Madhya Pradesh High Court
Smt. Kaushalya Barkade vs The State Of Madhya Pradesh on 13 October, 2025
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IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK JAIN
ON THE 13th OF OCTOBER, 2025
WRIT PETITION No. 854 of 2023
SMT. KAUSHALYA BARKADE
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Uma Shankar Jayaswal - Advocate for the petitioner.
Ms. Akashmi Trivedi - Advocate for the respondent No.3.
ORDER
By way of this petition, the petitioner has sought the payment of family
pension to her.
2. The husband of the petitioner late Shri Attar Singh Barkade expired
on 17.12.2018. The said person had retired on 30.04.2007 and more than 11
years after his retirement, he expired in the year 2018.
3. The petitioner is admittedly second wife of the deceased government
servant, who married the government servant during lifetime of first wife.
From the first wife namely Shanti Bai, the deceased employee had two
children and from the petitioner, the deceased employee had three children.
Admittedly, Shanti Bai expired on 11.08.2007 and much prior to her death,
the petitioner had married the deceased employee.
4. Counsel for the petitioner had raised a similar contention that since
the petitioner and her deceased husband are members of "Gond" Tribe, which
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is a notified Scheduled Tribe in the State of Madhya Pradesh in terms of
Article 366 (25) of the Constitution of India, therefore, in terms of Section 2
(2) of the Hindu Marriage Act, 1955 the provisions of the said act would not
apply to the petitioner and the deceased husband could have married a
second wife during lifetime of first wife. The judgement of Co-ordinate
Bench in W.P. No.3494/2015 was heavily relied.
5. Per contra, it is contended by counsel for the respondent that
irrespective of personal law, since M.P. Civil Services Conducts Rules, 1965
applied to the deceased employee, therefore, as per Rule 22(1), there being
bar on bigamous marriages, therefore, by placing reliance on judgement of
Coordinate Bench in W.P. No.6948 of 2023, it has been argued that second
wife is not entitled to family pension because the second marriage of the
deceased government servant during lifetime of first marriage had no legal
sanctity so far as the employer is concerned. It will be irrespective of the
personal law as service rules barred bigamous marriages.
6. In the present case, the first question that arises for determination is
whether Hindu Marriage Act, 1956 would not apply to the petitioner and her
deceased husband in view of Section 2(2) of Hindu Marriage Act. Heavy
reliance was placed on judgement of Coordinate Bench in W.P.
No.3494/2015. However, the aforesaid issue has been considered by the
Supreme Court in the case of Labishwar Manjhi v. Pran Manjhi, (2000) 8
SCC 587, whereby the Hon'ble Apex Court held that mechanically the
provisions of Hindu Law cannot be excluded to Schedule Tribes. It has to be
proved that the concerned Tribe has not been "Hinduised" or that its customs
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and traditions are different from the religions to which Hindu Marriage Act
applies i.e. Hindu, Sikh, Jain and Buddhist religions, which have similar sets
of societal traditions. The Hon'ble Court held that in the absence of proving
different sets of customs and traditions, the Tribals cannot simply seek
relaxation from the provisions of the act governed by Hindu Law. The
Hon'ble Apex Court ultimately held that Santhals would not be excluded
from operation of Hindu Succession Act, because nothing has been proved
that the said Tribe has not been Hinduised. The Hon'ble Apex Court held as
under:-
"1. Heard learned counsel for the parties.
2. The present appeal is directed against the judgment and order
dated 27-1-1986, passed by the High Court whereby the second
appeal of the respondent was allowed while the concurrent
findings of the two courts below were set aside.
3. The short facts are that the father of Respondents 2 and 3 and
husband of Respondent 1 filed a suit against the appellant for
declaration that they being agnates of the deceased husband,
inherited the property according to the custom of the Santhal Tribe
where females are excluded from the right of succession. He
further challenged the gift made by the widow of the deceased
Lakhiram, namely, by Appellant 1 to Appellants 2 and 3. The trial
court dismissed the suit by holding that parties have become
sufficiently Hinduised and as such the Hindu law of succession
would apply and thus the widow will inherit the property of the
deceased, consequently the gift made by her to Appellants 2 and 3
is also valid. The appeal filed by the plaintiff-respondent was
allowed. In second appeal the High Court remanded the case back
to the first appellate court for recording the finding whether the
parties were sufficiently Hinduised after setting aside the first
appellate court's judgment.
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4. After remand the first appellate court held that parties were
sufficiently Hinduised and the Hindu law of succession would be
applicable and confirmed the judgment of the trial court.
5. The respondent filed second appeal before the High Court
challenging the said finding contending that the courts below had
committed error in recording the finding that the Hindu
Succession Act will apply. However, the High Court allowed the
appeal of the respondent by holding that Hindu law as it stood
prior to enactment of the Hindu Succession Act, 1955 would
apply, hence Appellant 1 inherited the property during her lifetime
and on her death it would devolve to the agnates of her husband
viz. contesting Respondent 1. Challenging the said finding, the
submission on behalf of the appellant is that the High Court
committed error in concluding that the parties would be governed
by the law as prevailed prior to coming into force of the Hindu
Succession Act, 1956. The submission is, once finding is recorded
by the first appellate court and confirmed by the High Court that
the parties are Hinduised then they would be governed by the law
as is applicable to any Hindu and if that be so the Hindu
Succession Act, 1956 would be applicable to the parties.
Challenging this submission learned counsel for the respondent
submits that the parties being tribals by virtue of sub-section (2) of
Section 2, the Hindu Succession Act, 1956 would not be
applicable. It excludes the members of any Schedule Tribes from
application of the said Act to them. Based on this, submission is,
even if the parties have Hinduised, the parties being of the Santhal
Tribe they are following their customary law of Santhal, hence the
Hindu Succession Act would not be applied. Reliance was placed
on the decision of the Patna High Court, reported in Satish
Chandra Brahama v. Bagram Brahma [(1967) 15 Bihar LJ 323] .
This decision dealt with the case of Scheduled Tribes, namely,
Uraon. The Court held that the Uraon Tribe is a Scheduled Tribe
within the meaning of clause (25) of Article 366 of the
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Constitution of India and by virtue of sub-section (2) of Section 2
of the Hindu Succession Act the provision of that Act will not
apply to this tribe, consequently Section 14 would also not apply.
The said decision further records, the Uraon can change their
religion but by changing of the religion alone they do not cease to
be Uraon for other purposes. The Court has to base its findings on
various other factors such as religious functions, marriages,
disposal of the dead bodies by cremation or by burying the dead
body etc. which have to be tested before such changing.
6. The question which arises in the present case is, whether the
parties who admittedly belong to the Santhal Tribe are still
continuing with their customary tradition or have they after being
Hinduised changed their customs to that which is followed by the
Hindus. It is in this context when the matter came first before the
High Court, the High Court remanded the case for decision in this
regard. After remand the first appellate court recorded the finding
that most of the names of the families of the parties are Hindu
names. Even PW 1 admits in the cross-examination that they
perform the pindas at the time of death of any body. Females do
not use vermilion on the forehead after the death of their
husbands, widows do not wear ornaments. Even PW 2 admits that
they perform shradh ceremonies for 10 days after the death and
after marriage females used vermilion on their foreheads. The
finding of the words is that they are following the customs of the
Hindus and not the Santhal customs. In view of such a clear
finding it is not possible to hold that sub-section (2) of Section 2
of the Hindu Succession Act excludes the present parties from the
application of the said Act. Sub-section (2) only excludes
members of any Scheduled Tribe admittedly as per finding
recorded in the present case though the parties originally belong to
the Santhal Scheduled Tribes they are Hinduised and they are
following the Hindu traditions. Hence we have no hesitation to
hold that sub-section (2) will not apply to exclude the parties from
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application of the Hindu Succession Act. The High Court fell into
error in recording a finding to the contrary. In view of this, the
widow of Lakhiram would become the absolute owner by virtue
of Section 14 of the said Act, consequently the gift given by her to
Appellants 2 and 3 was a valid gift, hence the suit of Respondent 1
for setting aside the gift deed and inheritance stands dismissed.
7. The appeal is allowed. The order dated 27-1-1986 passed by the
High Court is set aside. No order as to costs."
7. In the present case, this Court asked learned counsel for the
petitioner during course of hearing that whether the traditions in her
community do permit polygamy and whether there is any judicial
pronouncement or any literature of the said community, which recognizes the
practice of bigamy or polygamy in the said community, to which the learned
counsel for the petitioner was not having any answer.
8. In the opinion of this Court, even if the member of ST community is
deemed to be excluded from provisions of Hindu Marriage Act, then he
would have to prove that in his Tribe there are certain tribal traditions, which
are being followed and respected and therefore, the Tribe would be governed
by its own traditions. The purpose of Section 2(2) of Hindu Marriage Act,
1956 is to protect the tribal traditions and beliefs. However, it cannot be
treated to be a license or tool given to the Tribals to resort to polygamy and
to defend polygamy despite there being no tradition in such tribe or there
being no practice of polygamy. In some tribes polygamy or even polyandry
are being practiced. They can be argued to be protected despite rigours of
Hindu Marriage Act 1956, but for that purpose the concerned Tribe would
have to prove its own traditions. It has to be proved that such practices are
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going on in the tribe and are recognized by such tribe. It has to be proved
that its societal norms are different from the religions governed by Hindu
Marriage Act, i.e. Hindus, Sikhs, Jains and Buddhists. In the present case,
nothing has been proved or placed on record that any practice is continuing
in the Tribe which permits polygamy/bigamy for the Tribe members.
9. In Rameshwari Devi v. State of Bihar, (2000) 2 SCC 431 , the
Hon'ble Apex Court held that cohabitation for a long period may give rise to
strong presumption of wedlock and in that regard directed payment of family
pension to children of the second wife who could not prove her marriage, but
existence of children was proved. In the said case, the Supreme Court did not
grant family pension to the second wife, but granted to her children only,
despite presuming existence of marriage with the deceased employee.
10. I n Vidhyadhari v. Sukhrana Bai, (2008) 2 SCC 238 , the Hon'ble
Supreme Court though granted family pension to second wife, but the said
order was passed only to balance equities and in para 14 of the said
judgement, the Hon'ble Supreme Court held that though the first wife was the
only legitimate wife, but a share of the deceased employee estate is being
granted to the second wife only to balance the equities.
11. That part of the said order seems to be in terms of Article 142 (1)
of the Constitution of India and despite holding against the second wife, the
Supreme Court granted a share to her only to balance equities. However, as
this part of the direction seems to be under Article 142 (1) of the Constitution
of India, therefore, this cannot be followed by this Court as a precedent.
12. Consequently, by following the view of the Co-ordinate Bench in
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W.P. No.6948/2023 so also the law laid down by the Hon'ble Apex Court in
the case of Labishwar Manjhi (supra) , the petitioner is not entitled to any
relief. Resultantly, the petition fails and is dismissed.
(VIVEK JAIN)
JUDGE
rj
