Madhya Pradesh High Court
Smt. Shakuntala Bai Sahare vs The State Of Madhya Pradesh on 20 December, 2023
Author: Maninder S. Bhatti
Bench: Maninder S. Bhatti
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE MANINDER S. BHATTI
ON THE 20 th OF DECEMBER, 2023
WRIT PETITION No. 23606 of 2022
BETWEEN:-
SMT. SHAKUNTALA BAI SAHARE W/O LATE SONU LAL
SAHARE, AGED ABOUT 64 YEARS, OCCUPATION -
HOUSEWIFE, RESIDENT OF WARD NO.6, BALAGHAT
DISTRICT BALAGAHT (MADHYA PRADESH)
.....PETITIONER
(BY SHRI RAHUL MISHRA - ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH, THROUGH
PRINCIPAL SECRETARY, DEPARTMENT OF
FINANCE, MANTRALAYA, BHOPAL (MADHYA
PRADESH)
2. THE DISTRICT PENSION OFFICER BALAGHAT
DISTRICT BALAGHAT (MADHYA PRADESH)
3. THE DIVISIONAL FOREST OFFICER NORTH
(PRODUCTION) FOREST DIVISION BALAGHAT
DISTRICT BALAGHAT (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI K.V.S. RAO - PANEL LAWYER FOR THE STATE)
This petition coming on for admission this day, th e court passed the
following:
ORDER
This is a petition assailing the order dated 30-08-2022 contained in
Annexure-P/3, by which the claim of the petitioner as regards extension of
benefit of family pension has been declined by the respondents on the ground
that the petitioner is the second wife of the deceased-employee, who entered
into second wedlock during subsistence of the first marriage.
2 . Learned counsel for the petitioner contends that the first wife of the
deceased-employee expired on 07-06-2002 and prior to death of the first wife,
the petitioner entered into the wedlock with the deceased-employee in the year
1988. It is contended by the learned counsel that the deceased-husband of the
petitioner as well as the petitioner belong to Tribal community, and according to
their customs and rituals, bigamy is permissible. Therefore, despite there being
the first wife of the deceased-employee, there was no fetter in entering into
second wedlock. Accordingly, marriage of the deceased-employee as well as
the petitioner was solemnized.
3. Hence, in view of the law laid down by this Court in Sonu Bai
Maravi and others vs. Central Industrial Security Force and others
(W.P. No.3494/2015, dt. 22-03-2016) , the petitioner is entitled for family
pension, inasmuch as this Court while dealing with the provision of Hindu
Marriage Act, 1955, has concluded that the provisions of the Act are not
applicable to a Scheduled Tribe, when custom permits bigamy, the second wife
cannot be declined the benefit of family pension. The learned counsel has also
placed on record the Circular issued by the Department of Finance, dated 30-
08-1089, and it is submitted that the said Circular also provides scope of
extension of the benefit of family pension to the second wife.
4. Learned counsel for the respondents submits, that taking into
consideration the fact that the deceased-employee entered into second wedlock
during the currency of the first marriage, and as there was no divorce or
dissolution of the marriage, so far as the first wife was concerned, the petitioner
was not entitled for the benefit of family pension. The Circular dated 05-08-
2009 issued by the Department of Finance was taken note of, and it was found
that the petitioner did not seek any permission of the employer before entering
into the second wedlock with the petitioner. Accordingly, the impugned order
has been rightly passed which does not require any interference.
5. Having considered the submissions advanced on behalf of the parties,
a perusal of para 6.7 of the petition reflects, that it is the stand of the petitioner,
that the petitioner as well as the deceased-employee belonged to Tribal
community, and according to their custom and personal law, bigamy is
permissible, therefore, as the provisions of the Hindu Marriage Act are not
applicable to the petitioner, there was no impediment in extending the benefit of
family pension to the petitioner, as the first wife of the deceased had already
expired. An identical controversy was taken note of by this Court in the case of
Sonu Bai Maravi and others (supra), wherein this Court in paras 14 and 15
held as under :
"14. No doubt, as per the Division Bench judgment of Sitabai Sinodia
(supra),the Hindu Marriage Act, 1955 comes into play for the purpose of
determining rights of the parties. However, in the said case, the petitioner was
not belonging to Scheduled Tribe community. It is profitable to note that
Section 2 (Part-II) of the Hindu Succession Act, 1956 and also Section 2 (ii)
of Hindu Marriage Act, 1955 have same terminology which reads as under :
"2(ii) (of both the above referred Acts) Notwithstanding anything
contained in sub-section (1) nothing contained in this Act shall apply to
the members of any Scheduled Tribe within the meaning of Clause (25) of
Article 366 of the Constitution, unless the Central Government by
notification in the official gazette, otherwise directs."
15. Needless to mention that these acts apply to Hindus, Buddhist,
Sikhs and also to anyone who is not a Muslim, Christian, Parsy, Jues by
religion. Indisputably, in the present case, the petitioner No. 1 is the second
wife of the deceased-employee. The petitioners and the deceased-employee
belong to Gond community. The said community is Scheduled Tribe within the
meaning of Clause-25 of Article 366 of the Constitution of India. The Hindu
Succession Act do not apply to Gond community in view of Sub-clause (ii) of
Section 2 of the aforesaid acts. It is relevant to note here that as per Article
366 (25) and Article 342 of Constitution of India, the President has power to
specify the tribes or tribal communities which shall be deemed to be Scheduled
Tribes in relation to a State. The tribe 'Gond' is mentioned in entry No. 66 in
relation to Madhya Pradesh as per presidential order issued under Article 342
of the Constitution of India. As per Section 2 (ii) of the said act, the Hindu
stood modify by customs prevailing in the S.T. community. The respondents
have not denied the specific averments of the petition that the second marriage
was solemnized by the deceased-employee with petitioner No. 1 as per
customs prevailing in S.T. Community. Thus, the facts of the present case are
different and the Division Bench judgment in the case of Sitabai Sinodia (supra)
will not come in the way of the petitioners to get the benefits of retiral dues.
This Court in 1999 (2) MPLJ 307 (Shakun Bai vs. Siya Bai) held that there
exists a custom in Gond community to have more than one wife. This Court
further held that the petitioners and the respondents will get equal share in the
money left by the deceased-employee namely Somnath."
6. A perusal of the aforesaid judgment of this Court reflects that in that
case, the petitioner therein, had pleaded that she belonged to the Tribe "Gond"
which was mentioned in Entry No.66 in relation to Madhya Pradesh as per
Presidential order issued under Article 342 of the Constitution of India, and the
said averments made by the petitioner therein, were not controverted by the
respondents. Therefore, the said assertion was treated to be undisputed by
this Court. Accordingly, this Court proceeded to allow the petition, while
holding, that when there exists a custom in the community of Tribe to have
more than one wife, the benefit of family pension could not have been declined
to the petitioner therein.
7. In the present case, the petitioner has not pleaded anywhere in the
petition, that the deceased-employee and the petitioner belongs to a particular
Tribe. Though, there are averments in para 6.7 of the petition, but the same are
vague. The petitioner has not disclosed the particular tribe to which the
petitioner belongs and the deceased belonged. Further, the petitioner has not
asserted that custom of such tribe permits bigamy or polygamy, therefore the
matter requires an enquiry. Even otherwise, the Department of Finance issued a
Circular dated 30-08-1989 which provides as under :
3-^^mDr isa'ku fu;e 47 ds mi fu;e ¼7½ ¼,½ ¼i½ dh ea'kk ;g gS fd ;fn
fdlh izdj.k esa e`r 'kkldh; deZpkjh dh ,d ls vf/kd fo/kok gSa vkSj ;fn os fof/kd
:i ls fookfgr jgh gSa] rks mUgsa mijksDr fu;e ds vUrxZr ifjokj isa'ku izkIr djus
dh ik=rk gksxhA ,sls izdj.kksa esa leqfpr :i ls tkWp djus ds i'pkr~ gh ifjokj
isa'ku ds Hkqxrku dh vuq'kalk dh tkosA vr% leLr dk;kZy; izeq[kksa vkfn dks ;g
funsZsf'kr fd;k tkrk gS fd izdj.kksa dks egkys[kkdkj vFkok lapkyd] isa'ku tSlh Hkh
fLFkfr gks] dks Hkstrs le; bl ckr dks ns[k ysa fd tgkWa nks ifRu;ksa egkys[kkdkj
vFkok lapkyd] isa'ku tSlh Hkh fLFkfr gks] dks Hkstrs le; bl ckr dks ns[k ysa fd
tgka nks ifRu;ksa dk ekeyk gks] ogkWa vkns'kksa ds vuq:i leqfpr tkWap ds i'pkr~ gh
ifjokj isa'ku fn;s tkus dh vuq'kalk dh tkrh gSA**
8. A perusal of the said Circular reflects that, such eventuality has been
taken note of by the Government and the provisions have been made to
conduct an enquiry, when the issue comes before the employer as regards
caste/tribe status of the employee for the purpose of extension of the benefit of
family pension. In such cases, after conducting an enquiry, recommendations
for extension of benefit of family pension are required to be made. Therefore,
taking into consideration the provisions of para 3 of the Circular, dated 30-08-
1989, this Court is of the considered opinion, that the matter requires
reconsideration by the respondents.
9. Resultantly, the impugned order dated 30-08-2022 (Annexure-P/3) is
set aside and the respondents are directed to conduct an enquiry in terms of
para 3 of the Circular, dated 30-08-1989 issued by the Department of Finance,
while extending opportunity of hearing to the petitioner as well as to produce
the relevant documents.
10. Let the enquiry be conducted and concluded within a period of
ninety days from the date of production of certified copy of this order. After
conduct of the enquiry, if the deceased-employee and the petitioner are found
to be hailed from a Tribe, custom of which permits bigamy, the benefit of
family pension shall be extended to the petitioner within a further period of sixty
days without compelling the petitioner to revisit this Court for the said purpose.
11. The writ petition stands allowed to the extent indicated hereinbove.
(MANINDER S. BHATTI)
JUDGE
ac
