Is a second wife whose marriage is void under the Hindu Marriage Act, 1955 a widow entitled to family pension?
Tamil Nadu Pension Rules, 1978 — r.49(7)(a)(i) — Hindu Marriage Act, 1955 — ss.5(i), 11 — Tamil Nadu Government Servants Conduct Rules, 1973 — r.19 — Family pension — Second wife — Status of widow —
Hindu Marriage Act, 1955 — ss.5(i), 11 — Void second marriage — No status of widow —
Held: A second marriage solemnised while the first subsists is null and void, and a mutual agreement of separation registered under the Registration Act is no valid divorce; the second wife therefore holds no status as widow. (¶13, 3)
Tamil Nadu Pension Rules, 1978 — r.49(7)(a)(i) — Payability precedes sharing —
Held further: Rule 49(7)(a)(i) governs the sharing of family pension where it is payable to more widows than one; it does not sanction family pension to a second wife whose marriage was not solemnised in accordance with law. (¶12, 15)
Tamil Nadu Pension Rules, 1978 — r.49(7)(a)(i) — Sharing confined to pre-1955 marriages —
Held further: The sharing provision was framed for second marriages solemnised before the Hindu Marriage Act, 1955, when they were valid; a wife married after it, second marriage then being misconduct and an offence, cannot take advantage of it. Writ appeal allowed. (¶14)
Is a second wife whose marriage is void under the Hindu Marriage Act, 1955 a widow entitled to family pension?
No. A second wife whose marriage is void under the Hindu Marriage Act, 1955 is not a widow entitled to family pension. Payability arises only if the applicant is a widow, and the status of widow arises only from a valid marriage. Here the deceased Government servant's first marriage had been dissolved only by a registered mutual agreement, which is no divorce under the Act, so the second marriage was null and void. [¶13]
Does Rule 49(7)(a)(i) of the Tamil Nadu Pension Rules, 1978 sanction family pension to a second wife?
No. Rule 49(7)(a)(i) of the Tamil Nadu Pension Rules, 1978 does not sanction family pension to a second wife, but only shares it between widows. The language is that where family pension is payable to more widows than one it shall be paid in equal shares; the provision is unambiguous about sharing and cannot be read as a source of entitlement for a second wife. [¶12, ¶15]
Does the sharing of family pension between widows apply only where the second marriage was solemnised before the Hindu Marriage Act, 1955 came into force?
Yes. The sharing of family pension between widows applies only where the second marriage was solemnised before the Hindu Marriage Act, 1955 came into force. Before 1955 a second marriage during the lifetime of the first wife was permitted and valid, and the Rule was enacted for those cases; after 1955 such a marriage is not only misconduct under the Government Servants Conduct Rules but an offence, so no question of sharing arises. [¶14]
What did the Division Bench finally decide on the second wife's claim to family pension?
The writ appeal was allowed and the writ order granting family pension to the second wife was set aside. The Court found that the deceased employee had married the first respondent before any agreement with his first wife, that the marriage was therefore null and void, and that the first respondent, herself a retired Headmistress in receipt of pension, was not entitled to family pension. [¶17, ¶18]
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“12.3 A view similar to the above has also been adopted by this Court in Draupada @ Draupadi Jaydev Pawar & Ors. vs. Indubai (supra). The learned Single Judge has, with authority, referred to the judgements passed in the Chanda Hinglas Bharati (supra) and Rameshwari Devi (supra). The relevant excerpts are Paragraphs 35 to 37 and are reproduced herein below: "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 v. Sukhrana Bai, reported in (2008) 2 SCC 238. The Division Bench has held thus:”
“13. Question of 'payability' would arise only if the applicant is the widow. The question of widow would arise only if the marriage is a valid marriage. Based on an invalid marriage, the second wife cannot claim the status as “widow”. When admittedly, the applicant is the second wife of the deceased employee and she is not a widow, then the family pension is not payable and the question of invoking Rule 49(7)(a)(i) would not arise.”
“14. Further question arises, why such a rule has been incorporated in the Tamil Nadu Pension Rules. It is obvious that at the time of framing the Rules, the employees, who have solemnized second marriage prior to the year 1955, i.e., before the Hindu Marriage Act, was considered as a valid marriage. In those circumstances, when the second marriage was a valid marriage, the Rule contemplates sharing of the family pension. Therefore, only if the second marriage is valid under the Law, then alone, the pension is payable, which can be shared between two widows, but not otherwise. When the Pension Rule was enacted, there were many such cases, where, employees had two wives and the marriage with the second wife was solemnized prior to the Hindu Marriage Act before the year 1955 and thus, this Court is of the considered opinion that those circumstances cannot be taken undue advantage by the second wife, whose marriage was solemnized after the Hindu Marriage Act and became invalid. Thus, the second marriage solemnized during the lifetime of the first wife is an invalid marriage and an invalid marriage would not provide the second wife status as “widow”. When she is not holding the status as 'widow', the family pension is not payable and consequently, the family pension cannot be shared or paid.”
“15. Even looking into the provisions independently, Rule 49(7)(a)(i) speaks about sharing of family pension between widows. It does not speak about sanctioning of family pension to the second wife. Rule 49(7)(a)(i) says that, where family pension is payable to more widows than one, then it is to be divided in equal shares. When the provision is unambiguous regarding the sharing of family pension between two widows, the said provision cannot be applied for the purpose of sanctioning family pension for the second wife, whose marriage was not solemnized in accordance with law.”
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(Judgment of the Court was delivered by S.M.Subramaniam J.) The Accountant General of Tamil Nadu preferred the present Intra Court Appeal under Clause 15 of Letters Patent challenging the writ order dated 22.09.2023, passed in WP.No. 7911 of 2022.
The first respondent Smt.S.Thamizharasi filed a writ petition claiming family pension with effect from 01.05.2020. The claim of the first respondent for grant of family pension on account of the death of her husband R.Saman was rejected by the Accountant General of Tamil Nadu vide proceedings dated 03.10.2019 and 06.09.2021, mainly on the ground that as per the documents, the second marriage between the first respondent and the deceased R.Saman took place on 16.05.1991 before the date of divorce of the first wife Smt.S.Nalini i.e.12.06.2006. In other words, the second marriage with the first respondent was solemnised even before the date of divorce of his first wife. Therefore, the second marriage between the deceased R.Saman and the first respondent became invalid under the provisions of the Hindu Marriage Act, 1955. Further order was passed by the Accountant General on 06.09.2021. On verification of further facts and documents, a finding was made by the Accountant General that the mutual separate agreement entered into by the late Government servant R.Saman and his first wife Nalini does not have any legal validity as the dissolution of their marriage notwithstanding the registration of the agreement. Hence, the second marriage with the first respondent would be rendered as null and void as per the Hindu Marriage Act, 1955.
The facts verified by the Accountant General made it clear that there is no valid divorce obtained by the deceased R.Saman from his first wife through a competent Court of Law. The marriage was annulled based on a mutual agreement, which was registered under the Registration Act, which cannot be construed as a valid divorce under the provisions of the Hindu Marriage Act, 1955. When the marriage between the deceased employee R.Saman and his first wife Nalini was not dissolved as per law, the second marriage of the deceased employee with the first respondent is null and void and therefore, the first respondent cannot be construed as a legally wedded wife of the deceased employee R.Saman.
In the context of the fact that the second marriage of the deceased employee with the first respondent is null and void in the eye of law, the provisions under the Tamil Nadu Pension Rules 1978 is to be considered. The term “family pension” has been defined under Rule 3 (1) (e) of the Tamil Nadu Pension Rules 1978, which reads as under: 3(1)(e). ‘Family Pension’ means ‘family pension, 1964’ admissible under Rule 49 but does not include dearness allowance.
Rule 49 of the Tamil Nadu Pension Rules provides family pension. Sub Rule 7 (a) (i) of theTamil Nadu Pension Rules Pension Rules reads as under:
“7(a) (i) Where family pension is payable to more widows than one, the family pension shall be paid to widows in equal shares. (ii)On the death of 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 cease to be payable] [Provided that if the widow is not survived by any child, her share of family pension shall be payable to the other widows in equal shares, or if there is only one such 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 of family pension payable to child or children or to a widow or widows ceasing to be payable, such share or shares shall be payable to the other widow or widows and or to the 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 share 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 wid6ow or child] Explanation: For the purpose of this rules, the second wife shall be eligible for the benefits of family pension only if the second marriage- (i)Solemnised as per the customary law prevailed among the community before the date of commencement of the Hindu Marriage Act, 1955 (Central Act 25 of 1955); or (ii)Solemnised under the Mohammadan Law in which bigamy is permissible.”
Rule 19 of the Tamil Nadu Government Servants Conduct Rules, 1973, reads as follows: 19. Bigamous marriage:- 1. (i) No Government servant shall, enter into or contract, a marriage with a person having a spouse living; and
(ii) 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 is referred to in clause (i) or clause (ii) if they are 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. 2. No Government servant involve himself in any act involving moral turpitude on his part including any unlawful act, which may cause embarrassment or which may bring discredit to Government.
In the case of R.Rajathi Vs.The Superintendent Engineer1, the Division Bench of this Court had elaborately considered the scope of Rule 49 of the Tamil Nadu Pension Rules, 1978. 1 (2018 (1) Writ L.R725)
The cardinal principles laid down by the Court is that “payability / eligibility of family pension for more than one widow would arise only if two wives are permissible under law. Such a situation was considered by the Rule maker since the marriage solemnised prior to the Hindu Marriage Act, 1955, was considered as valid. Prior to the year 1955, contracting a second marriage during the life time of the first wife was permitted and therefore, the sharing of family pension arose and the provision was enacted. However, after 1955, second marriage is not only a misconduct under the Government Servants Conduct Rules but an offence. Therefore, the question of now sharing the family pension in respect of an invalid marriage would not arise at all.
Rule 49 of the Tamil Nadu Pension Rules deals with “Family Pension”. Rule 49 (7) (a) (i) contemplates that "Where family pension is payable to more widows than one, the family pension shall be paid to widows in equal shares."
Relying on the above provision, applications are filed by the second wives, seeking family pension after the death of the deceased employee.
Question arises, whether a pension can be shared under Rule 49(7) (a)(i) of the Tamil Nadu Pension Rules, 1978, when the marriage is invalid.
The language employed in Rule 49(7)(a)(i) is that, “where family pension is 'payable' to more widows than one”. Therefore, if the family pension is payable to more widows than one, then alone, the family pension can be shared, but not otherwise.
Question of 'payability' would arise only if the applicant is the widow. The question of widow would arise only if the marriage is a valid marriage. Based on an invalid marriage, the second wife cannot claim the status as “widow”. When admittedly, the applicant is the second wife of the deceased employee and she is not a widow, then the family pension is not payable and the question of invoking Rule 49(7)(a)(i) would not arise.
Further question arises, why such a rule has been incorporated in the Tamil Nadu Pension Rules. It is obvious that at the time of framing the Rules, the employees, who have solemnized second marriage prior to the year 1955, i.e., before the Hindu Marriage Act, was considered as a valid marriage. In those circumstances, when the second marriage was a valid marriage, the Rule contemplates sharing of the family pension. Therefore, only if the second marriage is valid under the Law, then alone, the pension is payable, which can be shared between two widows, but not otherwise. When the Pension Rule was enacted, there were many such cases, where, employees had two wives and the marriage with the second wife was solemnized prior to the Hindu Marriage Act before the year 1955 and thus, this Court is of the considered opinion that those circumstances cannot be taken undue advantage by the second wife, whose marriage was solemnized after the Hindu Marriage Act and became invalid. Thus, the second marriage solemnized during the lifetime of the first wife is an invalid marriage and an invalid marriage would not provide the second wife status as “widow”. When she is not holding the status as 'widow', the family pension is not payable and consequently, the family pension cannot be shared or paid.
Even looking into the provisions independently, Rule 49(7)(a)(i) speaks about sharing of family pension between widows. It does not speak about sanctioning of family pension to the second wife. Rule 49(7)(a)(i) says that, where family pension is payable to more widows than one, then it is to be divided in equal shares. When the provision is unambiguous regarding the sharing of family pension between two widows, the said provision cannot be applied for the purpose of sanctioning family pension for the second wife, whose marriage was not solemnized in accordance with law.
That apart, a Division Bench of the High Court of Bombay, in the case of Smt..Shamal Mahadeo Tate vs. District Collector, Solapur, Zilla Parishad Compound and others2, held as follows:- "12 . In our considered opinion, the substantial issue elucidated hereinabove stands squarely answered by the Supreme Court in a catena of judgements and the position of law in this regard stands more than well- settled. 2 ( 2022 0 Supreme(Bom) 23)
12.1 The Supreme Court, in Rameshwari Devi case (supra), has clearly opined that the putative second wife cannot be described as the widow of the deceased government employee. The Supreme Court applied the statutory provisions under Section 5 (i) read with Section 11 of the HMA and held that the marriage of the deceased employee to the putative second wife is void as, at the time of such marriage, his first wife was alive and his marriage with her was still subsisting. That being the case, the Supreme Court ruled that the second wife in such cases is not entitled to family pension.
12.2 The Supreme Court in the case of Raj Kumari vs. Krishna, 2015 (14) SCC 511 similarly opined that normally, family pension is given to the legally wedded wife of a deceased government employee. In the aforesaid case, the deceased government employee had married the plaintiff therein while the former's first wife was alive and his marriage with her was still subsisting. As such, the Supreme Court held that the plaintiff could by no stretch of imagination be described as the legally wedded wife of the deceased government employee.
12.3 A view similar to the above has also been adopted by this Court in Draupada @ Draupadi Jaydev Pawar & Ors. vs. Indubai (supra). The learned Single Judge has, with authority, referred to the judgements passed in the Chanda Hinglas Bharati (supra) and Rameshwari Devi (supra). The relevant excerpts are Paragraphs 35 to 37 and are reproduced herein below: "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 v. Sukhrana Bai, reported in (2008) 2 SCC 238. 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." 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 Penal Code, 1860 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." 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." [emphasis supplied] 12.4 We may state that the decision in the Jaywantabai case (supra) has been expressly overruled by a Full Judge Bench of this Court in the Kamalbai case (supra) in view of the decisions of the Supreme Court in the Rameshwari Devi case (supra) and the Raj Kumari case (supra). We may usefully refer to Paragraphs 13 and 14 of the said decision, which read thus: "13. In the present matters, we are concerned with the entitlement of the second wife to family pension upon the death of the Government employee. For the purpose of family pension the word "family" will have to be interpreted. Subrule (5) of Rule 111 of the Pension Rules defines "family" in relation to the Government servant. Rule 111(5)(i) initially read as "wife or including judicially separated wife or wives in the case of male government servants". Under notification dated 18-1-2016 clause (i) has been amended and the word "wife" is substituted with the word, "legally wedded wife". The provision now is read as legally wedded wife or wives. Rule 111 deals with Retirement Gratuity/Death Gratuity. Rule 115 enables the Government servant to nominate one or more persons to receive the retirement gratuity/death gratuity. Proviso (I) to sub-rule (I) of Rule 115 restricts the right of the Government servant to nominate any person other than a member of his family in case he has family. The provision would make it clear that unless wife is legally wedded wife as provided under Rule 111(5)(i) of the Pension Rules, the government servant has no right to nominate such a person. Rule 111(5) of the Pension Rules excludes a wife that is not a legally wedded wife from the definition of family. If the marriage is not legal and valid, the said woman would not be brought within contour of the definition "Family". Proviso (ii) to Rule 115(1) enables the Government servant to nominate any other person if he has no family, but sub Rule 4 of Rule 115 of the Pension Rules further prescribes that if at the time the government servant had made nomination who had no "family" at the time of making it, same shall become invalid in the event of the government servant subsequently acquiring the "family". Reading Rules 111 and 115 of the Pension Rules conjointly the only irresistible conclusion that can be drawn is that a nomination can be made by a government servant only of a person who is member of the family, if the said Government servant has a family. The definition of family embodied in Rule 111(5)(i) specifically provides that legally wedded wife or wives only would be a member of the family. The one that is not a legally wedded wife is excluded from the definition of the term "family". 14. The family pension was initially governed by the Family Pension Scheme 1964 as contained in the Government Resolution dated 08th May, 1964. Same is incorporated in Rule 116. The nomenclature, "Family Pension" connotes payment of pension to the family, a woman who is not legally married cannot be included in the definition of family." [emphasis supplied] 12.5 Thus, in light of the judicial decisions as outlined hereinabove, the Petitioner in the present case would not be entitled to family pension under the Pension Rules notwithstanding the death of the first wife as the Petitioner's marriage to the deceased itself is void under the HMA."
In the present case, the facts established are that the deceased employee entered into a mutual agreement of divorce with his first wife Nalini and registered the said document, which cannot be construed as a valid divorce under law. Even before the agreement, the deceased employee married the first respondent as his second wife. Therefore, the second marriage is null and void and in view of the principles discussed above in the context of the Tamil Nadu Pension Rules, 1978, the first respondent is not entitled for family pension. Pertinently, the first respondent is a retired Headmistress and receiving pension from the State Government.
For all these reasons, the writ order impugned dated 22.09.2023 passed in WP.No.7911 of 2022 is set aside. The Writ Appeal stands allowed. No costs. Consequently, connected miscellaneous petition is closed.
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