Smt. Sabita Bhattacharjee vs State and Others

In this writ application, the petitioner has challenged a judgment and order dated 4th January, 2012, passed by the West Bengal State Administrative Tribunal in an application filed by the petitioner being Case No. OA 1390 of 2011, directing the respondent authorities to dispose of the application for pension made by the petitioner, within the time stipulated, after giving the petitioner an opportunity of hearing. Late Santosh Gopal Bhattacharyya, was, during his life time, an employee of the Irrigation and Water Resources Development Directorate and posted at Karandighi Development Block as a Driver-cum-mechanic. The said Santosh Gopal Bhattacharyya retired from service on attaining the age of superannuation.

According to the petitioner, the said Santosh Gopal Bhattacharyya had married Basona Chakraborty daughter of Late Rabindranath Chakraborty sometime in the year 1968. A son and three daughters were born of the wedlock between Santosh Gopal Bhattacharyya and Basona Bhattacharyya.

It is alleged that for reasons best known to herself Basona Bhattacharyya left Santosh Bhattacharyya and the four children to start a new life with one Balaram Basak of Balurghat. Admittedly there was no divorce and as such Santosh Gopal Bhattacharyya and Basona Bhattacharyya continued to remain husband and wife.

It is alleged that Basona Bhattacharyya filed a suit being Suit No. 22/1982 in the Court of the learned District Judge, Dakshin Dinajpur for divorce and judicial separation, on or about 8th July, 1982, on the alleged ground of cruelty. However, the said suit was withdrawn.

According to the petitioner, the said Basona Bhattacharyya, who has been impleaded as respondent No. 8, left the matrimonial home, leaving behind the children, who were brought up by the petitioner with mother''s care. According to the petitioner, Santosh Gopal Bhattacharyya married the petitioner on 25th September, 1982. The reasons as to why Basona left her husband are totally immaterial for deciding the. issues involved in this writ petition. It is also immaterial that the petitioner brought up the children with mother''s care. The fact remains that there could be no valid marriage between Santosh Gopal Bhattacharyya, who was already a married man, and the petitioner, after enactment and enforcement of the Hindu Marriage Act, 1955.

Under the West Bengal Services (Death-cum-retirement Benefits) Rules, 1971 the family of a deceased government servant is entitled to family pension. Rule 104 of the said Rules provides that a widow/widower shall be entitled to family pension up to the date of death or remarriage whichever is earlier. A minor son shall be entitled to pension until he attains the age of 18 years and unmarried daughter would be entitled to pension until she attains the age of 21 years or until marriage, whichever is earlier.

Emphasis is being placed by counsel appealing on behalf of the petitioner on the note to Rule 104 which provides that, where a Government servant is survived by more than one widow the family pension shall be paid to them in equal share. On the death of a widow, her share of the pension shall become payable to her eligible minor children. If at the time of her death, a widow leaves no eligible minor child the payment of her share of the pension shall cease. There is a further note which 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 note to Rule 104 would apply to Communities such as the Muslim Community where marriage with wives more than one is permissible the note would also apply in case of Hindus, where subsequent marriage and/or marriages notwithstanding a living wife, took place prior to the enforcement of the Hindu Marriage Act.

In support of his submission that the petitioner would be entitled to pension learned counsel has cited the judgment of the Supreme Court in the case of Vidyadhari and Others Vs. Sukhrana Bai and Others, However in paragraph 13 of the said judgment the Supreme Court held this Court in Rameshwari Devi Vs. State of Bihar and others, has held that even if a government servant had contracted second marriage during subsistence of his first marriage, children born out of such second marriage would still be legitimate, though the second marriage itself should be void. The Court, therefore, went on to hold that such children would be entitled to pension but not the second wife.

In Vidadhari''s case the Supreme Court specifically held that the second wife was only a nominee who would be entitled to receive the dues for and on behalf of the legal heirs that is the wife and the children including the children of the second wife. The judgment can have no application in the facts and circumstances of the instant case where the petitioner is claiming pension.

In Rameshwari Devi Vs. State of Bihar and others, he Supreme Court held that children born out of second marriage would be entitled to pension if though the marriage itself was void. There was no question of payment of pension to the second wife.

There can be no dispute that the petitioner is a Hindu and Late Santosh Gopal Bhattacharyya was Hindu. In view of Section 5 of the Hindu Marriage Act, 1955 the marriage, if any, of the petitioner with Santosh Gopal Bhattacharyya was a void marriage. Santosh Gopal Bhattacharyya since deceased, had a wife Basona, who is still alive, and till the time of his death there was no divorce.

In terms of the Rules, a widow is entitled to family pension. The petitioner is not the widow in the eye of law. Even assuming, as argued by the counsel appearing for the petitioner, Santosh Gopal Bhattacharyya got a raw deal from his wife, who left him and his four children, that does not make a second marriage during her lifetime legal. Santosh Gopal Bhattacharyya might have, had he so wished, initiated proceedings for divorce in a Court of law.

A judgment is a precedent for questions of law which are in issue and are decided by the Court. None of the judgments cited are authority for the proposition that a second wife of a Hindu, who married after enforcement of The Hindu Marriage Act, 1955. would be entitled to pension, even though there was a wife still living at the time of the second marriage. Observation made in a judgment in the context of a different situations cannot be quoted out of context as has been sought to be done in the instant case.

There is a vast difference between the release of pension and ordinary succession. It is well known that a person might voluntarily leave cash or even assets to whosoever he likes, be it a wife, a second wife, a mistress or a total outsider provided it is of his own free will and volition. So far as Government pension is concerned it is to be disbursed strictly in accordance with the Rules.

Counsel appearing for the petitioner argued that the petitioner had a right to live under Article 21 of the Constitution of India. The petitioner most certainly has a right to life. However, a right to live does not include a right to Government pension, for which a pension is not eligible. The petitioner knowingly married a married man. She would have to look for other means to support herself.

It appears that the learned Tribunal directed the respondents to consider the application of the petitioner. The respondents considered the application and found that she could not substantiate her claim. Admittedly the petitioner''s son is once 21 years of age, where as pension is payable to minor son till he attains the age of 18 years.

The writ application is accordingly, dismissed. Photostat certified copy of this order, if applied for, be supplied to the learned advocates appearing for the parties subject to compliance of requisite formalities.