Shamal Mahadeo Tate vs District Collector And Others

1 . By the present petition, the Petitioner has prayed for the following reliefs:

b) The impugned order dated 12.04.2017 passed by Respondent No. 3 being Exhibit M to the present Writ Petition and the impugned order passed by

Respondent No. 2 dated 27.06.2017 being Exhibit Q to the present Writ Petition be quashed and set aside.

c) The Application of the Petitioner for grant of Family Pension dated 16.05.2008, 19.03.2013, 11.04.2014 and 07.01.2015 be allowed and the

Petitioner be granted the Family Pension alongwith the arrears from 15.12.2005.

2 . Petitioner claims to be the second wife of one Shri. Mahadeo Narayan Tate (hereinafter referred to as “the deceasedâ€), who was working as

a peon in the office of the District Collector, Solapur. The deceased had married Smt. Parvatibai (hereinafter referred to as “the first wifeâ€) on

13.06.1962. The Petitioner claims that since the deceased had no children with his first wife, the deceased married the Petitioner on 17.05.1974.

Admittedly, the deceased and the Petitioner lived together from April 1974 onwards till the deceased’s death and were known to the public at

large in the society as husband and wife. The Petitioner gave birth to a son on 24.08.1976 and two daughters on 12.04.1978 and 06.10.1980

respectively. The deceased died on 09.12.1996, while in service.

3 . Before we advert to the submissions made by the learned counsel appearing for the respective parties, it would be apposite to briefly refer to the

facts relevant to the present case.

3.1 On 30.07.1987, the deceased endorsed the name of his putative second wife (Petitioner) in his service records to receive family pension upon his

death.

3.2 On 23.06.1997, the second wife (Petitioner) and her three children filed Civil Miscellaneous Application No. 165 of 1997 in the Court of the Civil

Judge, Senior Division, Solapur, seeking a succession certificate under the Indian Succession Act, 1925. In this proceeding, the first wife was

impleaded as an opponent. The two parties arrived at a settlement and filed a compromise pursis in the said proceedings. The terms of the settlement

were as under:

i. The deceased was entitled to retirement benefits in the nature of gratuity, group insurance and leave salary totaling Rs. 1,21,931/-. Out of this, Rs.

10,000/- would be received by the first wife and Rs. 1,11,931.00 would be received by the putative second wife (Petitioner);

ii. The first wife would be entitled to family pension, and the putative second wife (Petitioner) and her three children would not have any right to claim

the family pension or any part thereof. A succession certificate in this regard was to be issued to the first wife;

iii. The first wife would relinquish her right to claim employment in place of the deceased on compassionate grounds and it is the son of the putative

second wife (Petitioner) who would be entitled to do so instead;

iv. The first wife would relinquish her right in land admeasuring 6 acres which was purchased by the deceased in the name of his son from his second

marriage;

v. The first wife would relinquish her right in the residential house occupied by the putative second wife (Petitioner) and her three children.

3.3 On 17.04.1998, the Civil Court granted the succession certificate in respect of the estate of the deceased to the first wife on the terms outlined

above. The first wife received pension with effect from the date of the death of the deceased i.e., 19.12.1996.

3.4 On 14.12.2005, the first wife expired due to cancer. She had been receiving family pension until her death.

3.5 The putative second wife (Petitioner) had made an Application on 16.05.2008 to the Respondent No. 1 â€" District Collector, Solapur â€" seeking

the family pension to be paid to her. This was the first application made by the Petitioner in this regard.

3.5.1 On 06.03.2007, the Respondent No. 1 submitted a proposal in this regard to the Auditor General, Mumbai.

3.5.2 On 28.01.2008, the Auditor General, Mumbai, rejected the proposal and informed the putative second wife (Petitioner) that she is not eligible to

receive family pension. A reference to this rejection can be found in the putative second wife’s (Petitioner’s) second application dated

16.05.2008 made to the Secretary (Revenue and Forest Department, Mumbai), which is annexed at page no. 48 of the Writ Petition.

3.6 On 16.05.2008, the putative second wife (Petitioner) made a fresh application to the Secretary (Revenue and Forest Department, Mumbai),

seeking family pension. This was the Petitioner’s second application in this regard.

3.6.1 On 18.06.2008, the Secretary (Revenue and Forest Department, Mumbai) sought a report from the Respondent No. 1 on the above.

3.6.2 On 29.09.2008, the Additional Collector, Solapur, submitted a report inter alia stating that an opinion of the Law and Judiciary Department,

Mumbai, be obtained as to whether the putative second wife’s (Petitioner’s) application can be considered on humanitarian grounds.

3.7 Between 2008 and 2014, it appears that nothing has transpired in regard to the second application made by the putative second wife (Petitioner).

3.8 On 11.04.2014, the putative second wife (Petitioner) made a yet another fresh application to the Revenue and Forest Department, Mumbai,

seeking family pension. This was the Petitioner’s third application in this regard.

3.8.1 On 13.06.2014, a report was once again called for from the Respondent No. 1.

3.8.2 On 14.07.2014, the Respondent No. 1 submitted his report inter alia stating that the first wife was the recipient of family pension from

20.12.1996 to 14.12.2005, and upon her death, the pension is not to be paid to anyone.

3.8.3 In August 2014, the Revenue and Forest Department, Mumbai, sought an opinion from the Finance Department, Mumbai. Thereafter, the

Finance Department, Mumbai, sought an opinion of the Law and Judiciary Department, Mumbai.

3.8.4 On 16.09.2014, the Undersecretary (Law and Judiciary Department, Mumbai) opined that the Petitioner appears to be the wife of the deceased

but her status is not that of a legally wedded wife; as such, her case does not fall within the ambit of Rule 116 (6)(a)(i) of the Maharashtra Civil

Services (Pension) Rules, 1982 (hereinafter referred to as “the Pension Rulesâ€​).

3.8.5 On the basis of the above opinion, on 21.11.2014, the Revenue and Forest Department, Mumbai, informed the Respondent No. 1 that the

Petitioner is not eligible to receive family pension.

3.9 On 07.01.2015, the putative second wife (Petitioner) made a yet another fresh application to the Revenue and Forest Department, Mumbai,

seeking family pension on the basis of the judgement in the case of Union of India vs. Jaywantabai. Writ Petition No. 4467 of 2014 This was the

Petitioner’s fourth application in this regard.

3.9.1 In June 2015, the Revenue and Forest Department, Mumbai, once again sought an opinion of the Law and Judiciary Department, Mumbai, in this

regard.

3.9.2 On 07.08.2015, the Deputy Legal Advisor cum Deputy Secretary (Law and Judiciary Department, Mumbai) opined inter alia that Rule 116 (6)

(a)(i) of the Pension Rules is pari materia with Rule 75 (7)(i)(a)(b) of The Railway Services (Pension) Rules, 1993; that being the case, the

Department ought to take appropriate action in light of the observations of the High Court in the Jaywantabai case(supra), which dealt with Rule 75

(7)(i)

(a) & 75 (7)(i)(b) of The Railway Services (Pension) Rules, 1993. After analyzing all relevant judgements passed by the Supreme Court and this

Court, the Deputy Legal Advisor cum Deputy Secretary (Law and Judiciary Department, Mumbai) gave his prima facie opinion that the putative

second wife (Petitioner) is entitled to all pensionary benefits.

3.9.3 In September 2015, the Revenue and Forest Department, Mumbai, sought the opinion of the Finance Department, Mumbai, in the matter.

3.9.4 On 12.04.2017, a joint meeting was held between the Principal Secretary (Finance), Additional Secretary (Law and Judiciary) and Additional

Secretary (Revenue). In the meeting, a decision was taken to the effect that the putative second wife (Petitioner) was not entitled to family pension.

3.9.5 On 26.07.2017, the Revenue Department communicated the rejection letter to the fourth application of the Petitioner.

4 . The Petitioner challenges the decision dated 12.04.2017 taken in the joint meeting and the communication dated 26.07.2017 informing the Petitioner

about the rejection of her fourth application. That apart, the Petitioner seeks her applications dated 16.05.2008, 19.03.2013, 11.04.2014 and 07.01.2015

be granted. However, it is pertinent to note that the orders rejecting her three preceding applications have not been challenged in the present petition.

5 . By order dated 25.05.2022, we appointed Shri. Drupad Patil as amicus curiae to assist the Court in the present case.

6 . At this juncture, it would be appropriate to refer to the statutory provisions relevant to the present case and relied upon by the respective parties.

6.1 Section 5 (i) and Section 11 of the Hindu Marriage Act, 1955 (for short, ""HMA"") are relevant and read as under:

Conditions for a Hindu marriage. A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely:

(i) neither party has a spouse living at the time of the marriage;

........â€​

“11. Void marriages. Any marriage solemnised after the commencement of this Act shall be null and void and may, on a petition presented by

either party thereto against the other party, be so declared by a decree of nullity if it contravenes any one of the conditions specified in clauses (i), (iv)

and (v) of section 5.

6.2 Section 16 of the HMA is also relevant and reads as under:

Legitimacy of children of void and voidable marriages.

(1) Notwithstanding that marriage is null and void under section 11, any child of such marriage who would have been legitimate if the marriage had

been valid, shall be legitimate, whether such child is born before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of

1976), and whether or not a decree of nullity is granted in respect of that marriage under this Act and whether or not the marriage is held to be void

otherwise than on a petition under this Act.

(2) Where a decree of nullity is granted in respect of a voidable marriage under section 12, any child begotten or conceived before the decree is made,

who would have been the legitimate child of the parties to the marriage if at the date of the decree it had been dissolved instead of being annulled,

shall be deemed to be their legitimate child notwithstanding the decree of nullity.

(3) Nothing contained in sub-section (1) or sub-section (2) shall be construed as conferring upon any child of a marriage which is null and void or

which is annulled by a decree of nullity under section 12, any rights in or to the property of any person, other than the parents, in any case where, but

for the passing of this Act, such child would have been incapable of possessing or acquiring any such rights by reason of his not being the legitimate

child of his parents.

6.3 Rule 26 of the Maharashtra Civil Services (Conduct) Rules, 1979 is also relevant and reads as under:

Contracting of marriages.- (1) No Government servant shall enter into, or contract, a marriage with a person having a spouse living, and

(2) No Government servant, having a spouse living, shall enter into, or contract, a marriage with any person:

Provided that the Government may permit a Government servant to enter into, or contract, any such marriage as it referred to in clause (1) or clause

(2), if it is satisfied that-

(a) such marriage is permissible under the personal law applicable to such Government servant and the other party to the marriage; and

(b) there are other grounds for so doing.

(3) A Government servant who has married or marries a person other than of Indian Nationality shall forthwith intimate the fact to the Government.

6.4 Rule 111 (5)(i) and 116 (6)(a)(i) of the Pension Rules are also critical to the present case and read as under:

“111. [Retirement Gratuity/Death Gratuity]

(5) For the purpose of this rule and rules 112,114 and 115 “familyâ€​, in relation to a Government servant, means-

(i) legally wedded wife or wives, including judicially separated wife or wives in the case of a male Government servant, ……â€​

“116. Family Pension, 1964

…..

(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) ….â€​

7 . Shri. Ashok Tajane, learned Advocate appearing for the putative second wife (Petitioner), makes the following submissions:

i. That the Petitioner is entitled to family pension from the date of the death of the first wife within the meaning of the bare provisions of Rule 116 (6)

(a)(i) of the Pension Rules. As such, the Respondents are not justified in rejecting the Petitioner’s applications for family pension;

ii. That Rule 116 (6)(a)(i) of the Pension Rules allows family pension to be paid to a second wife. Hence, the Respondents are not justified in denying

family pension to the Petitioner on the ground that she is not a legally wedded wife of the deceased;

iii. That the ratio in the Jaywantabai case (supra) in regard to Rule 75 (7)(i)(a) of The Railway Services (Pension) Rules, 1993 will also apply to Rule

116 (6)(a)(i) of the Pension Rules as the two are pari materia;

iv. That once the Deputy Legal Advisor cum Deputy Secretary (Law and Judiciary Department, Mumbai) opined that the Petitioner is entitled to the

entire pensionary benefit, it is improper and illegal for the Petitioner’s application to have been rejected at the joint meeting held on 12.04.2017;

v. That Rule 111 (5)(i) of the Pension Rules was amended on 11.08.2016 to read as “[legally wedded wife] or wives including judicially-separated

wife or wives in the case of a male Government servant.†Thus, the bare provisions of Rule 111 (5)(i) of the Pension Rules also entitle the Petitioner

to the family pension;

vi. That in the compromise pursis decreed in Civil Miscellaneous Application No. 165 of 1997, it is nowhere agreed upon that the Petitioner will not

claim family pension upon the death of the first wife; the Petitioner had not relinquished her right to claim family pension after the death of the first

wife;

vii. That in the case of one Smt. Vimal Mohibe, which is identical to the present case, the Respondent-State has granted pension to the second wife.

Thus, the Petitioner’s case cannot be discriminated against;

viii. That the fact that the deceased has entered the name of the Petitioner into his service record for the Petitioner to be entitled to family pension

cannot be disregarded;

ix. In support of his submissions outlined above, Shri. Ashok Tajane has relied upon the following judgements:

a. Laxmibai Shripad Kumar vs. Chief Executive Officer, Zilla Parishad & Ors. 2004 (4) Mh.L.J. 330;

b. Union of India vs. Jaywantabai (supra)

c. Mangalabai Nivruttirao Khandagiri vs. State of Maharashtra & Ors. Order dated 05.10.2015 in Writ Petition No. 8101 of 2015 (Aurangabad Bench

of this Court)

8 . PER CONTRA, Shri. S. S. Panchpor, learned Additional Government Pleader appearing on behalf of the Respondent-State, draws our attention to

the affidavit-in-reply dated 01.11.2018 filed by Shri. Sanjay Baburao Teli, Resident Deputy Collector, Solapur. Shri. Panchpor has contended as

follows:

i. That in the compromise pursis decreed in Civil Miscellaneous Application No. 165 of 1997, the Petitioner and her three children (applicants therein)

have relinquished all their rights to the family pension and in lieu thereof accepted approximately 92% of the retirement benefits and other rights as

have been outlined hereinabove;

ii. That under the provisions of Rules 115 and 116 of the Pension Rules, only a legally wedded wife is entitled for family pension and therefore the

Petitioner, owing to her not being a legally wedded wife within the meaning of the Pension Rules, is disentitled from claiming family pension;

iii. That Rule 116 (6)(a)(i) provides that where there are more than one widows, the family pension is held to be entitled to both the widows in equal

proportion; however, that does not implicitly exclude the requirement that the marital status of the widows should be legal, especially in view of the

amendment of Rule 115 (5)(i) of the Pension Rules in 2016;

iv. That under Section 5 read with Section 11 of the HMA, the marriage of the Petitioner to the deceased is void as the same took place while (a) the

first wife of the deceased was alive; and (b) the marriage between the first wife and the deceased was subsisting. As such, by reason of the

Petitioner’s marriage to the deceased being void, the Petitioner is not entitled to family pension.

9 . Shri. Drupad Patil, learned amicus curiae appointed by this Court, has filed a comprehensive and detailed list of dates and events along with the

relevant case laws, and has made the following submissions:

i. That the marriage between the Petitioner and the deceased is void in view of Section 5 (i) of the HMA. As such, if the Petitioner’s claim for

family pension is accepted despite her marriage to the deceased being void, it would render the statutory provisions of the HMA nugatory;

ii. That Rule 26 of the Maharashtra Civil Services (Conduct) Rules, 1979 prohibits a government employee from entering into a marriage while his or

her spouse is alive. According to the proviso to Rule 26, such a marriage, can be entered into only with the prior permission of the Government and

only if such marriage is permissible under the personal law governing the government employee or there are other legal and valid grounds for doing so.

None of these requirements are satisfied in the present case as the deceased had not obtained the permission of the Government for his marriage to

the Petitioner, which, in any case, was prohibited under the HMA;

iii. That the benefit of family pension can only be provided to a widower / widow whose marriage is lawful. In cases where the husband belongs to the

Muslim community or to a community where a second marriage is permissible as per their personal laws, the second wife / widows can be granted

family pension. However, in the present case, family pension cannot be granted to the Petitioner whose marriage to her deceased husband is

demonstrably and admittedly void under the HMA;

iv. That the view adopted by this Court in the Jaywantabai case (supra), which the Petitioner has relied upon heavily, has been clearly distinguished in

the following judgements:

a. Chanda Hinglas Bharati vs. State of Maharastra 2015 SCC Online Bom 6679(Co-ordinate Bench of this Court);

b. Rameshwari Devi vs. State of Bihar 4 (2000) 2 SCC 431 (Supreme Court);

c. Kamalbai (widow of Venkatarao Nipanikar) vs. State of Maharashtra 2019 SCC OnLine Bom 2219 : (2019) 3 Mah LJ 921 (FB) (Full Judge Bench

of this Court);

d. Draupada @ Draupadi Jaydev Pawar & Ors. vs. Indubai; 2016 SCC OnLine Bom 95 : (2016) 3 Mah LJ 836

e. Union of India & Anr. vs. Ganeshibai @ Sunderibai (widow of late Ghashiram). 2020 (5) Mh.L.J. 41

v. That the Jaywantabai case (supra) relied upon by the Petitioner cannot be said to cover the field in the present case as the Supreme Court in the

said case granted pensionary benefits to the second wife on humanitarian grounds, it has however expressly kept open the question of law as to

whether a second wife can lay claim to pensionary benefits or any part thereof notwithstanding Rule 21 of the Railway Services (Conduct) Rules,

1966 (which is pari materia with Rule 26 of the Pension Rules);

vi. That the decision of the Full Bench of this Court in the Kamalbai case (supra), has expressly overruled the findings of the Division Bench in the

Jaywantabai case (supra) in view of the decision of the Supreme Court in the Rameshwari Devi case (supra).

10 . We have heard the submissions made by the learned counsel for the respective parties as well as the learned amicus curiae, perused the material

on record and considered the judgements relied upon by the respective advocates.

11 . We may state that the issue at the core of the present case is whether the Petitioner, being a putative second wife of the deceased, is entitled to

family pension after the demise of the first wife, when essentially the first wife was receiving family pension from 20.12.1996 till her death on

14.12.2005.

12 . In our considered opinion, the substantial issue elucidated hereinabove stands squarely answered by the Supreme Court in a catena of judgements

and the position of law in this regard stands more than well-settled.

12.1 The Supreme Court, in Rameshwari Devi case (supra), has clearly opined that the putative second wife cannot be described as the widow of the

deceased government employee. The Supreme Court applied the statutory provisions under Section 5 (i) read with Section 11 of the HMA and held

that the marriage of the deceased employee to the putative second wife is void as, at the time of such marriage, his first wife was alive and his

marriage with her was still subsisting. That being the case, the Supreme Court ruled that the second wife in such cases is not entitled to family

pension.

12.2 The Supreme Court in the case of Raj Kumari vs. Krishna 2015 (14) SCC 511 similarly opined that normally, family pension is given to the legally

wedded wife of a deceased government employee. In the aforesaid case, the deceased government employee had married the plaintiff therein while

the former’s first wife was alive and his marriage with her was still subsisting. As such, the Supreme Court held that the plaintiff could by no

stretch of imagination be described as the legally wedded wife of the deceased government employee.

12.3 A view similar to the above has also been adopted by this Court in Draupada @ Draupadi Jaydev Pawar & Ors. vs. Indubai (supra). The learned

Single Judge has, with authority, referred to the judgements passed in the Chanda Hinglas Bharati (supra) and Rameshwari Devi (supra). The relevant

excerpts are Paragraphs 35 to 37 and are reproduced hereinbelow:

During the course of arguments of Chanda Hinglas Bharati (supra) in November, 2015 the counsel of second wife placed heavy reliance on the

earlier judgment of the Division Bench in the case of Jaywantabai. The judgment of learned Single Judge in the case of “Kantabai†was not

placed before the Division Bench. The learned Judges of the Division Bench in the case of Chanda Hinglas Bharati have considered number of

judgments. The ratio laid down by the Division Bench is specific and clears all the doubts in respect of interpretation of Rule 116(6)(a)(i) of

Maharashtra Civil Services (Pension) Rules and Rule 26 of Maharashtra Civil Services (Conduct) Rules. The Division Bench has referred and relied

the cases of Rameshwari Devi (supra) and Vidyadhari v. Sukhrana Bai, reported in (2008) 2 SCC 238. The Division Bench has held thus:

“The Maharashtra Civil Services (Pension) Rules were brought into force in the year 1982. Rule 116 (6)(a)(i) opens with the clause, “Where

the Family Pension is payable to more widows than oneâ€. The provisions of Sub-Rule 6(a) (i) of Rule 116 of the Rules would apply only in a case

where the family pension is payable to more widows than one. The primary question would be, whether the family pension is payable to more widows

than one. When would a second widow or more than one widows be entitled to pension. In our considered view, more widows than one would be

entitled to pension only if the Hindu employee has married the woman (widow) before the coming into force of the Hindu Marriage Act on 18.5.1955

and in case of employees where such marriage is permissible under the personal law applicable to the said employee or Government servant and the

other party to the marriage. It appears from the provisions of Maharashtra Civil Services (Conduct) Rules that the marriage during the life time of a

spouse could be accepted only if the marriage is permissible under the person law applicable to both the parties to the marriage.â€​

In the said judgment, the Division Bench has rightly linked up meaning of widow to the status of wife who is a legally wedded wife. It considered

section 5 which speaks about ‘Conditions of Valid Marriage and section 11 on ‘Void marriages and section 17 wherein ‘Punishment for

bigamy’ is stated. It also took into account provisions of sections 494 and 495 of the Penal Code, 1860 pertaining to bigamy and also relied on Rule

26 of the Maharashtra Civil Services (Conduct) Rules, 1979, which states thus:

“26. Contracting of marriages

(1) No Government servant shall enter into, or contract, a marriage with a person having a spouse living; and

(2) No Government servant, having a spouse living, shall enter into or contract, a marriage with any person;

Provided that the Government may permit a Government Servant to enter into, or contract, any such marriage as it referred to in clause (1) or clause

(2), if it is satisfied thatâ€

(a) such marriage is permissible under the personal law applicable to such Government servant and the other party to the marriage; and

(b) there are other grounds for so doing.â€​

The reasoning given by the Division Bench is consistent with the other provisions of law as mentioned above wherein the second marriage is held

void. The Indian legal system has adopted monogamy as a legal structure of the marriage institution and, therefore, occasional fractures of second

marriage in subsistence of first marriage are held void in law. The second woman cannot be given a status of a legally wedded wife and, as rightly

observed by the Division bench, she is not a widow in true and legal sense. A wrong may exist in the Society on a large scale, however it cannot be

justified as a righteous custom because of its magnitude. In order to buttress this point, it will not be out of place to give example of give and take of

dowry which throws light on the wide gap between the legality and the reality. To take lenient view towards the wrong doers is contrary to law laid

down by the legislature. Thus, gap should not be widened by the decision of the Court but it is to be bridged. It is mandatory for the Court to interpret

a law which gives true effect to the legislative intent. The Division Bench in the case of Chanda Hinglas Bharati has referred to the relevant

provisions under different acts regarding the consequences of second marriage and the status of second woman.â€​ [emphasis supplied]

12.4 We may state that the decision in the Jaywantabai case (supra) has been expressly overruled by a Full Judge Bench of this Court in the

Kamalbai case (supra) in view of the decisions of the Supreme Court in the Rameshwari Devi case (supra) and the Raj Kumari case (supra). We

may usefully refer to Paragraphs 13 and 14 of the said decision, which read thus:

“13. In the present matters, we are concerned with the entitlement of the second wife to family pension upon the death of the Government

employee. For the purpose of family pension the word “family†will have to be interpreted. Subrule (5) of Rule 111 of the Pension Rules defines

“family†in relation to the Government servant. Rule 111(5)(i) initially read as “wife or including judicially separated wife or wives in the case

of male government servantsâ€. Under notification dated 18-1-2016 clause (i) has been amended and the word “wife†is substituted with the

word, “legally wedded wifeâ€. The provision now is read as legally wedded wife or wives. Rule 111 deals with Retirement Gratuity/Death

Gratuity. Rule 115 enables the Government servant to nominate one or more persons to receive the retirement gratuity/death gratuity. Proviso (I) to

sub-rule (I) of Rule 115 restricts the right of the Government servant to nominate any person other than a member of his family in case he has family.

The provision would make it clear that unless wife is legally wedded wife as provided under Rule 111(5)(i) of the Pension Rules, the government

servant has no right to nominate such a person. Rule 111(5) of the Pension Rules excludes a wife that is not a legally wedded wife from the definition

of family. If the marriage is not legal and valid, the said woman would not be brought within contour of the definition “Familyâ€. Proviso (ii) to Rule

115(1) enables the Government servant to nominate any other person if he has no family, but sub Rule 4 of Rule 115 of the Pension Rules further

prescribes that if at the time the government servant had made nomination who had no “family†at the time of making it, same shall become

invalid in the event of the government servant subsequently acquiring the “familyâ€. Reading Rules 111 and 115 of the Pension Rules conjointly the

only irresistible conclusion that can be drawn is that a nomination can be made by a government servant only of a person who is member of the family,

if the said Government servant has a family. The definition of family embodied in Rule 111(5)(i) specifically provides that legally wedded wife or

wives only would be a member of the family. The one that is not a legally wedded wife is excluded from the definition of the term “familyâ€​.

14 . The family pension was initially governed by the Family Pension Scheme 1964 as contained in the Government Resolution dated 08th May, 1964.

Same is incorporated in Rule 116. The nomenclature, “Family Pension†connotes payment of pension to the family, a woman who is not legally

married cannot be included in the definition of family.â€​ [emphasis supplied]

12.5 Thus, in light of the judicial decisions as outlined hereinabove, the Petitioner in the present case would not be entitled to family pension under the

Pension Rules notwithstanding the death of the first wife as the Petitioner’s marriage to the deceased itself is void under the HMA.

13 . We may state that in view of the legislative connotations of Rule 26 of the Maharashtra Civil Services (Conduct) Rules, 1979, read with Section 5

and 11 of the HMA, Rule 116 (6)(a)(i) of the Pension Rules cannot be interpreted to mean that a wife of a government employee whose marriage to

the government employee was unlawful is also entitled to pensionary benefits.

14 . There is another dimension that needs to be addressed in the present case. The Petitioner has placed on record the compromise pursis decreed in

Civil Miscellaneous Application No. 165 of 1997, the terms of which have been outlined hereinabove. It is pertinent to note that the Petitioner has

categorically relinquished her right to claim the family pension of the deceased and has consented to the same being granted to the first wife. The

Petitioner has given an undertaking that she and her three children shall not have any right to claim the family pension of the deceased. In view

thereof, the Petitioner is now estopped from filing a claim for family pension given, that she has waived her right to the same.

15 . That apart, in our view the Petitioner has not approached this Court with clean hands. It is clear from the evidence on record that there were four

separate applications seeking family pension that the Petitioner had made to the competent authority. However, the Petitioner has conveniently omitted

to mention the rejection of the first three application in her petition. The Petitioner has disclosed and challenged only the rejection of the fourth

application that she had made to the competent authority.

16 . The Petitioner has also claimed that her case is identical to that of Smt. Vimal Mohibe, wherein the State Government had granted pension to

Smt. Vimal Mohibe despite her being a putative second wife of a deceased government employee. It is submitted that the only difference between the

facts in Smt. Vimal Mohibe’s case and those in the present case is that in the former, the first wife had predeceased the government employee. It

is also submitted that it is pertinent to note that the government employee had married Smt. Vimal Mohibe while his first wife was alive and his

marriage to her was still subsisting. In our view the decision of the State Government to give family pension to Smt. Vimal Mohibe is contrary to the

statutory provisions, particularly those under Rule 26 of the Maharashtra Civil Services (Conduct) Rules, 1979, read with Section 5 and 11 of the

HMA. Thus, in the case of Smt. Vimal Mohibe, the benefit was wrongly extended to her by the State Government. As such, the Petitioner’s case

cannot be decided based on the decision of the State Government in Smt. Vimal Mohibe’s case.

16.1 The Petitioner’s argument that the import of the legislative intent behind Section 16 (1) of the HMA should also be applied to the

Petitioner’s marriage with the deceased and she should therefore be entitled to family pension, notwithstanding the fact that the Petitioner’s

marriage with the deceased is void under Section 11 of the HMA cannot be accepted.

17 . In view of the above discussion and findings, the Writ Petition stands dismissed. However there shall be no order as to costs.

18 . We appreciate and express our gratitude to the learned Amicus Curiae for his able and valuable assistance to the Court in this case.