AJN 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.998 OF 2005 Smt. Leelabai Vitthalrao Bhegade w/o. Late Vitthal Kaluji Bhegade, Ex. Mazdoor, T. No.25414 of Central Ordnance Depot, Dehu Road, residing at 57, Shaniwar Peth, Talegaon Dabhade, District Pune – 410 506. ) ) ) ) ) ) ... Petitioner Versus 1. Union of India through the Secretary, Ministry of Defence, South Block, New Delhi – 1. ) ) ) 2. The Commandant, Central Ordnance Depot, Dehu Road, District Pune. ) ) ) 3. The Principal Controller of Defence Accounts [Pensions] Allahabad. ) ) ) ... Respondents Mr. J.M. Tanpure i/b Mr. A.P. Vanarse for the petitioner. Mr. S.S. Pakale with Ms. Lata Patne for Union of India. CORAM : SMT. RANJANA DESAI & SMT. ROSHAN DALVI, JJ. DATE ON WHICH THE JUDGMENT AJN 2 RESERVED : 13TH FEBRUARY, 2008. DATE ON WHICH THE JUDGMENT PRONOUNCED : 21ST FEBRUARY, 2008. JUDGMENT : (Per Smt. Ranjana Desai, J.) 1. The petitioner has challenged in this writ petition judgment and order dated 3/6/2004 delivered by the Central Administrative Tribunal, Bombay Bench (for convenience, “the Tribunal”) in Original Application No.908 of 2003. 2. The petitioner claims to be the wife of one Vithal Kaluji Bhagede. Admittedly, Vithal Bhegade was working in the office of respondent 2 i.e. The Commandant, Central Ordnance Depot, Dehu Road, District Pune. He superannuated from service on 28/2/1983. He was granted pension vide Pension Payment Order No.C/AOC/3024/82. He expired on 12/12/2000. According to the petitioner, after the death of Vithal Bhegade, his first wife - Laxmibai was receiving family pension till her death on 24/7/2002. Laxmibai had two daughters. She had no son. According to the petitioner, therefore, Vithal Bhegade married the petitioner during AJN 3 the life time of his first wife - Laxmibai with her consent. This marriage was performed in 1973-74. It is the petitioner's case that she got two sons from deceased Vithal Bhegade. They are Prasad and Abasahab. She also got two daughters from deceased Vithal Bhegade. 3. According to the petitioner, after the death of Laxmibai, she approached the concerned authorities for family pension. However, she was informed that her name was not mentioned in the Pension Payment Order. According to her, her and her children's names were recorded in the service record. She, therefore, by letter dated 12/12/2002 applied to the respondents for grant of family pension. However, there was no response from the respondents. 4. According to the petitioner, one Baban Namdeo Habade expired while in service on 15/3/1979 leaving behind three wives. All the three widows of the said Baban were granted 1/3rd of family pension by respondent 2. However, pension is being denied to the AJN 4 petitioner. She, therefore, approached the Tribunal. 5. The respondents' case before the Tribunal was that Laxmibai is the only person shown as wife of deceased Vithal Bhegade in the record of the respondents. In short, the submission of the respondents was that there was nothing to establish that the petitioner is the wife of Vithal Bhegade. Hence, the petitioner is not entitled to pension. It was also contended that from the Government of India' s Decision 13, below Rule 54 of the Central Civil Services (Pension) Rules, 1972 (for convenience, “the said Rules”), it is very clear that the second wife cannot be granted family pension. It was also contended by the respondents that in Baban Habade's case, there was contravention of Rule 54 of the said Rules. Such a case cannot become a precedent. 6. The Tribunal rejected the case of the petitioner. The Tribunal held that the petitioner had admitted that she got married after the commencement of Hindu Marriage Act, 1955 (for short, “the said Act). Section 11 of the said Act provides that the second marriage AJN 5 by a Hindu male after commencement of the said Act during the life time of his first wife will be a nullity and will have no effect. The Tribunal further held that in view of Decision 13, below Rule 54 of the said Rules, there is no question of payment of family pension being given to the petitioner. In view of this, the application was rejected and, hence, this petition. 7. We have heard Mr. Tanpure, learned counsel appearing for the petitioner. He reiterated the submissions advanced before the Tribunal. He submitted that in the ration card as also in the electoral roll, the petitioner is shown as wife of deceased Vithal Bhegade. Learned counsel contended that under Rule 54(7) of the said Rules, the second wife is entitled to family pension. It says that where the family pension is payable to more widows than one, the family pension shall be paid to the widows in equal shares. He submitted that the alleged Government Decision cannot override the provisions of law. He further submitted that the respondents cannot treat two employees in a different manner. He submitted that three wives of Baban Habade were granted family pension. AJN 6 On the same analogy, contends learned counsel, the petitioner must also get family pension, otherwise there will be violation of Article 14 of the Constitution of India. He submitted that the Tribunal has not correctly interpreted the law and, therefore, the Tribunal's decision be set aside and a direction be issued to grant family pension to the petitioner. 8. We have also heard Mr. Pakale, learned counsel appearing for the respondents. He submitted that in the service record deceased Vithal Bhegade had shown Laxmibai as his wife. The name of the petitioner is not mentioned. He submitted that deceased Vithal Bhegade died on 12/12/2000. The petitioner did not claim pension after the death of deceased Vithal Bhegade. She waited till the death of Laxmibai and then sent her application. This itself indicates that she is not the wife of deceased Vithal Bhegade. Learned counsel also pointed out that under Rule 21 of the Central Civil Service (Conduct) Rules, there is a restriction on a government servant having a spouse living, from entering into a marriage with any person. Learned counsel also relied on the AJN 7 Government of India's Decision 13, below Rule 54 of the said Rules and submitted that as per the said decision, the second wife is not entitled to family pension. He submitted that in any case, Rule 54 (7)(a)(i) on which the petitioner is relying begins with the words “where the family pension is payable to more widows than one, .....”. Learned counsel submitted that there is a total lack of evidence to establish that the petitioner is the wife of deceased Vithal Bhegade. He, therefore, submitted that the petition be dismissed. 9. Before going to the legal provisions, it is necessary to examine whether the petitioner has produced any evidence to establish that she is the wife of deceased Vithal Bhegade. Deceased Vithal Bhegade had given details of his family to the office of the respondents as per Form No.3 prescribed under Rule 54 of the said Rules. In that form, he has mentioned Laxmibai as his wife and Prasad, Abasaheb and Mangal as his children. Therefore, deceased Vithal Bhegade never disclosed the name of the petitioner as his wife. As per the reply filed on behalf of the AJN 8 respondents, deceased Vithal Bhegade had superannuated on 28/2/1983. His pension claim was processed as per his family details/nomination dated 20/8/1982. He had nominated his wife Laxmibai for family pension. Accordingly, family pension was granted to Laxmibai. Deceased Vithal Bhegade had never informed respondent 2 about the existence of another wife. Mere description of the petitioner as wife of deceased Vithal Bhegade in the electoral roll or ration card does not establish that she is the wife of deceased Vithal Bhegade. It is true that Rule 54(7)(a)(i) of the said Rules states that where the family pension is payable to more widows than one, the family pension shall be paid to the widows in equal shares. Even if it is accepted that this Rule still holds the field, the family pension must be payable to the person claiming it. Here, the petitioner has not established that she is the wife of deceased Vithal Bhegade. As per Rule 54(7)(a)(i) of the said Rules, if she had applied for family pension along with Laxmibai after the death of deceased Vithal Bhegade, she would have been paid family pension in equal share. However, she did not apply. Nothing prevented her from applying for pension along AJN 9 with Laxmibai. Rule 54(7)(a)(i) of the said Rules would have then taken effect. The fact that she did not apply along with Laxmibai itself shows that her claim is not genuine. 10. It appears that the Department of Pension and Pensioners' Welfare has clarified that the second wife will not be entitled to family pension as a legally wedded wife. This Decision dated 4/3/1987 is pointed out to us. This decision rests on the basis that section 11 of the said Act provides that any marriage solemnized after the commencement of the said Act shall be null and void and can be annulled against the other party by a decree of nullity if the same contravenes any of the conditions specified in clauses (i), (iv) and (v) of section 5 of the said Act. Section 5(1) stipulates that the marriage cannot be legally solemnized when either party has a spouse living at the time of such marriage. Therefore, any second marriage by a Hindu male after the commencement of the said Act on 18/5/1955, during the life time of his first wife will be a nullity and will have no legal effect. Therefore, the second wife will not be entitled to family pension as a legally wedded wife. It is true that it AJN 10 has not been shown to us that Rule 54(7)(a)(i) has since been amended. However, the decision taken by the Government of India on which reliance is placed is undoubtedly correct. 11. In this connection, we may refer to the judgment of the Supreme Court in Rameshwari Devi v. State of Bihar & Ors., (2000) 2 SCC 431. In that case, appellant – Rameshwari Devi was the first wife of Narain Lal who died in 1987 while working with State of Bihar. He married Yogmaya Devi on 10/4/1963 while his first wife Rameshwari Devi was alive. Four sons were born of the second marriage. Learned Single Judge of the High Court held that children of the second wife Yogmaya Devi were entitled to family pension till they attained majority. But Yogmaya Devi was not entitled to family pension. Appeal filed by the first wife Rameshwari Devi was dismissed by the High Court. Hence, she approached the Supreme Court. 12. On facts, the Supreme Court observed that the result of the State's inquiry disclosed that Narain Lal and Yogmaya Devi lived AJN 11 as husband and wife. Therefore, a presumption does arise that there was marriage between Narain Lal and Yogmaya Devi. However, the marriage was in contravention of clause (1) of section 5 of the said Act and, hence, it was a void marriage though under section 16 of the said Act, the children of a void marriage are legitimate. The Supreme Court upheld the High Court's view that the second wife would not be entitled to family pension, but the children of the marriage would be entitled to family pension till they attain majority. 13. If the present case is examined from this angle also, the petitioner will not be entitled to pension. But assuming that the petitioner is covered by Rule 54(7)(a)(i) of the said Rules, since she has failed to prove that she is the widow of deceased Vithal Bhegade, she is not entitled to pension. Her application has, therefore, rightly been rejected. We are also of the opinion that assuming three widows of Baban Habade were given family pension, that is no ground for the petitioner to claim family pension if, in law, she is not entitled to get it. The petition, therefore, cannot AJN 12 be entertained and is dismissed. [SMT. RANJANA DESAI, J.] [SMT. ROSHAN DALVI, J.]