Madras High Court
Vijayalakshmi vs The Principal Accountant General ... on 25 April, 2022
W.A(MD)No.152 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 25.04.2022
CORAM:
THE HON'BLE MR.MUNISHWAR NATH BHANDARI, CHIEF JUSTICE
AND
THE HON'BLE MR.JUSTICE PARESH UPADHYAY
W.A(MD)No.152 of 2022
Vijayalakshmi ... Appellant
Vs.
1.The Principal Accountant General (A&E),
Tamil Nadu,
361, Anna Salai,
Teynampet,
Chennai-600 018.
2.The Superintendent of Police,
Dindigul District,
Dindigul. ... Respondents
Appeal filed under Clause 15 of Letters Patent, against the
order of this Court made in W.P(MD)No.19711 of 2017 dated
27.02.2019.
For Appellant : Mr.K.P.Narayanakumar
For R1 : Mr.P.Gunasekaran
For R2 : Mr.J.Ashok
Additional Government Pleader
Page 1 of 16
https://www.mhc.tn.gov.in/judis
W.A(MD)No.152 of 2022
JUDGMENT
(Delivered by the Hon'ble Chief Justice)
By this writ appeal, a challenge is made to the judgment
dated 27.02.2019 whereby, the writ petition to challenge the
order dated 02.11.2015 to deny the benefit of family pension to
the petitioner/appellant was dismissed. It was dismissed on the
ground that the appellant, who is stated to be the second wife of
the deceased Government employee, was not entitled to family
pension.
2. Learned counsel for the writ appellant has made a
reference to Rule 49 of the Tamil Nadu Pension Rules of 1978 (in
short, ''the Rules of 1978'') and submits that Rule 49 permits
family pension to more than one widow. The petitioner/writ
appellant, being the second widow to the deceased erstwhile
Government servant, is entitled to receive the family pension on
the death of the Government Servant.
https://www.mhc.tn.gov.in/judis
W.A(MD)No.152 of 2022
3. Giving out the facts of the case, it is stated that erstwhile
Government servant died in the year 2013 and before that, his
first wife died in 1996. She was otherwise suffering from mental
disorder and, therefore, the appellant was staying with the
erstwhile deceased employee from the year 1979 itself. In view
of the above, a relation of husband and wife, may be even live-in
relationship developed and thereby, the petitioner/writ appellant
became entitled to receive the family pension after the death of
erstwhile Government employee.
4. To substantiate the argument, learned counsel for the
appellant has made a reference of the judgment of this Court in
in the case of C.Sarojini Devi vs. The Director of Local Fund
Audits, Chennai and two others, MANU/TN/0413/2020,
wherein the claim made by the second wife to receive the family
pension was considered and the impugned order was quashed
with a direction to the respondents to pass necessary orders to
sanction family pension in favour of the petitioner therein.
https://www.mhc.tn.gov.in/judis
W.A(MD)No.152 of 2022
5. A further reference of the judgment of this Court in the
case of Malarkodi @ Malar vs. The Chief Internal Audit
Officer, Chennai and 3 others, MANU/TN/4006/2021, has
been given, stating that the learned Single Judge has taken into
consideration the judgment of the Division Bench in the case of
R.Rajathi vs. The Superintending Engineer TANGEDCO
Ltd., Nagapattinam District, 2018-1-Writ L.R 725 and
referred the matter to the Larger Bench. It is for the reason that
this Court in R.Rajathi's case (supra) did not accept the claim of
family pension in the hands of second wife married during the life
time of the first wife. The second marriage during the life time of
the first wife was illegal as per the Hindu Marriage Act, 1955 and,
therefore, claim of family pension under Rule 49(7)(a)(1) read
with Rule 3(1)(e) of the Rules of 1978, was held to be Untenable.
It is stated that disagreeing with the view of the Division Bench,
the learned Single Judge in Malarkodi's case (supra) referred
the matter to the Larger Bench. In view of the above, the prayer
is either to await the decision of the Larger Bench or this matter
may also be referred to the Larger Bench.
https://www.mhc.tn.gov.in/judis
W.A(MD)No.152 of 2022
6. Learned Additional Government Pleader has contested
the writ appeal and submits that the judgments in Malarkodi's
case (supra) and C.Sarojini Devi's case (supra), have no
application on the facts of this case. Thus, there is no reason to
await the outcome of the decision by the Larger Bench or to refer
the appeal to the Larger Bench in view of the decision of the
learned Single Judge in Malarkodi's case (supra).
7. Learned Additional Government Pleader referring to
the facts of this case submits that the writ petition was filed
claiming the benefit of family pension, but to substantiate the
facts, no document was submitted to prove the marriage. The
appellant came out with a case that the erstwhile Government
Servant died in the year 2013 and a death certificate dated
02.07.2013 has been enclosed along with the petition, so also the
death certificate of the first wife, Mrs.Saroja, dated 09.06.1996.
There is nothing on record to show that the first wife was
suffering from mental disorder and, therefore, the pleading
https://www.mhc.tn.gov.in/judis
W.A(MD)No.152 of 2022
remains for the sake of it and without any proof. The facts would
not end there, because there is nothing on record to even prove
the marriage.
8. The petitioner/writ appellant has enclosed the decree in
O.S.No.128 of 2014 declaring her to be the legal heir of the
deceased government servant to substantiate her claim that she
had married to the deceased, the charges framed against the
government servant show that the government servant married
the appellant during January, 1979, when his first wife was alive.
Therefore, the said marriage is illegal, as has been held by the
Division Bench in R.Rajathi's case (supra).
9. The widow certificate and other documents have been
filed without any document to prove the marriage of the
appellant with the erstwhile government servant in the year 1979
and could not have been during the life time of the first wife and,
therefore, the marriage was illegal as per the Hindu Marriage Act,
1955. It cannot be recognised for any purpose in the light of the
https://www.mhc.tn.gov.in/judis
W.A(MD)No.152 of 2022
judgment in the case of R.Rajathi's case (supra). The widow
certificate has been obtained from the Tahsildar having no
authority to issue it and otherwise he has not given the date of
marriage and necessary information to prove the appellant to be
widow of the erstwhile government servant. The status of the
widow can be conferred only when the appellant married the
erstwhile government servant and if the statement of facts in
reference to the marriage in the year 1979 is taken to be correct,
then the marriage was illegal during the life time of the first wife
and, thus, cannot be recognised for any purpose.
9. We have considered the submissions of the parties and
perused the records.
10. The issue has already been dealt with extensively by the
Division Bench in R.Rajathi's case (supra), referring to Rule 49
and also Rule 3 of the Rules of 1978, where a claim was made by
the appellant therein as second wife, who entered into marriage
with the Government Servant during the life time of the first wife.
https://www.mhc.tn.gov.in/judis
W.A(MD)No.152 of 2022
The Division Bench had considered the issue in reference to Rules
and the provisions of the Hindu Marriage Act, 1955, and could
not persuade itself to accept the claim and thereby the writ
appeal challenging the judgment of the learned Single Judge was
dismissed. The relevant paragraphs of the judgment in
R.Rajathi's case (supra) are quoted hereunder for ready
reference:-
''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, 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
https://www.mhc.tn.gov.in/judis
W.A(MD)No.152 of 2022
land, viz. the Personal Law of the parties as well as
the Criminal Law, which prohibits bigamous
marriage.
42. We are, therefore, constrained to conclude that
the judgments which conclude that a second wife
would be entitled to family pension, irrespective of
her marriage being void, under the provisions of
their relevant Personal Law's applicable to the
parties do not reflect the correct position of law
and therefore will stand overruled. The applicability
of Sub Rule 7(a)(i) is confined only to cases where
the second marriage is valid under the Personal
Law applicable to the parties, only in such cases,
widows of such marriages would be entitled to
family pension.''
11. The Division Bench has concluded the issue in
reference to the Rules of 1978 with regard to the claim by second
wife for family pension married during the life time of the first
wife. In the case on hand, there is no document to prove the
second marriage, though it is alleged in the charges framed
https://www.mhc.tn.gov.in/judis
W.A(MD)No.152 of 2022
against the government servant that he married the appellant in
January, 1979. It is during the life time of the first wife. The
appellant has managed to obtain widow certificate without proof
of marriage. In any case, there is allegation of marriage during
the life time of the first wife, it is not legal so as to maintain the
claim of family pension in the light of the judgment in
R.Rajathi's case (supra).
12. Learned counsel for the appellant has drawn our
attention to the judgment in Malarkodi's case (supra), where
the matter has been referred to the Larger Bench. We have
perused the judgment and find that based on the statement
regarding live-in relationship and the provisions of the Domestic
Violence Act, 2005, a prima facie case was found in favour of the
petitioner therein to claim family pension. The legal position in
that regard was clarified by the Division Bench in the case of
R.Rajathi's case (supra) and there being no conflicting
judgment of any other Division Bench, the learned Single Judge
could have followed the judgment of the Division Bench, being a
https://www.mhc.tn.gov.in/judis
W.A(MD)No.152 of 2022
binding precedent. In any case, we do not find the said judgment
to be applicable to the facts of this case. It is for the reason that
even if the statement pertaining to live-in relationship of the
appellant with the deceased from the year 1979 is considered,
the aforesaid cannot result in valid marriage or give a status of
wife out of a marriage during the life time of the first wife. The
provisions of the Domestic Violence Act, 2005 cannot be read in
conflict with the provisions of the Hindu Marriage Act, 1955
where certain marriages are declared to be illegal, which includes
the marriage during the life time of the first wife. The live-in
relationship to claim benefit of the Domestic Violence Act, 2005
cannot be applied herein for a woman claiming a status of wife
during the life time of the first wife. It cannot be read in conflict
with the Hindu Marriage Act, 1955.
13. In view of the above, we do not find that the judgment
in Malarkodi's case (supra) would be applicable on facts of this
case. Otherwise, judicial discipline requires a Single Bench to
follow the judgment of the Division Bench. We are bound by the
https://www.mhc.tn.gov.in/judis
W.A(MD)No.152 of 2022
judgment of the Co-ordinate Bench in R.Rajathi's case (supra)
and there is no reason for us to disagree with the said judgment,
rather to maintain judicial discipline, we would follow the said
judgment. The Court is required to maintain the judicial
discipline which has been referred to and decided by the Hon'ble
Apex Court in the case of Official Liquidator vs. Dayanand
and others, (2008) 10 SCC 1. The relevant paragraphs of this
judgment are quoted herein for ready reference:-
''There have been several instances of different Benches
of the High Courts not following the judgments/orders of
coordinate and even larger Benches. In some cases, the
High Courts have gone to the extent of ignoring the law
laid down by this Court without any tangible reason.
Likewise, there have been instances in which smaller
Benches of this Court have either ignored or bypassed
the ratio of the judgments of the larger Benches
including the Constitution Benches. These cases are
illustrative of non-adherence to the rule of judicial
discipline which is sine qua non for sustaining the
system. In Mahadeolal Kanodia vs. Administrator
General of W.B. [1960 (3) SCR 578], this Court
observed:
https://www.mhc.tn.gov.in/judis
W.A(MD)No.152 of 2022
"If one thing is more necessary in law than
any other thing, it is the quality of
certainty. That quality would totally
disappear if Judges of coordinate
jurisdiction in a High Court start overruling
one another's decisions. If one Division
Bench of a High Court is unable to
distinguish a previous decision of another
Division Bench, and holding the view that
the earlier decision is wrong, itself gives
effect to that view the result would be utter
confusion. The position would be equally
bad where a Judge sitting singly in the High
Court is of opinion that the previous
decision of another Single Judge on a
question of law is wrong and gives effect to
that view instead of referring the matter to
a larger Bench. In such a case lawyers
would not know how to advise their clients
and all courts subordinate to the High Court
would find themselves in an embarrassing
position of having to choose between
dissentient judgments of their own High
Court."”
https://www.mhc.tn.gov.in/judis
W.A(MD)No.152 of 2022
14. In the case cited supra, the Apex Court was faced with
the situation of conflicting judgments of the Supreme Court
despite the judgment on the issue by the Larger Bench and
therefore, addressed the cardinal importance of judicial discipline.
15. In view of the above and in the light of the judgment of
the Apex Court in Official Liquidator's case (supra), we are
unable to subscribe to the view taken by the learned Single Judge
in Malarkodi's case (supra) so as to await the judgment of the
Larger Bench in the said case and otherwise it is not applicable
on facts.
16. In the case on hand, in the absence of any material to
substantiate the claim of the appellant, we do not find any reason
to cause interference with the judgment of the learned Single
Judge. To confer the status of second wife, the appellant is
under an obligation to prove the marriage and it should be a valid
marriage and not during the life time of the first wife. The
https://www.mhc.tn.gov.in/judis
W.A(MD)No.152 of 2022
material to that effect has not been produced, rather a perusal of
the charge memo shows allegation of second marriage against
the erstwhile government servant during the life time of the first
wife and that makes the marriage illegal and, therefore, the claim
of the appellant seeking family pension as second wife cannot be
accepted.
17. With the aforesaid discussion, we do not find any
ground to interfere in the order passed by the learned Single
Judge. Accordingly, the Writ Appeal is dismissed. No costs.
(M.N.B., CJ.) (P.U., J.)
25.04.2022
Index :Yes/No
bala/ssl
To
1.The Principal Accountant General (A&E),
Tamil Nadu, 361, Anna Salai,
Teynampet,
Chennai-600 018.
2.The Superintendent of Police,
Dindigul District,
Dindigul.
https://www.mhc.tn.gov.in/judis
W.A(MD)No.152 of 2022
M.N.BHANDARI, CJ.
and
PARESH UPADHYAY, J.
bala/ssl
W.P(MD)No.152 of 2022
25.04.2022
https://www.mhc.tn.gov.in/judis
