S86T~*rV.E laiilr^.K ^Mlii ^ll 61 lliii ^K b^lie (fe^i^K jojsohj iSss.il <^1^VSJ3 t.^.b ML£ ^L* <j^lii ^ M^m (4^i£ JJ^i.^ ^^ Ifeis te2^ (^ife u^4^ 4^11^ JO^Ohj 2St?U '2&12 (±^.ij5l4 <-^i*r^.H; i^!4 i^^. ^i iOJSOitj 2&U (2£l2U -J.^1^. <23fe^ -1211 tkt&i^ oJSote yt7 l!&^ll£ ••• SA^. JOJSOttJ lSb.LI <^U^4^±i tS.{l 42J1 tlh£ ^.S 'i&b^ ItU^.fl *teA 4,H.i3 ^l& Ml^ 4^4& 66/ '•^•^•4J£ ^~c^to^w^___^l_. |OJ501tj ^.Elzi^ <la21i^.J£ i&^llfi^ ^12 OiiOit ^W ^: -^ ^V) HIGH COURT OF CHHATTaSGARH : BILASPUR SINGLE BENCH : HON'BLE SHRI JVSANINDRA MOHAN SHRJVASTAVAJ, Writ PetitionCsi No.3015J2005 PETITIONER RESPONDENTS Smt. Kailash Bai Versus State of M.P. and others FORPRONOUNCMENTQFORDER Sd/- Manindra Mohan Shrivastava Jude -i^ ^. 1 l"wt ^-,..,—-[^ ^ -X HIGH COURTOFCHHATTSSGARH:BSLASPUR SINGLE BgNCH : HON'BLE SHRI MANINDRA MOHAN SHRJVASTAVA,J. PET3TSONER RESPONDENTS Writ Petition(s) No.301^2005 Smt. Kailash Bai Versus State of M.P. and others Appearance: - Shri M. K. Bhaduri, counsel for the petitioner. Shri Bhaskar Payashi, Panei Lawyer for the State/respondents No.1 & 2. ORDER (Passed on -A-^-June, 2010) This petition has been filed by the petitioner for issuance of dit'ection for payment offamiiy pension from September, 1999. (2) Case of the petitioner is that her husband Chhabiram Mishra retired from the post of Head Master, Primary School, Tikarapara (Lalpur) in the year 1977- 78. The said Chhabiram Mishra died on 15-10-1994. Affer death of Chhabiram jVIishra, the family pension was. however, paid to his second wife Smt. Sahodarabai, respondent No.3 herein. Though, the petitioner had applied for grant of succession certificate to the Coilector, Raipur, in view of the report submitted bythe Tehsildar, Raipur, that Chhabiram Mishra had two widows, the Collector, Raipur did not grant succession certificate. Thereafter, the petltioner fited a suit for declaration that the petitioner is legally wedded first wife of Chhabiram Mishra and the name of respondent No.S-Smt. Sahodarabal be struck off from the service records and famiiy pension directed to be paid to the petitioner. Vide judgment dated 04-07-1998, the learned VJth Civll Judge Class- I, Raipur dismissed the suit fited by the petitioner. Thereafter, an appeal ^ ,^' preferred before the District Judge, Raipur and the learned Djstrict Judge, Raipur vide judgment dated21-01-1998 (Annexure A-2) held that jn view of the provisions contajned jn Section 15 ofthe State Administratjve TrJbunaI's Act, 1985, the jurisdiction !les with the Tribunal, whereafter this petltjon was flled before theTribunal. (3) Submjssion of learned counsei for the petitioner is that the petitloner Is the first wife of Late Chhabiram IVIishra ^vhereas respondent No,3 is the second wife and the marriage was solemnized after 1956. !t is submitted that Jn view of the provEsions contalned in Section-5 & 11 of Hindu Marriage Act, 1955/the second marriage was void, and therefore, the second wife couid not c!aim the status of iegaiiy wedded wife and shs was not entitled to family pension. Learned counsel for the petitioner relies upon the decision of the Supreme Court in the case of Rameshwan' DeviV. State ofBihar, 2000 (2) SCC 431, to contend that the petitioner alone being a legally wedded wife, was entitled to grant offamily pension to the exclusion of respondent No.3. (4) Per contra, submission of iearned counsei for the respondents No.1 & 2 is that for the purposes of grant of famiiy pension, service records of Late Chhabiram Mishra were relevant. In the pension form, Late Chhabiram Mishra gave detaiis of his family and the name of respondent No.3-Smt. Sahodarabai was mentioned as his wife. On the basis of information ptaced in the service records by Late Chhabiram Mishra, on the basis of details submitted in the pension form and the provisions contained in M.P. Civil Services (Pension) Rules,1976. respondents have released the family pension in favour of respondent No.3. Learned counsei for respondents No.1 & 2 further submitted that in the absence of any order of any Court of law, respondents are bound to act according to the entries made in the service records and jt is not withjn their ^ZSf^ /y^^4^ i' iSlttte;- fe.,.,..^''.J ^ jurisdjction to enter into the controversy as to whether amongst two wives, who js entitled to family pension. Accordmg to them, respondents are obiiged to grant family pension to the wife, who has been nominated by an employee without further enqujry into rivai claim of any other person, whose name has not been enteredin the family pension form as family member. -^ ^s ^ (5) Respondent No.3 has not entered appearance. At the time of admission of this petition, the Tribunal had directed for issuance of notice to ai! the respondents including respondent No.3, but no return has been filed nor any appearance is made. Pursuant to order dated 26-02-2010, notices were issued to respondent No.3 and served on respondent No.3 on 25-03-2010 and a report to this effect is endorsed in the notice by the Process Server. However, neither any representation has been made nor any return has been fiied by the respondent No.3. (6) !n the petition, the petjtioner has categoricafly stated that she is the fJrst wife of Late Chhabiram Mishra. It has aiso been stated that Chhabiram Mishra contacted the second marriage with respondent No.S-Smt. Sahodarabai and the marriage was soiemnized after 1956. In the absence of any denial of the aforesaid fact by the respohdent No.3, it has to be held that the petitioner is the first wife of Chhabiram Mishra and that Chhabiram Mishra contacted second mamageafter1956. (7) In the case of Ranieshwari Devi (supra), one Narain La! married Rameshwari Devi in the year 1948, and thereafter, contacted second marriage with Yogmaya Devj on 10-04-1963. Againstthe actjon ofthe State Government in depriving Yogmaya Devi and her children of any right in the pensionary benefits of Narain Lal, Yogmaya Devj filed petition in the High Court wherein it was he!d that the second marriage of Narain Laj with Yogmaya Devj was void •^-^"-^ ^' ,<& and she was not entitled to pensionary benefits though children born to Narain , La! from the wedlock with Yogmaya Devi were entitled to share family pension and death-cum-retirement gratuity till they attained the majority. Appeai fiied against the order passed by the learned Singte Judge, having been djsmissed by the Division Bench. the matter was taken to the Supreme Court whereln it was heid that as the second marriage was void, second wife was not entitled to pensionary benefits and it is only the children of void marriage, who were entitled to share in the family pension until they atteined majority. ft was held as under:- x t 14» It cannot be disputed that the mamage between Narain Lal and Yogmaya Devi was in contravention of clause (^) of Section 5 of the Hindu Marriage Act and was a void mamage. Under Section 16 of this Act, chiidren of a void marriage are iegitimate. Under the Hindu Succession Act, 1956, property of a male Hindu dying intestate devolves firstty on heirs jn clause (1) which include the widow and son. Among the widow and son, they all get shares (see Sections 8, 10 and the Schedute to the Hindu Succession Aot, 1956). Yogmaya Devi cannot be described as a widow of Narain Lat, her marriage with Narain Lal being void. The sons ofthe marriage betv^een Narain Lal and Yogmaya Devi being the legitimate sons of Narain La! would be entitled to the property of Narain Lal in equal shares along with that of Rameshwari Devi and the son born from the marriage of Ramesh\^ari Devi with Narain Lal. That is, however, the legai position when a Hindu male dies intestate. Here, however, we are concerned with the family pension and death-cum-retirement gratuity payments which are governed by the retevant ruies. It is not disputed before us that if the legal position as aforesaid is correct, there is no error with the directions issued by the iearned Singte Judge in the judgment whioh is uphetd by the Division Bench in LPA by the impugned judgment (8) It has to be noted that though under sub-rule 7(a) (1) of Rule 47 of M.P. Civi! Services (Pension) Rules, 1976, family pension is payable to more than -^,^.. i'!9s^:i.. ^ y' f. ^ ^ ^ one widows and every widow has to receive equal share in pension, the same wouid apply in case where deceased had more than one wife and second marriage is not prohibited under the law. The said provision will apply and cover the case of the community wherein a person can contact more than one marriage and has more than one wife and not in the community, vz/here It is not permissibie in view of their persona! law, as in the present case. ^(9) !n the finai anaiysis, in the opinion of this Court, the petitioner aione is entjtled to famiiy pension as legaliy wedded wife of deceased Chhabiram Mishra. Respondent No.3 is not entitled to famiiy pension in her capadty as wife of Late Chhabiram Mishra. !t shatl be open for the respondents No.1 & 2 to recover the amount ofthe famiiy pension paid to respondent No.3, (10) !n view of foregoing, the petition is aiiowed to the extent Indicated above. There be no order as to costs. Sd/- Manindra Mohan Shrivastava Jude Tumar^