IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 01.04.2011 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.NO.24756 of 2010 and M.P.No.1 of 2010 K.P.Ranganayagi .. Petitioner Vs. 1.The Director of Elementary Education, College Road, Chennai-6. 2.The Accountant General O/o.The Accountant General, Teynampet, Chennai-600 018. 3.The District Treasury Officer, 'B' Block 1st Floor, Collectorate, Sathuvachari, Vellore. 4.Pattammal .. Respondents This writ petition is preferred under Article 226 of the Constitution of India praying for the issue of a writ of mandamus to direct the respondents 1 to 3 to pay the Family Pension effective May, 2010 with arrears of late K.M.Perumal retired Secondary Grade Teacher, Panchayat Union Elementary School, Poigai, Vellore District to the petitioner who is the legally wedded first wife. For Petitioner : .Mr.M.G.Harikrishnan For Respondents : Mr.A.Suresh, GA(Education) for R-1 Mr.V.Vijayashankar for R-2 Ms.C.Devi, GA for R-3 Mr.J.Shanmuga Sundara Babu for R-4 - - - - ORDER The writ petition is filed by the petitioner claiming to be the wife of late K.M.Perumal, seeking for a direction to respondents 1 to 3 to pay family pension with effect from May, 2010 together with arrears of pension payable to late K.M.Perumal who retired as a Secondary Grade Teacher in the Panchayat Union Elementary School at Poigai, Vellore District. This was on the premises that she is the legally wedded first wife. https://hcservices.ecourts.gov.in/hcservices/ 2.When the matter came up on 2.11.2010, the petitioner was directed to serve on the Standing Counsel for second respondent. The learned Government Advocate took notice for the first respondent. In respect of respondents 3 and 4, the petitioner was directed to serve privately. On notice, the second and fourth respondents have filed counter affidavits. 3.It is stated by the second respondent Accountant General that late K.M.Perumal had retired from service on 31.5.1994 and he died on 30.8.1997. All terminal benefits were received by late K.M.Perumal himself. It is stated that the petitioner was referred to as a family pension beneficiary by the Assistant Elementary Educational Officer, Vellore in his proposal and her name was incorporated. She was authorized to receive family pension. Accordingly, the petitioner was in receipt of family pension upto April, 2010. But, however the fourth respondent has filed a writ petition in W.P.No.6015 of 2009 claiming to be the first wife of late K.M.Perumal and sought for family pension. In that writ petition, the present petitioner was cited as the 7th respondent and that she did not appear during proceedings. This Court by an order dated 27.10.2009 had directed the respondents to consider the representation of the fourth respondent on merits. It is on such direction, the fourth respondent's representation together with the legal heirship certificate issued by the Tahsildar, Vellore and the copy of nomination was considered. The petitioner had also submitted certain documents. 4.It was stated that both claimed that they were the legally wedded wives of late K.M.Perumal. But, however in the family ration card for the year 2005-2009, the fourth respondent was mentioned as the head of the family, which included the petitioner as also the member. The Tahsildar, Vellore had issued a certificate, dated 17.2.2009, wherein the fourth respondent was shown as the first wife and the petitioner as the second wife. It is only in case where the marriage was solemnized before the date of Hindu Marriages Act, 1955 or if the marriage was done under the Mohammedan Law, the question of payment of pension to the second wife will arise. Therefore, by an order, dated 18.5.2010, pension paid to the petitioner was denied. It was held that she was not eligible for family pension. It was also found that late K.M.Perumal had married the petitioner while the first marriage was in subsistence. Under these circumstances, it was claimed that the petitioner was not eligible for family pension. 5.In the counter affidavit filed by the fourth respondent, it was stated that the fourth respondent got married in the year 1963 and the petitioner got married to late K.M.Perumal only in the year1967. Before the death of K.M.Perumal, he had received all benefits. After his death, when the fourth respondent had approached the authorities, there was no proper response. Hence she had moved this Court. https://hcservices.ecourts.gov.in/hcservices/ 6.The learned counsel for the respondents referred to an unreported judgment of this Court rendered by K.Narayana Kurup,J., in W.P.No.45 of 1996 dated 14.09.2001 [K.Muthulakshmi v. The Principal Accountant General and others], wherein an identical claim was rejected by this Court. In that case after referring to the clarification letter issued by the Government, the learned Judge held that the rejection of the claim made by the second wife for pension was justified. 7.The learned counsel for the respondents also referred to the judgment of the Supreme Court in Rameshwari Devi v. State of Bihar and others reported in (2000) 2 SCC 431 for contending that if a marriage is void marriage, then the alleged second wife cannot be treated as a widow and the person cannot be eligible for any family pension on account of she being a widow of the deceased government servant. The fact that the law recognizes illegitimate children born out of such marriage, but that cannot be a ground for treating the second wife as eligible to claim pension. In paragraph 14, the Supreme Court observed as follows:- "14. It cannot be disputed that the marriage between Narain Lal and Yogmaya Devi was in contravention of clause (i) of Section 5 of the Hindu Marriage Act and was a void marriage. Under Section 16 of this Act, children of a void marriage are legitimate. Under the Hindu Succession Act, 1956, property of a male Hindu dying intestate devolves firstly on heirs in clause (1) which include the widow and son. Among the widow and son, they all get shares (see Sections 8, 10 and the Schedule to the Hindu Succession Act, 1956). Yogmaya Devi cannot be described as a widow of Narain Lal, her marriage with Narain Lal being void. The sons of the marriage between Narain Lal and Yogmaya Devi being the legitimate sons of Narain Lal 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 Rameshwari Devi with Narain Lal. That is, however, the legal 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 relevant rules. 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 learned Single Judge in the judgment which is upheld by the Division Bench in LPA by the impugned judgment." (Emphasis added) 8.It is always open to the Government to define the term 'Family' and exclude persons who do not qualify to be termed as 'wife'. No exception can be taken if any such clarification is issued by the State Government. It is one thing to talk about the https://hcservices.ecourts.gov.in/hcservices/ obligation of a man being husband to his wife. The other thing is the State's obligation towards a Government servant in affording protection to him as well as to his family during his tenure as well as after retirement. But that cannot be over stretched to include even for provision of pension for a second wife, which if granted not only will fritter away the limited resources vest with the State but also will encourage bigamous marriages which had been prohibited not only by family law and the criminal law of the land but even as per the Government Servants' Conduct Rules. 9.In the light of the above, the contentions of the petitioner cannot be countenanced. Hence the writ petition will stand dismissed. However, there will be no order as to costs. The order of status quo stands vacated. Connected miscellaneous petition stands closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar vvk To 1.The Director of Elementary Education, College Road, Chennai-6. 2.The Accountant General O/o.The Accountant General, Teynampet, Chennai-600 018. 3.The District Treasury Officer, 'B' Block 1st Floor, Collectorate, Sathuvachari, Vellore. 1 cc To Mr.V.Vijayshankar, Advocate, SR.24297 1 cc To Mr.M.G.Harikrishnan, Advocate, SR.23563 1 cc To Mr.J.Shanmugasundarababu, Advocate, SR.23376 1 cc To The Government Pleader, SR.23791 W.P.NO.24756 of 2010 RK(CO) sra 26/04/2011 https://hcservices.ecourts.gov.in/hcservices/