Balamani vs The Accountant General

One Mr. T.K. Pandi was working as Village Assistant at Sakkimangalam II Bit Village of North Taluk, Madurai. He died on 16.05.2004 while in service.

The deceased T.K. Pandi had a first wife by name Pappa, whose children are the respondents 3 and 4. During the life time of Pappa, and while the marriage between T.K. Pandi and Pappa was in subsistence, T.K. Pandi married the petitioner as his second wife on 25.12.1978. The petitioner has got three children born through T.K. Pandi. Until his demise, T.K. Pandi was living with the petitioner, it is alleged.

After the demise of Mr. T.K. Pandi, the petitioner made a request to the respondents 1 and 2 herein for sanctioning of family pension to her. But that was not conceded to. Therefore, the petitioner has come up before this Court with this writ petition seeking a direction to the respondents 1 and 2 to sanction family pension to her as per the Tamil Nadu Pension Rules, 1978.

I have heard the learned counsel for the petitioner, learned counsel appearing for the first respondent, learned Government Advocate appearing for the second respondent, and the learned counsel appearing for the respondents 3 and 4. I have also perused the records carefully.

The only objection raised by the respondents 1 and 2 herein is that, as per the second proviso to Sub-Rule 7(a)(i) of Rule 49 of the Tamil Nadu Pension Rules, 1978, the petitioner is not entitled for family pension, because the marriage between her and T.K. Pandi is void as per the Hindu Marriage Act, 1955. But it is contended by the petitioner that of course it is true that the marriage between the petitioner and her husband is void, but still, the petitioner is entitled for family pension, since the second proviso to Sub-Rule 7(a)(i) of Rule 49 was introduced only on 14.10.1991. The learned counsel for the petitioner would submit that any wife of the second marriage, whose second marriage had taken place on or after 14.10.1991, is not entitled for family pension, whereas the petitioner is entitled for family pension, since her marriage was on 25.12.1978. The learned counsel for the petitioner would rely on a judgment of this Court in Tamilselvi vs. The Accountant General (Accounts and Entitlements), Tamil Nadu, Chennai-18 in W.P. (MD) No. 9374 of 2010 dated 22.07.2014.

I have considered the above submissions.

Admittedly, the marriage between the petitioner and her husband is void as per Section 5 of the Hindu Marriage Act. But the question whether the wife of such void marriage is entitled for family pension or not had been dealt with elaborately by this Court with reference to Sub-Rule 7(a)(i) of Rule 49, in W.P. (MD) No. 9374 of 2010. In that case, this Court took a view that the second proviso to the said provision was inserted only with effect from 14.10.1991 and therefore, any wife of the void marriage whose marriage had taken place on or after 14.10.1991 alone is not entitled for family pension. In paragraphs 12 to 18 of the order passed by this Court in W.P. (MD) No. 9374 of 2010 dated 22.07.2014, this Court has held as follows:

"12. As I have already pointed out, so far as Tamil Nadu State is concerned, family pension is governed by the Tamil Nadu Pension Rules, 1978, which is a statutory Rule. As per Sub-Rule (7)(a) of Rule 49, it is crystal clear that if there are more than one wife to a Government Servant who died, they are entitled for family pension in equal moieties, until the amendment which was brought into force on 02.06.1992 did not prohibit the wife of a bigamous marriage from getting a share in the family pension. The explanation to the said Rule was introduced by amending the Rule only with effect from 02.06.1992. Therefore, on or after 02.06.1992, if any Government Servant dies, then, the wife of a bigamous marriage, which is void, is not entitled for family pension. This Rule, in my considered opinion, is prospective in operation. In the case on hand, the deceased died in the year 1988. That is the reason why the family pension was shared between Mrs. Amsavalli and the petitioner in equal moieties.

Now the question is as to whether the petitioner is entitled for getting the remaining 50% of pension which was hitherto paid to Mrs. Amsavalli. As I had already extracted, the second proviso to Sub-Rule 7(a)(i) of Rule 49 makes it very clear that if the widow is survived by a child, her share of the family pension shall be payable to her child, if the child is eligible. If there is no child, who is eligible to get pension, the share which was hitherto paid to the widow would cease. This proviso was in force only until 14th October 1991. Thereafter, the same was substituted by the proviso which reads as under:

Provided that the widow is not survived by any child, her share of family pension shall be payable to the other widows in equal shares, or if there is only one such widow, in full to her.?

Here in this case, the first wife, Mrs. Amsavalli had a child and therefore, this proviso is not applicable to the petitioner so as to insist for payment of full pension.

Now, turning to the judgment of the Division Bench of this Court in A.S. No. 154 of 2004 dated 07.03.2012, (Krishnaveni and others vs. Meera @ Devaki and others), relied on by the learned counsel for the respondent, it is not applicable to the facts of the present case. In that case, the deceased died subsequent to the amendment, by which explanation was introduced with effect from 02.06.1992. It was in those circumstances, applying the explanation, the Division Bench held that the wife of the bigamous marriage which is void, is not entitled for family pension. In this case, the deceased died even before the amendment and that is the reason why the second wife, viz. the petitioner, has been paid 50% of pension.

Now, turning to Rameshwari Devi''s case, cited supra, relied on by the learned counsel for the respondent, it cannot be taken as a precedent to govern the issue involved in this case. In that case, obviously there was no Rule which enables the wife of a void marriage to get a share in the pension. It was in those circumstances, the Hon''ble Supreme Court held that the wife of a void marriage is not entitled for pension. But so far as Tamil Nadu State is concerned, as I have already pointed out, the Tamil Nadu Pension Rules, 1978, has made a specific provision to enable the wife of a void marriage to get pension. Therefore, that judgment is not applicable.

In Yamunabai''s case, the entitlement of the wife of a void marriage for maintenance under Section 125 Cr.P.C., was considered. That cannot be imported to the facts of the present case. Here, in this case, there is a specific Rule which entitles the wife of a void marriage to get pension. Though I am holding so, I am of the further view that in the instant case, the petitioner is not entitled for the balance 50% of pension which was hitherto paid to Mrs. Amsavalli, because Mrs. Amsavalli had a child.

In view of all the above, the petitioner is not entitled for the relief as prayed for."

In view of the said settled position of law, since the marriage between the petitioner and T.K. Pandi was prior to the crucial date, she is entitled for family pension. As a matter of fact, the respondents 3 and 4 have filed an affidavit expressing no objection for sanction of family pension to the petitioner.

In view of the above, the writ petition is allowed with a direction to respondents 1 and 2 to sanction family pension to the petitioner on account of the demise of T.K. Pandi, who was working as Village Assistant of Sakkimangalam II Bit Village, Madurai North Taluk. The consequential order shall be passed by the second respondent, within a period of eight weeks from the date of receipt of a copy of this order, and the first respondent shall sanction the amount within a further period of eight weeks. No costs.