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2013 DIGILAW 2272 (BOM)

Kantabai v. Hausabai Dhulaji Shriram

2013-10-25

R.V.GHUGE

body2013
ORDER R.V. Ghuge, J. 1. Heard respective counsel for the parties. The petitioners have filed this civil revision application upon being aggrieved by the judgment and order dated 9-3-2012 delivered by the learned Civil Judge, S.D. Shrigonda, Dist. Ahmednagar (hereinafter referred to as 'the Judge') in Misc. Application No. 27/2006 and the judgment and order dated 13-12-2012 delivered by the learned District Judge-5, Ahmednagar (hereinafter referred to as 'the District Judge') in Regular Civil Appeal No. 490/2012. 2. Petitioner No. 1 claims to be the second wife of the deceased Dhulaji Shriram. Petitioner Nos. 2 and 3 are the children born out of co-habitation between Dhulaji Shriram and petitioner No. 1 Kantabai. Deceased Dhulaji was in service of the Forest Department. He joined service in the year 1981 and died on 14-6-1998. As such the petitioners filed Misc. Application No. 27/2006 before the learned Judge. In the said applications, the petitioners claimed pension and other benefits on the plea that petitioner No. 1 is admittedly the second wife of deceased Dhulaji. The first legally wedded wife Hausabai and her two sons were impleaded as opponents in the said application. Initially, the said application was rejected. The petitioners, then preferred an appeal which also came to be dismissed at the hands of the learned District Judge. Both the impugned judgments were challenged in Civil Revision Application No. 6/2011 before this Court. Vide order dated 7-7-2011, the said civil revision application was partly allowed only to the extent of claim of the petitioners for family pension. For this limited purpose, the learned Single Judge of this Court remitted the matter back to the learned Judge. 3. In the light of the facts set out here in above, the learned Judge was therefore required to only look into the aspect of applicability of Rule 116(1)(a)(i) of the Maharashtra Civil Services (Pension) Rules, 1982. 4. The contention of the petitioners was that the said Rule provides for payment of family pension to widows more than one in equal shares. The respondents herein, who were the opponents before the learned Judge, contended that The Hindu Marriage Act (25 of 1954) and the Hindu Succession Act (30 of 1956) prohibit a second marriage during subsistence of the first marriage. Reliance was placed upon the reported judgment in the case of Nanda Santosh Shirke vs. Jayashri Santosh Shirke and another, 2011(3) Mh.L.J. 941. Reliance was placed upon the reported judgment in the case of Nanda Santosh Shirke vs. Jayashri Santosh Shirke and another, 2011(3) Mh.L.J. 941. Undoubtedly, the ratio laid down in the said judgment, in the light of section 1and 16 of the Hindu Marriage Act and section 8 of the Hindu Succession Act, was that the legally wedded wife of the deceased would be entitled to succeed to his estate along with her children. Children of the second wife would also be entitled to succeed to his estate upon presumption of legitimacy. However, the second wife would not be entitled to such an estate since the second marriage is void. 5. In the light of rival contentions, the learned Judge, vide the impugned judgment and order dated 9-3-2012, rejected the Misc. Application concluding that the first legally wedded wife Hausabai (respondent No. 1 herein) would be entitled to receive the family pension. Succession certificate, accordingly, was directed to be issued in her name. 6. The petitioners herein, being aggrieved by the impugned judgment of the learned Judge, preferred R.C.A. No. 490/2012 before the learned District Judge. It was contended in the said appeal that Rule 116 had to be read into isolation since it provided for more than one widow to get pension in equal share. It was the contention that if there are more than one widow, they would be entitled to equal share and that Rule 116 ought not to be mixed up with the Hindu Marriage Act and the Hindu Succession Act. The respondents herein maintained their stand before the learned District Judge. Vide judgment and order dated 13-12-2012, the learned District Judge dismissed the appeal with costs. 7. Being aggrieved by both the impugned judgments, the petitioners have preferred this Civil Revision Application. The grounds for challenge are limited and have narrowed down, in view of the earlier order dated 7-7-2011 passed by the learned Single Judge of this Court in Civil Revision Application No. 6 of 2011. The only grievance put forth by the petitioners therefore is that the lower Court has lost sight of Rule 116(6)(a)(i) (hereinafter referred to as the "Rule at issue"). It is vehemently submitted that both the Courts below have failed to consider the said Rule and have lost sight of the ratio laid down by this Court in Laxmibai vs. CEO, Z.P., 2004(4) Mh.LJ. 330 . 8. It is vehemently submitted that both the Courts below have failed to consider the said Rule and have lost sight of the ratio laid down by this Court in Laxmibai vs. CEO, Z.P., 2004(4) Mh.LJ. 330 . 8. The respondents have put forth the same submissions which were maintained before both the lower Courts. It is canvassed before me by the respondents that when the Hindu Marriage Act and the Hindu Succession Act do not recognize the second marriage during subsistence of the first marriage, no advantage can be derived by the petitioners in relation to the statutory retiral benefits. When the second marriage itself is void and not recognized in the eye of law, pension cannot be granted to the second wife. 9. The respondents have also relied upon the judgment of the Honourable Supreme Court in the case of Rameshwari Devi vs. State of Bihar, AIR 2000 SC 785. In the said judgment, it is concluded that the payment of family pension and death-cum-retirement gratuity cannot be an entitlement for the second wife. It was, however, laid down that the family pension was admissible to the minor children of the second wife till they attain the majority. 10. The respondents have also relied upon another judgment of the Honourable Supreme Court in the case of M.M. Malhotra vs. Union of India, 2006(1) Mh.L.J. (S.C.) 1 : AIR 2006 SC 80 , wherein the Honourable Court has held that the second marriage during the subsistence of the first marriage was null and void. 11. The respondents have also relied upon the view taken by the Bombay High Court in the case of Nanda Santosh (supra). 12. Before I advert to the judgments cited, it is worth the exercise to refer to the position so far as State of Maharashtra is concerned. Prior to introduction of the Hindu Marriage Act in 1955, the Bombay Civil Services Rules ("BCSR") were in force till the introduction of Maharashtra Civil Services (Pension) Rules, 1982 "(MCSR"). Rule 302(b)(ii) of BCSR is as under:-- "302(b)(2) The pension is allotted-- (i)......... (ii) failing a son, to the eldest widow for the same purpose;...." 13. Prior to introduction of the Hindu Marriage Act in 1955, the Bombay Civil Services Rules ("BCSR") were in force till the introduction of Maharashtra Civil Services (Pension) Rules, 1982 "(MCSR"). Rule 302(b)(ii) of BCSR is as under:-- "302(b)(2) The pension is allotted-- (i)......... (ii) failing a son, to the eldest widow for the same purpose;...." 13. In BCSR Pension Rules, 1950 in Part II, Rule 20(A) defines the "family" to mean, " 'family' shall include the following relatives of the Government servant--(a) wife, in the case of a male Government servant...." However, when it come to the Family Pension Scheme of 1964 under BCSR Pension Rules 1950, beneficiaries of pension were enumerated as follows:-- “III. Beneficiaries and duration : 6.(a) Widow or widower - Up to the date of death or remarriage whichever is earlier. (b) Minor Son- Until he attains the age of eighteen years. (c) Unmarried daughter - Unitil she attains the age of 21 years or marries; whichever is earlier. Note 1- Step children are not eligible for pension, under this scheme Note 2- Children adopted legally before retirement are eligible for pension under this scheme. Note 3- In cases where there are two or more widows, pension will be payable to the eldest surviving widow. The term [elder’ would mean seniority with reference to the date of marriage. Note 4- Marriage after retirement will not be recognized for this scheme. 7. Pension will be payable to only one member at a time. It will first be admissible to a Widow or Widower and thereafter to a minor. ………….. 14. In the Revised Pension Rules of 1950, with effect from 1-1-1975, the said Pension Scheme of 1964 was amended and introduced as "New Family Pension Scheme 1964". Rule 4(vi) thereof categorically provided for payment of pension to more than one widows. It reads as-- "4(vi). In case of two widows, it is payable to both in equal shares;" 15. Thus, it clearly emerges that "New Family Pension Scheme 1964" under the BCSR Pension Rules, 1950 provided for payment of pension even to two widows in equal share with effect from 1-1-1975. This is the position, despite the introduction of the Hindu Marriage Act, 1955. 16. MCSR (Pension) Rules are of 1982. In the said MCSR, Family Pension Scheme of 1964 was continued. This is the position, despite the introduction of the Hindu Marriage Act, 1955. 16. MCSR (Pension) Rules are of 1982. In the said MCSR, Family Pension Scheme of 1964 was continued. Rule 116(6) is germane to this case, which reads as under:-- 116(6)(a)(i) Where the family Pension is payable to more widows than one, the Family Pension shall be paid to the widows in equal shares; (ii) on the death of a widow, her share of the Family Pension shall become payable to her eligible child: Provided that if the widow is not survived by any child, her share of the family pension shall not lapse but shall be payable to the other widows in equal shares, or if there is only one such other widow, in full, to her. (b) Where the deceased Government servant of pensioner is survived by a widow but is left behind eligible child or children from another wife who is not alive, the eligible child or children shall be entitled to the share of Family Pension which the mother would have received if she had been alive at the time of the death of the Government servant or pensioner. Provided that on the share or shares of family pension payable to such a child or children or to a widow or widows ceasing to be payable, such share or shares shall not lapse but shall be payable to the other widow or widows and or to other child or children otherwise eligible, in equal shares, or if there is only one widow or child, in full, to such widow or child. 17. Rule 117 pertains to the Family Pension 1950 under the MCSR. This has been repealed with the introduction of the 1964 Pension Scheme. 18. Both learned counsel are in unison to the extent that Rule 116 of the MCSR Pension Rules 1982 under the title "Family Pension Scheme 1964" is applicable to the case. The proviso below Rule 116(6)(a)(i) was introduced on 7-12-1991 and so is the case with the proviso under Rule 116(6)(b). From the phraseology in above said provision, it is clear that the intent and object of paying family pension was to take care of more than one widows. The proviso below Rule 116(6)(a)(i) was introduced on 7-12-1991 and so is the case with the proviso under Rule 116(6)(b). From the phraseology in above said provision, it is clear that the intent and object of paying family pension was to take care of more than one widows. It is consistently provided for in the above referred Rule that the family pension was to be payable to more than one widows in the event of there being such number of widows. The share of one widow on her death was to be passed on to her eligible child. If such deceased's widow was not survived by any child, her share of family pension was not to lapse but be passed on to other widows in equal share and if there was only one surviving widow, in full to her. 19. In Rameshwari Devi's case (supra), the issue before the Hon'ble Apex Court was with regard to, "Whether the second wife was entitled to anything and whether family pension would be admissible to her?" The Hon'ble Apex Court dealt with the Central Civil Services Conduct Rules as well as the Bihar Government Services Conduct Rules, 1976. Rule 21 under the Central Civil Services Conduct Rules categorically prohibited any Government servant from entering into or contract a marriage with a person having a spouse living. Under the Bihar Government Services Conduct Rules, 1976, Rule 23 prohibited the Government servant, having a spouse living, from contracting a second marriage. Based on the said provisions, the Hon'ble Apex Court concluded that the impugned Division Bench judgment of the Patna High Court was erroneous and upheld the view taken by the learned Single Judge of the said Court. It needs mention that the said view of the learned Single Judge was in the form of an order to the State Government to ensure that the family pension is paid in equal share, 1/2 in favour of the legally wedded first wife and the second 1/2 to the minor children of the second wife. Nevertheless, it was observed that the second wife was not entitled to anything. Nevertheless, it was observed that the second wife was not entitled to anything. It is equally noteworthy that any rule under the Central Civil Services Conduct Rules as well as the Bihar Government Services Conduct Rules, 1976 akin to Rule 116 of The Maharashtra Civil Services Rules (Pension) (In the case at hand) was not pointed out/was not a matter of consideration before the Hon'ble Apex Court. As such, reliance placed on the said judgment by the respondents herein, is misconceived. 20. In the M.M. Malhotra's case (supra), the Hon'ble Apex Court was not called upon to decide any issue in relation to Pension Rules. In the said matter, validity of a second marriage under the Air Force Act (45 of 1950) and the Air Force Rules, 1969 with 1964 Regulations were under consideration. The Hon'ble Apex Court concluded that the second marriage during the subsistence of first marriage was void. As such, reliance of the respondents on the said case is misplaced. 21. In Nanda Santosh Shirke's case (supra), the learned Single Judge of this Court has considered the second marriage and its proof under the Hindu Marriage Act, 1955. The issue for consideration of the learned Single Judge was as to Whether the second wife would be entitled to any share in the estate of her husband? The learned Single Judge has answered the said issue by placing reliance on the Rameshwari Devi's case, that the children begotten out of the second wedlock would legitimately have a share in the estate of their deceased father. The said case, therefore, is not applicable to the case at hand. 22. Per contra, the petitioners have relied upon the Division Bench view of this Court in Laxmibai Shripat Kumare vs. Chief Executive Officer, Zilla Parishad, reported at 2004(4) Mh.L.J. 330 . The learned counsel for the petitioners placed reliance upon observations made by the Division bench in para No. 6 and 9 of the said judgment to contend that it is a verdict of this Court on Rule 116 of the Maharashtra Civil Services Rules (Pension) 1982 and therefore it was further contended that two widows have an equal share in the family pension. The said impression of the learned counsel for the petitioners, in my view, is a misconception. The said impression of the learned counsel for the petitioners, in my view, is a misconception. The issue as to whether Rule 116 mandates disbursement of family pension in equal shares to more than one widow was not the subject matter of consideration before the Division Bench of this Court. The issue was that the Zilla Parishad was disbursing family pension in equal shares to both the widows Smt. Nirmala as well as Smt. Laxmibai. Excess payment was made to both the widows for a considerable time and after realizing the mistake, Zilla Parishad sought to recover the said pension from both widows. Unfortunately, Smt. Nirmala had passed away. Daughter of Nirmala Ku. Kalpana had got married. On these set of facts, the Division Bench of this Court concluded that the surviving widow was entitled to full pension amount after the marriage of daughter Kalpana who survived Smt. Nirmala. Nevertheless, the said judgment certainly sheds sufficient light on the fact that passing away of one widow and she having been thereafter not survived by a dependent child, vested the surviving widow with a right to draw full pension. As such, the proviso to Rule 116(6)(a)(ii) was taken into consideration by the Division Bench of this Court. The view of the said Court thus recognized the right of a surviving widow. 23. I find that Rule 117 pertains to Family Pension, 1950. Whereas Rule 116 pertains to Family Pension, 1964. As has been the view of the Division Bench of this Court in the Laxmibai's case (supra), Rule 117 is now not applicable since the Family Pension, 1964 is in force under the Maharashtra Civil Services Rules (Pension), 1982. Thus in the instant case as well, Rule 116 will have its full application. 24. Upon going through the phraseology of the said Rule 116 and its sub-clauses, I am of the view that the rules are drafted with an element of certainty and with a definite object. It can not be viewed to be a directory provision pertaining to widows more than one. It can not be interpreted to mean that the said Rule is a mere expression of plural tense of a widow and that it can not be looked beyond such a simple impression as is contended by the respondents. It can not be viewed to be a directory provision pertaining to widows more than one. It can not be interpreted to mean that the said Rule is a mere expression of plural tense of a widow and that it can not be looked beyond such a simple impression as is contended by the respondents. The learned counsel for the respondents has contended that just because the said phraseology was used in the Pension Rules under the Bihar Government Services Conduct Rules, 1976, no further importance ought to be given to the meaning of more than one widow since the Hindu Marriage Act introduced in 1955, has changed the concept of marriage thereby prohibiting a second marriage and rendering a second marriage null and void. I am not in agreement with such contentions and I do not desire to accept such an interpretation to the extent of Rule 116. 25. Rule 116 and its sub-clauses not only deal with a situation of their being more than one widow, they also deal with the situation prevailing after the death of a widow and the date of the share of that deceased widow out of the family pension. In fact, the proviso introduced on 7-12-1991 below sub-clause (ii) is an eye opener since it deals with the death of a widow and equally deals with her share being payable to other widows in equal shares. The situation of only one surviving widow is also considered. Clause 'b' of the said Rule deals with again a surviving widow in the face of a deceased's second wife. Proviso to Clause 'b' was also introduced on 7-12-1991 in order to apportion the shares of family pension to the children or widows. It clarifies that the share of a deceased widow shall not lapse and shall not automatically be payable to the surviving widow if the deceased widow leaves behind her a child or children who then would be eligible to have equal share which once upon a time their deceased mother was drawing. 26. The Hon'ble Apex Court in Cri. M.A. No. 19530/2013 in Spl. Leave Petition (Cri.) No. 8596/2013, decided on 18-10-2013 in case of Badshah vs. Urmila Badshah Godse has dealt with a situation wherein the second wife finds herself left in a lurch and rendered destitute owing to the husband having deserted her. 26. The Hon'ble Apex Court in Cri. M.A. No. 19530/2013 in Spl. Leave Petition (Cri.) No. 8596/2013, decided on 18-10-2013 in case of Badshah vs. Urmila Badshah Godse has dealt with a situation wherein the second wife finds herself left in a lurch and rendered destitute owing to the husband having deserted her. Notwithstanding the fact that the subject matter of consideration before the Hon'ble Apex Court was different, the observations made by the Hon'ble Apex Court pertaining to the interpretation of Law in a changing society and social reality are applicable here. The Hon'ble Apex Court has dealt with issues like social justice adjudication and responsiveness of Law to changing social needs. Para No. 20, 22, 24 and 25 are as follows: 20. The law regulates relationships between people. It prescribes patterns of behavior. It reflects the values of society. The role of the Court is to understand the purpose of law in society and to help the law achieve its purpose. But the law of a society is a living organism. It is based on a given factual and social reality that is constantly changing. Sometimes change in law precedes societal change and is even intended to stimulate it. In most cases, however, a change in law is the result of a change in social reality. Indeed, when social reality changes, the law must change too. Just as change in social reality is the law of life, responsiveness to change in social reality is the life of the law. It can be said that the history of law is the history of adapting the law to society's changing needs. In both constitutional and statutory interpretation, the Court is supposed to exercise direction in determining the proper relationship between the subjective and objective purpose of the law. 22. The Court as the interpreter of law is supposed to supply omissions, correct uncertainties, and harmonize results with justice through a method of free decision--"libre recherche scientifique" i.e. "free Scientific research". We are of the opinion that there is a non-rebuttable presumption that the Legislature while making a provision like section 125, Criminal Procedure Code, to fulfill its Constitutional duty in good faith, had always intended to give relief to the woman becoming "wife" under such circumstances. 24. In Rameshchandra Daga vs. Rameshwari Daga ( AIR 2005 SC 422 ), the right of another woman in a similar situation was upheld. 24. In Rameshchandra Daga vs. Rameshwari Daga ( AIR 2005 SC 422 ), the right of another woman in a similar situation was upheld. Here the Court had accepted that Hindu marriages have continued to be bigamous despite the enactment of the Hindu Marriage Act in 1955. The Court had commented that though such marriages are illegal as per the provisions of the Act, they are not 'immoral' and hence a financially dependent woman cannot be denied maintenance on this ground. 25. Thus, while interpreting a statute the Court may not only take into consideration the purpose for which the statute was enacted, but also the mischief it seeks to suppress. It is this mischief rule, first propounded in Heydon's Case [(1854) 3 C.Rep.7a, 7b] which became the historical source of purposive interpretation. The Court would also invoke the legal maxim construction ut res magis valeat guam pereat, in such cases i.e. where alternative constructions are possible the Court must give effect to that which will be responsible for the smooth working of the system for which the statute has been enacted rather than one which will put a road block in its way. If the choice is between two interpretations, the narrower of which would fail to achieve the manifest purpose of the legislation should be avoided. We should avoid a construction which would reduce the legislation to futility and should accept the bolder construction based on the view that Parliament would legislate only for the purpose of bringing about an effective result. If this interpretation is not accepted, it would amount to giving a premium to the husband for defrauding the wife. Therefore, at least for the purpose of claiming maintenance under section 125, Criminal Procedure Code, such a woman is to be treated as the legally wedded wife. 27. Lastly, the Hon'ble Apex Court has concluded in para No. 27 in Badshah's Case (supra) as follows: 27. In taking the aforesaid view, we are also encouraged by the following observations of this Court in Capt. Ramesh Chander Kaushal vs. Veena Kaushal [ (1978) 4 SCC 70 ]: "The brooding presence of the Constitutional empathy for the weaker sections like women and children must inform interpretation if it has to have social relevance. In taking the aforesaid view, we are also encouraged by the following observations of this Court in Capt. Ramesh Chander Kaushal vs. Veena Kaushal [ (1978) 4 SCC 70 ]: "The brooding presence of the Constitutional empathy for the weaker sections like women and children must inform interpretation if it has to have social relevance. So viewed, it is possible to be selective in picking out that interpretation out of two alternatives which advances the cause - the cause of the derelicts." The husband of these two widows has died in 1998. Both the widows are leaning towards old age. The issue of family pension has been pending for years. In light of the facts and law discussed above and the view of the Hon'ble Apex Court in the Badshah's case (supra), I conclude that the case of the petitioners is squarely covered by Rule 116 at issue. The impugned judgments dated 9-3-2012 and 13-12-2012 are hereby quashed and set aside. The petitioner No. 1 is held to be entitled for an equal share of family pension along with respondent No. 1. Civil Revision Application is thus allowed with no order as to costs.