Geeta Devi vs Union Of India & Ors
2023 Latest Caselaw 1864 HP

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

CWP No.2034 of 2018 Decided on: 6th March, 2023 _________________________________________________________________

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    Geeta Devi                                        ....Petitioner





                                        Versus
    Union of India & Ors.                         ...Respondents

_________________________________________________________________ Coram

Hon'ble Ms. Justice Jyotsna Rewal Dua, Judge

1 Whether approved for reporting?

_________________________________________________________________ For the petitioner: Ms. Kiran Dhiman, Advocate.

For the respondents: Mr. Shahsi Shirshoo, Central

Government Counsel, for respondents

No.1 to 3.

Mr. Y. P. S. Dhaulta, Additional Advocate General, for respondents No.4 and 5.

Jyotsna Rewal Dua, Judge

This writ petition has been filed for the grant of

following substantive prayers: -

"(I) That this Hon'ble Court may graciously be pleased to issue a writ in the nature of Mandamus directing the respondents to grant pension to the Petitioner as after the death of her husband she is fully entitled for the same or in alternate after the expire of the first wife of the later husband of the petitioner i.e. w.e.f. 22.11.1985 with all consequential benefits.

Whether reporters of Local Papers may be allowed to see the judgment?

(II) That the interest on the delay family pension @ 12% may also be guaranteed in favour of the petitioner."

2. Petitioner's case is that her husband, namely, Sh. Pali

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alias Jai Gopal worked as Musician in Chamba State Force, which

later on merged with Military. Her husband retired as Musician

from Dogra Regiment of Indian Army. He was getting pension from

the Army. Sh.Pali alias Jai Gopal died on 16.01.1975.

Petitioner further pleaded that one Smt. Paro was the

first wife of her husband Sh. Pali alias Jai Gopal. Smt. Paro died

on 21.11.1985. Petitioner's primary grievance and contention is

that after the death of Smt. Paro (first wife of Sh. Pali alias Jai

Gopal) petitioner became eligible for pension. However, she has

been continuously denied pension by the respondent.

3. During hearing of the case, learned counsel for the

petitioner candidly submitted that marriage between the petitioner

and Sh. Pali alias Jai Gopal was solemnized on 19.02.1961 during

the subsistence of latter's first marriage with Smt. Paro.

4. In essence, petitioner's claim is that she is the second

wife of deceased Sh. Pali alias Jai Gopal and after the death of his

first wife on 21.11.1985, she is entitled to family pension. The

issue pertaining to the entitlement of second wife to the family

pension was adjudicated by this Court in CWP No.1657 of 2016

(Durgi Devi Vs. State of Himachal, Pradesh and others)

decided on 05.08.20222. Referring to Rule 54 of CCS Pension

Rules, 1972 and examining them vis-à-vis, the claim of second

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wife was observed following: -

              "4(i).       Rule Position.
              4(i)(a).     Rule 54 of CCS Pension Rules, 1972 pertains to

family pension. Sub Rule (7) thereof talks about the situation where family pension is payable to more than one widow of the deceased. Rule 54(7) is extracted

hereinafter:

"(7) (a) (i) Where the family pension is payable to more widows than one, the family pension shall be paid to the widows in equal shares.

(ii) On the death of a widow, her share of the r family pension shall become payable to her eligible child:

Provided that if the widow is not survived by any child, her share of the family pension shall not lapse but shall be payable to the other widows in equal shares, or if there is only one such other widow, in full, to her.

(b) Where the deceased Government servant or

pensioner is survived by a widow but has left behind eligible child or children from another wife who is not alive, the eligible child or children shall be entitled to the share of family pension which the mother would have

received if she had been alive at the time of the death of the Government servant or

pensioner.

Provided that on the share or shares of family pension payable to such a child or children or to a widow or widows ceasing to be payable, such share or shares

shall not lapse, but shall be payable to the other widow or widows and/or to the other child or children otherwise eligible, in equal shares, or if there is only one widow or child, in full, to such widow or child.

(c) Where the deceased Government servant or pensioner is survived by a widow but has left behind eligible child or children from a divorced wife or wives, the eligible child or children shall be entitled to the share of family pension which the mother would have received at the time of the death of the Government servant or pensioner had she not been so divorced.

Provided that on the share or shares of family pension payable to such a child or children or to a widow or widows ceasing to be payable, such share or shares, shall not lapse, but shall be payable to the other widow or widows and/or to the other child or children otherwise eligible, in equal shares, or if there is only one widow or child, in full, to such widow or child.

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(d) where the family pension is payable to twin children, it shall be paid to such children in equal shares:

Provided that when one such child ceases to be eligible, his/her share shall revert to the other child

and when both of them cease to be eligible the family pension shall be payable to the next eligible single child / twin children."

Second wife (widow) can be granted family

pension, in those cases, where more than one marriage is permissible under the applicable personal laws of the deceased employee and not otherwise. This position has

also been clarified by the Government of India decision

No.(13) Below Rule 54 of CCS Pension Rules, which provides that second wife will not be entitled for family pension as legally wedded wife. The extract of the decision is as under:-

"(13) When second wife not entitled to the family pension. -

The Department of Pension and Pensioners' Welfare have since clarified that the second wife will not be entitled to family pension as a legally wedded wife. A copy of their clarification is enclosed for information. COPY OF D.O., LETTER NO. 1/39/86-P. & P.W.,

DATED 16-2-1987, RECEIVED FROM SHRI HAZARA SINGH, DEPUTY SECRETARY, DEPARTMENT OF

PENSION AND P.W., NEW DELHI. An extract of the relevant advice given by the Ministry of Law in the matter is enclosed. You may like to take necessary action in the matter accordingly.

EXTRACT It is specifically a question arising under the Hindu Marriage Act, 1955. Under Rule 54 (7) of the CCS (Pension) Rules, 1972, in case a deceased Government servant leaves behind more than one widow or a widow and eligible offspring from another widow, they are entitled to family pension in respect of that deceased Government servant. 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 (i), (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 lifetime 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

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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."

4(1)(b). In 2015(14) SCC 511, titled Raj Kumari and others Vs Krishna and others, claim of pension was made by Krishna- the second wife of the deceased-Atam Parkash. The High Court decided in favour of the second wife. The Apex Court set

aside the judgment delivered by the High Court and held as under:-

"14. Normally, pension is given to the legally wedded wife of a deceased employee. By no stretch of imagination r one can say that the Plaintiff, Smt. Krishna was the legally wedded wife of late Shri Atam Parkash,

especially when he had a wife, who was alive when he married to another woman in Arya Samaj temple, as submitted by the learned Counsel appearing for the Appellants. We are, therefore, of the view that the High Court should not have modified the findings

arrived and the decree passed by the trail court in relation to the pensionary benefits. The pensionary benefits shall be given by the employer of late Shri Atam Parkash to the present Appellants in accordance with the rules and Regulations governing

service conditions of late Shri Atam Prakash."

A Division Bench of Bombay High Court while deciding Writ Petition No. 2949 of 2019 vide

judgment dated 16.02.2022, held that petitioner (therein the second wife) would not be entitled to family pension under the pension Rules notwithstanding the death of first wife as petitioner's

marriage to the deceased itself was void under the provisions of Hindu Marriage Act.

The judgment of Madras High Court cited by the learned Senior Counsel is distinguishable on facts. In the said case, the marriage between the deceased government servant and his first wife had dissolved in the year 2003.

4(1)(c). Against the backdrop of above legal position, facts of the instant case may be examined. It is the admitted case of the petitioner that her marriage was solemnized with the deceased during subsistence of his first marriage, lawfully

solemnized with Smt. Ramku Devi. The petitioner as second wife of the deceased Bhola Ram, cannot be held entitled to family pension. Bhola Ram had died on 17.01.2002. He was survived even at that time by his lawfully married first wife

.

Smt. Ramku Devi, who died on 01.08.2015. Smt. Ramku

Devi had received the family pension till her death on 01.08.2015.

In view of these facts considered in light of the

applicable legal position, the petitioner being the second wife of deceased Bhola Ram, cannot be held entitled to family pension after the demise of his first wife Smt. Ramku Devi."

It is admitted position in the instant case that the

petitioner is the second wife of deceased Sh. Pali alias Jai Gopal

and the marriage between these two was solemnized during

subsistence of Sh. Pali's first marriage with Smt. Paro. Hence, in

view of the decision rendered in Durgi Devi's case supra, the relief

claimed by the petitioner cannot be allowed. Accordingly, the

present writ petition is dismissed, so also the pending

miscellaneous application(s), if any.

Jyotsna Rewal Dua Judge

March 6, 2023 R.Atal