The Apex Court in Smt. Sarbati Devi and another Versus Smt. Usha Devi, AIR 1984 SC 346, held that a mere nomination made in an insurance policy does not have the effect of conferring on the nominee any beneficial interest in the amount payable under the life insurance policy on the death of the assured. The nomination only indicates the hand which is authorised to receive the amount on the payment of which the insurer gets a valid discharge of its liability under the policy. The amount, however, can be claimed by the heirs of the assured in accordance with the law of succession governing them.
This Court in Shakuntala Devi (Smt.) Versus Executive Engineer, Electricity Transmission Ist U.P. Electricity Board, Allahabad and another, [(2001) 1 U.P.L.B.E.C. 8691], while dealing with two wifes wherein the nomination was in favour of the second wife it was held that it cannot defeat the claim of the legally wedded wife, only legally wedded wife is entitled to retiral benefits and provident fund and appointment under Dying-in-Harness Rules.
Similarly, view was expressed in Poonam Devi (Smt.) Versus Chief Engineer, Electricity Board and others, [(2004) 3 U.P.L.B.E.C 2292].In G.L. Bhatia v. Union of India and another, 2000(1) ESC 135 (SC), the Supreme Court held that if a nomination is made contrary to statutory provision, it would be inoperative. In the facts of that case, the husband of the deceased employee claimed family pension while nomination was not in his favour. The authorities rejected the claim of the husband for the reason that he was staying separately from the wife and thus was not entitled to family pension. The Apex Court held that the husband was entitled to family pension, where the rights of the authorities are governed by statutory provisions, the individual nomination contrary to the statute will not operate.
Allahabad High Court
Manno Singh vs State Of U.P. & Others on 11 September, 2014
Bench: Suneet Kumar
Case :- WRIT - A No. - 23388 of 2012
Citation:I(2015)DMC 654 ALL
Heard Sri S.M. Yadav, learned counsel for the petitioner, Sri C.K. Parekh, learned counsel appearing for the respondents no. 2 and 3 and Km. Anju Pandey for respondent no. 4.
The petitioner claims to be the legally wedded wife of Shatrudhan Singh who was working as a senior clerk in Nagar Palika Parishad, retired on 30.06.2008 thus was receiving pension, thereafter, died on 16.01.2012. According to the petitioner, from their marriage had two sons namely Rajendra Singh, Mahendra Singh and one daughter namely Renu Bala Singh. Since the daughter has been married and the sons are doing their own work, the petitioner approached the Executive Officer, Nagar Palika Parishad, Mirzapur for family pension, however, the petitioner was denied the family pension and proposal was made to grant family pension to the respondent no. 4. The respondent no. 4 claims to be the second wife of the petitioner.
The petitioner has approached this Court seeking following reliefs:
"I. Issue a writ order or direction in the nature of mandamus commanding the respondent no. 3 to decide the representation of petitioner dated 20.03.2012 (Annexure No. 3 to this writ petition).
II. Issue a writ order or direction in the nature of mandamus commanding the respondents to give the pension to petitioner on behalf of her husband."
Submission of learned counsel for the petitioner is that the petitioner, being the legally wedded wife, is entitled to family pension under the U.P. Nagar Palika (Non-Centralized Service Retirement) Benefits Regulations, 1984. It is further submitted that 'family' as defined does not include the second wife, and hence, the petitioner is entitled to the family pension.
Sri C.K. Parekh, learned counsel appearing on behalf of Nagar Palika Parishad, submits that the respondent no. 4 has been nominated to receive death-cum-retirement gratuity, and hence family pension was ordered in her favour, however, further submits that the person who falls within the definition of 'family' is entitled to family pension.
Km. Anju Pandey, learned counsel appearing on behalf of respondent no. 4, admits that the petitioner is the first wife, three children were born out of the wedlock, the respondent no. 4 is the second wife married to the deceased, in 1989. Km. Anju Pandey further submits that since she has been nominated as the wife in the various documents pertaining to retiral dues respondent no. 4 is entitled to family pension.
I have considered the rival submissions and perused the record.
The facts are not disputed that the petitioner was married to Shatrudhan Singh in 1969 according to Hindu customs and rites, out of the wedlock had two sons and one daughter, this fact is not disputed by the respondent no. 4. The respondent no. 4 had contracted marriage with Shatrudhan Singh on 28.11.1989. The order dated 29.07.1995 passed by the Additional Civil Judge (Junior Division)-II, Mirzapur, in 125 Cr.P.C. proceedings registered as Misc. Case No. 332 of 1992 (Smt. Singh Versus Shatrudhan Singh) reflects Shatrudhan had acknowledged the petitioner as his wife, the court awarded Rs. 400/- per month as maintenance which was regularly paid to the petitioner from the salary and after retirement from the pension of the deceased employee. After the death of Shatrudhan, dispute has arisen between the wives for family pension, respondent no. 4, the second wife claims pension on the basis of nomination in her favour.
The Supreme Court in Bakulabai and another v. Gangaram and another, 1988 (25) ACC 119, held that the marriage of a Hindu woman with a Hindu male with a living spouse performed after the coming into force of the Hindu Marriage Act, 1955 is null and void and the woman is not entitled to maintenance under Section 125 of the Cr.P.C.
The Apex Court in Smt. Sarbati Devi and another Versus Smt. Usha Devi, AIR 1984 SC 346, held that a mere nomination made in an insurance policy does not have the effect of conferring on the nominee any beneficial interest in the amount payable under the life insurance policy on the death of the assured. The nomination only indicates the hand which is authorised to receive the amount on the payment of which the insurer gets a valid discharge of its liability under the policy. The amount, however, can be claimed by the heirs of the assured in accordance with the law of succession governing them.
This Court in Shakuntala Devi (Smt.) Versus Executive Engineer, Electricity Transmission Ist U.P. Electricity Board, Allahabad and another, [(2001) 1 U.P.L.B.E.C. 8691], while dealing with two wifes wherein the nomination was in favour of the second wife it was held that it cannot defeat the claim of the legally wedded wife, only legally wedded wife is entitled to retiral benefits and provident fund and appointment under Dying-in-Harness Rules.
Similarly, view was expressed in Poonam Devi (Smt.) Versus Chief Engineer, Electricity Board and others, [(2004) 3 U.P.L.B.E.C 2292].
In G.L. Bhatia v. Union of India and another, 2000(1) ESC 135 (SC), the Supreme Court held that if a nomination is made contrary to statutory provision, it would be inoperative. In the facts of that case, the husband of the deceased employee claimed family pension while nomination was not in his favour. The authorities rejected the claim of the husband for the reason that he was staying separately from the wife and thus was not entitled to family pension. The Apex Court held that the husband was entitled to family pension, where the rights of the authorities are governed by statutory provisions, the individual nomination contrary to the statute will not operate.
The Supreme Court in Rameshwari Devi Versus State of Bihar and others, [2000(1) ESC 577 (S.C.)], where the Government servant being a Hindu having two living wives died while in service, held that second marriage was void under the Hindu law and hence second wife having no status of widow is not entitled to anything, however, children from the second wife would equally share the benefits of gratuity and family pension as per law.
Under the Uttar Pradesh Nagar Palika Non-centralised Services Retirement Benefits Regulation 1984, 'family' has been defined under sub-clause (f) of Regulation 2, which reads as follows:
"(f) 'family' includes the following relatives of an official:
(i) wife, in the case of a male official,
(ii) husband, in the case of a female official,
(iii) sons, unmarried and widowed daughters (including step children and adopted children);
(iv) brothers below the age of 18 years and unmarried and widowed sisters (including step brothers and step sisters);
(v) father;
(vi) mother;
(vii) married daughters (including steps daughters); and
(viii) children of pre-deceased son."
Regulation 6 provides for nomination which is extracted below:
"6. Nomination.- (1) Every official shall, as soon as he opts for these regulations or as soon as these regulatins become applicable to him, make a nomination conferring on one or more persons the right to receive any gratuity that may be sanctioned under sub-regulation (2) or sub-regulation (3) of Regulation 5 and gratuity which after becoming admissible to him under sub-regulation (1) of Regulation 5 is not paid to him before death;
Provided that if at the time of making the nomination the official has a family, the nomination shall not be in favour of any person other than one or more of the members of his family.
(2).........
(3) An official may provide in a nomination;
(a)........
Provided that if at the time of making the nomination the official has a family consisting of more than one member the person so specified shall not be a person other than a member of his family."
(4) The nomination made by an official who has no family at the time of making the nomination or a provision has been made in a nomination under clause (a) of sub-regulation (3) by an official whose family consists, on the date of making the nomination only one member, shall become invalid in the event of the official subsequently acquiring a family or an additional member in the family, as the case may be.
(5).........
(6)........
(7)........
(8).......
(9) If an official having a family dies without making a nomination conferring on one or more of the members of his family the right to receive the amount of death-cum-retirement gratuity it shall be paid in equal shares to those surviving members of his family who belong to categories (i) to (iv) mentioned in Clause (f) of Regulation 2 except widowed daughters. Where there are no such surviving members, but there is/are surviving widowed daughter (s) and or one or more members of the family of the official who belong to categories (v) to (viii) mentioned in Clause (f) of Regulation 2 the gratuity shall be paid to such person or to all such persons in equal shares.
Part IV of the Regulation provides for family pension. Regulation 7 is as follows:
"7. Family pension.-(1) A family pension not exceeding the amount specified in sub-regulation (2) may be granted for a period of ten years to the family of an official who dies, whether after retirement or while still in service after completion of not less than 20 years qualifying service:
(2)............
(3) No pension admissible under this part of the regulations will be payable:-
(a)...........
(b)..........
(c)..........
(d).........
(e) to a person who is not a member of the deceased official's family;
(2)............
(3)...........
(4) Except as may be provided by nomination under sub-regulation (5):
(a) a pension sanctioned under this part of the regulation shall be granted:
(i) to the eldest surviving widow, if the deceased official was a male official or the husband, if the deceased official was a female official;
(ii)...........
(iii)..........
(iv)..........
Note.- The expression eldest surviving widow occurring in Clause (a)(i) above, should be constituted with reference to the seniority according to the date of marriage with the official and not with reference to the age of surviving widows:
It is clear from the facts and rules, stated herein above, that the second marriage after coming into force of the Hindu Marriage Act, 1955 is null and void. The second wife is not included within the definition of family, nomination if made in her favour would not defeat the claim of the legally wedded wife to claim family pension as she falls within the definition of family. Regulation 7 provides that family pension is not admissible to a person who is not a member of the deceased official's family. Sub-clause (4) refers to nomination under sub-regulation (5) which is exception to the general rule, Sub-clause 4(a)(i) provides that pension shall be paid to the "eldest surviving widow", thus, the rules refer to two widows and the manner in which pension is to be paid to them. In case, there is no nomination, the eldest widow shall receive pension and in case of nomination the nominee shall receive pension. Regulations being subordinate legislation cannot recognize second marriage which is null and void under the Hindu Marriage Act, thus in the opinion of the Court, the petitioner is entitled to family pension as she falls within the definition of family of the deceased employee.
For the law and reasons, stated herein above, the writ petition is allowed. The respondent no. 3, Executive Officer, Nagar Palika Parishad, Mirzapur, is directed to pay the family pension to the petitioner w.e.f. 17.01.2012. The arrears of pension shall be released within three months, failing which, the petitioner shall be entitled to interest @ 9% from the due date.
No order as to cost.
Order Date :- 11.9.2014 kkm
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