Monday, 17 April 2017

Whether second wife is entitled to get family pension?

 In Sirazun Nessa (supra), a short but an important
question of law involved in the Writ Appeal was whether the
second wife of a Mohammedan employee was entitled to any
share in the family pension of her late husband. The issue being
answered in the negative by the learned Single Judge, the
petitioner had challenged the judgment and order in the Writ
Petition. In the brief facts, the appellant had married Tapadar
during the subsistence of his marriage with the respondent no.8.
He had eight children through the first wife and three through the
second wife. The appellant started living separately from her
husband since 1985 due to matrimonial discord and sought
maintenance and ultimately the case culminated in a compromise
when he agreed to pay maintenance to her as well their children.
It was pleaded in the petition that after the retirement from the
service he had submitted an application before the concerned
Department requesting the inclusion of her name as a nominee to
receive 50% pensionary benefits after his death.
22] In Smt. Sirazun Nessa (supra), he retired from the
service on 31.12.2003 and died on 1.10.2006 and thereafter the
appellant and the respondent no.8 had staked their claim for the
retiral benefits. It was contended on her behalf that as the
deceased was a Mohammedan by faith, he was permitted under
his Personal Law to marry the appellant even during the
subsistence of his marriage with the first wife and therefore she
was legally entitled to inherit the proportionate family pension.
Their Lordships considered Rule 143 (iii) vis-a-vis Rule 26(i) of
the Conduct Rules and found that under Rule 143 (i) there was no
indication of entitlement of the family pension by more than one
wife and in the Note appended to the Rule 143(ii) definitely
pointed out the consideration of the claim for the family pension
by two or more widows. At the same time, the Rule had not ruled
out taking into the consideration the valid marriage of two or
more wives by a Mohammedan employee. Their Lordships also
found that though the Conduct Rules had put certain preconditions
for contracting a second marriage, they did not totally
prohibit a second marriage provided it was permitted under the
personal law and custom of the concerned Government employee
and the only rider was to obtain permission from the19
Government. In the ultimate it was held that the petitioner was
entitled to a proportionate family pension. The judgment in Smt.
Sirazun Nessa (supra), is clearly distinguishable inasmuch as
unlike the petitioner therein, the petitioner in our case is
governed under the Family Laws applicable in the State where
there is a bar to the second marriage during the subsistence of
the first marriage. Hence, considering the law on the point vis-avis
the Pension Rules and the Family Laws applicable to the State,
the petitioner alone is entitled to the pension and accordingly she
is held entitled to a direction to quash and set aside the decision
of the respondent-authorities holding the respondent no.4 entitled
to a half share in the family pension. It goes without saying that
the petitioner alone is entitled to a writ to the respondents to pay
the petitioner each month the entire amount of the family
pension that is due and payable upon the demise of her late
husband.
 IN THE HIGH COURT OF BOMBAY AT GOA.
 WRIT PETITION NO. 767/2014
Mrs.Banu Shaikh

 V
 The State of Goa,

CORAM : F.M.REIS & NUTAN D.SARDESSAI, JJ

PRONOUNCED ON :24/08/2016
Citation: 2017(1) ALLMR875

1] Heard Ms. W. Coutinho, learned Advocate for the
petitioner, Shri I. Agha, learned Advocate for the respondent no.4
and Shri P. Faldessai, learned Additional Government Advocate for
the respondents no.1 and 3.
2] Ms. W. Coutinho, learned Advocate for the petitioner,
submitted that she was the legally married wife of the deceased
who was working as a Bull Attendant and had retired from the
services voluntarily on 4.6.1996. Her late husband had expired
on 29.4.2009 but during his lifetime he had married the
respondent no.4. She was married to the deceased on 21.6.1975
and her marriage was duly solemnized and registered in
accordance with the law under the regime of communion of
assets as she was his legally wedded wife with whom she had
seven children out of the wedlock. Her husband had married the
respondent no.4 without her consent and knowledge on
18.11.1983 and had three children out of the said union, all of
whom were now major in age. The marriage was not valid and
contrary to the family laws operating in the State of Goa and
even otherwise the Civil Service (Conduct) Rules, 1964 did not
permit a second marriage during the subsistence of the first
marriage apart from attracting the offence under Section 494 IPC.
3] Ms. W. Coutinho, learned Advocate adverted to the3
Articles 1072, 1058 and 1073 of the Family Laws, further
reiterated that her late husband had to obtain permission from
his employer before entering into a second marriage while in
service and during the subsistence of the first marriage and
therefore the respondent no.4 who was not the legally married
wife of the deceased was not entitled to claim any pensionary
benefits on his demise. Rule 54 (7) (a) (i) of the CCS (Pension)
Rules could also not be pressed into service and since she was
the sole beneficiary as his widow. She relied in Rameshwari
Devi Vs. State of Bihar and others [(2000) 2 SCC 431],
Yamunabai Anantrao Adhav Vs. Anantrao Adhav and
another [AIR 1988 SC 644], Draupada @ Draupadi Jaydeo
Pawar Vs. Indubai d/o Kashinath Shivram Chavan and
another (First Appeal No.577 of 2015) and Smt. Sirazun
Nessa Vs. The State of Assam and others [Writ Petition
No.168/2010], in support of her case.
4] Shri I. Agha, learned Advocate for the respondent
no.4 adverted to the paper book and submitted that the factum
of the second marriage was not disputed and the issue was
whether a person could contract the marriage outside Goa during
the subsistence of the first marriage. The factum of the second
marriage not being disputed and adverting to the findings of the
Department that she too was entitled to the pension, the
deceased having declared both the wives and his children in Form4
no.7 of the CCS Pension Rules; the respondent no.4 was entitled
to half the pension apart from the petitioner who was entitled to
other half. He relied in Shri Kamlakant Pandurang Chibde and
others Vs. Smt. Sushila Pandurang Chibde and others
[1990(2)Goa L.T.185]. Shri P.Faldessai, learned Additional
Government Advocate referred to the Form No.7 filled by the
deceased during his lifetime declaring both the petitioner and the
respondent no.4 as his wives and therefore, as per the notings of
the Law Department, Rule 54(7)(a)(i) had to be considered for
the payment of pension to both the wives in equal shares.
Ms. W.Coutinho, learned Advocate for the petitioner, in reply
relied in Smt. Violet Issaac and others Vs. Union of India
and others [(1991)1 SCC 725] to buttress a case that the
family pension could not be bequeathed by the Will.
5] There was no singular dispute of the fact that the late
husband of the petitioner had contracted a second marriage with
the respondent no.4 during the lifetime of the petitioner and
without taking any permission from his employer which was
apparently contrary to the Conduct Rules. The petitioner was
married to the deceased under the regime of communion of
assets and her marriage was duly registered in the office of
the Sub-Registrar on 21.6.1975. Her late husband would
therefore be bound by the Family Laws prevailing in the State of5
Goa. Admittedly the marriage of the deceased with the
respondent no.4 was not registered before the Civil Registrar and,
therefore, it was not a legal marriage for all purposes and effects.
Article 1072 clearly provides that the marriage between a nonCatholic
Portuguese subject shall also have the civil effects where
the essential requirements of the contracts, the provisions of
Article 1058 and the following Articles are satisfied. Article 1073
provides that the following shall not be a contract marriage:
namely (1) relatives by consanguinity or affinity in a direct line;
(2) relatives in the second degree in a collateral line; (3) relatives
in the third degree in a collateral line except if they obtain
exemption; (4) males below the age of fourteen years and
females below the age of twelve years; and (5) those joined by
another marriage, not yet dissolved.
6] Article 1074 provides that the contravention of the
provision of the preceding Article gives rise to a nullity of the
marriage. The Civil Services (Conduct) Rules, 1964 and Rule 21
in particular deals with the restriction regarding the marriage and
provides that no Government servant shall enter into, or contract
a marriage with a person having a spouse living; and no
Government servant having a spouse living shall, enter into, or
contract, a marriage with any person; provided that the Central
Government may permit a Government servant to enter into, or6
contract, any such marriage as is referred to in clause (1) or
clause (2) if it is satisfied that, (i) such marriage is permissible
under the personal law applicable to such Government servant
and the other party to the marriage; and (ii) there are other
grounds for so doing.
7] Therefore, to all intents and purposes, as rightly
submitted by Ms. W. Coutinho, the learned Advocate for the
petitioner, she was legally married to the deceased and governed
by the Family Laws and would alone be entitled to the pensionary
benefits upon the death of her husband and not the respondent
no.4 with whom he had contracted a marriage not only during the
subsistence of the first marriage but in violation of the CCS
(Pension) Rules and for which action was even contemplated
against him but for his voluntarily retirement foreclosing such a
course of action as borne out from the records.
8] Rule 54 of the Central Civil Services (Pension) Rules,
1974 makes a provision for the pension to be payable to the
Government servant. Rule 7(a) (i) reads that where a family
pension is payable to more widows than one, the family pension
shall be payable to the widows in equal shares and (ii) on the
death of a widow, her share of the family pension shall be
payable to her eligible child. This Rule cannot be read to confer7
the right to half the pension on the respondent no.4 inasmuch as
this Rule would have to be read alongwith Rule 21 of the CCS
(Conduct) Rules which prohibits the second marriage during the
subsistence of the first unless expressly permitted by the
Government and in the circumstances enumerated therein. The
marriage between the deceased and the respondent no.4 was
performed as per the personal law which to all intents and
purposes was as if there was no marriage at all between the
deceased and her and therefore, she would not assume the
character of a legally wedded wife of the deceased. Thus, the
respondent no.4 could not be held entitled to any pensionary
benefits even by recourse to Rule 54(7)(a)(i) of the CCS
(Pension) Rules, 1974.
9] Kamalakant Chibde (supra), the original defendant
challenged the judgment and decree delivered by the Civil Judge
Senior Division, Mapusa. Smt.Sushila Chibde was the original
plaintiff No.1 being the widow of Pandurang while the plaintiffs
no.2 to 6 were their children. The first wife of Pandurang was
Satyavati and the defendants no.1 and 3 were the sons from the
first marriage. After the death of Satyavati and the death of
Pandurang's parents, Inventory proceedings were held and the
suit property was allotted exclusively to the share of Pandurang
bearing the distinct Land Registration number. Pandurang8
contracted the second marriage with the plaintiff no.1 in the year
1950 which was solemnized as per the Hindu religious rites at
Sawantwadi and thereafter they lived together till the death of
Pandurang on 24.9.1969. After his death the Inquiry Officer
entered the names of the defendants no.1 and 3 to the suit
property which gave rise to the suit before the Senior Civil Judge,
Mapusa.
10] In Kamalakant Chibde (supra), the plaintiffs claimed
that the property exclusively belonged to Pandurang and upon his
death, it was inherited by the plaintiffs and the defendants had no
right or title in the suit property and the relief of declaration of
the title and perpetual injunction was accordingly sought against
the defendants. The suit was resisted by the defendants claiming
that the plaintiff no.1 was not legally wedded to Pandurang and
the plaintiffs no.2 to 6 were not their children but they did not
dispute that Pandurang was married to the plaintiff no.1 in
accordance with the Hindu religious rites but claimed that the
marriage was not registered in accordance with the Portuguese
Law and, therefore, it was treated as null and void and of no
consequence. The trial Court based on the issues and the
evidence held in favour of the plaintiffs concluding that mere
non-registration of the factum of the marriage could not
invalidate the marriage between the plaintiff no.1 and the9
deceased Pandurang and upon his death, the suit property was
inherited by the plaintiffs as well as the defendants no.1 and 3
and therefore they were the co-owners of the suit property giving
rise to the appeal under challenge.
11] In Pandurang Chibde (supra), in the facts at large, the
factum of the marriage was not in dispute nor that the plaintiff
no.1 and Pandurang lived together from 1950 till his death in
1969 as husband and the wife and that the plaintiffs no.2 to 6
were born out of the wedlock. Their Lordships of this Court
considered Article 245 of the Code of Civil Registration dealing
with the registration of the marriages of Portuguese born in the
Portuguese State of India and performed abroad before the
foreign authorities and that the plaintiff not having adhered to
the said pre-requisite of Article 245 the marriage should be
treated as null and void. Their Lordships found that it was not
possible to accede to these submissions inasmuch as Article 245
did not prescribe that failure to register the marriage would
invalidate the factum of the marriage or that it was null and void.
12] In Pandurang Chibde (supra), Their Lordships also
observed that it would be extremely harsh and unjust to treat the
plaintiff no.1 as a concumbine or the mistress of Pandurang only
because the factum of the marriage was not registered and10
observed that they could not overlook the provisions of Section
114 of the Indian Evidence Act which enables the Court to accept
the validity and legality of the marriage when the parties have
lived together for almost twenty years as husband and wife and
the children are born out of the wedlock and in the ultimate
summarily dismissed the appeal holding that there was no need
to interfere with the view taken by the trial Judge. This judgment
is clearly distinguishable inasmuch as it was absolutely silent on
whether the plaintiff no.1 had contracted the marriage with
Pandurang during the lifetime of his first wife. The issue was also
not at large as in the present case where the respondent no.4
was claiming right to the pension upon the demise of late Shaikh
Ismail. Besides the issue here was totally different inasmuch as
Pandurang had acquired the right in the suit property due to the
allotment in the Inventory proceedings and that by a judicial
decision the trial Court held that the plaintiffs as well as the
defendants were the co-owners of the suit property and granted
the relief of declaration alone.
13] The deceased, in our case no doubt, had filled up the
particulars of the petitioner as well as the respondent no.4
alongwith their children as the dependents entitled to the
pensionary benefits on his death. However, his declaration per se
cannot confer a legal right on the respondent no.4 when as11
earlier observed, it has been held that she was not the legally
wedded wife of the deceased, he having contracted the marriage
during the subsistence of his marriage with the petitioner and not
having obtained any permission of his superiors to contract such
a second marriage. Therefore, he could not have simplicitor
conferred any right on the respondent no.4 and/or her children by
incorporating their names in the Pension Form forming a part of
the record.
14] Smt. Violet Issaac and others (supra), held that the
family pension cannot be bequeathed by a Will as it does not
form a part of the estate of the employee. Only the designated
persons namely the widow and the minor - unmarried children of
the deceased employee are entitled to the family pension under
the Rules. Hence, the claim of the brother of the deceasedemployee
for the family pension on the basis of a Will made by
the deceased in his favour was not sustainable. This judgment
would squarely support the contention on behalf of the petitioner
that even accepting that the deceased had nominated the
respondent no.4 as one of the beneficiaries of the pension, she
was still not entitled to the same in the absence of any legal right
accrued in her favour pursuant to her religious marriage with the
deceased. 12
15] Draupada Pawar (supra), was an appeal directed
against the judgment and order passed by the Senior Civil Judge,
Sangli. She and the respondent Indubai claimed to be the wives
of the deceased Jaydeo and filed the Misc. Applications for
Succession and heir-ship Certificate in their favour. According to
Draupada, her marriage was solemnized with Jaydeo in 1979 and
five children were born out of the said wedlock who died on
10.7.2003. However, prior to his death, he had executed a Will
dated 17.5.2002 and bequeathed the entire property in her
favour. She applied for the Letters of Administration and claimed
that he had married her in 1979 and the second marriage with
Indubai allegedly solemnized in 1981 and she had no claim in the
pension or other pensionary benefits of Jaydeo. Indubai had
claimed that her marriage with Jaydeo was solemnized on
22.6.1981 and she had one daughter out of the said wedlock. A
few years after the marriage Jaydeo neglected her and her
daughter Shubhangi and she filed an application for maintenance
under Section 125 of the Code of Criminal Procedure which was
decided in her favour and Jaydeo was ordered to pay
maintenance.
16] In Draupada Pawar (supra), the parties led evidence
and the learned Judge held that Draupada failed to prove her
valid marriage with Jaydeo in 1979 but believed the marriage of13
Jaydeo to Indubai. During the pendency of the applications
Draupada died. The learned Judge directed the issuance of the
Succession Certificate in the name of Indubai to enable her to
receive the arrears of family pension and the future family
pension subject to the payment of the share of the family pension
amount if the children of Draupada were found entitled to these
amounts and which was challenged by her children in the appeal.
The points for determination were formulated: (i) Whether
Draupada was the legally wedded wife of Jaydeo? (ii) Whether
the family pension is an Estate of the employer which could be
bequeathed by a Will and (iii) Whether under the Maharashtra
Civil Services Rules, 1982 the family pension was payable equally
to the second widow, when the first widow was alive of the
Government Servant?
17] In Draupada Pawar (supra), the learned Single Judge
on an assessment of the evidence found that the testimony of the
witness Rangrao was inspiring and could not be dislodged in the
cross-examination. She also found that the witness examined by
Indubai to establish her claim of marriage rather supported the
case of Draupada with Jaydeo. The learned Judge considered the
Full Bench Judgment of the Hon'ble Supreme Court in D.S.Nakara
and others Vs. Union of India [(1983) 1 SCC 305] which
discussed the object of pension and held that:14
“The pension is neither a bounty nor 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 socio-economic justice to those
who in the hey-day of their life ceaselessly toiled for
the employer on an assurance that in their old age
they would not be left in the lurch. Pension is a
retirement benefit and 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”.
18] In Draupada Pawar (supra), the learned Single Judge
also considered the case of Smt.Violet Issaac (supra), and held
that the pension was not an estate or property and cannot be
disposed off and to that extent the portion in the Will regarding
the bequeathal in favour of Draupada was against the law. The
learned Single Judge also considered the third issue for
determination whether in terms of the Maharashtra Civil Services
(Pension) Rules, 1982 the family pension was payable equally to
the second wife after the death of her husband and considered
the Apex Court judgment in Rameshwari Devi (supra), where the
husband who was in the Government service had left behind two
wives, one Rameshwari Devi and another Yogmaya Devi. There
was a dispute about the payment of family pension and the15
retirement benefits between the two wives. The Hon'ble Supreme
Court held that the marriage of the deceased husband and
Rameshwari Devi was valid and the marriage between the
deceased and Yogmaya Devi was in contravention of Clause (i) of
Section 5 of the Hindu Marriage Act and was a void marriage
though the children born out of the void marriage were
legitimate. The Hon'ble Supreme Court held that Yogmaya Devi
could not be called as his widow as her marriage to him was void
and denied her entitlement to get pensionary benefit on this
ground. In the ultimate, the learned Single Judge held that the
second wife who was not possessed of the status of the legally
wedded wife was not entitled to the benefit of pension.
19] Yamunabai (supra), was a Criminal Revision before
the Full Bench on a Reference by the Division Bench on the
question whether a Hindu woman, whose marriage was null and
void under Section 11 of the Hindu Marriage Act, 1955 by reason
of the contravention of Section 5(i) of the said Act, namely the
person with whom she had undergone a marriage had a wife
living at the time of the said marriage, was entitled to claim the
maintenance under section 125 of the Code of Criminal Procedure
from such a person on the basis that she was his wife.
Yamunabai had married the respondent no.1 on 16.6.1974 as
per the Personal Law of the parties and which was also16
registered under the Hindu Marriage Act, 1955. However, the
wife of the first respondent Lilabai was alive at the time the said
marriage was subsisting. She stayed with the respondent no.1
for a week after the marriage and thereafter at his village with
his first wife Lilabai and her mother and after some time on
account of the alleged ill-treatment left the house followed by an
application to the Magistrate under Section 125 CrPC. The
Magistrate dismissed the application on the ground that she was
not the wife of the respondent since her marriage to him was null
and void under Section 11 read with Section 5(i) of the Hindu
Marriage Act. The revision preferred in the Sessions Court
against the said order was dismissed by the learned Additional
Sessions Judge relying on the judgment of this Court in Bajirao vs
Tolanbai (1979 MhLJ 693). The matter came up before a learned
Single Judge, who in view of the decision in Bajirao's case
(supra), referred it to the Division Bench and the Division Bench
referred it to the Full Bench as it disagreed with the view taken by
this Court in Bajirao's case (supra).
20] In Yamunabai (supra), the decision of the Division
Bench in Bajirao's case was considered which held that the term
`wife' in Section 125 CrPC only meant a legally wedded wife. The
Full Bench held that the marriage of Yamunubai with the first
respondent was under Section 11 of the Act null and void, as if it17
had not taken place and in the absence of such a legal and valid
marriage, as earlier observed that the parties had lived together
as husband and wife to the knowledge of the public or otherwise
could not confer on such woman the status of a wife. Ultimately,
the Full Bench held that the view taken by this Court in Bajirao's
case appeared to be correct. The term `wife' appearing in Section
125(1) of the Code meant only a legally wedded wife and
dismissed the appeal.
21] In Sirazun Nessa (supra), a short but an important
question of law involved in the Writ Appeal was whether the
second wife of a Mohammedan employee was entitled to any
share in the family pension of her late husband. The issue being
answered in the negative by the learned Single Judge, the
petitioner had challenged the judgment and order in the Writ
Petition. In the brief facts, the appellant had married Tapadar
during the subsistence of his marriage with the respondent no.8.
He had eight children through the first wife and three through the
second wife. The appellant started living separately from her
husband since 1985 due to matrimonial discord and sought
maintenance and ultimately the case culminated in a compromise
when he agreed to pay maintenance to her as well their children.
It was pleaded in the petition that after the retirement from the
service he had submitted an application before the concerned18
Department requesting the inclusion of her name as a nominee to
receive 50% pensionary benefits after his death.
22] In Smt. Sirazun Nessa (supra), he retired from the
service on 31.12.2003 and died on 1.10.2006 and thereafter the
appellant and the respondent no.8 had staked their claim for the
retiral benefits. It was contended on her behalf that as the
deceased was a Mohammedan by faith, he was permitted under
his Personal Law to marry the appellant even during the
subsistence of his marriage with the first wife and therefore she
was legally entitled to inherit the proportionate family pension.
Their Lordships considered Rule 143 (iii) vis-a-vis Rule 26(i) of
the Conduct Rules and found that under Rule 143 (i) there was no
indication of entitlement of the family pension by more than one
wife and in the Note appended to the Rule 143(ii) definitely
pointed out the consideration of the claim for the family pension
by two or more widows. At the same time, the Rule had not ruled
out taking into the consideration the valid marriage of two or
more wives by a Mohammedan employee. Their Lordships also
found that though the Conduct Rules had put certain preconditions
for contracting a second marriage, they did not totally
prohibit a second marriage provided it was permitted under the
personal law and custom of the concerned Government employee
and the only rider was to obtain permission from the19
Government. In the ultimate it was held that the petitioner was
entitled to a proportionate family pension. The judgment in Smt.
Sirazun Nessa (supra), is clearly distinguishable inasmuch as
unlike the petitioner therein, the petitioner in our case is
governed under the Family Laws applicable in the State where
there is a bar to the second marriage during the subsistence of
the first marriage. Hence, considering the law on the point vis-avis
the Pension Rules and the Family Laws applicable to the State,
the petitioner alone is entitled to the pension and accordingly she
is held entitled to a direction to quash and set aside the decision
of the respondent-authorities holding the respondent no.4 entitled
to a half share in the family pension. It goes without saying that
the petitioner alone is entitled to a writ to the respondents to pay
the petitioner each month the entire amount of the family
pension that is due and payable upon the demise of her late
husband.
23] In the result, we allow the petition. Rule is made
absolute in terms of prayer clause Nos.(i) and (ii) to the petition.
There shall be no orders as to costs.
NUTAN D.SARDESSAI, J F.M. REIS, J
mukund 
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