Tulsi Devi vs Union Of India And Others

Arguments heard.

Vide separate order, OA along with MA stands disposed of.

Heard learned counsel for the parties.

By way of this OA, the applicant, Smt. Tulsi Devi has claimed family pension, inter-alia on the ground that Late Hony Lt Bachan Singh who was

enrolled in Indian Army on 11/11/1942 and served as Infantry Soldier in Garhwal Rifles for 28 years retired from the Army on 18/09/1970. He was

initially married to Late Smt. Padma Devi, who was not able to conceive a child from the wedlock in spite of best medical treatment due to which she

left for her parental home to live separately from her husband after rendering free and mutual consent for dissolution of marriage and divorce as per

prevailing customs and traditions of the hills tribes. Thereafter, Late Bachan Singh married to the applicant in 1971. Two children were born from the

wedlock and official Part II Order were published by the Records, the Garhwal Rifles. After the death of husband of the applicant on 27/09/1998,

family pension was illegally paid to ex wife, Smt. Padma Devi and two children, namely Ms. Namita and Brijpal Singh. Smt. Padma Devi expired on

08/07/2014. After the two children attained the age of 25 years, the family pension was stopped. The applicant initiated a case for grant of family

pension with respondents; however, all her correspondence and representations have been rejected on the basis of delay and lack of written proof of

free consent rendered by Smt. Padma Devi for marriage. Hence, the present OA was filed.

The claim made by the applicant has been contested by the respondents, inter alia, on the grounds that as per the details of service record held with

the respondents, late husband of the applicant had married Smt. Padma Devi in 1940 and no child was born out of the wedlock and the husband of the

applicant died on 27/09/1998. After his death, the respondents were apprised that Late Bachan Singh got married with the applicant on 31/05/1971

during the subsistence and lifetime of his first marriage. It was also apprised that three children, namely Pradyuman Singh, Brijpat Singh and Namita

were born out of the second marriage with the applicant. Since the second marriage with the applicant was solemnised during the subsistence of first

marriage, during the lifetime of his first wife, hence the second marriage with the applicant is void ipse-jure in view of Section 5, read with Section 11

of Hindu Marriage Act, 1955, as the parties are Hindus and are subject to Hindu Marriage Act, 1955. This fact of plural marriage and also the

consequence arising there from were apprised to the applicant vide Respondent No. 4 letter dated 16/10/2000. Even thereafter the applicant did not

contested or disputed the decision of the respondents for granting family pension to the first wife, Smt. Padma Devi and the said three children. Thus,

the applicant is estopped from agitating this issue at this stage after the death of the husband of the applicant. In pursuance to regulation 216 of

Pension Regulations for the Army, 1961 (Part I), as amended in 2008, Ordinary Family Pension is entitled to the legally wedded wife till her lifetime

and children born to the second wife till they attained age of 25 years. Therefore, the competent Pension Sanctioning Authority had granted Ordinary

Family Pension to Smt. Padma Devi and also to two children born from the applicant. The letters and the representations made by the applicant were

duly replied intimating that owing to her marriage being a case of plural marriage and void, she is not entitled for any family pension. The instant OA is

an abuse of process of law, the same is hopelessly time barred, as such, is liable to be dismissed.

During the course of arguments, it is not disputed by the applicant that deceased Bachan Singh got married to Smt. Padma Devi and during her

lifetime it is alleged that he married the applicant. It is not disputed that the parties are governed by Hindu Marriage Act and no decree of divorce has

been granted by the competent court of jurisdiction. It is merely alleged that Late Bachan Singh and Smt. Padma Devi live separately with mutual

consent and it is alleged that as per the prevailing customs and traditions of hill tribes, divorce was granted. However, there is nothing on record to

show that any such divorce was granted by the Panchayat as per the prevailing customs and traditions of the hill tribes. Undisputedly, during the

subsistence of first marriage, Late Bachan Singh married the applicant in the year 1970 and out of the wedlock two children (as alleged by the

applicant) or three children (as alleged by the respondents) were born. After death of Late Bachan Singh, Smt. Padma Devi as well as the children

born from the second alleged marriage were getting family pension, however, Smt. Padma Devi has since died and the children are now more than 25

years, therefore pension has been stopped.

Under the garb of present OA, the applicant, in fact, is seeking a declaration that she is a legally wedded wife of the deceased Bachan Singh

because unless it is established that she is the legally wedded wife of Late Bachan Singh, she will not be entitled to family pensio n. Such a declaration

can't be granted by this Tribunal.

Learned counsel for the respondents had relied upon two orders passed by the Regional Benches wherein substantially similar issue was involved.

For the sake of convenience, the same are reproduced below:-

(1) Kolkata Bench of AFT, in TA 90/2011 (Pramila Devi W/o Motichand Ram Vs. Union of India), held as under:

Although the Ld. Advocate for the Applicant contended that as per the amended Hindu Marriage Act, second marriage during the lifetime of

the first wife is permissible under certain circumstances. We are inclined to accept the view of the Respondents that even in that event,

unless there is a decree from a civil court in respect of validity of such second marriage, the second wife, i.e., the Applicant cannot be

treated as a legally wedded wife of the deceased Sepoy. Therefore, the claim of the Applicant cannot be accepted unless she produces a

decree from civil court to that effect.

(2) Chennai Bench of AFT, in OA 19/2014 (Ms. Uma Rani, widow and 2""° wife of Ex Sep P. Palana held as under:

In view of the aforesaid, the marriage held between the Applicant and Sepoy P. Palani was solemnised during the subsistence of first

marriage of Ex Sepoy P. Palani with the .5(11 Respondent (first wife). It is not the case of the Applicant that Ex Sepoy P. Palani applied for

permission to go for second marriage as per provisions of Para 333 (B) and was granted and thereafter, he married the Applicant.

Therefore the marriage of the Applicant with P. Palani is a plural inarriage attracted under the provisions of Para 333(A) of the

Regulations for the Army (1987) In the said background of the case, the Applicant could not be considered as wife even on a long

cohabitation with P. Palani since the first wife was already living. Viewed from any angle, the Applicant would not get any right over the

death benefits of P. Palani for his service in the Army. The right to get family pension after the demise of Ex. Sepoy P. Palani would only

devolve upon the widow of the deceased, namely the .5°) Respondent (First Wife).

It was for the applicant to get a declaration from the competent court, if at all, she was entitled to the same that she is the legally wedded wife of

Late Bachan Singh. However, so far as the present OA is concerned, there is no merit in the same and accordingly same is dismissed.

Pending application, if any, also stands disposed of.

No order as to costs.