Madras High Court
P.Saroja vs The Accountant General on 9 March, 2021
W.P.(MD)No.22457 of 2017
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 09.03.2021
CORAM:
THE HONOURABLE MR.JUSTICE M.DHANDAPANI
W.P.(MD)No.22457 of 2017
P.Saroja .. Petitioner
Vs
1.The Accountant General,
Office of the Accountant General(Accounts and Entitlements)
Tamil Nadu,
361, Anna Salai,
Teynampet,
Chennai-600 108.
2.The Assistant Executive Engineer,
Public Works Department,
Buildings (C&M),
Sub-Division, Medical Works,
Ramanathapuram. .. Respondents
Prayer: Writ Petition is filed under Article 226 of the Constitution of India,
to issue a Writ of Certiorarified Mandamus, to call for the records relating to
1/19
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W.P.(MD)No.22457 of 2017
the impugned order passed by the 1st respondent in his proceedings in PEN
15/11/PT.9512/2017-18/dated 08-November-2017 and quash the same and
consequently to direct the respondents to sanction family pension and other
consequential benefits to the petitioner on account of death of the
petitioner's husband, namely, Paulraj, was working as Superintendent in the
office of the Assistant Executive Engineer, PWD, Building Sub-Division,
Ramanathpuram within a time frame that may be stipulated by this Court.
For Petitioner : Mr.K.Guhan
For Respondent No.1 : Mr.P.Gunasekaran
For Respondent No.2 : Mr.A.Karthick
Government Advocate
ORDER
This Writ Petition has been filed for the issuance of a writ of
certiorarified mandamus to call for the records relating to the impugned
order passed by the 1st respondent in his proceedings in PEN 15/11/PT.
9512/2017-18/dated 08-November-2017 and quash the same and
consequently to direct the respondents to sanction family pension and other
consequential benefits to the petitioner on account of death of the
petitioner's husband, namely, Paulraj, who was working as Superintendent
in the office of the Assistant Executive Engineer, PWD, Building Sub-
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W.P.(MD)No.22457 of 2017
Division, Ramanathpuram within a time frame .
2. The case of the petitioner is that the petitioner's husband, since
deceased, namely, Paulraj, was an employee under the 2nd respondent and he
was working at PWD Tallakulam, Madurai. Thereafter, he was transferred to
various places like Rameswaram, Uthamapalayam, Vaigai Dam and
Ramanathapuram etc. It is the averment of the petitioner that the marriage of
the petitioner and the deceased was held on 12.11.1982 as per Christian rites
and customs. After marriage, they lived at Kuppammal Ponnusamy
Compound, Meenambalpuram, Madurai. The petitioner accompanied her
husband wherever he transferred. In the year 1996, the petitioner's husband
suffered massive heart attack and was admitted in a private nursing home
and she was taking care of him during the period of hospitalisation and
borrowed huge amounts of money from her relatives to meet out the medical
expenses. However, the petitioner's husband breathed his last on 11.1.1996.
Whileso, one Shanthi Selvanayaki and her daughter Mary Rani Shanthi
have filed S.O.P.No.18 of 1996 on the file of the learned Principal Sub
Judge, Madurai seeking the relief of granting Succession Certificate for Rs.
2,65,000/- in favour of the said persons to receive the Family Pension of the
deceased Paulraj. In the said proceedings, the petitioner is also arrayed as
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W.P.(MD)No.22457 of 2017
one of the parties and she filed a detailed counter. Even then, the learned
Principal Sub Judge, Madurai, without considering the legal aspects allowed
the said petition. Aggrieved over the same, the petitioner preferred a
CMA.No.52 of 2002 on the file of the Fast Court No.II, Madurai and the
same was also dismissed. Thereafter, the petitioner filed CRP(NPD).No.
1174 of 2015 before this Court. This Court has closed the said revision
petition as infructuous on the ground that the rival, Shanthi Selvanayaki has
passed away and liberty was granted to the petitioner to work out her
remedy in the manner known to law. Thereafter, the petitioner made a
representation to the official respondents for payment of pensionary
benefits. However, the first respondent rejected her claim on the ground
that as per the second provision to Sub-Rule 7 (a) (i) of Rule 49 of Tamil
Nadu Pension Rules, 1978, the second wife is not entitled for the pensionary
benefits during the life time of the first wife. Challenging the same, the
present writ petition has been filed.
3. The learned counsel for the petitioner submits that as per the
provision to Sub-Rule 7 (a) (i) of Rule 49 of Tamil Nadu Pension Rules,
1978, it is crystal clear that if the Government Servant has more than one
wife, on his death, the respective wives are entitled for family pension in
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equal moieties. Though amendment was made to the said Sub Rule 7 (a) (i),
which came into force on 02.06.1992, however, it did not prohibit a
bigamous spouse from getting a share in the family pension. It is the further
submission of the learned counsel for the petitioner that the explanation to
the said Rule was introduced by amending the Rule only with effect from
02.06.1992 and, therefore, on and from 2.6.1992, any government servant
enters into a bigamous marriage, the said marriage would be deemed to be
void and the bigamous spouse would not be entitled for family pension.
Learned counsel for the petitioner submits that identical issue came up for
consideration before this Court in W.P.(MD)No.4784 of 2011, wherein, this
Court, held that any marriage, bigamous in nature, which had taken place on
or after 1991, only in cases of such of those persons, the bigamous spouse is
not entitled for family pension. In the present case, the petitioner's marriage
was solemnized prior to 1991 and, therefore, the said decision is squarely
applicable to the case of the petitioner and, accordingly, the petitioner is
entitled to family pension.
4. Per contra, learned counsel for the first respondent submits that the
said view of the learned Single Judge was subsequently overruled by the
Hon'ble Division Bench of this Court in 2018 (1) WLR 725 wherein the
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W.P.(MD)No.22457 of 2017
Division Bench held that the claim of the second wife to equal share in the
family pension is impermissible. It is further submitted that explanation to
Sub-Rule 7 (a) (i) of Rule 49 of Tamil Nadu Pension Rules, 1978, makes it
clear that in order to enable a second wife to claim family pension, the
marriage should have been valid under the Personal Law applicable to the
parties, and to hold otherwise would be in violation of the law of the land,
viz. the Personal Law of the parties as well as the Criminal Law, which
prohibits bigamous marriage. The Hon'ble Division Bench of this Court
further held that the family pension is not the property of the Government
Servant and it is an allowance given to or an entitlement of his family
members, viz. the widow and the children, subject of course to certain
conditions. Therefore, the concept of family pension cannot be treated as the
estate of the Government servant and the law relating to devolution of the
estate of the Government servant cannot be applied in the cases of family
pension. Hence, the second wife of the deceased government servant is not
entitled for family pension, when the first wife is surviving. Accordingly, he
prays for dismissal of the writ petition.
5. Heard the learned counsel on either side and perused the materials
available on record.
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6. The facts in the present case are not in dispute. As already stated,
admittedly, the petitioner is the second wife of the deceased Paulraj. The
pertinent issue that falls for determination in the present case is whether the
second wife is entitled for family pension.
7. In support of the said plea, the decision of the learned Single Judge
of this Court in W.P.(MD).No.4784 of 2011 is pressed into service, wherein
it has been held if there are more than one wife to a deceased Government
Servant, they are entitled for family pension in equal moieties, until the
amendment which was brought into force on 02.06.1992, as the rule as it
stood then did not prohibit the wife through a bigamous marriage from
getting a share in the family pension.
8. However, countering the same, the decision of the Division Bench,
in the case of R.Rajathi v. The Superintendent Engineer TANGEDCO
Ltd., & Anr. (2018(1)WLR 725) which has overruled the said view of the
learned single Judge, is placed before this Court and for better appreciation
of the case, the relevant portion of the said decision is extracted hereunder:
“ 31. In Tamilselvi’s case, in WP (MD) No.9374 of
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W.P.(MD)No.22457 of 2017
2010, cited supra, also the learned Single Judge had in fact
rejected the claim of the second wife to the share of the first
wife in the family pension. However, while doing so, the
learned Single Judge had held that the explanation to Sub
Rule 7 of Rule 49 would be applicable only prospectively
that is from the date, where the Government servant dies
after 02.06.1992. This conclusion of the learned Judge, in
our opinion, cannot be sustained.
32. The effect of the explanation is disqualification
of the widow of an invalid marriage from seeking family
pension. As already pointed out family pension is not the
property of the Government Servant, it is an allowance
given to or an entitlement of his family members, viz. the
widow and the children, subject of course to certain
conditions. Therefore, the concept of family pension cannot
be treated as the estate of the Government servant and the
law relating to devolution of the estate of the Government
servant cannot be applied in the cases of family pension.
Therefore, the date of death of the Government servant
cannot be taken as a guiding factor to decide the question of
entitlement of family pension.
33. It would also be seen that the second proviso to
Rule 7(a)(i), makes it clear that if the widow is not survived
by a child, such share in the family pension shall be payable
to the other widows in equal share, if there is only one such
widow in full to her. This makes it clear that the family
pension is not the estate of the Government servant. It will
also be relevant to point out that the Division Bench of this
Court in Krishhaveni and others v. Mera @ Devaki and
others, rendered in OSA. No.154 of 2004 dated 07.03.2012
had held that while the children born to a second wife,
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W.P.(MD)No.22457 of 2017
whose marriage is void would be entitled family pension,
the second wife as such will not be entitled to family
pension. This is the view of the Hon’ble Supreme Court in
Rameshwari Devi’s case reported in 2000 (2) SCC 431,
cited supra, which accepted the position of law that a
second wife of Hindu, whose marriage is otherwise invalid,
is not entitled to family pension. However, the learned Judge
went on to make a distinction based on the Tamil Nadu
Pension Rules, 1978. As we have already pointed out the
Sub Rule 7 of Rule 49 of the Pension Rules 1978, will have
to be read only in the context of there being two widows for
a Government servant, both of whose marriages would have
been validly performed prior to the coming into force of the
Hindu Marriage Act, 1955. The explanation introduced to
Rule 7 in 1992 would also clarify the position regarding the
entitlement of family pension. We are therefore, unable to
agree with the conclusion of the learned Judge to the effect
that the explanation introduced to Rule 7 will take effect
only from 02.06.1992 and will apply only if the Government
servant dies after the said date that is 02.06.1992.
34. In Pushpavalli’s case, in WP (MD) No.7817 of
2011, cited supra, the learned Single Judge has not only
chosen to follow the conclusion of the Tamilselvi’s case, in
WP (MD) No.9374 of 2010, cited supra, but also concluded
that any wife of the void marriage, whose marriage had
taken place on or after 14.10.1991 alone is not entitled to
family pension, inasmuch as the second proviso to sub Rule
7 of Rule 49 was introduced with effect from 15.10.1991.
This conclusion of the learned Judge, in our considered
opinion, cannot be sustained, The second proviso is only an
enabling provision, which provides that if one of the widows
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W.P.(MD)No.22457 of 2017
is not survived by any child her share in the family pension
will be payable to the other widow in equal share or if there
is only one such widow in full to her. In order to get the
benefit of the proviso there should have been a valid
marriage and the claimant should be a widow within the
meaning of Rule 49 of the Tamil Nadu Pension Rules and
the second wife, whose marriage is void cannot claim to be
a widow in the eye of law. We have concluded that family
pension is not the estate of the Government servant, it is an
entitlement to a widow, whose marriage is a valid marriage,
under the Personal Law applicable to the parties.
Therefore, we are unable to subscribe to the views expressed
by the learned Judge either in Tamilselvi’s case, in WP
(MD) No.9374 of 2010, or in Pushpavalli’s case, in WP
(MD) No.7817 of 2011, referred to supra.
35. In S.Kamatchi v. The Accountant General &
Another, reported in CDJ 2014 MHC 3594, the learned
Judge has not given his own reasons, but he has only chosen
to follow the judgment of another Single Judge of this
Court. As already adverted to in WP(MD) 13372 of 2012,
dated 04.04.2014, the learned Single Judge, who decided
the case, as in fact held that a widow, whose marriage is
otherwise invalid, cannot be termed as a widow in the strict
sense, as per the Sub Rule 7 Rule 49 of the Tamil Nadu
Pension Rules. Therefore, we do not think, the judgment in
S.Kamatchi’s case reported in CDJ 2014 MHC 3594, cited
supra, will not also advance the case of the petitioner.
36.In Suseela @ Mary Margaret v. The
Superintendent of Police, Coimbatore District, Coimbatore
18 and another, in WP No.15806 of 2015, the learned Judge
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has not referred to either Rule 49 of the Tamil Nadu Pension
Rules or the provisions of Section 5(1) of the Hindu
Marriage Act. The learned Judge concludes that in view of
the fact that the Hon’ble Supreme Court had held that the
marriage could be presumed on the basis of long
cohabitation the second wife would be entitled to family
pension as per the Rule 49. This view of the learned Judge,
according to us is not in consonance either with Rule 49 of
the Pension Rules or Rule 19 of the Tamil Nadu Government
Servant’s Conduct Rule, 1973, or the provisions of Section
(5) (1) of the Hindu Marriage Act.
37. In P.S.Shanthi Balakrishnan v. The Director of
Medical Education, Kilpauk, Chennai and others, in WP
No.9856 of 2015, the learned Single Judge of this Court had
only relied upon the judgments in S.Kamatchi’s case
reported in CDJ 2014 MHC 3594, and the Pushpavalli’s
case, in WP (MD) No.7817 of 2011, referred to supra to
conclude that the second wife would be entitled to the family
pension. Similar is a case in J.Rajakumari v. The
Superintendent of Police, Trichy, in WP No.12105 of 2016,
where the learned Single Judge of this Court had chosen to
follow Pushpavalli’s case, in WP (MD) No.7817 of 2011,
referred to supra. We have already given our reasons for
disagreeing with the views expressed by the learned Single
Judge in Pushpavalli’s case.
38. In R.Sulochana v. The State of Tamil Nadu, Rep.
by Principal Secretary to Government, Revenue
Department, Secretariat, Chennai 9, in WP No.26377 of
2014 dated 20.10.2016 also another learned Single Judge of
this Court has chosen to follow the earlier judgments in
Tamilselvi’s case, referred to supra.
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39. In K.Muthulakshmi v. The Principal Accountant
General, (Accounts and Entitlement), Tamil Nadu, 261 Anna
Salai, Madras 600 018, in WP No.45 of 1996, the learned
Single Judge of this Court had, after adverting to Sub Rule
7 of Rule 49, as well as the amendments there to had
concluded that the second wife is not entitled to family
Pension.
40. In A.Palaniammal v. The Accountant General,
Office of the Account-General, 261 Anna Salai, Chennai
600 018 and others, in WP No.44823 of 2006, the learned
Judge had, after taking note of the provisions of Sub Rule 7
of Rule 49, the explanation added thereto in 1992 as well as
the provisions of Section 5(1) Hindu Marriage Act had
concluded as follows:
“24. With reference to the contention that the
Government cannot clarify the Tamil Nadu Pension Rules,
1978 which is statutory in character, it must be noted that
the present Pension Rules were inherited from the Rules
which were in force before the Hindu Marriage Act came
into existence. Even after the Hindu Marriage Act came into
existence, the personal law of government servants
belonging to different religions are also different. Therefore,
the Government Servants' Conduct Rules contemplated a
situation, where a government servant having a personal
law providing for more than one marriage can get married
after getting prior permission from the Government.
Therefore, the Rule contemplated different situations. But it
was never the intention of the Rule makers that by making
the Pension Rules, they have granted a defacto recognition
to an illegitimate wife of a Government servant who
belonged to Hindu religion. Whatever may be the earlier
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position, the clarification dated 02.06.1992 clearly brought
the Pension Rules in accordance with the correct legal
position. As the clarification brought the law in conformity
with the correct legal position, it cannot be said to be either
illegal or void or contrary to the statutory rules. Infact by
subsequent clarification, the State Government had
correctly laid the Rules in accordance with the law of the
land and no exception can be taken.”
“28. Even if the Larger Bench answers the question in
favour of a woman, who claims to be the wife on account of
long living as husband and wife is only in relation to
Section 125 of Cr.P.C. and not in connection with the State's
obligation to pay family pension. It is always open to the
Government to define the term 'Family' and exclude persons
who do not qualify to be termed as 'wife'. No exception can
be taken if any such clarification is issued by the State
Government. It is one thing to talk about the obligation of a
man being husband to his wife. The other thing is the State's
obligation towards a Government servant in affording
protection to him as well as to his family during his tenure
as well as after retirement. But that cannot be over stretched
to include even for provision of pension for a second wife,
which if granted not only will fritter away the limited
resources vest with the State but also will encourage
bigamous marriages which had been prohibited not only by
family law and the criminal law of the land but even as per
the Government Servants' Conduct Rules.”
41. A substantially similar view has been expressed
by another learned Judge of this Court in P.Velammal v. The
Additional Assistant Elementary Educational Office,
Sivagangai District in WP (MD) No.3096 of 2016, wherein,
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after taking note of the provisions of Section 5 (1) of the
Hindu Marriage Act, 1955, as well as the explanation added
to Sub Rule 7 of Rule 49, the learned Single Judge has held
as follows: “12. Law is settled that two Hindus
cannot contract marriage after the enforcement of the
Hindu Marriage Act and if any of them is having a living
spouse, the marriage would be a nullity and would also not
be protected under the Conduct Rules, as well as, the
pension rules. Therefore, the “second wife” as referred to
under the pension rules would only include second wife
whose marriage is permissible under the Personal Law, but
in the case of Hindus, the second wife will have no right,
whatsoever, as the law prohibits second marriage, as long
as, the Government servant has a spouse who is alive. Thus
for harmonious construction of the Rules governing
pension, wherever, the rule provides for wives, it has to be
interpreted as per the law governing marriage as applicable
to the Government servant and in cases where the second
marriage is void under the law, second wife will have no
status of a widow of the Government servant and relying on
protection of Women from Domestic Violence Act, 2005, in
the opinion of this Court, is only taking a shelter.”
42. We have discussed the basis on which the various
judgments, of course conflicting views, have been rendered.
Insofar as the view that the second wife of the Government
Servant, who died prior to 02.06.1992 as held in
Tamilselvi’s case, referred to supra, and the view that a
widow of an invalid second marriage that had taken place
prior to 14.10.1991, as held in Pushpavalli’s case, have
given our reasons, as to why, we are unable to subscribe to
the said conclusions of the learned Single Judge. We are,
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therefore, of the opinion that in order to enable a second
wife to claim family pension the marriage should have been
valid under the Personal Law applicable to the parties, to
hold otherwise would be in violation of the law of the land,
viz. the Personal Law of the parties as well as the Criminal
Law, which prohibits bigamous marriage.”
9. Keeping the principles laid down by the Division Bench in the
decision in Rajathi's case (supra), a perusal of the materials in the case on
hand reveals that the petitioner jointly claims family pension along with the
first wife while surviving and after her demise claims family pension as the
surviving wife. However, it is to be pointed out that after the death of the
first wife of the deceased, at the time of filing of the case, the daughter of
the deceased through his first wife is alive and is very much the legal heir of
the deceased to claim family pension. The marriage of the petitioner with
the deceased is a void marriage as the same is invalid as per the Personal
Law.
10. A perusal of the decision in Rajathi's case (supra) makes it
abundantly clear that the view as held in Pushpavalli's case was negatived
by the Division Bench and the Division Bench held that the second wife of
the government servant, who died prior to 02.06.1992 and the widow of an
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invalid second marriage, that had taken place prior to 14.10.1991, is not
entitled to a share in the family pension in equal moieties with the first wife.
Further, explanation to Sub-Rule 7 (a) (i) of Rule 49 of Tamil Nadu Pension
Rules, 1978, makes it clear that in order to enable a second wife to claim
family pension, the marriage should have been valid under the Personal Law
applicable to the parties and to hold otherwise would be in violation of the
law of the land, viz., the Personal Law of the parties as well as the Criminal
Law, which prohibits bigamous marriage. The decision in Rajathi's case
(supra) is squarely on the issue as raised in the case on hand and is attracted
to the case of the petitioner and in such a scenario, the petitioner is not
entitled for the relief of family pension as sought for.
11. For the reasons aforesaid, this petition sans merit and,
accordingly, the same is dismissed. However, there shall be no order as to
costs.
09.03.2021
Index:Yes/No
Internet:Yes/No
PJL
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W.P.(MD)No.22457 of 2017
Note: In view of the present lock down owing to
COVID-19 pandemic, a web copy of the order may
be utilized for official purposes, but, ensuring that
the copy of the order that is presented is the correct
copy, shall be the responsibility of the
advocate/litigant concerned.
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W.P.(MD)No.22457 of 2017
To
1. The Accountant General,
Office of the Accountant General(Accounts and Entitlements)
Tamil Nadu,
361, Anna Salai,
Teynampet, Chennai-600 108.
2. The Assistant Executive Engineer,
Public Works Department,
Buildings (C&M),
Sub-Division, Medical Works,
Ramanathapuram.
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W.P.(MD)No.22457 of 2017
M.DHANDAPANI,J.
PJL
W.P.(MD).No.22457 of 2017
09.03.2021
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