Deepak Gupta, C.J.@mdashThis is a sad case which exemplifies the totally technical and callous attitude of the authorities while dealing with
matters relating to payment of pension and gratuity to the heirs of a deceased employee.
2. The undisputed facts are that Sunil Kumar Singh was working in Tripura State Rifles and at the time of his death in the year 2004 he was holding
the post of Naik. Shri Sunil Kumar Singh expired on 26.08.2004. In the service record of Sunil Kumar Singh, the name of his wife and nominee
was reflected as Shyama Devi, the present petitioner. However, after the death of Sunil Kumar Singh, Sunita Devi, respondent No. 4 herein also
filed a claim that she was the widow of Sunil Kumar Singh and she further alleged that she was the first wife of Sunil Kumar Singh. Thereafter, two
separate survival certificates were produced by both Shyama Singh and Sunita Kumari. In the survival certificate produced by Shyama Singh, the
legal heirs were shown as Shyama Singh and two minor children Abinash Kumar and Kanupriya, who were born on 19.02.1997 and 04.08.1999
respectively which means that in the year 2004 they were 7 and 5 years old respectively. On the other hand, Sunita Devi produced a survival
certificate in which the legal heirs were shown to be Sunita Devi, Shyama Devi, Abinash Kumar and Kanupriya. In the same certificate Shyama
Devi was mentioned as second wife and the two children as children from the second wife.
3. Because there were two conflicting certificates, on 21st September, 2005, the Director General of Police sent a communication to the
Superintendent of Police, Vaishali District, Bihar to verify the matter after getting an inquiry conducted in the same. The inquiry was conducted and
the following report was submitted:-
According to your instruction in letter dt. 13.3.07, today on 16.3.07 local inquiry was conducted. During the said inquiry it was found that Lt.
Sunil Kumar S/o. Lt. Viswanath Singh, Vill. & P.O. Poni Hasanpur, P.S. & District Vaishali was a N.K. in 6th Bn. T.S.R. of Tripura State. From
the local people we came to know that his old aged mother is still alive and Lt. Sunil Kumar Married Sunita Devi D/O Naval Kishore Oza, Vill.
Khobra P.S. Sadar, Dist. Muzaffarpur but no child was born out of their wed lock. Thereafter he married Shyama Devi D/O Awadesh Singh, of
Sorhantha, P.S. Vaishali (Balsar O.P) Dist. Vaishali Bihar and two children namely Shri Avinash Kumar aged 9 years and Kumari Kanupriya aged
6 years was born.
Under the above facts and circumstances the family description of Lt. Sunil Kumar is as follows:-
1) Smt. Sunita Devi - First Wife.
2) Smt. Shyama Devi - Second Wife - from her one son and one daughter was born.
3) Avinash Kumar - Son - aged about 9 years.
4) Kanu Priya - Daughter aged about-6 years
From this report, it is obvious that Sunil Kumar Singh had two wives i.e. Shyama Devi and Sunita Devi. He also had two children from the second
wife. He had also left behind his aged mother who was still alive at the time when the report was given.
4. The two widows of Sunil Kumar Singh entered into an agreement on 24.11.2005 which was duly notarized and in terms of this agreement they
agreed that the pension in respect of Sunil Kumar Singh would be given to Sunita Devi and Shyama Devi would be entitled to get compassionate
employment in place of her husband and all the remaining cash on account of the retiral benefits would be given to the two children under the
guardianship of Sunita Devi. Not only this, the agreement also states that the entire guardianship of the family will rest with Sunita Devi.
5. When this matter was placed before the Commandant of the 6th Bn. Tripura State Rifles he sent the following communication to the two
widows:-
Please find enclosed herewith a copy of the clarification regarding settlement of pensionary and other terminal benefits in respect of Lt. Sunil
Kumar, Ex-NK No. 85011093 of 6th Bn Tripura State Rifles (IR-II) as clarification given by the Law Department, Govt. of Tripura for favour of
your information.
2. The agreement entered in between you on 24-11-2005 has no legal force as the second marriage is void during lifetime to the spouse as the
Hindu Marriage Act, 1955 and Smt. Shyama Devi (2nd wife) has no status of a legally married wife. Now, Smt. Sunita Devi (1st wife) legally wife
of Lt. Sunil Kumar, Ex-NK No. 85011093 of 6th Bn Tripura State Rifles (IR-II) is entitled for the pensionary and other terminal benefits of the
deceased.
3. It is therefore, requested to make family arrangements yourselves in respect of the properties left by Lt. Sunil Kumar, Ex-NK No. 85011093 of
6th Bn Tripura State Rifles (IR-II) please.
6. Under Section 8 of the Hindu Succession Act, when a Hindu male dies intestate, the property has to devolve on his legal heirs mentioned in
Schedule I. Schedule I includes son, daughter, widow and mother amongst others. Under Section 16 of the Hindu Marriage Act, the children born
out of a marriage which is null and void shall be treated to be legitimate children and entitled to all rights. Reference in this behalf may be made to
the judgment of the Apex Court in Jinia Keotin and Others Vs. Kumar Sitaram Manjhi and Others, wherein the Court held as follows:-
4. We have carefully considered the submissions of the learned counsel on either side. The Hindu Marriage Act underwent important changes by
virtue of the Marriage Laws (Amendment) Act, 1976, which came into force with effect from 27-5-1976. Under the ordinary law, a child for
being treated as legitimate must be born in lawful wedlock. If the marriage itself is void on account of contravention of the statutory prescriptions,
any child born of such marriage would have the effect, per se, or on being so declared or annulled, as the case may be, of bastardizing the children
born of the parties to such marriage. Polygamy, which was permissible and widely prevalent among the Hindus in the past and considered to have
evil effects on society, came to be put an end to by the mandate of the Parliament in enacting the Hindu Marriage Act, 1955. The legitimate status
of the children which depended very much upon the marriage between their parents being valid or void, thus turned on the act of the parents over
which the innocent child had no hold or control. But, for no fault of it, the innocent baby had to suffer a permanent setback in life and in the eyes of
society by being treated as illegitimate. A laudable and noble act of the legislature indeed in enacting Section 16 to put an end to a great social evil.
At the same time, Section 16 of the Act, while engrafting a rule of fiction in ordaining the children, though illegitimate, to be treated as legitimate,
notwithstanding that the marriage was void or voidable chose also to confine its application, so far as succession or inheritance by such children is
concerned, to the properties of the parents only.
5. So far as Section 16 of the Act is concerned, though it was enacted to legitimise children, who would otherwise suffer by becoming illegitimate,
at the same time it expressly provides in Sub-section (3) by engrafting a provision with a non obstante clause stipulating specifically that nothing
contained in Sub-section (1) or Sub-section (2) shall be construed as conferring upon any child of a marriage, which is null and void or which is
annulled by a decree of nullity under Section 12, ""any rights in or to the property of any person, other than the parents, in any case where, but for
the passing of this Act, such child would have been incapable of possessing or acquiring any such rights by reason of his not being the legitimate
child of his parents."" In the light of such an express mandate of the legislature itself, there is no room for according upon such children who but for
Section 16 would have been branded as illegitimate any further rights than envisaged therein by resorting to any presumptive or inferential process
of reasoning, having recourse to the mere object or purpose of enacting Section 16 of the Act. Any attempt to do so would amount to doing not
only violence to the provision specifically engrafted in sub-section (3) of Section 16 of the Act but also would attempt to court relegislating on the
subject under the guise of interpretation, against even the will expressed in the enactment itself. Consequently, we are unable to countenance the
submissions on behalf of the appellants. The view taken by the courts below cannot be considered to suffer from any serious infirmity to call for our
interference, in this appeal.
The Apex Court clearly held that in terms of Section 16 of the Hindu Marriage Act though the children born out of void or voidable marriage were
not entitled to claim inheritance in ancestral or coparcenary property, they are entitled to claim inheritance in the property of parents. Pensionary
rights are not ancestral property and therefore, the children from the second marriage, which was a void marriage, would still be entitled to get their
share in this retiral benefits.
7. We are clearly of the view that in matters of inheritance especially those relating to pensionary benefits payable by the State there can be no
discrimination between children born out of legal marriage or children born out of an illegal relationship. In fact, we are clearly of the opinion that
children should not be termed as legitimate or illegitimate. It is the relationship between the partners which may be legitimate or illegitimate. The
children born out of any relationship whether a relationship is a legal marriage or a relationship which is not marriage cannot be termed to be
illegitimate. They are entitled to all rights. The law has recognized these rights under Section 16 of the Hindu Marriage Act.
8. We are shocked that the respondents could take the decision which they have taken especially when Sunil Kumar Singh had clearly mentioned
in his nomination form that his nominee and widow is the petitioner Shyama Devi. Once there is a nomination, the nominee is legally entitled to
claim the property on behalf of all the legal heirs. The State must hand over the property to the nominee who in turn must distribute it to all the legal
heirs in accordance with law and in case of any dispute, the person holding the property should either ask the parties to get their matter settled in
Court, but the authority itself cannot decide these disputed questions of law and fact.
9. In the present case, we also find that though the mother was alive at that time and this fact was brought to the notice of the Commandant in the
report quoted hereinabove that old mother has been deprived of all her rights in the property. The mother was not even given anything under the
agreement entered into between the widows. We are clearly of the view that in view of the facts which stand virtually admitted Sunil Kumar Singh
at the time of his death left behind his mother (name unknown), ii) Sunita Devi (his first wife) iii) Shyama Devi (the second wife), iv) Avinash Kumar
and v) Kanu Priya (children from the second wife). The second wife may not be entitled to pension because when the first wife was living Sunil
Kumar Singh could not have entered into second marriage so the marriage may be void. However, as pointed out above, in terms of Section 16 of
the Hindu Marriage Act, the children are treated to be legitimate and therefore, they have all rights like any other legitimate children. As such, the
property of Sunil Kumar Singh had to be divided in equal shares between his mother, the first wife Sunita Devi and the two children Avinash
Kumar and Kanu Priya.
10. A second wife of a Hindu not being the legally void wife is not entitled to pension. However, family pension is admissible to children from void
or voidable marriage. In this behalf reference may be made to the Government of India, Department of P. & P.W.(E) 2nd December, 1996
relevant portion of which read as follows:-
3. In view of the fact that Section 16 of the Hindu Marriage Act, 1955 as amended by Hindu Marriage Laws (Amendment) Act States
Notwithstanding that a marriage is null and void under Section 11, any child of such marriage who would have been legitimate if the marriage had
been valid shall be legitimate, whether such child is born before or after the commencement of Marriage Law (Amendment) Act, 1976 and
whether or not a decree of nullity is granted in respect of that marriage under this act, and whether or not the marriage is held to be void otherwise
than on a petition under this act.
4. The rights of such children require to be protected and will accrue accordingly. It is therefore, clarified that pensionary benefits will be granted to
children of a deceased Government servant/pensioner from such type of void marriages when their turn comes in accordance with Rule 54(8). It
may be noted that they will have no claim whatsoever to receive family pension as long as the legally wedded wife is the recipient of the same.
11. As per this decision of the year 1996, the rights of the children were protected, but it was mentioned that they will have no claim whatsoever to
receive family pension as long as the legally wedded wife is the recipient of the same. These instructions have also been superseded by the
Memorandum dated 27th November, 2012, which reads as follows:-
No. 1/16/1996-P & PW (E) (vol. II)
Government of India
Ministry of Personnel, P.G. & Pensions
Department of Pension & Pensioners'' Welfare
3rd Floor, Lok Nayak
Bhavan,
Khan Market, New Delhi
Dated: 27th November,
2012
Office Memorandum
Sub: Eligibility of children from a void or voidable marriage for family pension - clarification regarding.
The undersigned is directed to refer to this Department''s O.M. No. 1/16/96-P & PW(E), dated 2.12.1996 whereby it was clarified that
Pensionary benefits will be granted to children of a deceased Government servant/pensioner from void or voidable marriages when their turn
comes in accordance with Rule 54(8). It is mentioned in Para 4 of the O.M. that ""It may be noted that they will have no claim whatsoever to
receive family pension as long as the legally wedded wife is the recipient of the same.
2. The matter has been re-examined in consultation with the Ministry of Law and Justice (Department of Legal Affairs) and Ministry of Finance
(Department of Expenditure). It has been decided that in supersession of Para 4 of the O.M., ibid, dated 2.12.1996, the share of children from
illegally wedded wife in the family pension shall be payable to them in the manner given under sub-rule 7(c) of Rule 54 of CCS (Pension) Rules,
1972, along with the legally wedded wife.
It has also been decided that in past cases, no recovery from the previous beneficiary should be made. On receipt of an application from eligible
child/children of the deceased Government employee/pensioner born to an ineligible mother, a decision regarding division or otherwise of family
pension may be taken by the competent authority after satisfying himself/herself about veracity of facts and entitlement of the applicant (s).
4. As regards pensioners/family pensioners belonging to the Indian Audit and Accounts Departments, these Orders issue after consultation with the
Comptroller and Auditor General of India.
5. This issues with the concurrence of Department of Legal Affairs vide their FTS No. 3036, dated 17.10.2012.
6. This issues with the concurrence of Ministry of Finance, Department of Expenditure vide their I.D. No. 530/E.V/2012, dated 23.11.2012.
7. Hindi version will follow.
(D.K. Solanki)
Under Secretary to the Govt. of India
Tel. No. 24644632
All Ministries/Departments of the Government of India
O/o The Comptroller & Auditor General of India,
O/o The Controller General of Accounts, Lok Nayak Bhavan, New Delhi.
According to this Memorandum, it has been decided that the share of children from illegally wedded wife shall be payable to them in the manner
given under sub-Rule 7(c) of Rule 54 of CCS (Pension) Rules, 1972 along with the legally wedded wife. Therefore, these children are also entitled
to pension. The Memorandum also clearly mentions that no recovery is to make from the beneficiary who has already received the pension and
after receipt of an application from eligible children, the necessary decision should be taken.
12. In the present case, since the respondents have paid off the gratuities and the retiral benefits to Sunita Devi without following the procedure, we
cannot now force the minor children or the mother to approach the Court. That would be totally unfair to them. We, therefore, dispose of the writ
petition with the following directions:-
i) that the State shall find out whether the mother of Sunil Kumar Singh is still alive or not.
ii) Sunita Devi was paid an amount of Rs. 1,74,118/- as GPF, Rs. 40,755/- as GIS and Rs. 60,960/- as DCRG which total as this much Rs.
2,75,833/- (Rupees Two lakh seventy five thousand eight hundred thirty three). This amount was due and payable within one month from the date
of death of Sunil Kumar Singh.
13. Therefore, we further direct that the State shall pay a sum of Rs. 68,958/- (Rupees Sixty eight thousand nine hundred fifty eight) (1/4th of Rs.
2,75,833/-) each to the mother and the two children along with interest @ 12% per annum with effect from 26.09.2004 i.e. one month after the
death of Sunil Kumar Singh till payment of the said amount by depositing the amount in the Registry of this Court. The same shall be deposited as
per the shares of the minors and the mother and kept in a fixed deposit. In the case of the minors, the fixed deposit shall be for a period
commensurate with their attaining majority, but the interest accrued upon the fixed deposit shall be remitted to Shyama Devi to meet the day to day
expenses of the minor. As far as the mother is concerned, we request Mr. Sinha, learned counsel for the petitioners to find out from his client
whether the mother is alive and in case, the mother is alive he may supply details regarding her name, address, bank account along with Aadhar
Card number or other proof of her identity so that suitable orders can be passed with regard to disbursal of the amount due to her.
14. As regards pension, in view of the Office Memorandum quoted hereinabove, we direct that on or with effect from 1st January, 2015, the
pension payable to the minors in terms of the Government Memorandum referred to above and to be calculated in accordance with Sub-rule 7(c)
or Rule 54 of CCS (Pension) Rules, 1972 be calculated and be paid to them by remitting it to their mother and natural guardian Smt. Shyama
Devi.
15. A copy of the Judgment be handed over to the learned counsel for the parties.