the writ petitioner married the deceased employee as second wife during the lifetime of the first wife, the order of rejection passed by the respondents is in consonance with the Tamil Nadu Pension Rules in force and there is no infirmity as such. Judgecs m subramaniyam govt adv bindren

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 15.07.2022

CORAM

THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM
W.P.No.32556 of 2014

Santhi …Petitioner

Vs.

1.The Secretary to Government,
Government of Tamil Nadu,
Finance and Pension Department,
St.George Fort, Secretariat,
Chennai – 600 009.

2.The Principal Accountant General (A&E)
361, Anna Salai,
Teynampet, Chennai – 600 018.

3.The Assistant Elementary Educational Officer,
West Arni, Arni, Tiruvannamalai District. ..Respondents

PRAYER : Writ Petition filed Under Article 226 of the Constitution of India, to issue a Writ of Certiorarified Mandamus, calling for the records of the 2nd respondent by in his proceedings Pen 32/4/ppt/5158/ 11-12/A90 4018 dated 16.2.2012, quash the same and consequently direct the respondent to sanction the family pension from the date of death of petitioner’s husband namely Dhanushkotti.

For Petitioner : Mr.K.Prasath
For Mr.M.Mariappan

For Respondents : Mr.M.Bindran
[For R1 and R3] Additional Government Pleader

[For R2] : M/s.T.S.Selvarani

ORDER

The order of rejection, rejecting the claim of the writ petitioner for grant of family pension is under challenge in the present writ petitioner.

2. The writ petitioner states that her husband Late Mr.Dhanushkotti got married one Janniammal, who is none other than the elder sister of the writ petitioner. The said Janniammal was suffering an illness and therefore, the husband of the writ petitioner married the writ petitioner as second wife. It is an admitted fact that the petitioner married the deceased employee Late Mr.Dhanushkotti on 14.09.1975, when his first wife was alive. The husband of the writ petitioner was working as Teacher in Primary School. He retired from service on 31.05.1997. After his retirement, he was receiving pension and died on 10.06.2010. Thereafter, the petitioner submitted an application for grant of family pension. The said application was rejected by the Principal Accountant General of Tamil Nadu on the ground that the second marriage of deceased employee Late Mr.Dhanushkotti with the petitioner Tmt.Santhi was solemnized on 14.09.1975, admittedly, when the first wife was alive. Therefore, the petitioner is not eligible for family pension. A Government employee, contracting a second marriage during the lifetime of the first wife is a misconduct and he is liable to be prosecuted for bigamous marriage. That apart, the second marriage during the lifetime of the first wife is not a valid marriage under the Hindu Marriage Act, 1955 and therefore, the second wife cannot be construed as a widow within the meaning of Tamil Nadu Pension Rules, 1978. When the marriage became invalid, the question of granting family pension under the Tamil Nadu Pension Rules would not arise at all.

3. As per the pension scheme, the family pension is to be paid only to the spouse i.e., legally wedded spouse of an employee. Once the authorities came to know that the family pensioner is not a legally wedded spouse of the deceased employee, then they cannot sanction and pay the family pension. In such circumstances, the spouse has to establish that he/she is the legally wedded spouse of the deceased employee.

4. The scope of Tamil Nadu Pension Rules for grant of family pension under Rule 49 was elaborately considered by the Hon’ble Division Bench of this Court in the case of R.Rajathi Vs. The Superintendent Engineer dated 05.06.2018 in W.A.No.977 of 2017. That apart, Rule 49 (7) of Pension Rules contemplates the pension is payable for more than one widows. The language employed is “payable”. Thus, if more than one widow is eligible for family pension and such family pension is payable to the second widow, then only the question of sharing the pension under Rule 49 of the Pension Rules would arise, but not otherwise. The payability/eligibility of family pension for more than one widow would arise, only if two wives are permissible. Such a situation was considered by the Rule makers since the marriage solemnized prior to Hindu Marriage Act, 1955 was considered as valid. Prior to the year 1955, contracting a second marriage during the lifetime of the first wife was permitted and therefore, the sharing of family pension arouse and the provision was enacted. However, after the year 1955, second marriage is not only misconduct under the Government Servants Conduct Rules, but prohibited. Therefore, the question of now sharing of family pension in respect of invalid marriage would not arise at all.

5. Rule 49 of the Tamil Nadu Pension Rules deals with “Family Pension”. Rule 49 (7) (a) (i) contemplates that “Where family pension is payable to more widows than one, the family pension shall be paid to widows in equal shares.”

6. Relying on the above provision, applications are filed by the second wives, seeking family pension after the death of the deceased employee.

7. Question arises, whether a pension can be shared under Rule 49 (7) (a) (i) of the Tamil Nadu Pension Rules, 1978, when the marriage is invalid.

8. The language employed in Rule 49 (7) (a) (i) is that, “where family pension is ‘payable’ to more widows than one”. Therefore, if the family pension is payable to the more widows than one, then alone, the family pension can be shared, but not otherwise.

9. Question of ‘payability’ would arise only if the applicant is the widow. The question of widow would arise only if the marriage is the valid marriage. Based on an invalid marriage, the second wife cannot claim the status as “widow”. When admittedly, the applicant is the second wife of the deceased employee and she is not a widow, then the family pension is not payable, and the question of invoking Rule 49 (7) (a) (i) would not arise at all.

10. Further question arises, why such a rule has been incorporated in the Tamil Nadu Pension Rules. It is obvious that at the time of framing the rules, the employees, who have solemnized second marriage prior to the year 1955, i.e., before the Hindu Marriage Act, was considered as a valid marriage. In those circumstances, when the second marriage was a valid marriage, the rule contemplates sharing of the family pension. Therefore, only if the second marriage is valid under the Law, then alone, the pension is payable, which can be shared between two widows, but not otherwise. When the pension rule was enacted, there were many such cases, where, employees had two wives and the marriage with the second wife was solemnized prior to the Hindu Marriage Act before the year 1955 and thus, this Court is of the considered opinion that those circumstances cannot be taken undue advantage by the second wife, whose marriage was solemnized after the Hindu Marriage Act and became invalid. Thus, the second marriage solemnized during the lifetime of the first wife is an invalid marriage and an invalid marriage would not provide the second wife status as “widow”. When she is not holding the status as ‘widow’, the family pension is not payable and consequently, the family pension cannot be shared or paid.

11. Even looking into the provisions independently, Rule 49 (7) (a) (i) speaks about sharing of family pension between widows. It does not speak about sanctioning of family pension to the second wife. Rule 49 (7) (a) (i) says that, where family pension is payable to more widows than one, then it is to be divided in equal shares. When the provision is unambiguous regarding the sharing of family pension between two widows, the said provision cannot be applied for the purpose of sanctioning family pension for the second wife, whose marriage was not solemnized in accordance with law.

12. In this regard, the Accountant General of Tamil Nadu sought for clarification from the Government and the Government also clarified that the second wife, whose marriage was solemnized during the life time of the first wife of an employee, then such second wife is not eligible for family pension under the Tamil Nadu Pension Rules and the said clarification is extracted in paragraph 5 of the counter, which reads as under:
“The family pension is the amount that is due to the eligible family member in the event of death of a pensioner that requires authorisation from this respondent. It is also submitted that the provisions of the Tamil Nadu Pension Rules 1978 as amended from time to time and the Government orders issued there under with regard to grant of family pension is respect of cases involving two wives of a deceased male Government Servant are elucidated below:
As per Rules 49(7) (a) (1) of the Tamil Nadu Pension Rules, where family pension is payable to more widows than one, the family pension shall be paid to widows in equal shares. The Government of Tamil Nadu, in their letter NO.80668/Pension/88-12 dated 29.06.1990[Finance(Pension) Department], clarified the provisions of Rule 49 as follows:
“I am to clarify that the intention of the above Rule is to allow Family Pension in equal shares only to legally weeded wives. In the case of a Government Servant who solemnised second marriage when his first marriage subsisted, the second wife cannot claim the status of wife in the eye of Law. The provision of Law is that where there is a marriage subsisting, no person can legally solemnise another marriage and if a second marriage is effected either by registration or otherwise, that marriage is a nullity and as such the second wife is not entitled to claim Family Pension”.
Further clarifying the above Rule, the Government of Tamil Nadu, in their letter No.112351/Pension/90-4 dated 02.06.1992 [Finance(Pension) Department] pointed out as follows:
“The Second wife gets the status of legal wife in two cases viz. (1) Second marriage solemnized as per the customary law among the community before coming into force of the Hindu Marriage 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”.”
13. That apart, a Division Bench of the High Court of Bombay, in the case of Smt.Shamal Mahadeo Tate vs. District Collector, Solapur, Zilla Parishad Compound and others, reported in 2022 0 Supreme(Bom) 23, held as follows:-
“12 . In our considered opinion, the substantial issue elucidated hereinabove stands squarely answered by the Supreme Court in a catena of judgements and the position of law in this regard stands more than well-settled.

12.1 The Supreme Court, in Rameshwari Devi case (supra), has clearly opined that the putative second wife cannot be described as the widow of the deceased government employee. The Supreme Court applied the statutory provisions under Section 5 (i) read with Section 11 of the HMA and held that the marriage of the deceased employee to the putative second wife is void as, at the time of such marriage, his first wife was alive and his marriage with her was still subsisting. That being the case, the Supreme Court ruled that the second wife in such cases is not entitled to family pension.

12.2 The Supreme Court in the case of Raj Kumari vs. Krishna, 2015 (14) SCC 511 similarly opined that normally, family pension is given to the legally wedded wife of a deceased government employee. In the aforesaid case, the deceased government employee had married the plaintiff therein while the former’s first wife was alive and his marriage with her was still subsisting. As such, the Supreme Court held that the plaintiff could by no stretch of imagination be described as the legally wedded wife of the deceased government employee.

12.3 A view similar to the above has also been adopted by this Court in Draupada @ Draupadi Jaydev Pawar & Ors. vs. Indubai (supra). The learned Single Judge has, with authority, referred to the judgements passed in the Chanda Hinglas Bharati (supra) and Rameshwari Devi (supra). The relevant excerpts are Paragraphs 35 to 37 and are reproduced hereinbelow:
“35. During the course of arguments of Chanda Hinglas Bharati (supra) in November, 2015 the counsel of second wife placed heavy reliance on the earlier judgment of the Division Bench in the case of Jaywantabai. The judgment of learned Single Judge in the case of “Kantabai” was not placed before the Division Bench. The learned Judges of the Division Bench in the case of Chanda Hinglas Bharati have considered number of judgments. The ratio laid down by the Division Bench is specific and clears all the doubts in respect of interpretation of Rule 116(6)(a)(i) of Maharashtra Civil Services (Pension) Rules and Rule 26 of Maharashtra Civil Services (Conduct) Rules. The Division Bench has referred and relied the cases of Rameshwari Devi (supra) and Vidyadhari v. Sukhrana Bai, reported in (2008) 2 SCC 238. The Division Bench has held thus:
“The Maharashtra Civil Services (Pension) Rules were brought into force in the year 1982. Rule 116 (6)(a)(i) opens with the clause, “Where the Family Pension is payable to more widows than one”. The provisions of Sub-Rule 6(a) (i) of Rule 116 of the Rules would apply only in a case where the family pension is payable to more widows than one. The primary question would be, whether the family pension is payable to more widows than one. When would a second widow or more than one widows be entitled to pension. In our considered view, more widows than one would be entitled to pension only if the Hindu employee has married the woman (widow) before the coming into force of the Hindu Marriage Act on 18.5.1955 and in case of employees where such marriage is permissible under the personal law applicable to the said employee or Government servant and the other party to the marriage. It appears from the provisions of Maharashtra Civil Services (Conduct) Rules that the marriage during the life time of a spouse could be accepted only if the marriage is permissible under the person law applicable to both the parties to the marriage.”

36. In the said judgment, the Division Bench has rightly linked up meaning of widow to the status of wife who is a legally wedded wife. It considered section 5 which speaks about ‘Conditions of Valid Marriage and section 11 on ‘Void marriages and section 17 wherein ‘Punishment for bigamy’ is stated. It also took into account provisions of sections 494 and 495 of the Penal Code, 1860 pertaining to bigamy and also relied on Rule 26 of the Maharashtra Civil Services (Conduct) Rules, 1979, which states thus:
“26. Contracting of marriages
(1) No Government servant shall enter into, or contract, a marriage with a person having a spouse living; and
(2) No Government servant, having a spouse living, shall enter into or contract, a marriage with any person;
Provided that the Government may permit a Government Servant to enter into, or contract, any such marriage as it 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 Government servant and the other party to the marriage; and
(b) there are other grounds for so doing.”
37. The reasoning given by the Division Bench is consistent with the other provisions of law as mentioned above wherein the second marriage is held void. The Indian legal system has adopted monogamy as a legal structure of the marriage institution and, therefore, occasional fractures of second marriage in subsistence of first marriage are held void in law. The second woman cannot be given a status of a legally wedded wife and, as rightly observed by the Division bench, she is not a widow in true and legal sense. A wrong may exist in the Society on a large scale, however it cannot be justified as a righteous custom because of its magnitude. In order to buttress this point, it will not be out of place to give example of give and take of dowry which throws light on the wide gap between the legality and the reality. To take lenient view towards the wrong doers is contrary to law laid down by the legislature. Thus, gap should not be widened by the decision of the Court but it is to be bridged. It is mandatory for the Court to interpret a law which gives true effect to the legislative intent. The Division Bench in the case of Chanda Hinglas Bharati has referred to the relevant provisions under different acts regarding the consequences of second marriage and the status of second woman.” [emphasis supplied]

12.4 We may state that the decision in the Jaywantabai case (supra) has been expressly overruled by a Full Judge Bench of this Court in the Kamalbai case (supra) in view of the decisions of the Supreme Court in the Rameshwari Devi case (supra) and the Raj Kumari case (supra). We may usefully refer to Paragraphs 13 and 14 of the said decision, which read thus:
“13. In the present matters, we are concerned with the entitlement of the second wife to family pension upon the death of the Government employee. For the purpose of family pension the word “family” will have to be interpreted. Subrule (5) of Rule 111 of the Pension Rules defines “family” in relation to the Government servant. Rule 111(5)(i) initially read as “wife or including judicially separated wife or wives in the case of male government servants”. Under notification dated 18-1-2016 clause (i) has been amended and the word “wife” is substituted with the word, “legally wedded wife”. The provision now is read as legally wedded wife or wives. Rule 111 deals with Retirement Gratuity/Death Gratuity. Rule 115 enables the Government servant to nominate one or more persons to receive the retirement gratuity/death gratuity. Proviso (I) to sub-rule (I) of Rule 115 restricts the right of the Government servant to nominate any person other than a member of his family in case he has family. The provision would make it clear that unless wife is legally wedded wife as provided under Rule 111(5)(i) of the Pension Rules, the government servant has no right to nominate such a person. Rule 111(5) of the Pension Rules excludes a wife that is not a legally wedded wife from the definition of family. If the marriage is not legal and valid, the said woman would not be brought within contour of the definition “Family”. Proviso (ii) to Rule 115(1) enables the Government servant to nominate any other person if he has no family, but sub Rule 4 of Rule 115 of the Pension Rules further prescribes that if at the time the government servant had made nomination who had no “family” at the time of making it, same shall become invalid in the event of the government servant subsequently acquiring the “family”. Reading Rules 111 and 115 of the Pension Rules conjointly the only irresistible conclusion that can be drawn is that a nomination can be made by a government servant only of a person who is member of the family, if the said Government servant has a family. The definition of family embodied in Rule 111(5)(i) specifically provides that legally wedded wife or wives only would be a member of the family. The one that is not a legally wedded wife is excluded from the definition of the term “family”.
14. The family pension was initially governed by the Family Pension Scheme 1964 as contained in the Government Resolution dated 08th May, 1964. Same is incorporated in Rule 116. The nomenclature, “Family Pension” connotes payment of pension to the family, a woman who is not legally married cannot be included in the definition of family.” [emphasis supplied]

12.5 Thus, in light of the judicial decisions as outlined hereinabove, the Petitioner in the present case would not be entitled to family pension under the Pension Rules notwithstanding the death of the first wife as the Petitioner’s marriage to the deceased itself is void under the HMA.”
14. In view of the admitted fact in the present case that the writ petitioner married the deceased employee as second wife during the lifetime of the first wife, the order of rejection passed by the respondents is in consonance with the Tamil Nadu Pension Rules in force and there is no infirmity as such.

15. Accordingly, the writ petition stands dismissed. No costs.

15.07.2022
Index : Yes
Speaking order:Yes
kak

To
1.The Secretary to Government,
Government of Tamil Nadu,
Finance and Pension Department,
St.George Fort, Secretariat,
Chennai – 600 009.

2.The Principal Accountant General (A&E)
361, Anna Salai,
Teynampet, Chennai – 600 018.

3.The Assistant Elementary Educational Officer,
West Arni, Arni, Tiruvannamalai District.

S.M.SUBRAMANIAM, J.

kak

W.P.No.32556 of 2014

15.07.2022