Kankalata Dwibedi vs State Of Odisha And Others on 13 January, 2026

Author: Chittaranjan Dash

Bench: Chittaranjan Dash

             IN THE HIGH COURT OF ORISSA AT CUTTACK
                               W.A. NO.1460 OF 2025
             In the matter of an appeal from the order dated 16.07.2025
             passed in W.P.(C) No.3822 of 2022.
                                   --------------

           Kankalata Dwibedi                             ....                 Appellant


                                              -versus-


           State of Odisha and others
                                                         ....              Respondents


                          Advocates Appeared in this case


                    For Appellant         -       M/s. Madhumita Panda, J.

Bhuyan & D. Behera, Advocates

For Respondents - Mr. J.K. Khandayatray, ASC

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CORAM

HON'BLE MR. JUSTICE DIXIT KRISHNA SHRIPAD HON'BLE MR. JUSTICE CHITTARANJAN DASH

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Date of Hearing & Judgment : 13.01.2026

-------------------------------------------------------------------------------------- PER KRISHNA S. DIXIT,J.

This intra-court appeal calls in question a learned Single Judge's order

dated 16.07.2025, whereby Appellant's W.P.(C) No.3822 of 2022 has been

negatived. In the said petition, Appellant had called in question the order dated

12.11.2021 passed by OP No.4, whereby her claim for family pension has been

negatived. That order reads as under:

"ORDER The Hon'bie High Court of Orissa in their Order Dtd.7.7.2021 passed in W.P.(C)(OAC) No. 872 of 2017 have directed the O.P. No.2 as well as the O.P. No.4 (the Controller of Accounts, Odisha, Bhubaneswar) to treat the writ petition of the petitioner as a representation and to take a decision as appropriate in this case.

On going through the writ petition as well as annexure attached thereto, it is seen by the O.P. No.4 that Late Niranjan Dwibedy has acquired Smt. Kanaklata Dwibedy as 2nd wife in his life time during the existence of his wife Late Indumati Dwibedy. So, as per Note below Clause-

(d) of Sub-Rule (6) of Rule, 56 of OCS (Pension)-1992, Smt. Kanaklata Dwibedy being the 2nd ife of Late Niranjan Dwibedy is not entitled to family pension, not being legally married wife of Late Dwibedy. Therefore, the O.P. No.4 has no scope to authorize family pension in favour of Smt. Kanaklata Dwibedy.

In view of the above observations, the representation of the petitioner is considered and disposed of."

2. Learned counsel for the Appellant vehemently argues that the Odisha

Civil Services (Pension) Rules, 1992 specifically employ the expression

'wife'/'wives' and therefore, her client being the second wife of the deceased

employee, the first wife also having passed away, is entitled to family pension.

In support of her claim, learned counsel for the Appellant presses into service

the judgment of Apex Court in Smt. Sriramabai w/o. Pundalik. Bhave v. The

Captain, Record Officer for O.I.C. Records, Sena Corps Abhilekh, 2023

INSC 744. Learned ASC appearing for the Respondents opposes the appeal

making submission in justification of the impugned order and the reasons on

which it has been structured.

3. Having heard learned counsel for the Parties and having perused appeal

papers, we decline indulgence in the matter, broadly agreeing with the

reasoning of learned Single Judge, and also the added reasons hereunder:

3.1. After the enactment of Hindu Marriage Act, 1955, amongst the Hindus

monogamy is the thumb rule with no exception whatsoever. Therefore, the idea

of very second marriage during the subsistence of first one abhors the pith &

substance of this Act. The vehement submission of learned counsel for

Appellant that, her client entered into wedlock because the first wife did not

beget any child is too dangerous to be accepted, inasmuch as that shakes the

very corner stone of the institution of marriage, whose sanctity is founded inter

alia on monogamy. The Act does not recognize childlessness as a justifiable

circumstance for entering into wedlock with a person who is already in the

subsisting wedlock with another. To put it in other words, after the Act came

into force, monogamy is the grand norm with no exception whatsoever. The

limited legitimacy conferred on children of void marriage as per the policy

enacted in Section 16 of the Act, does not extend to the parties to a void marital

relationship.

3.2. Mayne's Hindu Law 16th Edition (Bharat Law House) at pages 182, 230

& 352 states as under:

"5.... during the lifetime of a legally wedded wife or husband, and when the marriage is subsisting, the husband or the wife as the case may be,

cannot have a second marriage. Not only is a bigamous marriage void under this Act but bigamy is punishable under section 17 read with sections 494 and 495 of the Indian Penal Code...." (Para-5, Page 182)

"4. Effect of consent of first wife.- The consent of previous wife does not make the second marriage valid. In the event of a spouse entering into a second marriage while the first marriage is subsisting, even the consent of the spouses of the first marriage will not make the second marriage a valid marriage."(Para-4, Page 230)

"1. .....Section 494, IPC states that whoever having a husband or wife living, marries and such a marriage is void by reason of its taking place during the life of such husband of wife, shall be punished with imprisonment of either description for a term which may extend to seven years and shall also be liable to fine.

Section 495 states that whoever commits the offence defined in the last preceding section having concealed from the person with whom the subsequent marriage is contracted the fact of the former marriage shall be punished with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine. Section 17 declares a marriage while the first wife or husband is alive as void and sections 494 and 495, IPC are made applicable for purpose of conviction and sentence for the offence of bigamy...." (Para-1, Page 352)

3.3. The vehement submission of learned counsel for the Appellant that the

extant Pension Rules employ the term 'wife' or 'wives' and therefore, even the

second wife is entitled to claim family pension at least after the demise of first

one, is very difficult to countenance. Reasons for this are not far to seek:

Family pension under the Rules is payable to the widow on the death of an

employee subject to complying with certain terms & conditions. To be a

widow, a valid marriage between the woman & the deceased employee is a

sine qua non. The word 'wives' appearing in the Rules does not authorize an

employee to contract marriage with multiple persons by way of polygamy or

polyandry. The Pension Rules, be they promulgated under the proviso to

Article 309 of the Constitution of India or under an enactment, cannot be

construed as to defeat the avowed policy of the Parliament enacted in

legislations like Hindu Marriage Act, 1955, Indian Penal Code, 1862, etc. The

interpretation sought to be placed by the Appellant's counsel on the subject

Rule by stressing on the rules of dictionary & grammar, spurns at the root of

such a policy and therefore, does not merit acceptance. After all, the sages of

law say that law is neither a slave of dictionary nor a servant of grammar book.

3.4. The vehement reliance of learned counsel for the Appellant on the

decision in Smt. Sriramabai (supra) does not come to the aid of her client,

even in the least. The case does not essentially relate to bigamy or to the

second marriage, to match with the fact matrix of the appeal at hand. It

involved two individuals belonging to opposite sex in prolonged cohabitation,

the first wife having died, and the Apex Court drew presumption of valid

marriage between the said individuals, under Section 114 of Evidence Act,

1872. In the case at hand, admittedly the Appellant entered the wedlock with

the deceased employee during the subsistence of first marriage with another

woman. That act itself constitutes the offence of bigamy punishable under

Section 17 of the Hindu Marriage Act, 1955 and Section 495 of the erstwhile

Indian Penal Code, 1862. Granting family pension to the so called 'second

wife', amounts to placing premium on illegality. It hardly needs to be stated, a

case is an authority for the proposition laid down in a given fact matrix, and not

for all that which logically follows from what has been so laid down, vide

Quinn v. Letham, [1901] AC 495 (HL).

3.5. The vehement submission of learned counsel for the appellant that even

if the second marriage when solemnized was null & void because of subsisting

first marriage, on the death of first wife it gets legitimized and therefore the

arguable voidness of the said marriage would evaporate, is not supported by

any standard treatises on Hindu Law of Marriage. What is void ab initio, does

not become valid by the happening of subsequent event, there being the maxim

ex nihilo nihil fit, meaning out of nothing, nothing comes out. In fact, the

question relating to claim of second wife for the grant of family pension is no

longer res integra. The Apex Court in Raj Kumari v. Krishna, 2015 (14) SCC

511 has already answered the same perfectly in the negative. Added, a

Division Bench of Karnataka High Court in Mahalakshmamma v. The

Secretary, 2023:KHC:41044-DB has observed as under:

"Recognizing such relations arising from second marriage during the subsistence of first one is detrimental to public interest inasmuch as that would facilitate directly or indirectly the employees contracting the second marriage, which is legally impermissible. Statutorily bigamy is an offence punishable under Section 17 of the Hindu Marriage Act, 1955.....Family pension is payable to the „wife‟, and not to those whose marriage is „no marriage‟ in the eye of law.... "

In the above circumstances, Writ Appeal being devoid of merits is liable to be and accordingly rejected.

(Dixit Krishna Shripad) Judge

(Chittaranjan Dash) Judge

Orissa High Court, Cuttack The 13th day of January 2026 /Anisha