Dilip Shrihari Gadewar vs Government Of Maharashtra And Ors
2017 Latest Caselaw 8646 Bom

                                            1             31 WP 6117-07 .odt


         IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                     BENCH AT AURANGABAD


                    WRIT PETITION NO.6117 OF 2007 


        Deelip s/o Shrihari Gadewar, 
        Age   :   Major,     Occ.:   Nil, 
        R/o.: Hadolti, Tq. Ahmedpur, 
        Dist. Latur.                                 ... Petitioner.

                               Versus 
  1) Government   of   Maharashtra 
     Through   :   Secretary,   Women 
     and   Child   Development 
     Department,         Mantralaya, 
     Mumbai - 2. 

  2) Deputy   Commissioner,   Women 
     and   Child   Development, 
     Maharashtra State, Pune.

  3) Secretary, Maharashtra State 
     Social   Welfare   Board, 
     Chembur (E), Mumbai - 71. 
                                                       ...Respondents
                                         -----
 Mr. M.B. Bharaswadkar, Advocate  for  petitioner
 Mr.   S.N.   Moranpalle,   Asst.   Govt.   Pleader   for 
 respondent Nos.1 and 2
 Mr. P.A. Salvi, Advocate for respondent no.3 
                                         -----


                                  CORAM : SUNIL P. DESHMUKH AND
                                         SANGITRAO S. PATIL, JJ.
                               DATE : 13-11-2017




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 JUDGMENT (PER :  SANGITRAO S. PATIL, J.) 

The petitioner has challenged the order dated

15th March, 2007 passed by respondent no.2 - Deputy

Commissioner, Women and Child Welfare Department,

State of Maharashtra, Pune, whereby his claim for

grant of family pension consequent upon the death

of his wife namely Sunanda Hanmantrao Kavtikwar

came to be rejected.

2. The learned counsel for the petitioner

submits that the wife of the petitioner namely,

Sunanda was not medically fit to conceive child.

Therefore, he got married to another woman with

the consent of Sunanda in the year 1988. According

to him, it was permissible to perform second

marriage in view of the provisions of Rule 26(2)

(b) of the Maharashtra Civil Services (Conduct)

Rules, 1979, ("Conduct Rules", for short).

Subsequently, Sunanda was appointed as Bal Sevika

on 16-03-1990. Since it was a regular appointment,

her services were pensionable in view of the

Government Resolution dated 14th June, 1996. She

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died in harness on 6th October, 1995. The

petitioner, being the widower, was entitled to get

family pension in view of the provisions of

Section 116(5) (i) of the Maharashtra Civil

Services (Pension) Rules, 1982 ("Pension Rules"

for short). He submits that the petitioner did

not get remarried after the death of Sunanda.

Therefore, he was entitled to get family pension,

though he had performed second marriage. However,

as per the impugned order dated 15-03-2007,

respondent no.2 wrongly rejected the claim of the

petitioner for family pension on the ground that

he is not widower, since he has got married. The

learned counsel for petitioner prays that the

impugned order may be set aside and the

respondents may be ordered to pay family pension

to the petitioner.

3. On the basis of the replies filed on behalf

of respondent Nos.1 to 3, the learned Assistant

Government Pleader and the learned counsel for

respondent no.3, strongly opposed the petition.

They submit that though the petitioner had got

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married for the second time during the life time

of the deceased Sunanda, after the death of

Sunanda, he cannot be called as a widower and he

would be treated as a married person as per Rule

116 (5) (i) of the Pension Rules. The family

pension is payable to a widower up to the date of

his death or remarriage, whichever is earlier. It

is submitted that since the petitioner had already

got remarried, he was not entitled to get family

pension after the death of Sunanda. They

supported the impugned order.

4. The contention of the learned counsel for the

petitioner that the petitioner was justified in

performing second marriage since the deceased

Sunanda was not medically fit to conceive a child,

has no relevance to the issue - subject matter of

this petition. As per Rule 26 of the Conduct

Rules, it would be misconduct on the part of the

Government servant, who enters into, or contracts

a marriage with a person having a spouse living.

Sub-rule (2) of Rule 26 reads as under:-

"(2) no Government servant, having a

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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 is referred to in clause (1) and (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."

5. In the present case, the petitioner is not a

Government servant. Admittedly, the deceased

Sunanda had not performed second marriage with the

petitioner. In the circumstances, the provisions

of Rule 26 (2) would have no bearing at all on the

question posed for determination in this writ

petition i.e. whether the petitioner is entitled

to get family pension consequent upon the death of

his first wife, when he had already performed the

second marriage.

6. As per Rule 116(5) (i) of the Pension Rules,

in the case of a widower, the family pension is

payable upto the date of his death or remarriage,

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whichever is earlier. The meaning of the word

'widower' as stated in Black's Law Dictionary, 9 th

Edition is "a man, whose wife has died and who has

not remarried". It is true that the petitioner

has not got remarried after the death of Sunanda,

but indisputably, in view of his second marriage

with some other woman during the life time of

Sunanda, may be with the consent of Sunanda, he

would not assume the status of 'widower', who has

not performed marriage. He certainly continues to

be the husband of the woman with whom he has

performed second marriage. It would be rather a

hyper-technical an approach to say that the

petitioner, who has already performed a second

marriage/remarriage, should not be called as a

person "remarried" for the purpose of getting

family pension, only because the said remarriage

was not after the demise of his wife Sunanda. The

intention underlying Rule 116(5) (i) of the

Pension Rules is not to extend the benefit of

family pension to a person, who is enjoying a

marital life with some other woman than the

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deceased Government servant.

7. As stated above, the case of the petitioner

certainly would not fall under Rule 116(5) (i) of

the Pension Rules since he is enjoying the marital

life even after the death of Sunanda. The

petitioner would not be entitled to get family

pension, claiming himself to be the widower of the

deceased Sunanda, since he has remarried.

8. The impugned order being legal and proper

does not call for any interference. There is no

substance in the Writ Petition. It is dismissed.

Rule is discharged. No costs.

 [SANGITRAO S. PATIL]                  [SUNIL P. DESHMUKH] 
       JUDGE                                 JUDGE

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