Whether nomination for pension in favour of second wife is valid?

 In fact, Bimla Devi respondent, the second wife, legally has no status and cannot claim any share in the estate of deceased Nanak Chand as her marriage is void ab initio in view of Sections 5 and 11 of the Hindu Marriage Act, 1955.

As Smt. Bimla Devi is not the legally wedded wife of deceased Nanak Chand, therefore, there could not be a valid nomination in her favour for the payment of the pension. Please see : Rampyari Bai v. Municipal Corporation and Anr. Even otherwise also the nominee is the trustee for the rightful claimants. Further on examination of the facts on record, we have found that the facts in this case are almost akin to the facts, in Rameshwari Devi v. State of Bihar and Ors. (2002) 2 SCC 431 wherein the Hon'ble Supreme Court has held that during the subsistence of first marriage, the children born out of second marriage are legitimate as per the provisions of Section 16 of the Hindu Marriage Act, 1956, though the second marriage itself is void. However, the minor children of the second marriage are entitled to the family pension but not the second widow. While upholding the decision of the Division Bench of Patna High Court which had upheld the view of the Single Judge that first wife and minor children from the second wife, would share the family pension of the deceased to the extent of 50:50. Therefore, taking assistance from the above legal position, settled by the Supreme Court, we hold Premi Devi entitled for 50% of the pensionary benefits and the children from the second wife Smt. Bimla Devi, namely, Santosh and Rajesh Kumar to the extent of 50%.

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

Decided On: 18.12.2006

Appellants: Smt. Premi Devi
Vs.
Respondent: Director of Directorate General Boarder and Ors.

Hon'ble Judges/Coram:
Deepak Gupta and S.S. Thakur, JJ.

Citation:2008(1) CIVILLJ419

1. In this writ petition, the petitioner has claimed pensionary benefits of her husband Nanak Chand, a Compressor-Driver No. G/440 in GREF and who was allotted PPO No. C/GREF/1127/1989 after his retirement and was receiving his pension through UCO Bank Kalot, Tehsil Ghumarwin, District Bilaspur.

The admitted facts of the case are as follows:

(i) The petitioner was the first wife of deceased Nanak Chand who was shown her as his wife in the service record of the deceased. During this wed-lock, she gave birth to two sons, S/Shri Kuldip Singh and Prithi Singh.
(ii) Respondent No. 4 Smt. Bimla Devi, the second wife of deceased Nanak Chand was got married on 25-1-1966 despite the objection by Premi Devi, the first wife. During the said marriage, she gave birth to a daughter and a son, namely, Santosh and Rajesh on 25-3-1969 and 3-4-1984, respectively. Their family has been separately shown in the Parivar Registrar of Gram-Sabha Bharoli Kalan, District Bilaspur (Annexure-R4/1).
(iii) After the retirement, Shri Nanak Chand had been receiving his pension till his death.
(iv) Bimla Devi, the second wife, was shown nominee, in the service record of the deceased.
(v) Both the wives started claiming the pensionary benefits of Nanak Chand deceased, to the exclusion of each other.
(vi) Smt. Premi Devi, the first wife, was asked by the Army authorities to send the succession certificate duly obtained from a Civil Court. She obtained the same (Annexure-P2) from the Court of Senior Sub Judge on 22.9.93 and sent it to them.
(vii) Vide letter dated 18-1-1995, (Annexure-P4) it was informed by the respondents that succession certificate was also asked for, from Smt. Bimla Devi, respondent No. 4 herein, the second wife of deceased Nanak Chand, was still awaited and on receipt thereof, the case for the grant of family pension would be taken up with the CDA (P) Allahabad.

3. According to the petitioner, herein, the stand taken by the respondents 1 to 3 that the family pension could not be released to her unless the succession certificate is produced by respondent No. 4 Bimla Devi. Therefore, she sought the relief for the release of pensionary benefits. The objection, aforesaid, was wholly untenable. The replies were filed by the respondents.

4. We have heard the learned Counsel for the parties and have given our thoughtful consideration to the facts adduced on record.

5. Admittedly, the Petitioner Premi Devi is the first wife of deceased Nanak Chand. It is also born out from the record that respondent No. 4 was also living with the deceased as his wife for a long time, though not legally married, as is evident from the averments made by the petitioner in the writ petition which are also substantiated by Panchayat record Annexure R4/1 referred above, which fact establishes long cohabitation of Nanak Chand, deceased with Smt. Bimla Devi.

6. In fact, Bimla Devi respondent, the second wife, legally has no status and cannot claim any share in the estate of deceased Nanak Chand as her marriage is void ab initio in view of Sections 5 and 11 of the Hindu Marriage Act, 1955.

7. As Smt. Bimla Devi is not the legally wedded wife of deceased Nanak Chand, therefore, there could not be a valid nomination in her favour for the payment of the pension. Please see : Rampyari Bai v. Municipal Corporation and Anr. Even otherwise also the nominee is the trustee for the rightful claimants. Further on examination of the facts on record, we have found that the facts in this case are almost akin to the facts, in Rameshwari Devi v. State of Bihar and Ors. (2002) 2 SCC 431 wherein the Hon'ble Supreme Court has held that during the subsistence of first marriage, the children born out of second marriage are legitimate as per the provisions of Section 16 of the Hindu Marriage Act, 1956, though the second marriage itself is void. However, the minor children of the second marriage are entitled to the family pension but not the second widow. While upholding the decision of the Division Bench of Patna High Court which had upheld the view of the Single Judge that first wife and minor children from the second wife, would share the family pension of the deceased to the extent of 50:50. Therefore, taking assistance from the above legal position, settled by the Supreme Court, we hold Premi Devi entitled for 50% of the pensionary benefits and the children from the second wife Smt. Bimla Devi, namely, Santosh and Rajesh Kumar to the extent of 50%.

8. Be it stated that Shri Nanak Chand had died on 2,9,1990 and Ms. Santosh had taken birth on 25.3.1969. Thus by virtue of Rule 54(6)(iii) of the Central Services (Pension) Rules, 1972 she is eligible until she attains the age of 25 (twenty-five) years or till she gets married, which ever is earlier and as for as son, Rajesh is concerned, he was born on 3.4.1984. Thus, in view of Rule 54(6)(ii) he would get the pension qua his share until he attains, the age of twenty five years. On becoming ineligible, the petitioner would get full pension of deceased Nanak Chand.

Since the respondents No. 1 to 3 with-held the pensionary benefits to the petitioner and the children of respondent No. 3, without any reasonable cause, therefore, the said respondents are directed to release the pensionary benefits to Smt. Premi Devi and children of Bimla Devi as aforesaid within a period of three months from today, with interest at the rate of 7.5% w.e.f. the date, when it became due to them.

The petitioner is accordingly disposed with no order as to costs.

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