Telangana High Court
Smt. Manemma vs The State Of Telangana, on 5 December, 2023
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
WRIT PETITION NO.33515 OF 2017
ORDER:
This writ petition is filed seeking to declare the action of the
respondents 2 to 4 in issuing the impugned proceedings dated
21.09.2017 sanctioning the net family pension of late Pandurangaiah
in favour of 5th respondent and consequently direct the respondents 2
to 4 to pay net family pension of late Pandurangaiah only to the
petitioner.
2. The brief facts leading to filing of this writ petition are as
under:
2.1. Petitioner is the wife of late M.Pandurangaiah. Petitioner
married to late Pandurangaiah on 05.05.1977, who is an employee in
Animal Husbandry Department. Late Pandurangaiah married 5th
respondent while first marriage between the Pandurangaiah and the
petitioner was subsisting and thus, husband of the petitioner
committed an offence of bigamy. On the complaint given by the
petitioner, respondents 2 and 3 initiated departmental proceedings
against her husband and initially her husband was dismissed from
service by order dated 02.11.2000 for the offence of bigamy.
However, the appellate authority set aside the dismissal order on the
ground that Pandurangaiah had obtained customary divorce from the
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petitioner and thereafter, married 5th respondent and thus, he was
reinstated into service.
2.2. While so, late Pandurangaiah filed O.P.No.45 of 1998 against
the petitioner for divorce before the Senior Civil Judge's Court,
Mahabubnagar and the same was dismissed by judgment dated
09.04.2002. Aggrieved by the same, Pandurangaiah filed appeal
before the High Court vide CMA (SR) No.34890 of 2003 and the same
was dismissed by the Hon'ble High Court vide order dated
18.08.2003. Petitioner submitted another complaint before the
Department enclosing the copies of judgment passed in O.P.No.45 of
1998 and order in CMA(SR)No.34890 of 2003 and brought to the
notice of the Department that Pandurangaiah failed to prove
customary divorce. Consequently, the respondents reopened the
departmental proceedings against Pandurangaiah and vide order
dated 19.02.2011 imposed penalty of compulsory retirement from the
service, thus, then the same has become final.
2.3 Late Pandurangaiah received the pension after retirement and
died on07.02.2015 by leaving the petitioner as his first wife. It is
contended that petitioner being first wife of Pandurangaiah is entitled
to pension of her late husband and accordingly, she submitted
relevant papers to the respondents 2 and 3 for sanction of family
pension. However, 2nd and 3rd respondents processed the proposals of
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5th respondent, who is second wife of Pandurangaiah and
consequently, 4th respondent sanctioned net pension of Rs.21,887/-
per month to the 5th respondent vide order dated 21.09.2017.
2.4. It is further contended that 2nd and 3rd respondents imposed
punishment of compulsory retirement of Pandurangaiah only on the
complaint given by the petitioner that he committed the offence of
bigamy and therefore, upon death of late Pandurangaiah, petitioner is
alone entitled to family pension being first wife. Petitioner had also
submitted family member certificate dated 14.10.2016 issued by the
Tahsildar, Wanaparthy, as per which, she is only legally wedded wife
of late Pandurangaiah. Therefore, it is prayed that order dated
21.09.2017 be set aside and further direction to respondents to pay
net family pension to the petitioner herein.
3. This Court by order dated 09.10.2017, granted interim stay of
the impugned proceedings dated 21.09.2017 sanctioning the net
family pension of late Pandurangaiah in favour of 5th respondent
including payment of net pension pending disposal of the writ
petition.
4. Respondent no.3 filed counter, which is also sworn on behalf of
respondent Nos.1 and 2. In the counter it is stated that late
Pandurangaiah was appointed as Livestock Assistant in Animal
Husbandry Department on 04.06.1979. The marriage of late
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Pandurangaiah and the petitioner was performed on 05.05.1977 and
as per the statement of petitioner dated 03.07.1978, she never stayed
with her husband. Therefore, the marriage and divorce were prior to
appointment of late late Pandurangaiah in the Department and the
marriage of petitioner was not subsisting at the time of appointment.
Late Pandurangaiah retired on compulsory retirement on 21.09.2010,
thereafter, he submitted representation dated 04.09.2012 appointing
the 2nd wife Smt. M.Venamma i.e. respondent No.5 as nominee and
for family pension benefits. Representation dated 04.09.2012 and
letter dated 13.12.2012 of the Assistant Director of Animal
Husbandry, Siddipet, were submitted to the Accountant General
(A&E), Hyderabad for further process no representation was received
by the respondent office from the first wife. Therefore, the
Department is justified in submitting nominee of second wife of late
Pandurangaiah to the Accountant General for family pension benefits
and it is finally prayed that the writ petition is devoid of merits and
liable to be dismissed.
5. Respondent no.5 filed counter denying the allegations made in
the writ affidavit and contended that she is the legally wedded wife of
late Pandurangaiah, who retired on compulsory retirement on
27.08.2010. It is contended that after the dissolution of the marriage
of her husband with his first wife in the year 1979, she married her
husband on 09.11.1980. After her marriage, her name was entered
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in service register of her husband and her name was carried in all
official correspondences and out of wedlock, they were blessed with
two children. It is further contended that though the petitioner left
her husband in the year 1979, she tried to take undue advantage of
not dissolving their marriage by demanding share in the property, her
husband filed OP No.45 of 1998 for divorce, which was dismissed on
09.04.2002. Further, on compulsory retirement of her husband,
pensionary benefits were sanctioned to her husband vide letter dated
08.02.2013 by the Accountant General, Hyderabad, where under her
name was specifically mentioned as the beneficiary of family pension
and her husband received pensionary benefits till his death i.e.,
07.02.2015.
5.1. It is further contended that after death of her husband, the
official respondents have sanctioned and released family pension in
her favour and she has received the same till February, 2018.
Aggrieved by the same, petitioner filed the present writ petition and
obtained interim stay of orders dated 09.10.2017. Thereafter, the
Accountant General (A&E), Hyderabad stopped the payment of family
pension to her vide orders dated 24.03.2018 and her pension is being
withheld by the respondents.
5.2 It is also contended that the official respondents have rightly
sanctioned the family pension in her favour as per her late husband
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declaration in the pension papers. Even assuming that the petitioner
has a claim as per rule 50(6) of AP Revised Pension Rules, 1980, it is
incorporated that wife or wives are entitled for family pension of the
deceased pensioner and if that is so, she can raise only the claim
upto 50% family pension. It is further contended that because of
interim orders, she is suffering a lot financially and mentally to lead
her day to day life and finally prayed to dismiss the writ petition.
6. Heard learned counsel Sri M.Damodar Reddy for the petitioner,
learned Govt. Pleader for Services-I & III for respondents 1 to 3, Sri
K.Balakrishna learned counsel for respondent no.4 and Sri Siripuram
Keshava learned counsel for respondent no.5.
Consideration:
7. The undisputed facts which emerges from the pleadings and
the material placed on record are that petitioner is the first wife of
late Pandurangaiah and that the late husband was imposed penalty
of compulsory retirement by the Department on the complaint given
by the petitioner that he contracted second marriage and thus,
indulged in an offence of bigamy. It is also not in dispute that
O.P.No.45 of 1998 filed by Pandurangaiah for divorce was dismissed
and there is a clear finding that the alleged customary divorce issued
by the petitioner is not proved and so also desertion alleged by
Pandurangaiah. Further, the appeal filed by him in CMA (SR)
No.34890 of 2003 was also dismissed.
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8. It is also a fact that that despite submission of family member
certificate, copies of judgments by the petitioner, the Department
sanctioned the family pension to the 5th respondent vide proceedings
dated 21.09.2017. The justification sought to be put-forth by the
Department that Sri Pandurangaiah submitted representation, dated
04.09.2012 nominating the 5th respondent as his nominee for family
pension benefits and that was submitted to the Accountant General,
since no objection was received from the petitioner is per se improper
on the part of the Department. More so, in the light of penalty of
compulsory retirement imposed by the Department on the ground of
bigamy, the Department is fully aware of the fact that bigamy of
Pandurangaiah and the 5th respondent is not legally wedded wife of
Pandurangaiah.
9. Further, it is also on record that petitioner submitted the copy
of judgment passed in O.P.no.45 of 1998 as well as judgment passed
in CMA (SR) No.34890 of 2003 and also family member certificate
issued by the Tahsildar, Wanaparthy, as per which, petitioner is
alone legally wedded wife of late Pandurangaiah. Therefore, the
Department is not justified in forwarding the name of 5th respondent
as nominee of late Pandurangaiah and the same is contrary to
departmental proceedings dated 19.02.2011, by which
Pandurangaiah was imposed penalty of compulsory retirement on the
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ground of bigamy and thus, proceedings dated 21.09.2017 is not
valid.
10. Learned counsel for petitioner relied upon the judgment of
learned single Judge of this Court in G.Bharathi and others vs.
G.Prameela and others 1, in support of his contention that the 2nd
marriage during subsistence of earlier marriage is void.
11. The learned single Judge in G.Bharathi (supra), held as under:
"14. As per Rule 49 of the Revised Pension Rules, 1980, a Government
servant can, on his appointment, make a nomination in favour of a person or
persons to receive the death-cum-retirement benefits payable under Rule 47,
and such nomination shall not be in favour of any person or persons other
than the members of his family. As per sub-rule (5) of Rule 46 of the said
Rules, 'family' in relation to Government servant for the purpose of this rule
and Rules 47, 48 and 49 means--
(i) wife or wives, in the case of a male Government servant;
(ii) Husband in the case of a female Government servant;
(iii) Sons including step-sons, posthumous sons, and adopted sons (whose
personal law permits such adoption);
(iv) Unmarried daughters including step daughters, posthumous daughters and
adopted daughters (whose personal law permits such adoption);
(v) Widowed daughters including stepdaughters and adopted daughters;
(vi) Father; and including adoptive parents in the case of individual whose
personal law permits adoption;
(vii) Mother
(viii) Brothers below the age of 18 years including step brothers;
(ix) Unmarried sisters and widowed sisters including step sisters;
(x) Married daughters; and
(xi) Children of pre-deceased son."
2007 SCC Online AP 646
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12. The learned single Judge in the circumstances in paragraph-13
held that there was no possibility of a person having two legally
wedded wives after the advent of Hindu Marriage Act, 1955 and
inasmuch as marriage between a man and women, who has a spouse
living, after the coming into force of that Act, would be null and void
and the status of the second wife can only be that of a concubine, but
not the wife of the deceased. It is also observed that concubine
cannot be elevated to the status of a wife and cannot be treated as
the wife of the deceased and finally concluded that concubine cannot
be elevated and entitled retirement benefits of the deceased.
13. It is relevant to note that Rule 49 of the Pay Revised Pension
Rules, 1980 prohibits a Government servant nominating the persons,
who are not the members of his family, for family pension.
14. Learned Government Pleader for Services-III relied upon the
decision of Hon'ble High Court of Calcutta in Krishna Veni vs. Union
of India and others 2, wherein, the second wife of the deceased filed
writ petition to grant pension cancelling the pension sanctioned in
the name of first wife on the ground that first wife executed deed of
declaration of divorce. The Hon'ble Apex Court in paragraph-12 held
that the marriage between the deceased and first wife could only be
dissolved by a decree of divorce passed by a competent court on any
2021 SCC Online Cal 437
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of the grounds as mentioned in Section 13 of the Act, unless the
existence of any contrary custom was proved by evidence. Thus, the
judgment relied upon by the petitioner is not applicable to the
present case since alleged customary divorce given by the petitioner
was not proved. In fact, O.P.No.45 of 1998 filed by late
Pandurangaiah for divorce was dismissed by the Senior Civil Judge
and appeal filed by him was also dismissed. Therefore, the marriage
between the petitioner and late Pandurangaiah deemed to be
subsisting, purported second marriage between late Pandurangaiah
and the 5th respondent is legally invalid.
Conclusion:
15. In the light of above facts, circumstances and legal position, the
impugned proceedings dated 21.09.2017 is unsustainable and liable
to be set-aside/quashed and accordingly, Writ Petition is allowed. The
petitioner is entitled to receive family pension of her late husband i.e.,
Pandurangaiah. The respondents are directed to pay the pension
including the arrears within a period of eight weeks from the date of
receipt of copy of this order. There shall be no order as to costs.
16. Pending miscellaneous applications if any shall stand closed.
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LAXMI NARAYANA ALISHETTY,J
Date: 05.12.2023
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HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
WRIT PETITION NO.33515 OF 2017
Date: 05.12.2023
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