B.K. Sharma, J.@mdashThe issue raised in both the writ petitions being the same, they were heard analogously and are being disposed of by this common judgment and order. The issue is, whether the second wife whom the deceased employee of the Government of Assam had married during the validity of his first marriage and her children are entitled to family pension or it is the first wife, who alone is entitled to get the family pension in respect of her deceased husband to the exclusive of others.
2. Although the facts involved in both the writ petitions towards claim of family pension are naturally different, but the basic issue is one and the same as indicated above. Suffice is to say that both the Petitioners involved in the two writ petitions are the second wives of the respective deceased employees. Both of them got married to the respective deceased employees during the subsistance of his first marriage. However, a few basic facts material for the purpose of disposal of the writ petitions are indicated below:
WP (C) No. 6582/2004
3. The Petitioner in this case, who is admittedly the second wife of the deceased employee claims that she was married to him namely Late Sirajul Islam Bora on 1.7.90 as per the customary rules and practice. The marriage was also registered with the Registrar of Muslim Marriages. Out of the said wedlock a male child was born. The Petitioner admits that Late Bora was married at that time having contacted the first marriage with the Respondent No. 5 in 1982. The Petitioner claims that the first marriage of Late Bora had broken down and he and his first wife were living separately. There was no issue from the first marriage. It is the case of the Petitioner that as per the personal law applicable to the parties, a second marriage during the subsistance of the first wife is permissible.
4. Late Bora died on 15.11.93 in an extremist violence. The Petitioner made an application before the District Judge, Darrang praying for succession certificate in respect of the estate of Late Bora and the succession certificate was issued to her on 5.6.95. The succession certificate was issued in respect of death cum retirement gratuity (DCRG), Group Insurance Scheme (GIS) Money, payment of last salary and the exgratia payment. It is on that basis the Petitioner claims that she is entitled to the benefit of the special family pension as admissible in respect of Late Bora. Be it stated here that the exgratia payment of Rs. 1,00,000/- is pursuant to a scheme formulated by the Government of Assam in case of death of a Government employee as in the case of Late Bora. It is on record that an amount of Rs. 50,000/-in respect of exgratia payment was sanctioned in favour of the Respondent No. 5 to which effect an order was passed on 7.3.98.
5. From the documents annexed to the writ petition, it appears that the departmental authorities mentioning the names of both the wives i.e. the Petitioner and the Respondent No. 5 processed the case relating to grant of family pension. It also appears that a recommendation was made for payment of the balance Rs. 50,000/- of the aforesaid exgratia amount in favour of the Petitioner. The Petitioner became aggrieved on issuance of Annexure-9 letter dated 13.9.2002 by which sanction of special family pension in favour of the Respondent No. 5 being the first wife of late Bora was conveyed. According to the Petitioner she alone is entitled to receive the family pension and all other pensionary dues.
WP (C) No. 799/2005
6. As in the first case, in this case also the Petitioner is the second wife of the deceased employee namely Babuli Khound. As per the averments made in this writ petition, the husband of the Petitioner got married with the Respondent No. 5, his first wife on 30.4.79 and out of the said wed lock a female child was born on 20.5.81. According to the Petitioner, she (the first wife) had been living separately from her husband till his death on 24.10.99. The deceased husband had filed (M) TS No. 5/84 in the Court of District Judge, Jorhat. The suit was filed u/s 13 of the Hindu Marriage Act, 1955 seeking a decree of divorce. However, by judgment and order dated 2.5.87 a decree of judicial separation was passed. According to the Petitioner, after the death of her husband, the Respondent No. 5 does not have any right to claim the service benefits in respect of her deceased husband. Be it stated here that amidst these developments, the Petitioner got married to the husband of the Respondent No. 5 and out of the said wed lock two children were born.
7. The Petitioner is aggrieved by the Annexure-D order dated 27.12.2004 by which the Director of Pension, Assam forwarded the Pension Payment Order to the Treasury Officer, Golaghat sanctioning the pensionary benefits in favour of the Respondent No. 5. Referring to Rule 143 of the Assam Services (Pension) Rules, 1969, it is the case of the Petitioner that the payment of pensionary benefits could not have been made to her exclusion alongwith her two minor children. The Petitioner claims that she alongwith her two children is entitled to receive the family pension to the exclusion of the first wife of the deceased employee.
8. In both the cases it is the stand of the Respondents that the Petitioners are not entitled to receive family pension, both being the second wife of the deceased employee. According to them it is the first wife who alone is entitled to receive family pension to the exclusion of the second wife including the children begotten through her. While in WP (C) No. 799/2005, the Respondents have filed counter affidavit, in WP (C) No. 6582/2004 they have furnished parawise comments denying the claim of the Petitioner. The basic ground urged in the counter affidavit as well as the parawise comments is that following the provisions of the pension rules, it is the first wife, who alone is entitled to receive family pension.
9. I have heard Mr. B. Banerjee, learned Counsel appearing for the Petitioner in WP (C) No. 799/2005 and Mr. U.K. Nair, learned Counsel appearing in WP (C) No. 6582/2004. Mr. S. Saikia, learned Counsel argued on behalf of the Respondent No. 5 in WP (C) No. 799/2005 while there was none to argue on behalf of the Respondent No. 5 in WP (C) No. 6582/2004. Ms. R. Chakraborty, learned State Counsel argued on behalf of the official Respondents in both the writ petitions.
10. Both the learned Counsel appearing for the Petitioners strenuously argued in reference to the provisions of the Assam Services (Pension) Rules, 1969 that the Petitioners are entitled to receive family pensions. They also made the alternative argument of entitlement to such family pension by the minor children of the Petitioners. In this connection they placed reliance on the provisions of the Hindu Marriage Act, 1955. They also placed reliance on the decisions of the Apex Court as reported in
11. Ms. R. Chakraborty, learned Counsel appearing for the official Respondents referring to the stand in the counter affidavit submitted that it is the first wife alone who is entitled to receive the family pension and none else. She submitted that the decisions on which the learned Counsel for the Petitioners placed reliance are not applicable to the present cases.
12. Mr. S. Saikia, learned appearing for the Respondent No. 5 in WP (C) No. 799/2005 submitted that the concept of personal law cannot be made applicable in respect of entitlement to pensionary benefits which is earned by the employee by dint of service rendered to the employer. He submitted that since there are specific provisions in the pension rules itself, the entitlement or otherwise will have to be decided on that basis only.
13. Before appreciating the arguments advanced by the learned Counsel for the parties it will be appropriate to refer to the relevant provisions of the Assam Services (Pension) Rules, 1969.
Rule 9. Pension--Except when the term "pension" is used in contradistinction to Gratuity, "Pension" includes Gratuity and Death-cum-Retirement Gratuity.
136. Nomination--(1)(a) ''Family'' for the purposes of this rule will include the following relatives of the officer:
(i) Wife in the case of a male officer.
(ii) Husband in the case of female officer.
(iii) Sons.
(iv) Unmarried and widowed daughters.
(v) Brothers below the age of 18 years and unmarried or widowed sister.
(vi) Father
(vii) Mother
Note: (iii) and (iv) will include step-children and adopted children.
(b) ''Persion'' for the purpose of this rule shall include any company or association or body if individuals whether incorporated or not.
(2) An officer shall, as soon as he is confirmed or completes five years qualifying service, make a nominal conferring on one or more persons the right to receive any gratuity that may be sanctioned under Sub-rules (2) and (4) of Rule 135 and any gratuity which having become admissible to him under Sub-rule (1) of that rule and Rule 111 has not been paid to him before death;
Provided that if at the time of making the nomination the officer has a family, the nomination shall not be in favour of any person or persons other than the members of his family.
Note: The head of Office/Department will ensure that as soon as a Government servant is confirmed in a pensionable post nominations in terms of Clause (2) above are duly made by such officer.
(3) If an officer nominates more than one persons under Sub-rule (2) he shall specify in the nomination the amount of share payable to each of the nominees in such a manner as to cover the whole amount of the gratuity.
(4) An officer may provide in a nomination:
(a) In respect of any specified nominee, that in the event of his predeceasing the officer the right conferred upon that nominee shall pass to such other person or persons as may be specified in the nomination: provided that if at the time of making the nomination the officer has a family consisting of more than one member, the person or persons so specified shall not be other than a member or members of his family.
(b) That the nomination shall become invalid in the event of a contingency specified therein.
(5) The nomination made by an officer who has no family at the time of making it, or a provision made in a nomination under Clause (a) of Sub-rule (4) by an officer whose family consists, at the date of making the nomination of only one member, shall become invalid in the event of the officer subsequently acquiring a family or an additional member in the family, as the case may be.
(6)(a) Every nomination shall be in such one of the Forms No. 12, 13, 14 and 15 (Pension) as may be appropriate in the circumstances of the case.
(b) An officer may at any time cancel a nomination by sending a notice in writing to the appropriate authority provided that the officer shall, alongwith such notice, send a fresh nomination made in accordance with this rule.
143. (i) Family 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 son; and
(d) Unmarried minor daughters.
Note 2: Marriage after retirement will not be recognized for purposes of rules in this Section.
(ii) The pension will be admissible--
(a) In the case of widow/widower up to the date of her/his death or re-marriage whichever is earlier.
(b) In the case of a minor son, until he attains the age of 18 years.
(c) In the case of an unmarried daughter, until she attains the age of 21 years or marriage whichever is earlier.
Note: In cases where there are two or more widows, pension will be payable to the next surviving widow, if any. The term ''eldest'' would mean seniority with reference to the date of marriage.
(iii) Pension awarded under the rules in this Section will not be payable to more than one member of an officer''s family at the same time. It will first be admissible to the widow/widower and thereafter to the minor children.
(iv) In the event of re-marriage or death of the widow/widower, the pension will be''granted to the minor children through their natural guardian. In disputed cases, however, payments will be made through a legal guardian.
(v) The temporary increases granted on pension will not be admissible on the Family Pension granted under the Scheme in this Section.
(Emphasis supplied)
14. As per the provisions of Hindu Marriage Act, 1955 a second marriage during the lifetime of the first wife and during the subsistence of the first marriage is not permissible. Section 11 of the Act speaks of void marriages. Any marriage solemnized after the commencement of the Act shall be null and void and may on a petition presented by either party thereto against the other party, be so declared by a decree of nullity if it contravened any one of the conditions specified in Clauses (i), (iv) and (v) of Section 5. Section 5 lays down the conditions for a Hindu marriage and Clause (i) prohibits marriage, when the either party has a spouse living at the time of marriage. Clause (iv) prohibits marriage within the degree of prohibited relationship unless the custom or usage governing the parties permits such marriage. Clause (v) prohibits marriage if the parties are sapindas of each other, unless the custom or usage governing each of them permits such marriage.
15. In the instant case, we are concerned with Section 5(i) of the Act. Admittedly, the second marriage in both the cases was in contravention of the said provision and thus the marriage was void. The heading of Section 5 "Conditions for a Hindu marriage" is significant to note. It signifies that all conditions mentioned in this Section do not have the same effect on the validity of a marriage. Otherwise, the heading would have been "Conditions of a valid Hindu marriage". Some of the conditions of marriage as indicated in Section 5 are the ones violation of which would render the marriage either void or voidable. Other conditions of marriage are those, contravention of which is only punishable, but nonetheless, the marriage is valid by the application of the doctrine of factum valet. In the case of Lila Gupta v. Laxmi Narain reported in AIR 1978 SC 1351, the Supreme Court held that all conditions u/s 5 of the Hindu Marriage Act are not mandatory.
16. Section 5(i) of the Act lays down that neither of the parties must have a spouse living at the time of marriage. Either each one of them must have been unmarried before the marriage or if married, the other spouse of his or her must be either dead or the marriage must have been dissolved by divorce. Thus, under the codified Hindu Law, no Hindu can now have more than one wife and no woman more than one husband. The marriage in contravention of this condition is void ab-initio see
17. Same is the case with the Petitioner in the first writ petition, although she claims that her marriage during the lifetime of the first wife and the subsistence of the marriage is permissible under the Mohammedan Law. In the writ petition, there is no mention as to whether the Petitioner entered into the marital tie after the dissolution of the first marriage. This aspect of the matter has a bearing in reference to the Assam Civil Services (Conduct) Rules, 1965, which governed the deceased employee as a Government servant. As per Rule 26(1) of the said rules, no Government servant who has a wife living shall contact 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. Thus, Rule 26 does not make any distinction among the Government employees on the basis of the personal law governing them. The mandate for a Government servant is monogamy of marriage. It is also not the case of the Petitioners that the respective second marriage was with the permission of the Government.
18. The relevant provisions of the Pension Rules have been quoted above. Rule 143(iii) makes the position clear. The pension under the rules u/s IV of the Family Pension Scheme will not be payable to more than one member of an officer''s family at the same time. It will first be admissible to the widow/widower and thereafter to the minor children. On a total reading of this provision of the pension rules alongwith Rule 26 of the Assam Civil Services (Conduct) Rules, 1965, there is no escape from the conclusion that it is the widow of a valid marriage, who alone is entitled to receive family pension. The argument that the Petitioner in WP (C) No. 6582/2004 being governed by a particular personal law under which a second marriage is permissible and thus she is entitled to receive family pension is negated by the provisions of Rule 26 of the Rules of 1965. Similarly the provisions of the pension rules also do not make any distinction.
19. The provisions relating to nomination have been noted above. As per the said provisions also the Government employee is entitled to nominate the family members indicated in the rule itself. Such nomination may be in respect of one or more persons. He has a right to cancel such nomination also and in case of nominations of more than one persons, he is to specify in the nomination the amount of share payable to each of the nominees in such manner so as to cover the whole amount. This provision of nomination coupled with the mandates of Rule 143(iii) of the pension rules and Rule 26(i) of the conduct rules makes the position clear that it is the legally wedded widow who alone is entitled to family pension during her life time.
20. Learned Counsel for the Petitioners has referred to the provisions of Hindu Marriage Act, 1955 in support of their alternative argument that atleast the children of the second marriage and for that matter the Petitioners are entitled to receive their share of pensionary benefits. Such an argument has been made in reference to Section 16 of the Act. Section 16 provides that notwithstanding that a marriage is null and void u/s 11, any child of such marriage shall be deemed to be legitimate and they will have no rights in or to the property of any person, other than the parents. Emphasizing on this provision, it was argued that even the children of the second marriage are entitled to their share of the pensionary benefits. If these clauses are applied then naturally the provisions of Hindu Succession Act, 1956 in respect of the Petitioner in the second writ petition will come into operation. Section 8 of the Act lays down that the property of a male Hindu dying intestate shall devolve as indicated in the Section, as per which firstly, upon the heirs being the relatives specified in Class-I of the Schedule. Section 9 of the Acts provides that the heirs in Class-I shall take the property simultaneously. Section 10 of the Act provides for distribution of property among the heirs in Class-I of the Schedule as per which the intestate''s widow shall take one share and the surviving sons and daughters and the mother of the intestate shall each take one share.
21. As per the aforesaid provision of the Hindu Succession Act, 1956, the widow shall take one share of the property and another share goes to the sons, daughters and mother of the intestate. It is in this context, placing reliance on Section 16 of the Hindu Marriage Act, it was the argument on behalf of the Petitioners that the illegitimate children of the deceased employees through their second wives are entitled to their share of pensionary benefits. It will be pertinent to refer to the definition as enumerated in Section 3(1)(j) which is reproduced below:
"Related" means related by legitimate kinship; provided that illegitimate children shall be deemed to be related to their mother and to one another, and their legitimate descendants shall be deemed to be related to them and to one another and any word expressing relationship or denoting a relative shall be construed accordingly.
22. Section 3(1)(f) of the Act, defines "heir" as any person, male or female, who is entitled to succeed to the property of an intestate under the Act. Any child who is born within the lawful wedlock of its parents is considered to be the legitimate child of his parents and he is related to his parents and as such conversely, any child born outside the lawful wedlock is illegitimate child of its parents. It can be argued that under the Act, illegitimate relationship with the father is not recognized, but it is recognized with the mother and through the mother, the children are related to each other. In the case of
Illegitimate daughter cannot claim heirship as per Section 15 of the Hindu Succession Act, thus, it is clear that the Defendant has to prove legally and technically, that she is the daughter of Savitribai who has married with Dattu. Until and unless she proves that she is the legal daughter of Dattu, she cannot claim heirship to the present suit property. Merely because she proves that she is the daughter of Dattu, does not mean that she is the legal daughter of Dattu.
As discussed above, illegitimate daughter cannot claim heirship as per Section 15 of the Hindu Succession Act. Then burden on the Defendant to prove the fact positively.
23. If the above principle is applied, then the illegitimate children of the second wife cannot claim heirship having regard to the definition of "related" finds place in Section 3(1)(j) of the Act. Although the Apex Court in the aforesaid case, did not go into the legality or otherwise of the above principle and accepted the observation of the High Court that the findings recorded by the first appellate court should be construed to be the one that the Appellant failed to prove that she was the daughter of the intestate, but at the same time, it also did not express any opinion about such principle so as to negate the same.
24. It can very well be argued that the legitimacy to be found in Section 16 of the Hindu Marriage Act, cannot be engrafted to the definition contained in Section 3(1)(j) of the Hindu Succession Act, 1956, which is a later Act to the Hindu Marriage Act, 1955. The question may arise as to whether one must proceed on the assumption that the parliament was aware of the provisions contained in Section 16 of the Hindu Marriage Act. The question may also arise, whether the legitimacy created by Section 16 of the Hindu Marriage Act can be read into as a part of the definition in Section 3(1)(j) of the Hindu Succession Act. However, this is not the issue raised in the present writ proceedings and can be answered in an appropriate proceeding. I have only pointed out the relevant provisions of both the Act, which may have a bearing if the argument that by virtue of the provisions of Section 16 of the Hindu Marriage Act, the children of the Petitioners are entitled to get one share of the pensioner/benefits in respect of their father, is to be accepted. Question will also arise as to whether the provisions of the Acts would be applicable in respect of the service benefits, which are specially governed by the Pension Rules. Rule 26 of the Conduct Rules has been noted above and the same will also have a bearing to resolve the issue.
25. As noticed above, Rule 143(iii) of the Pension Rules makes the position abundantly clear that pension awarded under Family Pension Scheme will not be payable to more than one member of an officer''s family at the same time. It will first be admissible to the widow/widower and thereafter to the minor children. In case of widow/widower, the pension will be admissible up to the date of her/his death or remarriage, whichever is earlier. In case of minor son, it will be admissible until he attains the age of 18 years and in case of unmarried daughter until she attains the age of 21 years or get married whichever is earlier. A minor son or daughter will be entitled to receive family pension only in case of death of their widow mother in view of the provisions of Rule 143(iii) of the Pension Rules which permits that pension would not be payable to more than one member of the deceased''s family at the same time. Here also lies the importance of the provisions relating to nomination about which mention has been made above.
26. In view of the aforesaid factual as well as legal matrix of the matter, the alternative argument that the children of the second wives i.e. the Petitioners are erltitled to receive their share of pensioner/benefits based on the provisions of Section 16 of the Hindu Marriage Act, 1955 cannot be accepted and there is nothing wrong on the part of the Respondents in refusing to make payment of monthly pension to them and making payment of the same to the Respondent No. 5 in both the writ petitions, the legally wedded wife of the respective deceased employee to the exclusion of all others.
27. I now proceed to deal with the cases on which the learned Counsel for the Petitioners placed reliance. In the case of Smt. Sarbati Devi (supra) it was held that the nominee of the Life Insurance Policy does not get absolute right to the amount due. On the basis of Section 439 of the Insurance Act, it was held that a mere nomination made u/s 39 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. It was observed that the nomination only indicates the hand, which is authorized to receive the amount, on the payment of which the insurer gets a valid discharge of its liability under the policy. This aspect of the matter need not detain us in view of the findings recorded above. Suffice is to say that nominations under the Insurance Act and the Pension Rules are distinct and different.
28. In the case of Smt. Poonamal (Supra) of which paragraph 7 of the judgment was referred to, the Apex Court while reiterating the concept of pension, which is a right and not a bounty or gratuitous payment emphasized that where the Government servant rendered service, to compensate which a Family Pension Scheme is devised, the widow and the dependent minors would equally be entitled to family pension as a matter of right. There is no quarrel relating to such a proposition of law. Even if the children of the second marriage are held to be entitled to receive part of th''e family pension, as per the provisions of Rule 143(iii) of the Pension Rules, they cannot get it simultaneously alongwith the legally wedded widow and they stand excluded till such time the contingency in the happening of which only they are entitled to receive family pension occurs. Thus this case is also no help to the case of the Petitioners.
29. Much emphasis has been placed on the decision of the Apex Court in the case of Rameshwari Devi (supra). In this case, the Apex Court upheld the decisions of the courts below by which it was held that the children born to the deceased employee from the wedlock with the second wife were entitled to share the family pension and DCRG till attaining majority. Such findings were recorded on an interpretation of Section 16 of the Hindu Marriage Act, 1955. Although was made to Section 8 and 10 and the Schedule to the Hindu Succession Act, 1956, it appears that no reference was made to the definition as contained in Section 3(1)(j) of the Act about which discussions have been made above. Be that as it may, unlike the said case before the Apex Court, in the instant case there is definite sets of rules governing the conditions of admissibility to family pension as per which it is the legally wedded widow of the deceased employee, who alone is entitled to receive the family pension to the exclusion of others. In the case before the Apex Court, it was not contended by either party that family pension and DCRG were payable as per the provisions of any pension rules as in the instant case. Further on a total reading of the judgment, I am of the considered opinion that in the said case no ratio as such has been laid down by the Apex Court for universal application. It is a decision given in the context of that case only. As has been emphasized by the Apex Court in the case of
30. I may also gainfully refer to the judgment and order of this Court dated 24.9.2003 passed in Intestate Case No. 13/2002 in which, it was held that under the Assam Services (Pension) Rules, 1969, ft is the legally wedded widow, who alone is entitled to receive pension. Following observations have been made in paragraph 15 of the judgment.
I may also pause here to point out that though in the Schedule to the properties mentioned in the application for succession certificate, a claim was made by the Respondent No. 1 over the pension which is to be paid to the widow of the said deceased, the impugned order does not clarify as to who will get the pension amount. Mr. Ramchiary, learned Counsel for the Respondents, has, however, candidly conceded that since the Appellant No. 1 is the legally wedded wife of the said deceased, she is the only one legally entitled to receive the pension. This apart, under the Assam Services (Pension) Rules, 1969, it is the legally wedded widow, who is entitled to obtain pension in such circumstances. Viewed from this angle, it is abundantly clear that it is the Appellant No. 1, who, under the law, being the only widow of the said deceased, is entitled to receive the pension which may become payable under the relevant Rules.
31. For the foregoing reasons and discussions, I am of the considered opinion that the Respondents have not committed anything wrong in taking the impugned decision to grant family pension only to the Respondent No. 5 in both the cases to the exclusion of the Petitioners and their children. Such decision being strictly in terms of the provisions of the pension rules cannot be faulted with. The provisions are also not under challenge. Consequently, the Petitioners are not entitled to any relief.
32. Both the writ petitions stand dismissed, leaving the parties to bear their own costs.
