S.G. Mehare JUDGMENT
S.G. Mehare, J.
1. Rule. Rule made returnable forthwith and heard finally by the consent of the parties.
2. In these writ petitions, the petitioners are widows. They had performed the second marriage during the subsistence of the first marriage of their husbands.
3. All the petitioners are claiming the same relief of family pension on the death of their husbands under rule 116(6) (a) (1) of the Maharashtra Civil Services (Pension) Rules, 1982.
4. The brief facts of each case are as under:-
(a) In Writ Petition No. 9933 of 2016, the petitioner married her husband since his first wife did not conceive until 1961. She has delivered two female and two male children out of wedlock. The first wife of her husband predeceased her after his retirement. After the death of the first wife, her husband submitted a revised pension proposal and nominated her for family pension. The revised family pension proposal was sent to respondent no. 2, the Accountant General, Nagpur. In the meantime, the pension was revised. On 29.02.2016, her husband died. She submitted the pension proposal through respondents nos. 3 and 4 to respondent no. 2. Respondent no. 2 rejected her claim on 01.07.2016, assigning the reason that she is the second wife of her deceased husband. As per the Hindu Marriage Act, the second marriage is not legal. Therefore, she is not eligible for the family pension.
(b) The case of the Petitioner in Writ Petition No. 12308.2016 is that her husband got married in the year 1986 to her co-wife. However, she could not conceive till 1995. Therefore, her deceased husband and his parents convinced her parents to obtain her consent for marriage. Lastly, she got married to her deceased husband with the consent of her co-wife. After the marriage, she was living with her co-wife and husband. She delivered two children. In the meantime, her co-wife Sadhana also conceived and gave birth to a male child. Her husband was getting a voluntary retirement pension. He had informed about his second marriage with petitioner to respondents no. 3 and 4. Her husband died on 17.07.2016, leaving behind two wives and three children. On 29.06.2016, by consent of two wives and their children, deceased Gangaram prepared an agreement to share the family pension equally. However, the first wife resiled from her statement. Therefore, the pension proposal remained pending. She claimed that sub-rule 6(a)(i) of Rule 116 of Maharashtra Civil Services (Pension) Rules, 1982, permits equal family pension to more widows than one. However, respondent no. 2, by its illegal order dated 21.12.2015, denied her the family pension, assigning the reason that she was the second wife.
(c) The petitioner in the Writ Petition, No. 11256 of 2016, has a case that her husband Uttam Mule was married to one Sarubai. However, she could not conceive till 1979. Therefore, with her consent, she got married to Uttam Mule. Out of wedlock, she delivered two male children. She lived with her husband till his death as his wife. Sarubai, her co-wife, predeceased her. Therefore, her husband inserted her name in the family pension nomination form. Her husband also submitted a bond to respondent no. 7, contending that his first wife is dead. Her husband had sent an application to respondent no. 3, giving her name as a nominee for family pension. Her husband executed a bond on 14.10.1996, contending that she would be entitled to the pension after the death of his first wife. Her husband died on 15.10.1996. After the death of her husband, she obtained the succession certificate from the Civil Court at Buldhana. On 15.01.1999, she applied for a family pension to respondent no. 7. The proposal was sent to respondent no. 3. Respondent no. 3, by its order dated 26.10.1999, granted the family pension to her children only. Respondent no. 7 informed her that her family pension papers were missing and asked her to provide fresh copies. She then made various complaints to the various authorities. However, on 07.12.2006, respondent no. 3 communicated to respondent no. 8 that as per Hindu Marriage Act, 1955, the second wife is not eligible for family pension and directed her to seek the sanction from the government. Then, she made many applications to respondents nos. 4, 6, 7, and 8. Lastly, on 12.04.2016, she received a communication from the office of Lokayukta along with the order dated 22.03.2016 passed by the Lokayukta informing her that the Lokayukta office is ready to pay family pension if the government approves the same. The Lokayukta directed the office of her husband to take the necessary steps to release her the family pension. Respondent on. 2 also informed the desk officer of Lokayukta that she is not entitled to the family pension as per Maharashtra Civil Services (Pension) Rules, 1982. On this backdrop, she prayed to quash the order dated 06.05.2016 issued by Principal Secretary, Agriculture, Dairy Development, Animal Husbandry, and Fisheries Department, Mantralaya, Mumbai. She further prayed to direct respondent nos. 1 to 8 to sanction/grant full family pension to her from the date she is entitled to under the Maharashtra Civil Services (Pension) Rules, 1982.
5. The contesting respondents have taken a joint stand that since the petitioners are not legally wedded wives, they are not entitled to the family pension. Therefore, the petitions deserve dismissal.
6. These petitions were listed for hearing, then the question arose whether a widow married during the subsistence of the first marriage could be entitled to pension? Since there were various conflicting judgments of this Court on this question, the Hon'ble Division Bench referred the following question to the larger bench for determination:-
"In cases to which, Maharashtra Civil Services (Pension) Rules, 1982, apply whether the second wife is entitled to claim family pension?"
7. The Hon'ble, The Chief Justice of the Bombay High Court, constituted a full bench to decide the reference. Considering all the contradictory judgments the Hon'ble Full Bench by its judgment dated 31.01.2019, has answered the reference as under:
"In cases to which Maharashtra Civil Services (Pension) Rules, 1982 apply, the family pension can be claimed by a widow, who was legally wedded wife of the deceased employee. Second wife, if not a legally wedded wife, would not be entitled for family pension and if the second wife is legally wedded wife, then should be entitled for the family pension."
8. The learned counsels, for the petitioners in Writ Petition nos. 9933 of 2016 and 11256/2016 have vehemently argued that they have the right to get the pension as their co-wives predeceased them. They are the only surviving widows. Hence they are entitled to the family pension. However, the respondent-authority has unauthorizedly and illegally declined the pension to them by the impugned orders. The impugned orders are against Rule 116 of the Maharashtra Pension rules.
9. The learned counsel for the petitioner in W.P. No. 12308/2016 would argue that since her co-wife respondent no. 5 could not conceive, she married her husband with her consent. Hence she is not at fault. Moreover, in the family pension form, both were nominated. Therefore, no family pension could be denied to her.
10. On hearing the respective learned counsels, the following points emerge for consideration.
(a) Whether a woman marries with the consent of the cowife is a legally wedded wife and entitled to the family pension?
(b) Whether the second wife is entitled to the family pension by agreement?
11. Rule 116(6) (a) (i) of the Maharashtra Civil Services (Pension) Rules, 1982, which is relevant, reads as under:
(6)(a)(i) Where the Family Pension is payable to more widows than once, the Family Pension shall be paid to the widows in equal shares;
12. The Hon'ble Full Bench has, while interpreting rule 116(6) (a) (1) of the pension rules, held that "it is in this context Rule 116(6)(a) (i) of Pension Rule " where the family pension payable to more widows than one" shall have to be read and interpreted Rule 116(6)(a)(i) of the Pension Rules cannot be read dehors the concept of legally wedded wife. The interpretation of the term "family" for the purpose of gratuity and family pension cannot be different. The words and phrases appearing in a statute or rule ought to be given the same meaning". Interpreting rule 116(6) (a) (i) of pension rules, the Hon'ble Full Bench has specifically answered the question in the reference that only the legally wedded wife is entitled to the family pension. The law on the right of a widow, not legally wedded is no more res integra.
13. The Hindu Marriage Act governs the marriage of the petitioners. The law is settled that a Hindu cannot perform second marriage during the subsistence of his first marriage. The same rule is also applicable to the public servant unless the custom or his religion permits. The Hon'ble the Full Bench has considered all the relevant laws and pension rules that prohibit the public servant from performing second marriage during the subsistence of his first marriage. It is the positive case of the petitioners that they got married to their husbands during the subsistence of their husbands' first marriage. Therefore, their marriage is void ab initio.
14. The recognition of the law cannot be evaded by agreements. Such agreements neither create any right in favour of the parties nor bind the third party. Thus, the contention that the agreement in the family entitles the petitioner to family pension has no force of law.
15. To avoid the excessive enlargement of the judgment, we did not repeat the case laws relied on by the respective learned counsels, which were already placed before the Hon'ble Full Bench while determining the reference.
16. The law is settled that only the legally wedded is entitled to a family pension if governed by Maharashtra Civil Services (Pension) Rules 1982. The petitioners are widows but not legally wedded wives. Hence both points are answered in negative. The impugned orders passed in all the petitions are lawfully correct and proper and do not warrant interference.
17. For the above reasons, all the petitions stand dismissed.
18. Rule is discharged.
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