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Indu Devi v. Union Of India
Concise Analytical Summary of the Tribunal Opinion
Factual and Procedural Background
The Original Application (O.A.) was filed jointly by three sons and a woman, Smt Indu Devi (applicant no.1), seeking, inter alia, 50% of retiral benefits (gratuity, GPF, group insurance, encashment of earned leave) and 50% of family pension to be paid to her sons (applicants no.2–4) arising from the death in service of Late Bhola Goswami, a Postman at Gaya Head Post Office, who died on 09.02.2008.
Respondent no.6, Smt Malti Devi, the widow who had been recorded as the wife in the deceased's service book and nominated for pensionary benefits, had already been sanctioned provisional family pension and provisional death gratuity. The applicants claim that Indu Devi was a second wife of the deceased (marriage said to have taken place on 05.03.1981) and that two of her sons (applicants no.3 & 4) were under the age of 25 at the time of death and thus eligible for family pension under Rule 3(c) of the CCS (Pension) Rules, 1972. The applicants submitted affidavits, identity documents, ration card, local certificate and other documents in support.
The respondents maintained that the deceased had nominated only Smt Malti Devi; they relied on Rule 54 of the CCS (Pension) Rules and governmental instructions (GID 13/14 and GID 18(4)), and they rejected Indu Devi's claim for family pension on the basis that a second marriage during the lifetime of the first wife (after commencement of the Hindu Marriage Act) is void under Section 11 of the Hindu Marriage Act, 1955, and therefore the second wife is not entitled to family pension as a legally wedded wife.
The Tribunal heard the parties, examined the record and the rules cited, and disposed of the O.A. with directions to the respondents to decide, after considering their own inquiry report and the documents submitted by the applicant, whether Indu Devi was married to the deceased; and if so accepted, to consider the sons' claim for family pension. Timelines were provided for decision-making.
Legal Issues Presented
- Whether the applicants (sons of Indu Devi) and/or Indu Devi are entitled to 50% share of the death-cum-retirement dues and 50% of the family pension payable in respect of Late Bhola Goswami.
- Whether the respondents were justified in sanctioning family pension and death gratuity provisionally to respondent no.6 (first wife) on the basis of nomination and service book entries, without adequately considering Indu Devi's claim and supporting documents.
- Whether the Tribunal should adjudicate the factual/legal question of the validity and existence of the alleged second marriage, or whether that determination must be made by the respondents (and, if necessary, by a civil court).
Arguments of the Parties
Applicants' Arguments (as presented in the O.A. and pleadings)
- Indu Devi submitted that she performed a second marriage with Late Bhola Goswami according to Hindu rites around 05.03.1981 and she produced affidavits of her father and of the sister of the deceased as supporting evidence.
- The applicants sought 50% of family pension and 50% of death-cum-retirement dues to be paid to the sons of Indu Devi (applicants no.2–4), in particular applicants no.3 & 4 who were under 25 years of age and therefore (they contend) eligible for family pension under Rule 3(c) and related provisions.
- The applicants relied on Section 16 of the Hindu Marriage Act and the Supreme Court judgment in Rameshwari Devi v. State of Bihar to contend that children of a void second marriage are legitimate and entitled to share family pension and death-cum-retirement dues (with family pension entitlement to children only until majority), and that the second wife would not be entitled to family pension.
- Applicants invoked Rule 54 and related provisions (Rule 54(7)(a)(i); Rules 3(c), 3(n), 54(14)(b), 54(6), 54(10), 54(8)(iii)) and argued that pension is part of the livelihood guaranteed by Article 21 of the Constitution, and thus deserving protection.
- The applicant contended that documentary proof may be sparse (applicant being illiterate) but produced various identity documents, affidavits, a local residence certificate and school/other records to support marital and parental relationships.
Respondents' Arguments (as set out in written statements and at hearing)
- The respondents stated that provisional family pension and provisional death gratuity were sanctioned in favour of Smt Malti Devi based on the service book, nomination and SDI(P) verification reports; only Malti Devi was recorded as wife in the service records of the deceased.
- They relied on Section 11 of the Hindu Marriage Act (a second marriage during the lifetime of the first wife, solemnised after commencement of the Act, is void) and Rule 54 of the CCS (Pension) Rules and related Government Instructions (GID 13 and GID 18(4)) to contend that the second wife is not entitled to family pension as a legally wedded wife and that children of a void marriage have protected rights only as provided by the rules.
- The respondents pointed to alleged inconsistencies in documents submitted by Indu Devi (for example, Elect ion Commission identity card recording husband as "Bhola Giri" rather than "Bhola Goswami"; differences in addresses; the LTC form listing the wife as Malti Devi and including many names), and submitted that the Tribunal is not the appropriate forum to determine the validity of the marriage.
- They argued that payment on the basis of service book nomination was in accordance with rules and procedure and therefore not illegal; if the applicants have claims against such payments they may pursue a civil suit.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Rameshwari Devi v. State of Bihar (referred in the opinion) | Held that a second marriage during the lifetime of the first wife is void under the Hindu Marriage Act, but children of such a void marriage are legitimate and entitled to share in family pension and death‑cum‑retirement dues; children are entitled to family pension only till they attain majority; second wife would not be entitled to family pension. | The Tribunal relied on this decision as authority that children of a void second marriage have entitlement to share in pensionary benefits. It used the decision to frame the issue whether the sons (if their parentage is accepted) could be considered eligible for family pension until majority and to urge respondents to reconsider claims if marriage is accepted after inquiry. |
| Amlawati Devi… v. The State Of Bihar & Anr. (Patna High Court) [2003 (2) PLJR 218] | Referenced as a Patna High Court decision applying the principles similar to Rameshwari Devi and directing payment of family pension in accordance with law. | The Tribunal noted that the Patna High Court relied on Rameshwari Devi and directed departmental compliance; the Tribunal considered this supportive of the proposition that children of the second union may have claims that must be considered under rules. |
| Shipra Thakur minor @ Shipra & Snehil v. State of Bihar [2013 (3) PLJR 559 / 560 as cited] | Discussed allocation of family pension between first wife and children of the second wife; observed that family pension is for the family and directed division of family pension amongst eligible claimants in that case. | The Tribunal referred to this case while noting that, in that instance, the department had previously decided to divide death‑cum‑retirement dues and the High Court directed division. The Tribunal used it to illustrate different approaches and to highlight an anomaly in departmental rules about entitlement while the first wife is receiving family pension. |
| S.P.S. Balasubramanyam v. Suruthayan (1992) [1992 AIR SCW 441 as cited; also referenced as 1992 Supp (2) SCC 304 / AIR 1992 SC 756] | Cited by the applicants in support of presumptions under the Evidence Act (Section 112 read with Section 114) favouring a presumption of marriage where appropriate evidence exists. | The Tribunal acknowledged counsel's reliance on this authority to support the proposition of presumption of marriage based on evidence and affidavits; it noted that the applicants relied upon that line of cases when asserting marriage despite paucity of documentary proof. |
| Badri Prasad v. Deputy Director (Consolidation) (1978) 3 SCC 527 : AIR 1978 SC 1557 (as cited) | The opinion records that counsel cited this decision; the specific principle from the case is not elaborated within the Tribunal's text. | The Tribunal records that counsel for the applicant referred to this judgment among others; the opinion does not specify how the Tribunal used or applied the legal proposition of this particular precedent beyond noting that it was cited. |
Court's Reasoning and Analysis
The Tribunal proceeded in steps, constrained to the material on record and the limits of its forum:
- Facts and record review: The Tribunal examined service records and documentary material. It found that respondent no.6 (Malti Devi) being recorded as the wife and nominated in the service book was an uncontested position and that payments made on the basis of nomination and service rules could not be deemed illegal solely for that reason.
- Procedural posture regarding marriage: The Tribunal observed that the office of Director of Accounts (P), Patna had requested proof of marriage (letter dated 09.06.2010) and that the applicants had responded with affidavits and other documents. The Tribunal noted that the documents supplied by Indu Devi appeared not to have been considered by the Director of Accounts in the communication rejecting the claim dated 09.12.2010/15.06.2009.
- Jurisdictional restraint: The Tribunal emphasised that it was not the appropriate forum to finally determine whether Indu Devi was lawfully married to the deceased. It limited itself to directing the respondents to re‑examine and decide the fact of marriage in a reasoned manner, after considering the respondents’ own inquiry report and the evidence submitted by Indu Devi.
- Application of rules and precedents: The Tribunal analyzed the CCS (Pension) Rules (notably Rule 54 and its sub‑rules) and relevant Government Instructions (GID 13 and GID 18(4)). It recognized the rule framework that, generally, family pension is payable to only one family member at a time while preserving certain rights of children (including those of a void second marriage) under sub‑rule 7 and the clarificatory instructions. The Tribunal relied on Rameshwari Devi and related decisions to observe that children of a void second marriage are entitled to share in pensionary benefits and that the second wife ordinarily would not be entitled to family pension.
- Noting an anomaly and recommending policy consideration: The Tribunal identified an apparent anomaly: in divorced marriages eligible children may be given the share the mother would have received, but for void second marriages departmental instructions treat children as having no claim to family pension while the legally wedded first wife is recipient. The Tribunal suggested that respondents may consider referring the matter to the Government of India for policy decision in light of High Court decisions, though it did not itself make a substantive policy determination.
- Directions and final procedural disposition: The Tribunal concluded that respondents should first decide the marital status issue in a reasoned order considering inquiry findings and evidence; if the marriage is accepted, respondents should then consider the sons' claim for family pension in light of rules, instructions and the observations in the order.
Holding and Implications
Holding:
DISPOSED OF — The O.A. is disposed of with directions to the respondents to take a decision on the marriage question and, if accepted, on the sons' entitlement to family pension.
More precisely, the Tribunal ordered:
- Respondents must first decide, in a reasoned order and in the light of their own inquiry report and the evidence submitted by Indu Devi (applicant no.1), whether she was married to the deceased employee.
- If the marriage is accepted, respondents must then consider claims of applicants no.3 and 4 for family pension in the light of the Rules, instructions and the observations contained in the Tribunal's order.
- If a reference to the Government of India is required for policy clarification, respondents should complete the process preferably within one year; otherwise the decision should be taken within six months from receipt of a copy of the Tribunal's order.
- The applicants remain at liberty to approach appropriate civil courts/forums for claims in respect of other death‑cum‑retirement dues. No costs were awarded.
Implications:
- The direct effect is procedural and remedial: the respondents must reassess the marital claim with reasons and consider pension entitlement for the sons if marriage is accepted. The O.A. itself did not award pensionary benefits to the applicants; rather it required respondents to make a decision consistent with rules and evidence.
- The Tribunal noted an inconsistency in the departmental rule framework as applied to children of void second marriages and recommended that respondents may consider referring that policy anomaly to the Government of India; however, the Tribunal did not itself create or alter precedent or strike down the rules.
- No final adjudication on the validity of the marriage or substantive entitlement to retirement dues was made by the Tribunal; those determinations are left to the respondents (and ultimately to civil courts, if invoked by the applicants).
Note: This summary is drawn exclusively from the Tribunal's opinion text provided. Sections and descriptions contain only matters expressly set out therein and do not add facts or inferences beyond the opinion.
A.K Jain, Member (A):— This O.A has been jointly filed by three applicants namely Smt Indu Devi, applicant no. 1 and her three sons, applicant no. 2 to 4. In this order, hereinafter the word applicant(s) shall normally refer to applicant no. 1 unless specified otherwise or the context implies other applicants also. Through this O.A, the applicants have sought following relief:—
“8 [A] to order or direct the respondents to grant 50% of the retiral benefits like gratuity, G.P.F, Group Insurance, Encashment of Earned Leave to applicants, in particular, applicant 2 to 4;
[B] to direct or order to respondent no. 6 Malti Devi to deposite 50% of retireal benefits with interests already received by her to the applicants eligible for the same, in order to avoid multiplicity of civil case and in the interest of justice;
[C] to order or direct the respondents to pay 50 % of family pension to applicants, sons of deceased Bhola goswami in accordance with law;
[D] to order or direct to comply the aforesaid order within prescribed time limit;
[E] to grant any other relief considered just and proper.
2. The facts of the case in brief are that Late Bhola Goswami was working as Postman at Gaya Head Post Office. He expired on 09.02.2008 while in service. Based on the entries in the service book of the late employee and the report of the SDI, death cum retirement dues and family pension were sanctioned and paid to respondent no. 6 Smt Malti Devi, widow of the deceased employee as per records of the respondents.
3. The case of the applicant is that that Bhola Goswami performed second marriage with her following Hindu rites and customs. Being illiterate, she is unable to state the date and year of her marriage. Out of her wedlock with Bhola Goswami, three sons were born who are applicants no. 2 to 4 in this O.A At the time of death of Bhola Goswami, two of the sons namely applicant no. 3 & 4 were below 25 years of age and hence, were covered within the meaning of Rule 3(c) of the CCS (Pension) Rules, 1972 and were entitled to family pension. Moreover, the children namely applicant no. 2 to 4 were also entitled to share in the death cum retirement dues of the deceased employee. On the other hand, children of respondent no. 6 Malti Devi were all above 25 years of age and hence, were not entitled to family pension.
4. The applicant has stated that she submitted her claim before various Postal authorities for payment of her share of pension and death cum retirement dues of her late husband (Annexure A/6, A/7 & A/8). Thereafter she sent a legal notice through an advocate to the Director of Accounts (Postal), Patna on 14.05.2010 drawing attention to Section 16 of the Hindu Marriage Act, 1955 and the judgment of the Hon'ble Supreme Court of India in the case of Rameshwari Devi v. State of Bihar reported in AIR SCW 273 : 2000 (2) PLJR (SC) 15 with a prayer to grant 50% of family pension to her two eligible sons and also for payment of 50% share of death cum retirement due of the deceased employee to her sons (Annexure A/9). In reply, the Accounts Officer, Pension-I in the office of Director of accounts (P), Patna informed that as per instructions contained under Rule 54 of CCS (Pension) Rules and G.I.D 13/14 thereunder, second wife is not entitled to family pension as a legally wedded wife under Hindu Marriage Act. Section 11 of the Hindu Marriage Act was referred to (Annexure A/10). It was also mentioned in the letter that details of family members provided by the Circle Office, Gaya showed that Smt Indu Devi was second wife of Late Bhola Goswmi whereas the deceased official had not mentioned her name anywhere in service record. Clarification was also sought on the following points:—
1. Marriage proof of Smt Indu Devi may be produced.
2. Before solemnising the second marriage whether permission of competent authority was obtained from the department.
3. If such order was granted to Late Bhola Goswami form the competent authority of this department a copy of that order may be made available to finalise the family pension.
5. The applicant sent her reply through the advocate vide letter dated 17.10.2010 wherein it was mentioned that the marriage was performed on 05.03.1981 in Kali Temple, Calcutta in accordance with Hindu rites and customs and the only evidence available were the witnesses who were present there. No document was in possession of the applicant. In support of her claim of marriage, copy of affidavit sworn by Doman Gosai, father of the applicant no. 1 and Kunti Devi, sister of late Bhola Giri @Bhola Goswami both dated 09.07.2010 were annexed. It was also stated that the applicant being illiterate did not have any knowledge regarding permission for second marriage and all the documents kept by Late Bhola Goswami were stealthily taken by first wife and her sons. Referring to Section 112 read with Section 114 of the Indian Evidence Act, it was stated that there was strong presumption of marriage in favour of Indu devi, applicant no. 1 as also pointed out in 1992 AIR SCW 441 [S.P.s Balasubramanyam v. Suruthayan] (Annexure A/11). The respondents again rejected her claim and intimated her vide letter dated 09.12.2010 repeating the earlier order (Annexure A/1).
6. In the O.A and the supplementary affidavit cum rejoinder, the applicants have annexed following documents in support of marriage of applicant no. 1 with the deceased employee:—
(i) Election Commission Identity card issued in favor of Indu Devi showed her husband's name as Bhola Giri and address as 223 Ka, R.S Road, Ramsila kust ashram, Town/Vill.- Gaya, Anchal-Nagar, Distt-gaya — 823001.
(ii) Copy of application of deceased employee Bhola Goswami dated 16.03.1992 for issuing Railway Passes for availing LTC from Gaya to Kanya Kumari in which names of two of the sons of the applicant no 1 i.e Sanjay Kumar (6 years) and Manoj Kumar (4years) have also been included at Sl No. 9 and 10.
(iii) School transfer certificate of Manoj Kumar Goswami, applicant no. 2, showing his father's name as Bhola Goswami.
(iv) Copy of affidavit of Doman Gosain, father of applicant no 1 stating that his daughter Indu devi and Bhola Giri @ Bhola Goswami married according to Hindu rituals at Kali Temple Clacutta on 05.03.1981
(v) Copy of affidavit signed by Smt Kunti Devi w/o Mini Goswami, sister of Late Bhola Giri @ Bhola Goswmi stating that her brother married Indu Devi at Kali Temple Calcutta according to Hindu rituals on 05.03.1981 Her brother had three sons form her marriage with Indu devi. The first wife of her brother Malti Devi, after marriage was residing at Village Bhedia, PS Belagunj, Distt Gaya and second wife Indu Devi was residing with her husband Bhola Goswami at Mohalla-Chhotki, Navada Kushtha Ashram, K.R.S Road, PS-Delha, Distt-Gaya. Both of them used to go to their village Bhedia, PS-Belaganj, Distt.- Gaya and lived there.
(vi) Copy of certificate issued by Mukhia, Bhalua II Gram Panchyat, Belaganj, Gaya stating that Indu devi, wife of Bhola Goswami @ Bhola Giri is permanent resident of village — Goshpur-Bharia, Panchyat — Bhalua II, PS-Belaganj, Distt.- Gaya and that from some years, she has been staying at Mohalla-Chokti, Nawada (Kushta Ashram), 233 KRS Road, Gaya. It has also been stated in the certificate that she was married to Bhola Giri and she is second wife of Bhola Giri fromwhom she has three sons.
(vii) Copy of yellow ration card in the name of Indu Devi showing her husband's name as Bhola Goswmi.
7. The applicants have also stated that Rule 54(7)(a)(i) of CSS (Pension) Rules, 1972 provides that when family pension is payable to more than one widow, the same shall be paid to the widows in equal share. Other provisions of the Rules referred to are Rule 3(c), 3(n), 54(14)(b), 54(6), 54(10), 54(8)(iii). It has been argued that the right to pension that is livelihood is an integral part of Article 21 of the Constitution of India. Pension is not merely looked upon a statutory right but fulfillment of a constitutional promise in as much as it partakes the character of public assistance in case of unemployment, old age, disablement or similar other cases.
8. In their written statement, the respondents have stated that after death of Bhola Goswami, his wife Smt Malti Devi applied for family pension and other benefits of her deceased husband on 21.10.2008 The blank family pension papers were sent to SDI(P) Central Sub Division, Gaya on 31.10.2008 for completion/verification and also calling MRC/LPC and service book from Sr Postmaster Gaya H.O The family pension papers etc in favour of Smt Malti Devi and other documents duly competed and verified were received back from the office of SDI(P) vide letter dated 24.12.2008 On scrutiny of the service book it was found that the deceased employee had nominated only Smt Malti Devi (wife). All family pension papers were submitted to DA(P) Patna by the office of SSPOs, Gaya Division vide letter dated 05.01.2009 and sanction was issued for provisional family pension and provisional death gratuity in favor of Smt Malti devi.
9. The respondents have further submitted that a legal notice dated 20.02.2009 issued by Shri Vishwanath Yadav, Advocate was received for the claim of family pension to the second wife Smt Indu Devi and the same was also submitted to DA(P) Patna vide SSPOs Gaya Division's letter dated 04.03.2009 for needful action/decision. In response to the representation of the applicant regarding her claim of family pension and other benefits, received in the office of the SSPOs, Gaya Division, she was informed that on the basis of the records in service book, SDI(P)'s report, provisional family pension/death gratuity was sanctioned in favour of Smt Malti Devi and papers had been sent to DA(P) Patna. Another notice sent on 27.03.2009 by Indu Sahay, Advocate was also sent to DA(P) Patna vide letter dated 17.08.2009 DA(P) Patna letters dated 02.05.2009 and 15.06.2009 intimated that under Section 11 of Hindu Marriage Act, 1955, any second marriage during the lifetime of the first wife, solemnised after commencement of the Act, was null and void and hence, under Rule 54 of the CCS (Pension) Rules, the claim of the applicant for family pension and other benefits was not justified. Photo copy of the same was sent to the applicant vide letter dated 19.06.2009 The subsequent notces sent by the Advocate were also sent to DA(P) for final decision.
11. It is further contention of the respondents that the applicant never claimed as wife of the deceased employee nor ever represented regarding retirement benefits to the office of the SSPOs, Gaya Division. There is no record of marriage of the applicant with the deceased employee or her children with the office. Legal notices were sent after provisional payment was made to Smt Malti Devi. They have drawn attention to Rule 54(8), GID 13 and GID 18(4) below Rule 54 in support of their contention that the applicant and her children were not entitled to family pension etc.
12. Heard the ld counsels for the rival parties. They more or less reiterated averments made in the written pleadings. Ld counsel for the applicant referred to judgments of Hon'ble Supreme Court of India in the cases of Rameshwari Devi v. State of Bihar : AIR SCW 273; Badri Prasad v. Deputy Director, Consolidation : (1978) 3 SCC 527 : AIR 1978 Sc 1557 and S.P.S Balasubramanyam v. Suruthayaesn alias Andali Padaychi : 1992 Supp (2) SCC 304 : AIR 1992 Sc 756; and Honble Patna High Court's decisions in the cases of Amlawati Devi… v. The State Of Bihar & Anr.…, 2003 (2) PLJR 218 and Shipra Thakur minor @ Shipra v. State of Bihar, 2013 (#) PLJR 560. Ld counsel for the respondents drew attention to the fact that in the Electin Commission's identity card, the name of the husband of the applinat was recorded as Bhola Giri and not Bhola Goswami. Even the address was differen than the permanent address in the certificate of Mukhia. In the LTC form also total 10 names were there and the wife of the deceased employee was shown as Malti Devi. There was no mention that Sanjay Kumar and Manoj Kumar were not her sons. He also submitted that this Tribunal was not the forum to decide whether or not applicant was married to the deceased employee and if yes, legality thereof. Since only the name of the First wife Malti Devi was declared by the deceased employee and she was the nominee as per record in service book, there was no illegality on the part of the respondent in paying family pension and other death cum retirement dues to her. It was not the case of the applicants that Malti Devi was not wife of the deceased employee. Regarding payment of provisional family pension and gratuity, he stated that initially only provisional gratuity and family pension was granted. The same was to be finalised after receipt of formal approval/sanction by the Accounts Office.
13. We have perused the records and also studied the rules and judgments referred to by the parties.
14. That respondent no. 6 is the first wife and only her name was declared by the deceased employee as his wife is an uncontested position. The respondents have settled the claim of death gratuity on the basis of nomination as recorded in the service book in favour of respondents no. 6. The same is as per laid down rules/procedure and hence, can not be held as illegal. If the applicants have any claim therein, they may file appropriate civil suit in the matter. It is also clarified that merely payment on the basis of nomination does not extinguish legal claims of other heirs in the estate/dues of the deceased employee.
15. The other issue of sanction of family pension. It is seen that in the letter dated 09.06.2010 annexed at Annexure 10, the office of Director of Accounts (P) Patna himself asked proof of marriage from the applicant. This was sent in response to the advocate's notice date 14.05.2010 in which the issue of claim of the sons of the applicant no. 1 namely applicants no. 2 & 3 was also raised. The applicant through her advocate replied to the letter annexing therewith affidavits of her father and the sister of the deceased employee. It also appears from the pleadings of the respondents that the subsequent advocate's notices sent on behalf of the applicant were sent to the Director of Accounts (P), Patna by the SSPOs, Gaya for decision. In impugned letter dated 09.12.2010, the office of the Director of Accounts (P) Patna has simply enclosed earlier communication dated 15.06.2009 whereby the case of family pension of applicant no 1 was rejected. The documents submitted by the applicant no. 1 in support of her marriage with the deceased employee were apparently not considered. The matter of claim of the sons of the applicant no. 1 has also not been been considered.
16. We agree with the ld counsel for the respondents that this tribunal is not the forum to decide whether or not applicant was wife of the deceased employee. We will only like to draw attention to the statement made in the letter of 09.06.2010 issued by the office of the Director of Accoutnts (P) Patna which reads as, “Details of family members provided by the Circle Office (Gaya) shows that Smt Indu Devi is second wife of Late Bhola Goswami whereas deceased official has not mentioned her name any where in the service record”. It appears that some kind of inquiry was conducted in which it was found that the applicant no. 1 was wife of the deceased employee. The documents submitted by the applicant and the decisions cited in the O.A as well as the learned counsel for the applicant also go in favor of the applicant so far as her marriage with the deceased employee is concerned. If the respondents still dispute the marriage, they may pass a reasoned order after considering the inquiry report and the documents submitted by the applicant and the cases cited on her behalf. Then the applicants will have to approach appropriate civil court for decision in the matter. However, if the fact of marriage of the applicant no. 1 with the deceased employee is accepted then the claim of the two sons of the applicant namely applicant no. 3 & 4 for family pension will have to be considered by the respondents.
18. In the case of Rameshwari Devi (supra), the Hon'ble Supreme Courtheld that second marriage during the lifetime of the first wife is void under the provisions of the Hindu Marriage Act but the children of second void marriage are legitimate and are entitled to share in in family pension and death cum retirement dues along with wife and children of first marriage, but they would be entitled to family pension only till they attain majority and second wife would not be entitled to anything. Relying upon the said decision, Hon'ble Patna High Court als decided the case of Amlawati Devi… v. The State Of Bihar & Anr.… [2003 (2) PLJR 218] and directed the respondents to make payment of family pension in accordance with law. In the case of Shipra Thakur minor @ Shipra & Snehil v. State of Bihar [2013 (3) PLJR 559], the issue before the Hon'ble Court was dispute for share of three minor children of second wife and the first wife in family pension. In that case as the Board had first decided to divide all the death cum retirement dues between the first wife and the three children of second wife equally which would have included the family pension as well. It was then decided that the family pension could be paid to only one person and the said person would naturally be the first wife. The Hon'ble Court held, “Family pension is not just for the wife. Its nomenclature goes for family pension. It is for the family.” Direction was given to the department to divide family pension into equal parts payable to eligible claimants. There is no reference to any rules or statutory instructions of the Government. Apparently this order was passed in the context of earlier decision of the Board.
20. In the instant case the deceased employee was a Central Government employee governed by the CCS (Pension) Rules 1972. The rules and instructions do provide for payment of family pension to the eligible children born form second marriage up to the age of 25 years. We also note that Rule 54(7) & Rule 54(8)(i, (ii)(iii) provides as follows:—
“Rule 54 [7] [a]
[i] Where the family pension is payable to more widows than one, thefamily 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 or pensioner is survived bya widow but has 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.
……………………
[c] Where the deceased Government servant or pesnioner is survived by a widow but has left behind eligible child or children from a divorced wife or wives, the eligible child or children shall be entitled to the share of family pension which the mother would have received at the time of the death of the Government servant or pensioner had she not been so divorced.
Rule 54 [8]
[i] Except as provided in sub-rule [7], the family pension shall not be payable to more than one member of the family at the same time.
[ii] If a deceased Government servant or pensioner leaves behind a widow or widower, the family pension shall become payable to the widow or widower, failing which to the eligible child.
[iii] Family pension to the children shall be payable in the order of their birth and the younger of them will not be eligible for family pension unless the elder next above him/her has become ineligible for the grant of family pension:”
21. GID 13 below Rule 54 only provided that second wife shall not be entitled to family pension as a legally wedded wife. GID 18(4) reads as follows:—
“The rights of such children require to be protected and will accrue accordingly. It is, therefore, clarified that pensionary benefits will be granted to children of a deceased Government servant/pensioner from such type of void marriages when their turn comes in accordance with Rule 54 [8]. It may be noted that they will have no claim whatsoever to receive family pension as long as the legally wedded wife is the recipient of the same.”
22. The rule position stated above implies that the children whether of first or second wife will not be entitled to get family pension till the first wife is getting the same. We find some anomoly in the same. In case of divorced wife or wives, eligible children are entitled to get the share of family pension which their mother would have been entitled had she not been divorced. A divorced marriage ceases to exist after divorce and no claim of family pension of divorced wife arises thereafter. The children's right in such cases has perhaps been protected as at the time of their conception or birth the marriage was legal. But the similar liberal stand has not been taken in case of void second marriage by the Government. Though the decision of the Hon'ble High Court in the case of Shilpa is in the context of a State Government employee, the rationale thereof is certainly sound. These aspects should be considered by the respondents and if required matter be referred to the Government of India for policy decision in the light of the decision of Hon'ble Patna High Court. We however, do not pass a final order in the matter as the Rules and instructions are not under challenge and the issue of second marriage itself is to be first decided by the respondents as stated above in the light of observations made in this order.
23. In the light of foregoing discussion, this O.A is disposed of with direction to respondents to first take a decision in the matter relating to marriage of the applicant with the deceased employee in the light of their own inquiry report and other evidences submitted by the applicant as well as observations made in this order and if the fact of marriage is accepted then to take a view regarding claim of applicant no 3 & 4 for family pension in the light of observations made in this order as expeditiously as possible preferably within one year if any reference is required to be made to the Government or otherwise within six months from the date of receipt a copy of this order. The applicants shall be at liberty to approach appropriate court/forum for their claim if any in other death cum retirement dues of the deceased employee. No costs.
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