Sunday, 23 April 2017

Whether claim of first wife can be rejected if her husband has suppressed marriage with her from court?

In   the   present   case,     Indubai   had   filed   criminal   case   for
maintenance under section 125 of Cr. P.C.  In the written statement,
Jaydeo has admitted his marriage with Indubai and he did not state
anything about his marriage with Draupada.  On the basis of evidence
tendered in the said case, the learned Magistrate held that fact of
marriage between Draupada and Jaydeo is proved and held that she
was entitled to maintenance and awarded the same.  Thus, under that
order, Jaydeo was paying maintenance to her during his life time.
The learned Judge of the trial Court has erred in accepting the finding
of the learned Magistrate as a final word while  determining the issue
of valid marriage of Indubai and Draupada with Jaydeo.  Draupada
has four children out of this wedlock.  The trial under section 125 of
Cr. P.C. conducted before the learned Magistrate was in absence of
Draupada.   The suppression of the fact of first marriage by Jaydeo
was obvious because he was in Government service and if he would
have   stated   about   the   first   marriage,   then   he   would   have   been
charged   for   misconduct   under   Rule   26   of   the   Maharashtra   Civil
Services (Conduct) Rules and that might have been affected adversely
on his service.  Thus, silence of Jaydeo about his first marriage with
Draupada in the written statement cannot be given any weightage
and a circumstance against Draupada.  His efforts to hide the fact of
first marriage from Court was successful and therefore, Indubai was
declared to be entitled to receive maintenance and which she was
receiving during his lifetime.   The learned Judicial Magistrate First
Class in that maintenance application gave the correct finding on the
basis of the evidence available to him.   Draupada was never before
him to plead her case.  Under such circumstances, if one wife does not
come before the Court to plead her case and the fact of two marriages
are   never   brought   before   the   Court,   then   the   finding   given   and
judgment passed in respect of validity of one marriage is always a
subject of challenge before the Civil Court and in that event, the Civil
Court has to consider the evidence independently of both the parties
and is required to give its verdict. 
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO.577 OF 2015
WITH
CIVIL APPLICATION NO.1770 OF 2015
Draupada @ Draupadi Jaydeo Pawar
and Others 
vs.
Indubai d/o. Kashinath Shivram Chavan
and Another 
CORAM : MRS.MRIDULA BHATKAR, J.
 Dated  : 10th FEBRUARY, 2016
Citation: 2017(1) ALLMR197

   The learned counsel for the respondents waives
service.   By consent, the Appeal is heard finally and decided at the
stage of admission.
2. This Appeal is directed against the judgment and order dated
17th February, 2010 passed by the Joint Civil Judge, Senior Division,
Sangli while disposing of Misc. Application Nos. 168 of 2003 and 131
of 2006 by a common judgment.

3. Draupada Jaydeo Pawar and Indubai Jaydeo Pawar both
claimed to be wives of the deceased Jaydeo Pawar, have filed these
Misc. applications separately for succession and heir­ship certificate in
their favour. (In order to avoid confusion, both the parties are addressed
by their names).
4. As   per   the   case   of   the   Draupada,   her   marriage   was
solemnized with Jaydeo Pawar in the year 1979 and five children
were born out of the said wedlock. Jaydeo died on 10th July, 2003 at
village   Ainwadi,   Tal.   Khanapur,   Sangli.   Before   death   Jaydeo   had
executed a Will dated 17th May, 2002 and he bequeathed the entire
property   in   favour   of   his   wife   Draupada.   After   death   of   Jaydeo,
Draupada applied for the Letters of Administration and on that basis
she claimed that Jaydeo had married to her in the year 1979 and the
second marriage with Indubai allegedly performed was solemnized in
the year 1981 and therefore Indubai has no claim in the pension or
other pensionary benefits of Jaydeo. 
5. Per contra, Indubai claims that her marriage with Jaydeo
was solemnized as per Hindu rites & ritual on 22nd June, 1981 & out
of their wedlock she gave birth to one Shubhangi who is one of the
applicant in these applications for succession certificate. It is the case
of Indubai that after few years of marriage, Jaydeo neglected her and
her daughter Shubhangi. Therefore she had filed an application for
maintenance under Section 125 of Code of Criminal Procedure before
the J.M.F.C., Sangli vide Misc. Application No. 225 of 1989. The said
application was decided in favour of Indubai and the Court ordered
Jaydeo to pay maintenance to her. 
6. Miscellaneous Application No. 131 of 2006 for heirship
was  filed by  Draupada  and  Miscellaneous  Application No.  168  of
2003 for heirship was filed by Indubai.  Both the parties adduced oral
as well as documentary evidence to prove their respective claims as
legally wedded wife of Jaydeo. The learned Judge of the trial Court
appreciated the evidence and held that Draupada failed to prove her
valid marriage with Jaydeo in the year 1979 however, the fact of
marriage of Jaydeo with Indubai is believed by the trial Court and
partly   allowed   the   application   filed   by   Draupada.   During   the
pendency   of   the   applications,   Draupada   died.     In   Miscellaneous
Application No. 168 of 2003, the learned Judge directed to issue
succession certificate in the name of the applicant Indubai to enable
her to receive arrears of family pension and future family pension
subject to payment of share of family pension amount if applicant
Nos. 2 to 6 i.e. children of Draupada in Misc. Application No. 131 of
2006 are found entitled to those amounts. This order is challenged by
applicant   Nos.   2   to   6   in   Misc.   Application   No.   131   of   2006   i.e.
children of Draupada.
7. At   the   time   of   hearing   the   Appeal,   the   points   of
determination are formulated as under:
1) Whether Draupada was legally wedded wife of Jaydeo ?
2) Whether family pension is an Estate of the employer which
can be bequeathed by Will ?
3) Under   Rule   116(6)(a)(i)   of   Maharashtra   Civil   Services
Rules, 1982 whether the family pension is payable equally
to   the   second   widow,   when   first   widow   is   alive   of
Government servant ?    
8. The learned counsel for the Appellants has submitted that
Draupada got married with Jaydeo in the year 1979. In support of her
case, many documents were filed by the Appellants. He submitted
that Jaydeo before his death had executed a Will on 17th May, 2002 at
Ainwadi, Tal. Khanapur. Therefore Draupada has filed Application No.
143 of 2004 for Letters of Administration and the learned Civil Judge,
Senior Division, Sangli by its order dated 22nd August, 2005 issued the
Letters of Administration in favour of Draupada about movable and
immovable properties. He relied on the Will which is marked Exhibit
16 by which Jaydeo has bequeathed the entire property in favour of
Draupada. The learned counsel submitted that the learned Judge of
the trial Court ought to have consider the documents produced by
Draupada. There are many documents issued by Talathi of Ainwadi.
He submitted that Jaydeo was serving as a 'Teacher' in New English
School,   Kupri,   Hatkanangale,   Kolhapur   which   was   run   by   'Rayat
Education Society'. He relied on the evidence of Mr. P.B. Pawar, a
colleague of Jaydeo who deposed about the marriage with Draupada.
The learned counsel submitted that Jaydeo has mentioned the name
of Draupada as his nominee in his pension papers. He submitted that
the learned Judge has committed error in accepting the evidence of
Indubai and her witnesses. The trial Judge ought not to have relied
completely   on   the   findings   given   by   the   criminal   Court   in   the
maintenance application.
9. The learned counsel submitted that status of Indubai as a
second wife is illegal and her marriage with Jaydeo was void. She has
no   right   in   the   property   or  pension  of   Jaydeo.   In   support   of   his
submission, he relied on the judgment in the case of  “Smt. Nanda
Santosh Shirke vs. Smt. Jayashree Santosh Shirke and Another”
1
.
He also relied on the ratio in the judgment of “State of Punjab vs.
    K.R.   Erry   and   Sobhag   Rai   Mehta”2
 . He   further   relied   on   the
judgment of full bench in the case of “D.S. Nakara and Others vs.
    Union of India”3
10. The learned counsel for the Respondents has supported
the judgment passed by the trial Court. He submitted that the other
benefits are given to the Appellants but Indubai has rightful claim
over the pension which is recognized by the trial Court. He submitted
that Indubai got married on 22nd  June, 1981 with Jaydeo and one
daughter   namely   Shubhangi   was   born   out   of   their   wedlock.   He
submitted   that   the   documents   and   entry   of   marriage   which   are
1. 2011(3) ALL MR 365.
2. AIR 1973 SUPREME COURT 834.
3. (1983) 1 Supreme Court Cases 305.
produced by Draupada are forged and manipulated and therefore
those documents are rightly disbelieved by the learned Judge of the
trial Court. He further argued that Indubai was compelled to file a
criminal case under Section 125 of the Code of Criminal Procedure
and in reply, Jaydeo has admitted his marriage with Indubai and did
not say a single word about his first marriage with Draupada. He
further submitted that this admission given by Jaydeo of his marriage
with Indubai supports the claims of Indubai as legally wedded wife of
Jaydeo over pension and pensionary benefits. He further argued that
if there would have been prior marriage with Draupada, then Jaydeo
ought to have mentioned about the first marriage.  However, there is
no whisper about it. He supported the reasoning and finding given by
the trial Judge. He submitted that the Will executed by Jaydeo is
challenged by Indubai. It is a forged document and Indubai was not
made a party in that proceeding when the application for Letters of
Administration was made by Draupada. He submitted that pension is
not an  “estate”  of any employer which can be disposed of by Will.
Therefore, the bequeath of pension by Jaydeo in favour of Draupada
in the said Will is not legal and the property can not be disposed of by
Jaydeo in this manner.
11. In support of his submission, he relied on the judgment of the
Hon'ble Supreme Court in the case of  Violet Issaac vs. Union of
    India”4
 . He further relied on the ruling of “Jodh Singh vs. Union of
    India”5
.  He   further   relied   on   the   judgment   of   “Sundariya   Bai
Choudhary vs. Union of India and Others”
6.   He submitted that as
per Rule 116(6)(a)(i) of Maharashtra Civil Services (Pension) Rules,
second wife is entitled to equal shares in the pension.  He relied on
the judgment of the Single Judge of Bombay High Court, Aurangabad
Bench   in  Kantabai   w/o.   Dhulaji   Shriram   vs.   Hausabai   Dhulaji
Shriram  in Civil      Revision Application No. 72 of 2013 dated 25th

October, 2013
12. I deal with first point of determination whether Draupada is
legally wedded wife of deceased Jaydeo.  Miscellaneous Application
No. 131 of 2006 for heirship was filed by Draupadabai.  She tendered
oral   as   well   as   documentary   evidence.     Witness   Rangrao   Bajirao
Pawar who was working as a teacher along with deceased Jaydeo
Pawar was examined.  He has stated that he attended the marriage
between Draupada and Jaydeo on 23rd May, 1979.  He has stated that
4. 1991 DGLS (Soft.) 68.
5. 1980 DGLS (Soft.) 437
6. AIR 2008 MADHYA PRADESH 227.
the name of Draupada has been mentioned in the service record by
Jaydeo as his nominee.   He produced marriage invitation card of
Draupada and Jaydeo.   He has deposed that wherever Jaydeo was
transferred,   Draupada   had   accompanied   him.   In   the   crossexamination
though the witness has expressed ignorance in the year
1979, 1981 and 1984 about the postings  of  Jaydeo,  however,  he
maintained   that   he   had   attended   the   marriage   and   produced
invitation card of their wedding. Another witness Rajaram Raghunath
Pawar gave evidence that he is resident of Inewadi, i.e., native place
of   Jaydeo   Pawar   and   he   has   participated   in   the   pre­wedding
preparation of Jaydeo and Draupada.  He made lists of the gifts which
were to be exchanged between the families of Jaydeo and Draupada
and he identified that the said list is in his handwriting.   He also
identified the signature/thumb impressions of fathers of Draupada
and Jaydeo.   He claimed that he witnessed the marriage of Jaydeo
and Draupada and they have two sons and three daughters out of this
wedlock.     His   evidence   could   not   be   dislodged   in   the   crossexamination
by putting mere denials. 
13. On the other hand, in Miscellaneous Application No. 168 of
2003,   the   heirship   application   of   Indubai,   she   examined   witness
Ganesh Sukhdev Kumbhar to establish her claim of marriage with
Jaydeo.   He was working as a Gram Sevak at Inewadi and on the
basis of the record, he has stated that in the register, Gram Sevak had
made entry that in the year 1979 when enquired, two marriages of
Jaydeo   had   taken   place.     Thus,   this   evidence,   on   the   contrary,
supports the case of Drupadabai of her marriage.
14. Moreover,   the   will   dated   17th  May,   2002   at   Exhibit   10   was
executed by Jaydeo Pawar and the said will was proved by examining
the two witnesses signed below the will in Miscellaneous Application
No. 143 of 2004 and in the said will Jaydeo has mentioned that
Draupada is a legally wedded wife and he married Draupada on 23rd
May, 1979 and he did not marry Indubai and denied his relationship
with her.   However, he has stated that he has filed Miscellaneous
Petition   No.   45   of   1995   against   Indubai   and   by   that   will,   he
bequeathed his pension to his wife Draupada.
15. In   the   present   case,     Indubai   had   filed   criminal   case   for
maintenance under section 125 of Cr. P.C.  In the written statement,
Jaydeo has admitted his marriage with Indubai and he did not state
anything about his marriage with Draupada.  On the basis of evidence
tendered in the said case, the learned Magistrate held that fact of
marriage between Draupada and Jaydeo is proved and held that she
was entitled to maintenance and awarded the same.  Thus, under that
order, Jaydeo was paying maintenance to her during his life time.
The learned Judge of the trial Court has erred in accepting the finding
of the learned Magistrate as a final word while  determining the issue
of valid marriage of Indubai and Draupada with Jaydeo.  Draupada
has four children out of this wedlock.  The trial under section 125 of
Cr. P.C. conducted before the learned Magistrate was in absence of
Draupada.   The suppression of the fact of first marriage by Jaydeo
was obvious because he was in Government service and if he would
have   stated   about   the   first   marriage,   then   he   would   have   been
charged   for   misconduct   under   Rule   26   of   the   Maharashtra   Civil
Services (Conduct) Rules and that might have been affected adversely
on his service.  Thus, silence of Jaydeo about his first marriage with
Draupada in the written statement cannot be given any weightage
and a circumstance against Draupada.  His efforts to hide the fact of
first marriage from Court was successful and therefore, Indubai was
declared to be entitled to receive maintenance and which she was
receiving during his lifetime.   The learned Judicial Magistrate First
Class in that maintenance application gave the correct finding on the
basis of the evidence available to him.   Draupada was never before
him to plead her case.  Under such circumstances, if one wife does not
come before the Court to plead her case and the fact of two marriages
are   never   brought   before   the   Court,   then   the   finding   given   and
judgment passed in respect of validity of one marriage is always a
subject of challenge before the Civil Court and in that event, the Civil
Court has to consider the evidence independently of both the parties
and is required to give its verdict. 
16. After assessing the evidence tendered by both the wives on the
point   of   valid   marriage,   the   evidence   led   by   Draupada   is   found
consistent and reliable.   A fact that Draupada and Jaydeo have 5
children out of this wedlock also corroborates the evidence.  Thus, I
hold that the finding given by the learned trial Court that Draupada
could not establish valid marriage is erroneous and it is set aside and
it is held that Draupada was the first legal wedded wife.
17. The second point is can family pension be disposable by the
employer by will.  
18. The learned counsel for the appellant submitted that Jaydeo has
bequeathed his pension to his wife Draupada by will dated 17th May,
2002 and it was probated by the Court.
19. The learned counsel for the respondent/Indubai has vehemently
opposed the legality of such bequeath.  
20. The   pension   is   paid   towards   the   services   rendered   by   the
Government employee as provided under the Service Rules.   Thus,
such payment is a creation of statute.   A person can dispose of the
property which is owned by him and which exists when he makes a
will.  The Government employee is never in control or possession over
the amount of pension because it is paid monthly as per the rules.  
21. In the case of “    D.S. Nakara and Others vs. Union of India”3
wherein the full bench of the Hon'ble Supreme Court has discussed
3. (1983) 1 Supreme Court Cases 305.
about the object of pension and held that,
“The pension is neither a bounty not a matter of grace
depending upon the sweet will of the employer, nor ex
gratia payment. It is a payment for the past service
rendered.   It   is   a   social   welfare   measure   rendering
socio­economic justice to those who in the hey­day of
their   life   ceaselessly   toiled   for   the   employer   on   an
assurance that in their old age they would not be left
in   lurch.   Pension   is   a   retirement   benefit   is   in
consonance with and furtherance of the goals of the
Constitution. It creates a vested right and is governed
by the statutory rules such as the Central Civil Services
(Pension) Rules.”
22. The Government employee cannot dispose of his family pension
to a third person other than the members covered under “family”
under the Rules.   For understanding, the word 'family' under Rule
9(16)   of   the   Maharashtra   Civil   Services   (General   Conditions   of
Services) Rules, 1981 is relied.  
“Rule 9(16) ­ “Family” means a Government servant's
wife or husband, as the case may be, residing with the
Government servant and legitimate children or stepchildren
residing with and wholly dependent upon the
Government servant.  It includes, in addition, parents,
sisters and minor brothers if residing with and wholly
dependent upon the Government servant.”
23. Thus, the payment of pension is strictly governed by the service
rules   and,   therefore,   it   cannot   be   an   'estate'   disposable   by   will.
Though the Government employee has right to receive the pension, it
cannot be treated as a 'property'.  On this point, I rely on the case of
Jodh Singh (supra).   In the said case, the officer bequeathed his
movable and immovable property to his father during his life time
and nominated his parents for the Provident Fund, as his relation
with his wife was not cordial.   The Hon'ble Supreme Court while
dealing with the issue held that the pension is a retirement benefit
and is not payable in the life time of the employee and what is not
payable during the life time of the deceased over which he has no
power of disposition and cannot form part of his estate.   It is the
event   of   his   death   that   provides   the   eligibility   qualification   for
claiming special family pension.
24. In the case of Sundariya Bai Choudhary (supra), the Division
Bench of Madhya Pradesh High Court has taken a similar view that
the pension of deceased cannot be said to be an estate and it is not
transferable   and   cannot   be   bequeathed   by   Will.     However,   other
pensionary   benefits   like   Provident   Fund,   Gratuity   etc.   and   other
retiral dues or extra renumeration would be estate of the deceased
and that can be bequeathed by him.
25. In the case of Violet (supra), the Hon'ble Supreme Court had an
opportunity to deal with Railway Family Pension Rules and held that
pension cannot be bequeathed by will since it is not a part of estate of
the employee but it is for monetary benefit of wife and children.
26. After going through the facts of the cases and law laid down
therein which are referred above, it is pertinent to note that in these
cases, husbands have disposed of the property by will to other family
members by denying the claim of the wife and, therefore, the Courts
have taken a view that wife has prime claim over the pension of the
husband and that cannot be denied.  In the present case, Jaydeo has
bequeathed his pension to his first wife only.  It is a settled position of
law that pension is not a estate and so it cannot be bequeathed by
will, so to that extent, i.e., the portion of bequeath of pension in
favour of Draupada is bad in law, however, the statements made in
the   will   about   the   status   of   Draupada   and   his   final   wish   that
Draupada alone has right over his pension corroborates a fact of valid
nomination of Draupada as a first wife.
27. Thus, it is held that pension is not a estate or property and
cannot be disposed of and to that extent, the portion in the will
regarding bequeath is against the law.
28. The third issue for determination is whether under Rule 116(6)
(a)(i)   of   Maharashtra   Civil   Services   (Pension)   Rules,   the   family
pension   is   payable   to   second   wife   after   the   death   of   her
husband/Government servant.
29. Rule 116(6) of the Maharashtra Civil Services (Pension) Rules,
1982 reads as under: 
"(6)(a) (i) Where   that   Family   Pension   is  payable  to  
more widows  than  one, the  Family  Pension shall 
be paid to the widows in equal shares;
   (ii) on the death of a widow, her share of the Family   
         Pension shall become payable to her eligible child;
(Provided that if the widow is not survived by any
child, her share of the family pension shall not lapse
but shall be payable to the other widows in equal
shares, or if there is only one such other widow, in
full, to her.)
(b)   Where the deceased Government servant or pensioner
is survived by a widow but has left behind eligible
child or children from another wife who is not alive,
the eligible child or children shall be entitled to the
share of Family Pension which the mother would have
received if she had been alive at the time of the death
of the Government servant or pensioner.
(Provided that on the share or shares or of family pension
payable to such a child or children or to a widow or widows
ceasing to be payable, such share or shares shall not lapse
but shall be payable to the other widow or widows and or to
other child or children otherwise eligible, in equal shares, or
if there is only one widow or child, in full, to such widow or
child).
(c) Where   the   deceased   Government   servant   or
pensioner   is   survived   by   a   widow   but   has   left   behind
eligible child or children from a divorced wife or wives, the
eligible child or children shall be entitled to the share of
Family Pension which the mother would have received at
the   time   of   the   death   of   the   Government   servant   or
pensioner had she not been so divorced.
(Provided that on the share or shares of family pension
payable   to   such   a   child   or   children   or   to   a   widow   or
widows ceasing to be payable, such share or shares shall
not lapse but shall be payable to be other widow or widows
and/or   to   other   child   or   children   otherwise   eligible,   in
equal shares, or if there is only one widow or child, in full,
to such widow or child).”
30. This issue had come up earlier before different Benches of the
Bombay High Court, so it is necessary to refer and state the decisions
given by  the respective  Benches  on interpretation of  Rule 116 of
Maharashtra Civil Services (Pension) Rules ­
(i) The learned Single Judge of Bombay High Court, Aurangabad
Bench   in  Kantabai   w/o.   Dhulaji   Shriram   vs.   Hausabai
Dhulaji Shriram in Civil Revision Application No. 72 of 2013
    dated 25th
     October, 2013 has decided this issue.
(ii) The Judgment of Division Bench of Bombay High Court, Nagpur
Bench in Union of India & Ors. vs. Jaywantabai w/o. Ramarao
Kewoo in      Writ Petition No. 4467 of 2014 decided on 20th

November, 2014,  reported in (2015) 2 MH L.J. 328 is on the
same issue.
     (iii) The Division Bench of Bombay High Court, Nagpur Bench in 
   Chanda Hinglas Bharati vs. The State of Maharashtra & Ors. 
  In      Writ   Petition   NO.   1251   of   2015   decided   on   26th
 
November, 2015 has also decided the same issue.
31. The   learned   Single   Judge   of   the   Bombay   High   Court,
Aurangabad Bench in the case of “Kantabai w/o. Dhulaji Shriram
vs. Hausabai Dhulaji Shriram, has referred the case of Rameshwari
Devi vs. State of Bihar, AIR 2000 SC 785 which is relied before me
also.  In the case of Rameshwari Devi (supra), the husband who was
in Government service had left behind two wives, one Rameshwari
Devi and another Yogmaya Devi.   There was a dispute about the
payment of family pension, retirement benefit between the two wives.
The Hon'ble Supreme Court held that marriage of deceased husband
and Rameshwari Devi was valid and the marriage between deceased
and Yogmaya Devi was in contravention with Clause (i) of Section 5
of the Hindu Marriage Act and was a void marriage. However, under
section   16   of   this   Act,   children   born   out   of   void   marriage   are
legitimate.     The   Hon'ble   Supreme   Court   held   that   Yogmaya   Devi
cannot   be   called   a   widow   of   Narain   Lal,   as   her   marriage   with
deceased  Narain  Lal being  void.    The  Supreme  Court   denied  the
entitlement of Yogmaya Devi to get the pensionary benefit on this
ground and it upheld the judgment of Division Bench of Patna High
Court that the children of Yogmaya are entitled to share the family
pension till they attain majority.   The learned Single Judge of this
Court   in  Kantabai (supra)  discussed   the   facts   and   law   in
Rameshwaridevi  and held that verdict of the   Supreme Court is
based on Central Civil Services Conduct Rules especially Rule 21 as
well   as   The   Bihar   Government   Services   Conduct   Rules,   1976
especially Rule 23, under which a Government servant is prohibited
from contracting a marriage with a person having a spouse living.
The learned Single Judge held that Rule 116 of the Maharashtra Civil
Services (Pension) Rules is a specific provision under which more
than one widows are entitled to pension in equal shares of their
deceased husband and rule akin to Rule 116 of Maharashtra Civil
Services   Rules   was   not   pointed   out   or   was   not   a   matter   of
consideration   before   the   Apex   Court   and,   therefore,   the   learned
Single Judge has distinguished the case of Rameshwari Devi from the
case before him.  The learned Single Judge has observed thus:
25. Upon going through the phraselogy of the said Rule
116 and its sub clauses, I am of the view that the rules are
drafted with an element of certainty and with a definite
object.     It   cannot   be   viewed   to   be   a   directory   provision
pertaining   to   widows   more   than   one.     It   cannot   be
interpreted to mean that the said Rule is a mere expression
of plural tense of a widow and that it cannot be looked
beyond such a simple impression as is contended by the
respondents.   The learned counsel for the respondents has
contended that just because the said phraseology was used
in the Pension Rules under the Bihar Government Services
Conduct Rules, 1976, no further importance  ought  to be
given to the meaning of more than one widow since the
Hindu Marriage Act introduced in 1955, has changed the
concept of marriage thereby prohibiting a second marriage
and rendering a second marriage null and void.  I am not in
agreement   with   such   contentions   and   I   do   not   desire   to
accept such an interpretation to the extent of Rule 116.
Thus, the learned Single Judge held that the case of second wife is
squarely covered under Rule 116 and so both the wives are entitled to
equal share of the family pension.
32. Same   issue   cropped   up   before   the   Division   Bench   in
Jaywantabai's (supra)  case.   In the said case, the deceased was a
railway employee, so his pension was covered under Railway Service
Pension Rules, 1993.  The claim of the second wife was denied by the
Union of India, so challenge was given by the second wife.   The
Division Bench considered sub­rule (5) of Rule 70 wherein it is stated
that “For the purpose of this Rule, Rules 71, 73 and 74 “Family”, in
relation   to   railway   service   means   ­   (i)   wife   or   wives   including
judicially   separated   wife   or   wives   in   the   case   of   a   male   railway
servant.     Rule 75 deals with “Family Pension Scheme for Railway
Servants” and under sub­rule 7(i)(a) it is stated that where there are
more widows of a deceased railway employee, family pension shall be
paid   to   the   widows   in   equal   share.     The   Division   Bench   had
considered   Section   5   and   Section   11   “Void   Marriages”   under   the
Hindu Marriage Act.  However, the Division Bench has said that “We
cannot be oblivious to what is going on in the Society and further fact
that during subsistence of first marriage, the husband performs a
second marriage by practicing fraud and indulging in cheating the
second woman, who thus falls an easy prey to such person for no fault
of her”.  The Division Bench relied on Article 15 and article 39(a) of
the Constitution and held that provision of giving pension to second
widow is fully in consonance with this constitutional provisions and
has complemented the Indian railway.  It appears that the judgment
of single Judge of this Court in Kantabhai Shriram (supra)  was not
placed before the learned Judges of Division Bench.  
33. It is necessary to point out and refer to the decision of Hon'ble
Supreme Court dated 8th May, 2015 in Petition for Special Leave to
Appeal   (C)   No.   11491   of   2015   in   Union   of   India   &   Anr.   vs.
Jaywantabai.  The judgment in UOI vs. Jaywantabai Kewoo passed
by the Learned Judges of Division Bench of Nagpur Bench dated 20th
November, 2014 was challenged by the Union of India by filing SLP.
The Hon'ble Supreme Court dismissed the SLP, however, kept the issue
open.   The relevant portion of the said order hence reproduced as
under:
“We are not inclined to interfere in the matter at all,
however   it   now   appears   that   “the   first   wife
Saraswatibai”   has   passed   away   and   from   that
matrimony no children are alive.  In these circumstances
“the Second wife – Smt. Jaywantabai” would prima facie
be entitled to the entire pensionary benefits.
Special   Leave   Petition   is   dismissed   with   these
observations   leaving   the   question   of   law   open   as   to
whether a Second wife can lay claim to the pensionary
benefits   or   any   part   thereof,   despite   Rule   21   of   the
Railway Services (Conduct) Rules, 1966.”
34. Thus,   the   Hon'ble   Supreme   Court   left   open   the   issue   of
interpretation of Rule 116(6)(a)(i) of the Maharashtra Civil Services
(Pension) Rules.   Later on, an identical issue came before another
Division   Bench   of   Nagpur  Bench   in   the   case   of  Chanda Hinglas
Bharati.  The said Division Bench referred the decision given by the
earlier   Division   Bench   in   the   case   of  Jaywantabai   Kewoo  and
observed that in the said case, the earlier Division Bench has dealt
with the Railway Act and the decision in Jaywantabai is per incuriam
and took a different view that the family pension cannot be payable
to a woman who marries a Hindu Government servant during the
subsistence of his marriage and during the life time of his wife after
Hindu Marriage Act came into force on 18th May, 1955.  Incidentally, I
found that the order passed by the Hon'ble Supreme Court dated 8th
May, 2015 while dismissing the SLP against the order in the case of
Jaywantabai was not placed before the Division Bench at the time of
hearing   the   case   of   Chanda   Hinglas   Bharati.     Coincidentally,   the
Hon'ble Supreme Court though upheld the decision of the Division of
Bombay High Court, Nagpur Bench  in the case of Jaywantabai and
directed the Union of India to pay pension to second wife of Hindu
Government employee, the Supreme Court, as mentioned earlier, has
kept   the   issue   of   payment   of   pension   to   second   wife   open   and,
therefore, the judgment of Division Bench in the case of  Chanda
Hinglas Bharati wherein the learned Judges of Division Bench have
thoroughly interpreted the said rule and the issue therefore is not a
res­integra. 
35. During the course of arguments of  Chanda Hinglas Bharati
(supra) in November, 2015 the counsel of second wife placed heavy
reliance on the earlier judgment of the Division Bench in the case of
Jaywantabai.   The judgment of learned Single Judge in the case of
“Kantabai” was not placed before the Division Bench.  The learned
Judges of the Division Bench in the case of  Chanda Hinglas Bharati
have considered number of judgments.   The ratio laid down by the
Division   Bench   is   specific   and   clears   all   the   doubts   in   respect   of
interpretation   of   Rule   116(6)(a)(i)   of   Maharashtra   Civil   Services
(Pension) Rules and Rule 26 of Maharashtra Civil Services (Conduct)
Rules.     The   Division   Bench   has   referred   and   relied   the   cases   of
Rameshwari Devi (supra) and Vidyadhari & Ors. vs. Sukhrana Bai
& Ors., reported in MANU/SC/0629/2008.  The Division Bench has
held thus:
“The   Maharashtra   Civil   Services   (Pension)   Rules   were
brought into force in the year 1982.   Rule 116 (6)(a)(i)
opens with the clause, “Where the Family Pension is payable
to more widows than one”.  The provisions of Sub Rule 6(a)
(i) of Rule 116 of the Rules would apply only in a case where
the family pension is payable to more widows than one.  The
primary question would be, whether the family pension is
payable to more widows than one.   When would a second
widow or more than one widows be entitled to pension.  In
our   considered   view,   more   widows   than   one   would   be
entitled to pension only if the Hindu employee has married
the woman (widow) before the coming into force of the
Hindu Marriage Act on 18.5.1955 and in case of employees
where such marriage is permissible under the personal law
applicable to the said employee or Government servant and
the   other   party   to   the   marriage.     It   appears   from   the
provisions   of   Maharashtra   Civil   Services   (Conduct)   Rules
that the marriage during the life time of a spouse could be
accepted only if the marriage is permissible under the person
law applicable to both the parties to the marriage.”
Thus, Rule 116(6)(i)(a) opens with words “where the family pension
is payable” which specifies the payability of the pension in respect of
a particular class of widows. The word “where” is very significant and
by using the word “where”, the legislation wanted to carve out a
section of widows in which a pension is payable to more than one
widow.   Thus, the word “where” indicates an exception from the
general principle of application to all the widows, i.e., a departure
from the general rule of payability of the pension to only one widow.  
36. In the said judgment, the Division Bench has rightly linked up
meaning of widow to the status of wife who is a legally wedded wife.
It   considered   Section   5   which   speaks   about   'Conditions   of   Valid
Marriage and Section 11  on 'Void marriages and Section 17 wherein
'Punishment for bigamy' is stated.  It also took into account provisions
of   Sections  494   and   495   of   the   Indian   Penal  Code   pertaining  to
bigamy and also relied on Rule 26 of the Maharashtra Civil Services
(Conduct) Rules, 1979, which states thus:
“26.  Contracting of marriages
(1) No   Government   servant   shall   enter   into,   or
contract,   a   marriage   with   a   person   having   a   spouse
living; and
(2) No Government servant, having a spouse living,
shall enter into or contract, a marriage with any person;
Provided   that   the   Government   may   permit   a
Government Servant to enter into, or contract, any such
marriage as it referred to in clause (1) or clause (2), if it
is satisfied that ­
(a) such marriage is permissible under the personal
law applicable to such Government servant and the
other party to the marriage; and
(b) there are other grounds for so doing.”
Thus, the legislation, keeping in mind Section 26 of the Maharashtra
Civil Services (Conduct) Rules, Sections 5, 11 and 17 of the Hindu
Marriage Act and also Sections 494 and 495 of the Indian Penal Code,
has   enacted   this   Rule   with   opening   word   “where”   which   indeed
maintains harmony in all these legal provisions and the interpretation
of Section 116(6)(i)(a).  
37. The reasoning given by the Division Bench is consistent with the
other   provisions   of   law   as   mentioned   above   wherein   the   second
marriage   is   held   void.     The   Indian   legal   system   has   adopted
monogamy   as   a   legal   structure   of     the   marriage   institution   and,
therefore, occasional fractures of second marriage in subsistence of
first marriage are held void in law.   The second woman cannot be
given a status of  a legally wedded wife and, as rightly observed by
the Division bench, she is not a widow in true and legal sense.   A
wrong may exist in the Society on a large scale, however it cannot be
justified as a righteous custom because of its magnitude.  In order to
buttress this point, it will not be out of place to give example of give
and take of dowry which throws light on the wide gap between the
legality and the reality.  To take lenient view towards the wrong doers
is contrary to law laid down by the legislature.  Thus, gap should not
be widened by the decision of the Court but it is to be bridged. It is
mandatory for the Court to interpret a law which gives true effect to
the legislative intent.   The Division Bench in the case of  Chanda
Hinglas   Bharati  has   referred   to   the   relevant   provisions   under
different acts regarding the consequences of second marriage and the
status of second woman.  
38. It was argued by the learned counsel for the respondent that a
second wife was deceived by deceased husband and she begotten a
daughter from the deceased and therefore, it is necessary for the
Court to take a gender protectionist view and grant her pension. This
argument of the learned counsel for the respondent is one sided and
may appear convincing superficially, but it does not stand to reason
after close scrutiny.   The Courts have empathy for a woman who is
deceived by a man, however, she may take recourse under the other
enactments for redressal.  So far as husband is a Government servant
and matter is covered under the rules, then the Court cannot take
other view than permissible in law. The Division Bench in the case of
Chanda Hinglas Bharati has made a reference to similar argument
and has rightly observed that “showing sympathy to a woman like the
petitioner would result in depriving a legitimate wife of her right to
receive full family pension.  This is the gender positive view towards
the legally wedded wife.  The case of second wife may be unfortunate
but I am of the view that Court cannot pass verdict in her favour.
While doing justice, injustice should not be caused to a person having
a rightful claim. 
39. Thus, I fully rely on the ratio laid down in the case of Chanda
Hinglas Bharati and hold that marriage contracted with second lady
in subsistence of first marriage or spouse is living, then second lady
from   the   Hindu/Christians   cannot   claim   as   a   widow   entitled   to
pension   subject   to   personal   law   or   as   stated   in   Rule   26   of
Maharashtra Civil Services (Conduct) Rules. The First Appeal filed by
Draupada   is   allowed.   In   view   of   this,   Civil   Application   does   not
survive and the same is accordingly disposed of.
40. The   learned   counsel   for   the   respondents   prays   that   the
operation of this order be stayed for four weeks, as he wants to
challenge this order before the Hon'ble Supreme Court.   In view of
this, the operation of this order is stayed till 14th March, 2016.
     (MRS.MRIDULA BHATKAR, J.)
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