Savita Gangaram Chimane vs The State Of Maharashtra And ...
2021 Latest Caselaw 15537 Bom

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        IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                   BENCH AT AURANGABAD

                      WRIT PETITION NO.9933 OF 2016

Kamalbai W/o Venkatrao Nipanikar,
Age 68 years, Occ. Housewife,
R/o: A/p - Nipanikar Niwas,
Signal Camp, Latur.                                 ...Petitioner

                Versus

1.     The State of Maharashtra
       Through its Secretary,
       Finance Department,
       Mantralaya, Mumbai - 400032.

2.     The Accountant General - II (A & E)
       Pension Wing Old Building
       In front of Ravi Bhavan,
       Nagpur.

3.     The Education Ofcer,
       Z.P. Secondary,
       Latur.

4.     The Head Master,
       Shree. Marwadi Rajasthan Vidhyalaya,
       Latur, Tq - Dist - Latur.                    ...Respondents

                                 WITH
                     WRIT PETITION NO.12308 OF 2016

Smt. Savita w/o Gangaram Chimane,
Age 45 years, Occ. Household,
R/o: Ridhi-Sidhi Apartment,
Samarth Nagar, Jalna.                               ...Petitioner

                Versus

1.     The State of Maharashtra
       (Copy to be served upon G.P.
       High Court Bombay bench at Aurangabad)

2.     The Accountant General - II (A & E)
       Maharashtra, Nagpur.

3.     Education Ofcer (Secondary),
       Zilla Parishad, Jalna.
4.     Head Master, Machodhari,



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       Vidhyalaya, Ambad,
       Tq. Ambad, Dist - Jalna.

5.     Smt. Sadhana w/o Gangaram Shinde,
       Age: 50 years, Occu: Household & Agril.,
       R/o. Mahankala, Tq. Ambad, Dist. Jalna.      ...Respondents

                                 WITH
                     WRIT PETITION NO.11256 OF 2016

Mandodhari W/o Uttam Mule,
Age 65 years, Occ. Housewife,
R/o: At: Birsingpur, Post: Dewulghat,
Tq. & Dist. Buldhana                                ...Petitioner

                Versus

1.     The State of Maharashtra
       Through its Secretary,
       Finance Department,
       Mantralaya, Mumbai - 400032.

2.     The State of Maharashtra
       Through its Principal Secretary,
       Agriculture, Dairy Development, Animal Husbandry,
       and Fisheries Department,
       Mantralaya, Mumbai - 400032.

3.     The Accountant General - II (A & E)
       Pension Wing Old Building
       In front of Ravi Bhavan,
       Nagpur.

4.     The Divisional Joint Director,
       Agricultural Ofcer,
       Division, Pune.

5.     The Joint Director,
       Agricultural Department,
       Aurangabad.
       Tq. And Dist. Aurangabad.

6.     The District Superintendent Agricultural Ofcer,
       Jalna, Tq. & Dist. Jalna.

7.     The Sub Divisional Agricultural/
       Soil Conservation Ofce,
       Bhokardhan, Tq. Bhokardhan,
       Dist. Jalna.




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8.      Taluka Agricultural Ofcer,
        Bhokardhan, Tq. Bhokardhan,
        Dist. Jalna.                                   ...Respondents

                                     ...

Mr. V.D. Salunke, Advocate for the Petitioner. Mr. P.R. Katneshwarkar h/f Mr. S.K. Mathpati, Advocate for the Petitioner in WP/11256/2016.

Mr. D.R. Irale Patil, Advocate for the Petitioner in WP/12308/2016. Mr. S.B. Yawalkar, AGP for Respondent Nos.1 to 3 (Respondent Nos.1 to 8 in WP/11256/2016).

Mr. S.S. Tope, Advocate for Respondent No.4 in WP/12308/2016. Mr. R.S. Shinde, Advocate for Respondent No.5 in WP/12308/2016.

...

CORAM : RAVINDRA V. GHUGE & S.G. MEHARE, J.J.

DATED : 28th SEPTEMBER, 2021 PRONOUNCED ON : 28th OCTOBER, 2021

JUDGMENT (PER S.G. MEHARE, J.):-

1. Rule. Rule made returnable forthwith and heard fnally by

the consent of the parties.

2. In these writ petitions, the petitioners are widows. They had

performed the second marriage during the subsistence of the frst

marriage of their husbands.

3. All the petitioners are claiming the same relief of family

pension on the death of their husbands under rule 116 (6) (a) (1) of the

Maharashtra Civil Services (Pension) Rules, 1982.

4. The brief facts of each case are as under :-

(a) In Writ Petition No.9933 of 2016, the petitioner married her

husband since his frst wife did not conceive until 1961. She has

delivered two female and two male children out of wedlock. The

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frst wife of her husband predeceased her after his retirement.

After the death of the frst wife, her husband submitted a revised

pension proposal and nominated her for family pension. The

revised family pension proposal was sent to respondent no.2, the

Accountant General, Nagpur. In the meantime, the pension was

revised. On 29.02.2016, her husband died. She submitted the

pension proposal through respondents nos.3 and 4 to respondent

no.2. Respondent no.2 rejected her claim on 01.07.2016,

assigning the reason that she is the second wife of her deceased

husband. As per the Hindu Marriage Act, the second marriage is

not legal. Therefore, she is not eligible for the family pension.

(b) The case of the Petitioner in Writ Petition No.12308.2016 is that

her husband got married in the year 1986 to her co-wife.

However, she could not conceive till 1995. Therefore, her

deceased husband and his parents convinced her parents to

obtain her consent for marriage. Lastly, she got married to her

deceased husband with the consent of her co-wife. After the

marriage, she was living with her co-wife and husband. She

delivered two children. In the meantime, her co-wife Sadhana

also conceived and gave birth to a male child. Her husband was

getting a voluntary retirement pension. He had informed about his

second marriage with petitioner to respondents no. 3 and 4. Her

husband died on 17.07.2016, leaving behind two wives and three

children. On 29.06.2016, by consent of two wives and their

children, deceased Gangaram prepared an agreement to share

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the family pension equally. However, the frst wife resiled from her

statement. Therefore, the pension proposal remained pending.

She claimed that sub-rule 6 (a) (i) of Rule 116 of Maharashtra

Civil Services (Pension) Rules, 1982, permits equal family

pension to more widows than one. However, respondent no.2, by

its illegal order dated 21.12.2015, denied her the family pension,

assigning the reason that she was the second wife.

(c) The petitioner in the Writ Petition, No.11256 of 2016, has a case

that her husband Uttam Mule was married to one Sarubai.

However, she could not conceive till 1979. Therefore, with her

consent, she got married to Uttam Mule. Out of wedlock, she

delivered two male children. She lived with her husband till his

death as his wife. Sarubai, her co-wife, predeceased her.

Therefore, her husband inserted her name in the family pension

nomination form. Her husband also submitted a bond to

respondent no.7, contending that his frst wife is dead. Her

husband had sent an application to respondent no.3, giving her

name as a nominee for family pension. Her husband executed a

bond on 14.10.1996, contending that she would be entitled to the

pension after the death of his frst wife. Her husband died on

15.10.1996. After the death of her husband, she obtained the

succession certifcate from the Civil Court at Buldhana. On

15.01.1999, she applied for a family pension to respondent no.7.

The proposal was sent to respondent no.3. Respondent no.3, by

its order dated 26.10.1999, granted the family pension to her

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children only. Respondent no.7 informed her that her family

pension papers were missing and asked her to provide fresh

copies. She then made various complaints to the various

authorities. However, on 07.12.2006, respondent no.3

communicated to respondent no.8 that as per Hindu Marriage Act,

1955, the second wife is not eligible for family pension and

directed her to seek the sanction from the government. Then, she

made many applications to respondents nos.4, 6, 7, and 8. Lastly,

on 12.04.2016, she received a communication from the ofce of

Lokayukta along with the order dated 22.03.2016 passed by the

Lokayukta informing her that the Lokayukta ofce is ready to pay

family pension if the government approves the same. The

Lokayukta directed the ofce of her husband to take the necessary

steps to release her the family pension. Respondent on.2 also

informed the desk ofcer of Lokayukta that she is not entitled to

the family pension as per Maharashtra Civil Services (Pension)

Rules, 1982. On this backdrop, she prayed to quash the order

dated 06.05.2016 issued by Principal Secretary, Agriculture, Dairy

Development, Animal Husbandry, and Fisheries Department,

Mantralaya, Mumbai. She further prayed to direct respondent

nos.1 to 8 to sanction/grant full family pension to her from the date

she is entitled to under the Maharashtra Civil Services (Pension)

Rules, 1982.

5. The contesting respondents have taken a joint stand that

since the petitioners are not legally wedded wives, they are not entitled

WP-9933-2016 aw wps judg.odt

to the family pension. Therefore, the petitions deserve dismissal.

6. These petitions were listed for hearing, then the question

arose whether a widow married during the subsistence of the frst

marriage could be entitled to pension? Since there were various

conflicting judgments of this Court on this question, the Hon'tble Division

Bench referred the following question to the larger bench for

determination:-

"In cases to which, Maharashtra Civil Services (Pension) Rules, 1982, apply whether the second wife is entitled to claim family pension?"

7. The Hon'tble, The Chief Justice of the Bombay High Court,

constituted a full bench to decide the reference. Considering all the

contradictory judgments the Hon'tble Full Bench by its judgment dated

31.01.2019, has answered the reference as under:

"In cases to which Maharashtra Civil Services (Pension) Rules, 1982 apply, the family pension can be claimed by a widow, who was legally wedded wife of the deceased employee. Second wife, if not a legally wedded wife, would not be entitled for family pension and if the second wife is legally wedded wife, then should be entitled for the family pension."

8. The learned counsels, for the petitioners in Writ Petition

nos. 9933 of 2016 and 11256 / 2016 have vehemently argued that they

have the right to get the pension as their co-wives predeceased them.

They are the only surviving widows. Hence they are entitled to the family

pension. However, the respondent-authority has unauthorizedly and

illegally declined the pension to them by the impugned orders. The

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impugned orders are against Rule 116 of the Maharashtra Pension

rules.

9. The learned counsel for the petitioner in W.P. No 12308/

2016 would argue that since her co-wife respondent no. 5 could not

conceive, she married her husband with her consent. Hence she is not

at fault. Moreover, in the family pension form, both were nominated.

Therefore, no family pension could be denied to her.

10. On hearing the respective learned counsels, the following

points emerge for consideration.

(a) Whether a woman marries with the consent of the cowife is a

legally wedded wife and entitled to the family pension?

(b) Whether the second wife is entitled to the family pension by

agreement?

11. Rule 116 (6) (a) (i) of the Maharashtra Civil Services

(Pension) Rules, 1982, which is relevant, reads as under:

(6) (a) (i) Where the Family Pension is payable to more widows than once, the Family Pension shall be paid to the widows in equal shares;

12. The Hon'tble Full Bench has, while interpreting rule 116 (6)

(a) (1) of the pension rules, held that "it is in this context Rule 116 (6)(a)

(i) of Pension Rule " where the family pension payable to more widows

than one" shall have to be read and interpreted Rule 116(6)(a)(i) of the

Pension Rules cannot be read dehors the concept of legally wedded

wife. The interpretation of the term "family" for the purpose of gratuity

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and family pension cannot be diferent. The words and phrases

appearing in a statute or rule ought to be given the same meaning".

Interpreting rule 116 (6) (a) (i) of pension rules, the Hon'tble Full Bench

has specifcally answered the question in the reference that only the

legally wedded wife is entitled to the family pension. The law on the

right of a widow, not legally wedded is no more res integra.

13. The Hindu Marriage Act governs the marriage of the

petitioners. The law is settled that a Hindu cannot perform second

marriage during the subsistence of his frst marriage. The same rule is

also applicable to the public servant unless the custom or his religion

permits. The Hon'tble the Full Bench has considered all the relevant laws

and pension rules that prohibit the public servant from performing

second marriage during the subsistence of his frst marriage. It is the

positive case of the petitioners that they got married to their husbands

during the subsistence of their husbands't frst marriage. Therefore, their

marriage is void ab initio.

14. The recognition of the law cannot be evaded by

agreements. Such agreements neither create any right in favour of the

parties nor bind the third party. Thus, the contention that the agreement

in the family entitles the petitioner to family pension has no force of law.

15. To avoid the excessive enlargement of the judgment, we

did not repeat the case laws relied on by the respective learned

counsels, which were already placed before the Hon'tble Full Bench

while determining the reference.

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16. The law is settled that only the legally wedded is entitled to

a family pension if governed by Maharashtra Civil Services (Pension)

Rules 1982. The petitioners are widows but not legally wedded wives.

Hence both points are answered in negative. The impugned orders

passed in all the petitions are lawfully correct and proper and do not

warrant interference.

17. For the above reasons, all the petitions stand dismissed.

18. Rule is discharged.

   (S.G. MEHARE. J)                           (RAVINDRA V. GHUGE, J)




Mujaheed//