Second Wife Entitled To Family Pension Only Where Deceased Employee's Personal Law Permits Bigamy: Himachal Pradesh High Court

The observation was made by Justice Jyotsana Rewal Dua while hearing the claim made by a second wife of an employee who superannuated in the year 1983 and expired in 2002. The petitioner had approached the Court after the demise of her husband's first wife.

The Court also made following significant observations qua entitlement of children born from subsequent marriages to the pension of their father:

-Though Section 11 of the Hindu Marriage Act declares second marriage during subsistence of first marriage as null and void, Section 16 provides that children of such null and void marriage shall be legitimate. Thus, Centre has had clarified that pensionary benefits will be granted to the children of a deceased government servant from void or voidable marriages under Rule 54(7) (c) of CCS (Pension) Rules, 1972 alongwith the legally wedded wife;

-On the death of legally wedded wife, who is not survived by any child eligible to receive pension, share of family pension to her stream would not lapse, but would be payable to eligible children from other wedlock in full i.e. 100%;

-If children from the other wedlock become ineligible to receive pension, their share of the family pension would not lapse but would be payable to the legally wedded wife and her children as the case may be in full i.e. 100%;

-In case deceased employee is survived by a widow and children from first wife however second marriage was solemnized after the death of first wife or after getting divorce from first wife, family pension will be shared equally by second widow being legally wedded wife along with children from first wedlock.

The petitioner got married to Bhola Ram in the year 1964. She claims to have become aware of the first marriage much later.

Petitioner argued that she was lawfully married to Bhola Ram. She gave birth to his children. So, she is entitled for family pension after Bhola Ram's first wife passed away. Inviting attention to Rule 54 of CCS Pension Rules, her counsel asserted that law envisages a situation where pension is payable to more than one wife.

The Court noted that Second wife (widow) can be granted family pension, in those cases, where more than one marriage is permissible under the applicable personal laws of the deceased employee and not otherwise.

It said there are more than one reasons for dismissing the present petition.

• The petitioner had previously filed a writ seeking quashing of the decision of the official respondents to grant family pension to Smt. Ramku Devi, first wife of deceased Bhola Ram. While dismissing the writ petition on 27.07.2011, the Court had held that the deceased had solemnized second marriage with the petitioner during subsistence of his first marriage with Smt. Ramku Devi, which is void, therefore, there could not be a valid nomination in favour of the petitioner by the deceased for the payment of family pension. The Court also held that even otherwise the nominee is only a trustee of the rightful claimant and no relief cannot be granted to him.
• The petitioner has accepted the above verdict dismissing her writ petition for claim of family pension. In the instant writ petition, the petitioner has essentially prayed for the same relief as was claimed by her in her earlier writ petition. The only difference being that she has now restricted her claim from August 2015 i.e. when Smt. Ramku Devi, the first wife of deceased Bhola Ram, died. The relief claimed by the petitioner cannot be granted to her on the principle of res judicata. "

The writ was accordingly dismissed.

Case Title : DURGI DEVI V. STATE OF HIMACHAL PRADESH AND ORS

Citation: 2022 LiveLaw (HP) 20 

Click Here To Read/Download Order