Whether second wife is entitled to get pension with consent of first wife?

 For the reasons and law stated, hereinabove, the second wife cannot claim pension on the consent of the first wife, even if the second wife is eligible under the Rules to receive family pension, as long as, the first wife is alive or does not remarry.

IN THE HIGH COURT OF ALLAHABAD

Civil Misc. Writ Petition No. 57990 of 2014

Decided On: 26.02.2015

Ram Mohini Devi Vs. State of U.P. and Ors.

Hon'ble Judges/Coram:Suneet Kumar, J.
Citation: 2015 LAB I C2395 ALL

1. The petitioner is the second wife of Prem Narain Srivastava (deceased), according to the petitioner, the marriage was solemnized, with the consent of the first wife namely Smt. Kunti Devi in 1954. The husband of the petitioner a Gram Panchayat Adhikari was working with the respondent No. 3, Zila Panchayat Raj Adhikari, Basti. The petitioner was nominated for receiving gratuity, G.P.F. and life insurance. The husband retired on 31.3.1997, on attaining the age of superannuation, subsequently, died on 20.10.2002; petitioner made an application for family pension which was not granted, aggrieved, the petitioner approached the Court by filing (Writ Petition No. 53165 of 2003) petition challenging the rejection order dated 4.3.2004, passed by the respondent No. 2, Director, Pension Nideshalaya, U.P. Lucknow. The writ petition was allowed by judgment and order dated 15.7.2013. The operative portion of judgment being relevant is extracted:

"The petitioner has brought on record the papers showing nomination made by her husband in her favour in respect of the Gratuity, General Provident Fund and Group Insurance, as Annexure-2 to the writ petition. Said statement has been made in paragraph 8 of the writ petition. In paragraph-12 of the counter-affidavit, whereunder paragraph-8 of the writ petition has been replied, said statement of fact has not been denied. Thus, this fact is established that husband of the petitioner had made nomination in favour of the petitioner for his other post retiral benefits and the first wife of late Prem Narain Lal Srivastava has given her affidavit that she has no objection in case the petitioner is granted family pension. However, I find that in the impugned order the Director, Pension Directorate, Lucknow has failed to advert to those material facts and documents. Thus, the impugned order has been passed without application of mind and as such, the same needs to be quashed. Accordingly, the order dated 4.3.2004 passed by the Director, Pension Directorate, U.P., Lucknow, the respondent No. 1, is hereby quashed. The matter is remitted back to the Director, Pension Directorate, U.P., Lucknow, to reconsider the same afresh after giving opportunity to the petitioner and pass appropriate order in accordance with law within six weeks from the date of communication of this order.
Accordingly, the writ petition is allowed.
No order as to costs."

The order was not complied with, aggrieved the petitioner filed Contempt Petition (Contempt Petition No. 2965 of 2014), (No. 2965 of 2014), the Court on 13.5.2014 directed the Director, Pension Nideshalaya, U.P., Lucknow to comply the order of the writ Court. The respondent No. 2 by impugned order dated 24.6.2014 rejected the claim of :he petitioner, for the reason, that since the deceased employee, in the pension paper, had mentioned the name of both the wives, accordingly, direction/opinion was sought from the State Government. The Government vide letter dated 23.10.2013, pursuant to Government Order dated 24.8.1966, opined that in the event of the deceased employee having two wives the senior wife would be entitled to family pension until her death/remarriage. The family pension being non transferable cannot be given to the petitioner, even on an affidavit of the senior wife relinquishing her claim, to family pension in favour of the petitioner.

2. Sri H.R. Mishra, learned Senior Advocate, assisted by Sri Gopal Srivastava, learned counsel appearing for the petitioner would submit that since the first wife has no objection, in case second wife is given family pension and further the first wife had given her consent, on an affidavit, to the competent authority, thus, would contend, that the petitioner, also being a nominee for gratuity, G.P.F., and group insurance, is entitled to family pension, further, the: impugned order is in teeth of the judgment and order dated 15.7.2013 passed in the earlier writ petition.

3. In rebuttal, learned Standing Counsel, would submit that the impugned order is legal, family as defined in the Rules, would not include the second wife, hence the petitioner is not entitled to family pension, as long as, the first wife is alive and eligible to receive the family pension.

4. Rival submissions fall for consideration.

5. The sole question to be determined is as to whether the first wife (senior wife), of the deceased employee, could relinquish her claim to family pension upon the second wife under the Rules.

6. It is not in dispute between the parties that the provisions of the Uttar Pradesh Retirement Benefits Rules, 1961 (Rules) is applicable in respect of the grant of family pension. The Rules have been framed in exercise of powers conferred under the proviso to Article 309 of the Constitution of India. Rule 2 provides that the Rules shall apply to all officers under the rule making power of the Governor.

7. Further, the pension provisions contained in Civil Service Regulations shall continue to apply to the officers except in so far as they are inconsistent with any of the provisions of these rules.

8. Sub-section (3) of Rule 3 defines "family", part relevant for the case is extracted:

"[(3) "Family" means the following relatives of an officer:

(i) wife, in the case of any male officer;
(ii) husband, in the case of a female officer;
(iii).......................
(iv)........................
(v).........................
(vi)........................
(vii).........................
(viii)......................

(4)........................
(5)........................."

9. Part-II of the Rules provides for Death-cum-Retirement Gratuity and Part-Ill deals with Family Pension.

10. Rule 7(1) under Part-Ill provides, family pension may be granted to the family of an officer who dies. Rule 7(1) is as follows:

"7. Family Pension.-(1) A family pension not exceeding the amount specified in sub-rule (2) below may be granted for a period of ten years to the family of an officer who dies, whether after retirement or while still in service after completion of not less than 20 years' qualifying service:"

11. Sub-rule (3) of Rule 7 provides that pension shall not be payable under this Part to a person mentioned thereunder and would include a widowed female member of the family, in the event of her remarriage and to a person who is not a member of the deceased officer's family, sub-rule reads as follows:

"(3) No pension shall be payable under this Part

(a) to a persons mentioned in clause (b) of sub-rule (4) below, unless the pension sanctioning authority is satisfied that such person was dependent on the deceased officer for support;
(b) to an unmarried female member of the family, in the event of her marriage;
(c) to a widowed female member of the family, in the event of her remarriage;
(d) to a brother of the deceased officer on his attaining the age of 18 years; and
(e) to a person who is not a member of the deceased officer's family.

(4) Except as may be provided by a nomination under sub-rule (5) below:

(a) a pension sanctioned under this Part shall be granted

(i) to the eldest surviving widow, if the deceased was a male officer or to the husband, if the deceased was a female officer;
(ii) failing the widow or husband, as the case may be, to the eldest surviving son;
(iii) failing (i) and (ii) above, to the eldest surviving unmarried daughter;
(iv) these failing, to the eldest widowed daughter; and

Note.-The expression "eldest surviving widow" occurring in clause (a)(i) above, should be construed with reference to the seniority according to the date of marriage with the officer and not with reference to the age of surviving widows.
(5) A Government Servant shall immediately after his confirmation, make a nomination in Form "E" indicating the order in which a pension sanctioned under his part should be payable to the members of his family, and to the extent it is valid, the pension will be payable in accordance with such nomination provided the nominee concerned is not ineligible, on the date on which the pension may become pay able to him or her to receive the pension under the provisions of sub-rule(3). In case the nominee concerned is or has become ineligible to receive the pension under the said sub-rule, the pension shall be granted to the person next lower in the order in such nomination. The provisions of sub-rules (5)(b), (7) and (8) of Rule 6 shall apply in respect of nominations under this sub-rule.
(6)(a) a pension awarded under this part shall not be payable to more than one member of the deceased officer's family at the same time.
(b) If a pension awarded under this part ceases to be payable before the expiry of the period mentioned in the proviso to sub-rule (1) on account of death or marriage of the recipient or any other causes, it will be regranted to the person next lower in the order mentioned in sub-rule (4) or to the person next lower in the order shown in the nomination under sub-rule (5), as the case may be, who satisfies the other provisions of this part."

12. A bare perusal of the Rules, is indicative that the definition of family does not include the second wife, it only refers to 'wife', and family pension, as per Rule 7(1), is granted to the member of the 'family' of an officer, sub-rule 3(e) of Rule 7 provides, pension is not payable to a person who is not a member of the deceased/officer's family, sub-rule 4(a)(i) provides that pension shall be sanctioned under Part HI to the eldest surviving widow and the note appended to the rule clarifies that expression "eldest surviving widow" should be construed with reference to the seniority according to the date of marriage with the officer and not with reference to the age of surviving widows.

13. Sub-rule (5) requires the Government Servant to make nomination indicating the order in which pension sanctioned would be payable to the members of his 'family', provided the nominee concerned is not ineligible, on the date on which the pension may become payable to him or her to receive the pension under the provisions of sub-rule (3) of Rule 7. Thus, the scheme of the Rules provide that in case the Government servant leaves behind two wives, the second wife not being a member of the family, is not eligible to family pension, as long as, the first wife survives. Further, there could not have been any nomination in favour of the second wife as she was ineligible to have been nominated under sub-Rule (5), being not a member of the family, thus, ineligible to receive pension under sub-rule (3) of Rule 7.

14. Learned counsel for the petitioner has not brought on record Form-E i.e. nomination in favour of the petitioner for pension, whereas, nomination to receive the gratuity and other payments have been brought on record. Nomination for death-cum-retirement gratuity is dealt with under Rule 6 and is not applicable to nominations for pension under sub-rule (5) of Rule 7, both being under different Part of the Rules.

15. Taking a case that there was nomination in favour of the second wife, the pension would have been payable in accordance to such nomination provided the nominee is not ineligible, on the date on which the pension became payable to her under sub-Rule 3 of Rule 7. In the facts of the present case, since the first wife is alive on the date on which the family pension became due, the second wife cannot set up a claim for family pension even on the consent of the first wife, further, nomination in favour of second wife would be invalid as she being not a member of the Government servants family (sub-Rule (3)(e) of Rule 7).

16. Learned Standing Counsel would submit that after enactment of Hindu Marriage Act 1955 (Hindu Marriage Act) the second marriage would be void, hence the second wife would otherwise be ineligible for family pension.

17. There is merit in the argument of learned Standing Counsel, provided the second marriage was contracted after the enactment of Hindu Marriage Act, however, in the facts of the present cast:, it is pleaded that the petitioner had contracted marriage with the Government Servant in 1954 i.e. before the commencement of Hindu Marriage Act, hence her marriage would not be void.

18. The Hindu Marriage Act came into force on 18.5.1955, the Act amended and codified the law relating to marriage among Hindus. Section 4 provides that the Act has an overriding effect. Section 4 is extracted:

"4. Overriding effect of Act-Save as otherwise expressly provided in this Act.

(a) any text Rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act;
(b) any other law in force immediately before the commencement of this Act shall cease to have effect in so far as it is consistent with any of the provisions contained in this Act."

19. Section 5 provides the conditions for Hindu marriage between two Hindus and one of the condition provides that neither party should have a spouse living at the time of marriage. Section 5(i) is reproduced:

"5. Conditions for a Hindu marriage.-A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely:

(i) neither party has a spouse living at the time of marriage;"

20. Section 11 provides for void marriages. Section 11 is as follows:

"11. Void Marriages.-Any marriage solemnized after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto [against the other party) Ins. By Act 68 of 1976, sec. 5 (w.e.f. 27.5.1976), be so declared by a decree of nullity if it contravenes any one of the conditions specified in clauses (i), (iv) and (v) of Section 5."

21. Section 29 of the Hindu Marriage Act saves the marriages performed between Hindus before the commencement of the Act. Section 29(1) is reproduced:

"29. Savings.-(1) A marriage solemnized between Hindus before the commencement of this Act, which is otherwise valid, shall not be deemed to be invalid or ever to have been invalid by reason only of the fact that the parties thereto belonged to the same gotra or pravara or belonged to different religions, castes or sub-divisions of the same caste."

22. Thus as per the scheme of the Hindu Marriage Act, marriage between two Hindus solemnized before the commencement of the Hindu Marriage Act, which was otherwise legal and valid, would be saved under Section 29 of the Act and would not be void under Section 11. Thus, the marriage between the deceased Government servant and the petitioner cannot be said to be a void marriage, as being solemnized prior to the enactment of the Hindu Marriage Act. Had the Government servant contracted a second marriage after the commencement of the Hindu Marriage Act, the marriage would have been void under the Hindu Marriage Act and a nullity in the eye of law, second wife would have no right of being a legally wedded wife.

23. Further, the U.P. Government Servant Conduct Rules, 1956 which came into force on 28th July, 1956, Rule 29 prohibits a Government Servant from bigamous marriage. Rule 29 reads as follows:

"29. Bigamous marriages-(1) No Government servant who has a wife living shall contract another marriage without first obtaining the permission of the Government, notwithstanding that such subsequent marriage is permissible under the personal law for the time being applicable to him."

24. Thus, two Hindus cannot contract marriage after the enforcement of the Hindu Marriage Act, if any of them is having a living spouse, the marriage would be a nullity and would also not be protected under the Conduct Rules, as well as, the pension Rules, therefore, the "second wife" as referred to under the pension rules would only include second wife whose marriage is permissible under the personal law, but in the case of Hindus the second wife will have no right, whatsoever, as the law prohibits second marriage, as long as, the Government servant has a spouse who is alive. Thus for harmonious construction of the Rules governing pension, wherever, the rule provides for wives, it has to be interpreted as per the law governing marriage as applicable to the Government servant and in cases where the second marriage is void under the law, second wife will have no status of a widow of the Government servant.

25. As regards, eligibility to family pension, the pension is to be disbursed as per the provisions of the Rules. The rules clearly state that only eligible person is entitled to receive family pension but where pension awarded ceases to be payable on the death or marriage of the recipient or for any other reason, it will be regranted to the persons next lower in the order mentioned in sub-rule (4) of Rule 7. The Hindu second wife would not be eligible for family pension as long as the first wife is alive and has not remarried. There is no provision in the Rules for relinquishment of family pension in favour of another person.

26. The Supreme Court in Bakulabai and another v. Gangaram and another, MANU/SC/0040/1988 : 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.

27. This Court in Shakuntala Devi (Smt.) v. Executive Engineer, Electricity Transmission 1st U.P. Electricity Board, Allahabad and another, MANU/UP/0150/2001 : (2001) 1 UPLBEC 8691, while dealing with two wife's 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.

28. Similar, view was expressed in Poonam Devi (Smt.) v. Chief Engineer, Electricity Board and others, MANU/UP/0399/2004 : (2004) 3 UPLBEC 2292.

29. The Supreme Court in Rameshwari Devi v. State of Bihar and others, MANU/SC/0043/2000 : 2000 (1) ESC 577 (SC), 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.

30. 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 parties are governed by statutory provisions, the individual nomination contrary to the statute will not operate.

31. The Apex Court in Smt. Sarbati Devi and another v. Smt. Usha Devi, MANU/SC/0231/1983 : AIR 1984 SC 346, held that a mere nomination made in an insurance policy does not have the effect of conferring or. 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.

32. For the reasons and law stated, hereinabove, the second wife cannot claim pension on the consent of the first wife, even if the second wife is eligible under the Rules to receive family pension, as long as, the first wife is alive or does not remarry.

33. I do not find any illegality or infirmity in the order.

34. The writ petition is, accordingly, dismissed. No order as to cost.

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