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2018 DIGILAW 43 (MEG)

Joycee Chyne v. Bharat Sanchar Nigam Limited

2018-08-03

MOHAMMAD YAQOOB MIR

body2018
JUDGMENT : Mohammad Yaqoob Mir, J. 1. In view of clear admitted factual position, as pleaded in the petition i.e. the petitioner is the second wife of the deceased who had contracted marriage with her during subsistence of his first marriage with respondent No. 4, notice to the respondent No. 4 was not issued. The objection is raised by the learned CGC appearing for the respondents No. 1 and 2 to the effect that the petition is not worth to be entertained. 2. Sanction for family pension in favour of the petitioner has been declined, on the ground that she was the second wife of the deceased retired employee, as conveyed to her by the respondent No. 2 vide F. No. CCA/NE/PEN/P.TIRKEY/2007-2008 dated 08.06.2018. Aggrieved whereof, instant petition has been filed with a prayer to direct the respondents No. 1 to 3 to process the family pension case in favour of the petitioner as she is entitled to receive monthly pension after the death of her husband (L) Polycrap Tirkey with whom she has been living from the year 1982. The marriage was registered under the Special Marriage Act, 1954 on 03.12.2007, therefore, the communication above referred which was sent to the petitioner by the respondent No. 2 may be quashed. 3. The maintainability of the petition was questioned by the learned counsel for the respondents No. 1 to 3 on the ground that in view of the settled position of law, the petitioner is not entitled to family pension as she had contracted marriage with the deceased employee during subsistence of his first marriage which is void, therefore, in terms of Government of India Decision (15) clarifying, that under Rule 54 of Central Civil Services (Pension) Rules, 1972 the second wife is not entitled to family pension. 4. It is an admitted position that the deceased Polycrap Tirkey was an employee of the erstwhile Department of Telecom Services which was taken over by Bharat Sanchar Nigam Limited incorporated on 15.09.2000 providing telecom services and network management from the erstwhile Central Government Department of Telecom Services (DTS) and Telecom Operation (DTO). 5. On reaching superannuation, Shri Polycrap Tirkey retired in the year 2007 and died on 21.02.2010. After his retirement, pension was sanctioned which he was receiving till death. 6. 5. On reaching superannuation, Shri Polycrap Tirkey retired in the year 2007 and died on 21.02.2010. After his retirement, pension was sanctioned which he was receiving till death. 6. It is also admitted by the petitioner in her petition that her husband (Shri Polycrap Tirkey) was first married to Smti. Albina Tirkey (respondent No. 4) in the year 1964, out of the said wedlock two children were born, who have attained the age of majority. According to the petitioner, as pleaded in the petition the respondent No. 4 first wife had deserted her husband (now deceased) in the year 1970 and started living separately. Thereafter, Shri Polycrap Tirkey (now deceased) was living with the petitioner right from the year 1982 and from their wedlock also two children were born. The marriage was not registered, however, it was later on registered under the Special Marriage Act, 1954 (for short the Act of 1954) as is clear from the Certificate of Marriage issued from the office of the Marriage Officer, East Khasi Hills, Shillong, Meghalaya dated 03.12.2007 certifying the marriage of Shri Polycrap Tirkey and the petitioner w.e.f. 26.01.1982. 7. It is also pleaded in the petition that the first marriage of Shri Polycrap Tirkey was not dissolved. Apprehending future complicacy in getting monthly pension after his death, her marriage with the deceased was got registered. In addition thereto, (L) Polycrap Tirkey filed an application under section 13 of Hindu Marriage Act, 1955 (for short the Act of 1955) for dissolution of first marriage with respondent No. 4, a decree of divorce was granted by the Court of Additional Deputy Commissioner, Shillong on 24.11.2008, while disposing of Mat (D/S) Suit No. 1(A) of 2008. After dissolution of marriage, official respondents were informed accordingly. 8. (L) Polycrap Tirkey had also executed a "Will" dated 18.03.2009 which was duly registered by the Sub-Registrar, Shillong, East Khasi Hills, Meghalaya in terms whereof, the petitioner is entitled to the dues and other benefits of her deceased husband (L) Polycrap Tirkey. 9. After the death of (L) Polycrap Tirkey, she obtained Succession Certificate in respect of the debts and securities left by her deceased husband. All the documents were submitted to the respondents for release/sanction of family pension along with arrears in favour of the petitioner but same has been rejected. 10. The deceased employee was a Hindu by faith. 9. After the death of (L) Polycrap Tirkey, she obtained Succession Certificate in respect of the debts and securities left by her deceased husband. All the documents were submitted to the respondents for release/sanction of family pension along with arrears in favour of the petitioner but same has been rejected. 10. The deceased employee was a Hindu by faith. In terms of section 5 (i) of the Hindu Marriage Act of 1955, marriage between Hindus is subject to the conditions which include that "neither party has a spouse living at the time of the marriage." A marriage in contravention to Section 5 (i) is void as it is clear from the language of Section 11 of the Act of 1955. Learned counsel for the petitioner would submit that the petitioner is a Christian by faith. Although, the deceased was a Hindu by faith, Section 5 of the Act of 1955 is not applicable because same governs solemnization of marriage between two Hindus. He would contend that the marriage between the deceased Hindu and the petitioner Christian was solemnized in accordance with the Special Marriage Act of 1954. Such an argument is of no help to the petitioner. In terms of Section 4 of the Act of 1954, solemnization of marriage between two persons under the Act is also controlled by important condition i.e. "neither party has a spouse living". In Section 4 of the Act of 1954, requirement of faith is not a condition. Irrespective of any faith, marriage can be solemnized subject to the condition as incorporated in Section 4 which includes "neither party has a spouse living." 11. If a marriage is contracted under the Act of 1954 in contravention to the said condition as incorporated in Section 4, the marriage is void as is clear from Section 24 of the Act of 1954. 12. When the marriage between the petitioner and the deceased husband was void because of having been solemnized during subsistence of first marriage between the husband of the petitioner and the respondent No. 4, which as per the averments of the petition is admitted by the petitioner, same disentitled the petitioner/second wife to claim family pension. 13. Rule 54 of the Central Civil Services (Pension) Rules, 1972 (for short CCS (Pension) Rules, 1972) as are applicable govern grant of family pension. 13. Rule 54 of the Central Civil Services (Pension) Rules, 1972 (for short CCS (Pension) Rules, 1972) as are applicable govern grant of family pension. According to the learned counsel for the petitioner, sub-Rule (7) of Rule 54 of the said CCS (Pension) Rules of 1972, provides that where the family pension is payable to more widows than one, the family pension shall be paid to the widows in equal shares. The words "payable" as employed in sub-Rule (7) (a) (i) of Rule 54 of the CCS (Pension) Rules of 1972 assumes significance it is to be ascertained as to whether family pension is payable to the two widows. Once the second marriage is void question of payability of pension to the petitioner (widow) is excluded. A clarification has been issued which is included in Decision 15 of the Government of India Decision as appear below Rule 54 of the CCS (Pension) Rules, 1972 under the head "Government of India Decision". Decision No. 15 is advantageous to be quoted:- "(15) When second wife not entitled to the family pension.- The Department of Pension and Pensioners' Welfare have since clarified that the second wife will not be entitled to family pension as a legally wedded wife. A copy of their clarification is enclosed for information. [C.&A.G., New Delhi, letter No. 211-Audit I/13-86, dated the 4th March, 1987.] Copy Of D.O., Letter No. 1/39/86-P.&P.W., Dated 16-2-1987, Received From Shri Hazara Singh, Deputy Secretary, Department Of Pension And P.W., New Delhi. An extract of the relevant advice given by the Ministry of Law in the matter is enclosed. You may like to take necessary action in the matter accordingly. Extract It is specifically a question arising under the Hindu Marriage Act, 1955. Under Rule 54 (7) of the CCS (Pension) Rules, 1972, in case a deceased Government servant leaves behind more than one widow or a widow and eligible offspring from another widow, they are entitled to family pension in respect of that deceased Government servant. Section 11 of the Act provides that any marriage solemnized after the commencement of the 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 Act. Section 11 of the Act provides that any marriage solemnized after the commencement of the 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 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 1955 Act during the lifetime of his first wife will be a nullity and have no legal effect. Such marriage cannot be valid on the ground of any custom. In fact, a custom opposed to an expressed provision of law is of no legal effect. So under these circumstances, the second wife will not be entitled to the family pension as a legally wedded wife. 14. In the said decision, Section 11 of the Act of 1955 has been referred, same provisions i.e. Sections 5(1) and 11 of the Act of 1955 are pari materia with section 4 (a) and Section 24 of the Act of 1954. Both the provisions provide that marriage is permissible provided that "neither party has a spouse living". Section 11 of the Act of 1955 provides that a marriage solemnized in contravention to Clause (1) of Section 5 of the Act of 1955 is void. Similarly, Section 24 of the Act of 1954 provides that a marriage solemnized in contravention to Clause (a) of Section 4 of the Act of 1954 is void. When the marriage is void, entitlement to family pension in terms of Government of India Decision No. 15 as quoted above is impermissible. 15. The respondent No. 2 while following the said decision and Rule 54 of the CCS (Pension) Rules of 1972 has rightly conveyed to the petitioner that the second wife will not be entitled to family pension as a legally wedded wife. 16. As concluded hereinabove, the petitioner has no right to claim family pension. Therefore, petition is not worth to be entertained and accordingly dismissed.