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Family pension denied to Second wife as Marriage was solemnized during subsistence of First marriage

HIGH COURT OF MEGHALAYA
AT SHILLONG

WP (C) No.23/2016
Date of Order: 20.07.2018

Smti. Debokala Thakuri

Vs.

The State of Meghalaya & ors

Coram: Hon’ble Mr. Justice Mohammad Yaqoob Mir, Chief Justice

Appearance:
For the Petitioner/Appellant(s) : Mr. AH Hazarika, Adv
For the Respondent(s) : Mr. KP Bhattacharjee, GA
Mr. R Deb Nath, Adv for R5&6

i) Whether approved for reporting in Yes Law journals etc.:

ii) Whether approved for publication in press: Yes/No

1. Family pension in favour of the petitioner has been declined on the ground that her marriage with the deceased public servant after his retirement from service is not recognized for purposes of family pension in terms of Rule 48 (i) Note.2 of the Meghalaya Civil Services (Pension) Rules, 1983 [for short MCS (Pension) Rules, 1983].

2. The record reveals that pension case of the petitioner after the death of her retired husband was submitted by the Police department to the office of the Accountant General (A&E), Meghalaya, Shillong but vide letter dated 01.10.2003, same has been returned to the Superintendent of Police, East Khasi Hills, Shillong with the remark that as per Note.2 below 48(i) of MCS (Pension) Rules, 1983, marriage after retirement is not recognized for purposes of pension. The petitioner is the second wife of the deceased, they contracted marriage on 27.06.2003, after the retirement i.e. her husband retired from service on 30.06.2001, therefore, not in order as per MCS (Pension) Rules, 1983. The Superintendent of Police by the same communication had been requested to resubmit the pension papers after taking necessary action as per provision of the said Rules. The matter remained pending with the Superintendent of Police. Finally, the Superintendent of Police vide his letter dated 07.08.2015 conveyed to the petitioner that her husband Shri Pitamber Thakuri retired from service w.e.f. 01.07.2001, the marriage certificate submitted has been registered on 27.06.2003, it appears that the deceased had married the petitioner after his retirement. The office of the Accountant General (A&E), Meghalaya, Shillong vide No.PEN (M)/MG-1/2003-04/3861 dated 01.10.2003 clearly state that the marriage after retirement is not in order as per MSC (Pension) Rules, 1983. In this connection, it is to state that your petition could not be considered.

3. The petitioner has challenged both the two communications dated 01.10.2003 issued from the office of the Accountant General (A&E), Meghalaya, Shillong and also the communication dated 07.08.2015 issued from the office of Superintendent of Police, East Khasi Hills, Shillong.

4. (L) Pitamber Thakuri (husband of the petitioner) was admittedly appointed as Constable vide order dated 10.02.1965 w.e.f. 01.02.1965. Initially he worked under the Government of Assam i.e. before creation of the State of Meghalaya. On creation whereof, has worked under the Police department, Government of Meghalaya till his retirement i.e. 01.07.2001. After his retirement, pension was sanctioned in his favour which he was getting but after his death on 11.04.2008, the petitioner widow claimed that she was the legally wedded wife of the deceased and 8 children were born from their wedlock therefore, she is entitled to family pension.

5. Perusal of the record suggests that the deceased was first married to Smti. Gyan Maya Thakuri in the year 1976 which fact according to the petitioner was not known to her. The petitioner according to her is the first wife of the deceased having solemnized marriage with him in the year 1978.

6. The factum of marriage between the deceased (L) Pitamber Thakuri and Smti. Gyan Maya Thakuri is established by the decree in Divorce Case No.5 (T) of 2002 instituted on 28.03.2003 and decided on 08.04.2003 in terms whereof the marriage between Shri Pitamber Thakuri (deceased) and Smti. Gyan Maya Thakuri has been dissolved. Now, it is stated that Smti. Gyan Maya Thakuri has also expired.

7. The respondent No.5 in his counter affidavit has pleaded that the petitioner having contracted marriage with the deceased after his retirement disentitled her to get family pension in terms of Note.2 below Rule 48 (i) of the MCS (Pension) Rules, 1983 which provides that marriage by retired Government servant after retirement will not be recognized for purposes of family pension. Furthermore, the petitioner could not have married the deceased in the year 1978 in view of clear bar under Section 5 (i) of Hindu Marriage Act, 1955 (for short the Act of 1955) because the marriage between the deceased and Smti. Gyan Maya Thakuri was subsisting.

8. The two communications one dated 01.10.2003 issued from the office of the Accountant General (A&E), Meghalaya, Shillong and other issued by the Superintendent of Police, East Khasi Hills, Shillong dated 07.08.2015 suggests that the family pension case of the petitioner has been declined on the ground that the employee (husband of the petitioner) had married her in the year 2003 i.e. after his retirement from service therefore, in terms of Note.2 below Rule 48 (i) of MCS (Pension) Rules, 1983 marriage is not recognized for purposes of pension.

The two issues emerge for determination:-

(i) As to whether Note.2 below Rule 48 (i) of the MCS (Pension) Rules, 1983 debars the petitioner from getting family pension and

(ii) Whether the petitioner is entitled to family pension when her marriage with Government servant (deceased) during subsistence of first marriage with Smti. Gyan Maya Thakuri was in contravention to Section 5 (i) of the Act of 1955. Issue No.1: As to whether Note.2 below Rule 48 (i) of the MCS (Pension) Rules, 1983 debars the petitioner from getting family pension.

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9. Similar question arose for consideration before the Hon‟ble Apex Court in two cases captioned “Smt. Bhagwanti v. Union of India”. Both the cases were decided vide judgment reported in AIR 1989 SC 2088. In the reported judgment, in one petition the petitioner was denied family pension on the ground that the employee got married to the petitioner after retirement. Rule 54 (14)(b)(i) of Central Civil Services (Pension) Rules, 1972, defines “family” in relation to a Government servant, wife in case of a male Government servant, or husband in the case of a female Government servant, provided the marriage took place before retirement of the Government servant.

10. For applying the law as laid down in the reported judgment, to the present case, it shall be apposite to reproduce Rule 54 (14)(b) of Central Civil Services (Pension) Rules, 1972 as under:

“(b) Family‟ in relation to a Government servant means –
(i) wife in the case of a male Government servant, or husband in the case of a female Government servant, provided the marriage took place before retirement of the Government servant;
(ii) son who has not attained the age of twenty-one years and unmarried daughter who has not attained the age of thirty years, including such son and daughter adopted legally before retirement but shall not include son or daughter born after retirement.”

11. Rule 48 (i) of MCS (Pension) Rules, 1983 is quoted hereunder:

“48 (i). For the purpose of rules in this Section will include the following relatives of the officer-
(a) Wife, in the case of a male officer;
(b) husband, in the case of a female officer
(c) minor sons; and
(d) unmarried minor daughters Note 1:- (c) and (d) will include children adopted legally before retirement Note 2:- Marriage after retirement will not be recognized for purposes of rules in this Section.”

12. Both the Rules in effect provide that a Government servant, who solemnized marriage after retirement, his/her spouse after his death, shall not be entitled to family pension.

13. Paragraphs 9 and 13 of the reported judgment in AIR 1989 SC 2088 are advantageous to be quoted.

“9. Pension is payable, as pointed out in several judgments of this Court, on the consideration of past service rendered by the Government servant. Payability of the family pension is basically on the self same consideration. Since pension is linked with past service and the avowed purpose of the Pension Rules is to provide sustenance in old age, distinction between marriage during service and marriage after retirement appears to be indeed arbitrary.
There are instances where a Government servant contracts his first marriage after retirement. In these two cases before us, retirement had been at an early age. In the Subedar‟s case, he had retired after putting in 18 years of service and the Railway employee had retired prematurely at the age of 44. Premature or early retirement has indeed no relevance for deciding the point at issue. It is not the case of the Union of India and, perhaps there would have been no force in such contention if raised, that family pension is admissible on account of the fact that the spouse contributed to the efficiency of the Government servant during his service career. In most cases, marriage after retirement is done to provide protection, secure companionship and to secure support in old age. The consideration upon which pension proper is admissible or the benefit of the family pension has been extended do not justify the distinction envisaged in the definition of „family‟ by keeping the post-retiral spouse out of it.

13. Considered from any angle, we are of the view that the two limitations incorporated in the definition of „family‟ suffer from the vice of arbitrariness and discrimination and cannot be supported by nexus or reasonable classification. The words „provided the marriage took place before retirement of the Government servant‟ in clause (i) and „but shall not include son or daughter born after retirement‟ in clause (ii) are thus ultra vires Art.14 of the Constitution and cannot be sustained.”

14. Rule 48 (i) Note.2 of Meghalaya Civil Services (Pension) Rules, 1983 being pari materia with Rule 54 (14)(b) of Central Civil Services (Pension) Rules, 1972 to the extent indicated, therefore, the law laid down by the Hon‟ble Apex Court declaring the words “provided the marriage took place before retirement of the Government servant in clause (i) is ultra vires Article 14 of the Constitution” has to be followed. In terms of Article 141 of the Constitution of India is binding on all the Courts within the territory of India. That being so it is not necessary for the petitioner to challenge Rule 48 (i) Note.2 of MCS (Pension) Rules, 1983, to be declared ultra vires.

15. The MCS (Pension) Rules, 1983 have been amended in the year 2010, effective from 01.01.2007, in terms whereof, Note.2 of Rule 48 (i) as amended provide that the family pension is admissible to post-retiral spouses and children born/adopted legally after retirement. This amendment should have been carried much earlier when the Hon‟ble Apex Court has laid down the law in this behalf in the year 1989. The contentions that the said amended Rule has come into effect from 01.01.2007 therefore, will not cover the case of the petitioner is totally unacceptable because amendment or no amendment to the MCS (Pension) Rules, the law laid down by the Hon‟ble Apex Court has declared such a condition as ultra vires therefore, there is no scope for entertaining any position contrary to the same. Once the condition is declared ultra vires, the petitioner whose case for family pension was pending for about a decade on such count has to be settled in accordance with law as has been laid down, if not otherwise barred.

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16. Learned counsel for the petitioner in addition to the judgment reported in AIR 1989 SC 2088 has also placed reliance on the judgment reported in 2009 (3) GLT 569 decided on26.06.2009. In the reported judgment of Shillong Bench, Gauhati High Court, as then it was, after relying on the said judgment AIR 1989 SC 2088 while allowing the petition had issued direction for grant of family pension in favour of the petitioner w.e.f. 09.09.2002 i.e. from the date of retirement with interest of 6%.

17. Again learned counsel for the petitioner also placed reliance on the judgment passed by this Court in the case of “Nanji T. Sangma v. State of Meghalaya & ors” reported in (2017) 1 MJ 146. In the reported judgment, the Court while taking note of the amendment in MCS (Pension) Rules, 2010 w.e.f. 01.01.2007 has concluded that in view of the settled position of law as laid down by the Hon‟ble Apex Court in the cases referred to in the judgment which include judgment reported in AIR 1989 SC 2088 has held that the petitioner therein is entitled to family pension which was directed to be paid within three months in default shall be payable along with interest.

18. The two communications dated 01.10.2003 issued from the office of the Accountant General (A&E), Meghalaya, Shillong and the other dated 07.08.2015 issued by the Superintendent of Police, East Khasi Hills, Shillong declining family pension to the petitioner on the ground that the Government servant (husband of the petitioner) had married her after his retirement are not tenable in view of the conclusion drawn in the light of the law laid down by the Hon‟ble Apex Court referred to hereinabove. There is no scope for the respondents to deny family pension to the petitioner on the strength of Rule 48(i) Note.2 of MCS (Pension) Rules, 1983 subject to finding on issue No.2.

Issue No.2: Whether the petitioner is entitled to family pension when her marriage with Government servant (deceased) during subsistence of first marriage with Smti. Gyan Maya Thakuri was in contravention to Section 5 (i) of the Act of 1955.

19. (a) Admittedly, (L) Pitamber Thakuri, Government servant had contracted second marriage with the petitioner during subsistence of his first marriage with Smti. Gayan Maya Thakuri (now deceased), the marriage was in contravention to Section 5 (i) of the Act of 1955 which in terms of Section 11 of the Act of 1955 is void. For facility of reference, Sections 5 and 11 of the Act of 1955 are reproduced hereunder:-

“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 the marriage;
[(ii) at the time of the marriage, neither party—
(a) is incapable of giving a valid consent to it in consequence of unsoundness of mind; or
(b) though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or
(c) has been subject to recurrent attacks of insanity 2[***];]
(iii) the bridegroom has completed the age of 1[twenty-one years] and the bride, the age of 2[eighteen years] at the time of the marriage;
(iv) the parties are not within the degrees of prohibited relationship unless the custom or usage governing each of them permits of a marriage between the two;
(v) the parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two;
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 2[against the other party], 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.”
(b) The contention of the learned counsel for the petitioner that the marriage between the petitioner and deceased retired employee was contracted in accordance with the customs and usage which was continuously and uniformly observed in the local area same is protected in terms of Section 3 of the Hindu Marriage Act, 1955. This is how marriage between the deceased and the petitioner was solemnized in the year 1978 and eight children were born from their wedlock to say at this stage that the marriage was barred is irrelevant for purposes of determination of family pension.

20. Submission of the learned counsel for the petitioner has no substance because admittedly, the second marriage had been contracted in the year 1978 same is positive stand of the petitioner which she had made further clear in her rejoinder affidavit.

21. The registration of marriage in the year 2003 under the Special Marriage Act, 1954 will not alter her position of having been married to the deceased in the year 1978 neither there is any scope for her to resile. The certificate of marriage under Special Marriage Act of 43 of 1954 issued from the office of Marriage Officer, East Khasi Hills, Meghalaya, Shillong photo copy of which placed on record reveals that the marriage of the deceased with the petitioner has been certified to have been performed, so registered, having effect from 29th day of October 1978.

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22. Solemnization of the Marriage in the year 1978 during the subsistence of first marriage being in contravention to Section 5 (i) of the Act of 1955 is totally null and void in terms of Section 11 of the Act of 1955.

23. Knowledge or no knowledge of first marriage is immaterial once it is established that the deceased (Government servant) had contracted second marriage during subsistence of first marriage, the marriage is void when it is void, the petitioner (widow) has no right to claim family pension.

24. Learned GA appearing for the respondents No.1-4 has rightly placed reliance on the judgment rendered by the Division Bench of High Court of Madras in the case of “R. Rajathi v. Superintendent Engineer, Tangedco Ltd., Nagapattinam Circle, Nagapattinam District & anr” in WA No.977 of 2017 decided on 12.07.2017. In the reported judgment, the learned Division Bench after referring to various judgments on the question as to whether claim by the petitioner (spouse) married to a Government servant during subsistence of first marriage shall be entitled to family pension? It shall be quite relevant to quote as to what has been opined and concluded in paras 42 and 43 of the judgment. The relevant portions of the said paras are as under:-

“42. ….. We are, therefore, of the opinion that in order to enable a second wife to claim family pension the marriage should have been valid under the Personal Law applicable to the parties, to hold otherwise would be in violation of the law of the land, viz. the Personal Law of the parties as well as the Criminal Law, which prohibits bigamous marriage.

43. We are, therefore, constrained to conclude that the judgments which conclude that a second wife would be entitled to family pension, irrespective of her marriage being void, under the provisions of their relevant Personal Law‟s applicable to the parties do not reflect the correct position of law and therefore will stand overruled. …..”

25. Learned GA has also rightly placed reliance on the judgment rendered in the case of “Smt. Yamunabai Anantrao Adhav v. Ranantrao Shivram Adhav” reported in 1988 SCR (2) 809. In the reported judgment, claim for maintenance of the wife married to the person during subsistence of the first marriage was declined on the ground of second marriage. Paras 7 and 8 of the judgment are advantageous to be quoted:

“7. Lastly it was urged that the appellant was not informed about the respondent‟s marriage with Lilabai when she married the respondent who treated her as his wife, and, therefore, her prayer for maintenance should be allowed. There is no merit in this point either. The appellant cannot rely on the principle of estoppel so as to defeat the provisions of the Act. So far as the respondent treating her as his wife is concerned, it is again of no avail as the issue has to be settled under the law. It is the intention of the legislature which is relevant and not the attitude of the party.
8. We therefore, hold that the marriage of a woman in accordance with the Hindu rites with a man having a living spouse is a complete nullity in the eye of law and she is not entitled to the benefit of s.125 of the Code. …..”

26. In another judgment rendered by the High Court of Allahabad in the case of “Kiran Dhar v. Alok Berman” held that ground of maintenance was refused in favour of the second wife on the count that the second marriage was in contravention to Section 5 (i) of the Hindu Marriage Act, 1955. Para 29 is relevant to be quoted:

“29. In view of Sections 5 (1) and 11 of the Hindu Marriage Act and also in view of decision of Apex Court in Yamunabai Anantrao Adhav v. Anantrao Shivram Adhav and another (supra) the marriage between Smt. Kiran Dhar and Alok Berman is void ab initio, and she is not entitled to maintenance.”

27. The admitted position of the petitioner having been married to the deceased (Government servant) during subsistence of first marriage of the deceased, leaves no scope for not holding her marriage with the deceased in contravention to Section 5 (i) of the Act of 1955 therefore, being void in terms of Section 11 of the Act of 1955, disentitled her from claiming family pension.

28. In view of the finding recording on Issue No.2 and in view of the law as referred to in support thereof, grant of family pension in favour of the petitioner was not and is not permissible therefore, for the stated reasons and facts, it is held that petitioner is not entitled to family pension.

29. Petition accordingly dismissed.

30. No order as to costs.

(Mohammad Yaqoob Mir) Chief Justice Meghalaya 20.07.2018

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