As per case facts, Petitioner No.1 is the second wife of a deceased Assistant Lineman who died in service. The deceased had a prior 'Panchayati divorce' from his first wife, ...
CWP-19578 of 2023 (O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CWP-19578 of 2023 (O&M)
Reserved on:24.04.2025
Pronounced on:29.05.2025
Kirandeep Kaur and others
....Petitioners
Versus
Punjab State Power Corporation Limited and others
.....Respondents
CORAM: HON’BLE MR. JUSTICE DEEPINDER SINGH NALWA
****
Present: Mr. G. S. Punia, Sr. Advocate, with
Ms. Harleen Kaur, Advocate, for the petitioners.
Mr. Rangat Joshi, Advocate, for the respondents.
****
DEEPINDER SINGH NALWA , J. (Oral)
1. I n the present writ petition, petitioner No.1 is praying for
direction to the respondents to grant compassionate appointment being wife
of Tirath Singh (since deceased), who was employed as Assistant Lineman on
regular basis with Punjab State Power Corporation Limited (for short
'Corporation') and also for grant of solatium to petitioners No.2 and 3, being
minor daughters of Tirath Singh (since deceased).
2. The brief facts of the case are that the husband of petitioner No.1
i.e. Tirath Singh was working on the post of Assistant Lineman with the
respondent Corporation, who had expired on 26.02.2022 while he was in
service with the Corporation. Tirath Singh, the husband of petitioner No.1
was earlier married with Baljinder Kaur in the year 2006 and Tirath Singh
CWP-19578 of 2023 (O&M) 2
(since deceased) obtained Panchayati divorce from her in the year 2007.
There was no child born from the aforesaid wedlock. Baljinder Kaur
contracted second marriage with one Tejinder Pal Singh and is separately
residing with him since her marriage. Tirath Singh (since deceased) married
petitioner No.1 on 02.02.2009 and was blessed with two daughters i.e.
petitioners No.2 and 3. After the death of Tirath Singh on 26.02.2022,
petitioner No.1 applied for grant of appointment on compassionate ground
and submitted an application dated 02.03.2022 to the competent authority.
The case of the petitioner for grant of compassionate appointment was duly
considered at various levels. Various affidavits and documents were
submitted by petitioner No. 1 with the respondent Corporation. After
submission of all the relevant documents, the case of the petitioners was
considered for compassionate appointment. The first wife of Tirath Singh
(since deceased) also submitted an affidavit to an extent that she will not
claim compassionate appointment nor will make any claim in future. The case
of the petitioner for grant of appointment on compassionate ground was sent
to the Law Officer of the Corporation for opinion. The Law Officer gave his
opinion on 06.04.2023 (Annexure P-26) wherein, it was opined that legal
Panchayati compromise regarding dissolution of marriage cannot be equated
with the decree of divorce passed by the Court of competent jurisdiction and
as such, the marriage cannot be dissolved by Panchayti compromise. In view
of the abovesaid opinion given by the Law Officer of the Corporation, the
petitioner has not been offered appointment on compassionate ground.
3. Aggrieved against the abovesaid action of the respondents
Corporation in not appointing petitioner No.1 on compassionate ground, the
CWP-19578 of 2023 (O&M) 3
present writ petition has been filed by the petitioners. It may be mentioned
here that during the pendency of the present writ petition, appointment letter
was issued to petitioner No.1 offering appointment on compassionate ground
vide appointment letter dated 12.09.2023 (Annexure P-27). As per the
abovesaid appointment letter, petitioner No.1 was to join at Trans Mandal
PSPCL Sirhind. A perusal of the facts of the case would show that despite the
fact that the appointment letter was issued to petitioner No. 1, she has not
been permitted to join the duty.
4. Learned Senior Counsel appearing on behalf of the petitioners
submits that petitioner No.1 was married with late Tirath Singh in the year
2009. Two children were born from the abovesaid wedlock. The petitioners
have been residing with late Tirath Singh till he expired. He submits that as
per the service record of late Tirath Singh, petitioner No.1 has been declared
as a nominee for the purpose of retiral benefits of late Tirath Singh. He
further submits that the first wife of late Tirath Singh has already given an
affidavit that she will not claim the benefit of compassionate appointment. As
the petitioners were dependent upon late Tirath Singh. Therefore, petitioner
No.1 is entitled for grant of appointment on compassionate ground.
5. In support of his contentions, learned counsel for the petitioner
relies upon the judgments passed by the Hon'ble Supreme Court in cases of
Vidyadhari & Ors. versus Sukhrana Bai & Ors. 2008(1) RCR (Civil) 900 ;
Tulsa Devi Nirola & Ors. versus Radha Nirola & Ors. 2020 (2) SCT 301
and a judgment of Andhra Pradesh High Court passed in case titled as
CWP-19578 of 2023 (O&M) 4
Gaddam Ruth Victoria versus The State of Andhra Pradesh and 4 others
2023 (6) Andh LD 194.
6. On the other hand, in order to rebut the case of the petitioners,
learned counsel for the respondents submits that as Panchayati divorce
regarding dissolution of marriage cannot be equated with the divorce passed
by the Court of competent jurisdiction and as such, the marriage of petitioner
No.1 is void hence petitioner No.1 cannot be offered appointment on
compassionate ground.
7. Further, in support of his contentions, learned counsel for the
respondents has placed reliance on the judgment passed by a co-ordinate
Bench of this Court in case titled as Nishan Singh and another versus State
of Punjab and others (CRWP No.763 of 2021, decided on 27.01.2021 and
another judgment of High Court of Karnataka in case titled as Smt. Manjula.
N versus The Commissioner of Police (Writ Petition No.33134-2016,
decided on 19.10.2022)
8. I have heard learned counsel for the petitioner and have perused
the records available on the case file.
9. A perusal of the facts mentioned above would show that
although, petitioner No. 1 does not acquire a status of the wife/spouse for a
contracted marriage during the subsistence of the first marriage, however, it
is an admitted fact that petitioner No. 1 was married with Tirath Singh (since
deceased) in the year 2009 and was blessed with two daughters. It is admitted
fact that petitioner No.1 was residing with late Tirath Singh almost for 23
years till he expired on 26.02.2022. Petitioner No.1 has been declared as a
CWP-19578 of 2023 (O&M) 5
nominee in the service record of late Tirath Singh and is entitled for grant of
retiral benefits in accordance with law. First wife of Tirath Singh (since
deceased) has already given an affidavit to the effect that she will not claim
appointment on compassionate ground. It is admitted fact that the petitioners
were wholly dependent upon late Tirath Singh. An appointment letter has
already been issued to petitioner No.1 offering appointment on
compassionate ground on the post of Peon/Sewadar.
10. Taking into consideration the abovesaid facts, it is relevant to
refer to following judgments:-
i)Vidyadhari & Ors. versus Sukhrana Bai & Ors.
2008(1) RCR (Civil) 900;
In the above said case, the husband contracted second martriage
during the subsistence of first marriage being void however the second wife
was held entitled for grant of pension on the basis that she was declared as a
nominee in the service record. The relevant paragraphs of the abovesaid
judgment is reproduced as under:-
“9. There can be no dispute that Vidhyadhari had never
pleaded any divorce, much less customary divorce between
Sukhrana Bai and Sheetaldeen. There were no pleadings and
hence no issue arose on that count. In our opinion, therefore, the
High Court was right in holding that marriage between Sukhrana
Bai and Sheetaldeen was very much subsisting when
Sheetaldeen got married to Vidhyadhari. Learned counsel tried
to rely on the reported decision in Govind Rajus case (supra).
We are afraid the decision is of no help to the respondent as
basically the issue in that decision was about the legitimacy of
the children born to a mother whose first marriage was not
CWP-19578 of 2023 (O&M) 6
dissolved and yet she had contracted the second marriage. This
is apart from the fact that in the present case there were no
pleadings about the existence of custom and alleged divorce
thereunder. Therefore, there was no evidence led on that issue. In
our opinion the decision in Govind Raju's case is not applicable.
Even the other decision in Yamanaji's case is not applicable as
the facts are entirely different. In Yamanji's case there was a
Deed of Divorce executed by the wife. The question was
whether there was a customary divorce. There was a custom
permitting divorce by executing deed existing in the community
to which the parties belonged. Such is not the situation here.
There is neither any Divorce Deed nor even the assertion on the
part of Vidhyadhari that Sheetaldeen had divorced Sukhrana Bai.
We, therefore, accept the finding of the High Court that
Sukhrana Bai was the legally wedded wife while Vidhyadhar
could not claim that status.
10. However, unfortunately, the High Court stopped there only
and did not consider the question as to whether inspite of this
factual scenario Vidhyadhari could be rendered the Succession
Certificate. The High Court almost presumed that Succession
Certificate can be applied for only by the legally wedded wife to
the exclusion of anybody else. The High Court completely
ignored the admitted situation that this Succession Certificate
was for the purposes of collecting the Provident Fund, Life
Cover Scheme, Pension and amount of Life Insurance and
amount of other dues in the nature of death benefits of
Sheetaldeen. That Vidhyadhari was a nominee is not disputed by
anyone and is, therefore proved. Vidhyadhari had claimed the
Succession Certificate mentioning therein the names of four
children whose status as legitimate children of Sheetaldeen
could not and cannot be disputed. This Court in a reported
decision in Rameshwari Devi's case (supra) has held that even if
a Government Servant had contracted second marriage during
CWP-19578 of 2023 (O&M) 7
the subsistence of his first marriage, children born out of such
second marriage would still be legitimate though the second
marriage itself would be void. The Court, therefore, went on to
hold that such children would be entitled to the pension but not
the second wife. It was, therefore, bound to be considered by the
High Court as to whether Vidhyadhari being the nominee of
Sheetaldeen could legitimately file an application for Succession
Certificate and could be granted the same. The law is clear on
this issue that a nominee like Vidhyadhari who was claiming the
death benefits arising out of the employment can always file an
application under Section 372 of the Indian Succession Act as
there is nothing in that Section to prevent such a nominee from
claiming the certificate on the basis of nomination. The High
Court should have realised that Vidhyadhari was not only a
nominee but also was the mother of four children of Sheetaldeen
who were the legal heirs of Sheetaldeen and whose names were
also found in Form A which was the declaration of Sheetaldeen
during his life-time. In her application Vidhyadhari candidly
pointed out the names of the four children as the legal heirs of
Sheetaldeen. No doubt that she herself has claimed to be a legal
heir which status she could not claim but besides that she had the
status of a nominee of Sheetaldeen. She continued to stay with
Sheetaldeen as his wife for long time and was a person of
confidence for Sheetaldeen who had nominated her for his
Provident Fund, Life Cover Scheme, Pension and amount of Life
Insurance and amount of other dues. Under such circumstances
she was always preferable even to the legally wedded wife like
Sukhrana Bai who had never stayed with Sheetaldeen as his wife
and who had gone to the extent of claiming the Succession
Certificate to the exclusion of legal heirs of Sheetaldeen. In the
grant of Succession Certificate the court has to use its discretion
where the rival claims, as in this case, are made for the
Succession Certificate for the properties of the deceased. The
CWP-19578 of 2023 (O&M) 8
High Court should have taken into consideration these crucial
circumstances. Merely because Sukhrana Bai was the legally
wedded wife that by itself did not entitle her to a Succession
Certificate in comparison to Vidhyadhari who all through had
stayed as the wife of Sheetaldeen, had born his four children and
had claimed a Succession Certificate on behalf children also. In
our opinion, the High Court was not justified in granting the
claim of Sukhrana Bai to the exclusion not only of the nominee
of Sheetaldeen but also to the exclusion of his legitimate legal
heirs.
11. Therefore, though we agree with the High Court that
Sukhrana Bai was the only legitimate wife yet, we would chose
to grant the certificate in favour of Vidhyadhari who was his
nominee and the mother of his four children. However, we must
balance the equities as Sukhrana Bai is also one of the legal heirs
and besides the four children she would have the equal share in
Sheetaldeen's estate which would be ⅕ th. To balance the
equities we would, therefore, chose to grant Succession
Certificate to Vidhyadhari but with a rider that she would protect
the ⅕ th share of Sukhrana Bai in Sheetaldeen's properties and
would hand over the same to her. As the nominee she would hold
the ⅕ th share of Sukhrana Bai in trust and would be responsible
to pay the same to Sukhrana Bai. We direct that for this purpose
she would give a security in the Trial Court to the satisfaction of
the Trial Court.
13. It should not be understood by the above that we are, in
any way, deciding the status of Vidhadhari finally. She may still
prosecute her own remedies for establishing her own status
independently of these proceedings.
14. In the result the appeal is allowed. In the facts and
circumstances of the case, there will be no order as to costs.
CWP-19578 of 2023 (O&M) 9
ii)Tulsa Devi Nirola & Ors. versus Radha Nirola & Ors.
2020 (2) SCT 301;
In the abovesaid case, on the basis of the nomination declared by
the decased employee, second wife was held entitled for family
pension. The relevant paragraphs of the abovesaid judgment is
reproduced as under:-
“9. Rule 35 (5) provides that for the purpose of Rules 36, 37
and 38, family in relation to a government servant means wife or
wives, including judicially separated wife. Rule 38 provides for
nomination to be made by the government servant in Form 1 or 2
or 3 conferring on one or more persons, the right to receive
death come retirement gratuity that may be due to him. In view
of the partition deed the deceased while filling his nomination in
the prescribed Form under Rule 38 mentioned the name of
respondent no.1 only as the sole beneficiary of family pension.
We are of the considered opinion that Rule 40(6) is conditional
in nature and does not vest an automatic statutory right in
appellant no.1 to equal share in the family pension. The family
pension would be payable to more than one wife only if the
government servant had made a nomination to that effect and
which option was open to him under the Pension Rules.
"40. Family Pension-
(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."
10. The Pension Rules therefore recognize the nomination of
a wife or wives for the purpose of family pension. True, the
family pension did not constitute a part of the estate of the
deceased. If the settlement deed had not been executed and acted
upon different considerations may have arisen. The right to
family pension in more than one wife being conditional in nature
CWP-19578 of 2023 (O&M) 10
and not absolute, in view of nomination in favour of respondent
no.1 alone, appellant no 1 in the facts of the case can also be said
to have waived her statutory right to pension in lieu of benefits
received by her under the settlement deed. The deceased resided
exclusively with respondent no.1 and occasionally visited
appellant no.1. The deceased was exclusively taken care of by
respondent no.1 during his illness including the expenditure
incurred on his treatment. In view of the statutory rules, it is not
possible to accept the argument that respondent no.1 was
nominated only for purpose of receipt of the family pension and
per force was required to share it equally with appellant no.1.
11. In Vidhyadhari (supra), this Court accepted the claim of
the second wife to receive inter alia pension based on
nomination since, like the present case, the deceased was
residing with the second wife to the exclusion of the first. The
grant of succession certificate to the second wife was held valid.
However, to balance equities, this Court granted ⅕th share to the
first wife in the properties. We may have also considered the
balancing the equities if the deceased had not executed a
settlement deed with regard to his movable and immovable
properties and which was accepted and acted upon by the
appellant no.1.
12. We, therefore, find no merit in the appeal. The appeal is
dismissed.”
iii)Gaddam Ruth Victoria versus The State of Andhra
Pradesh and 4 others 2023 (6) Andh LD 194 .
In the abovesaid case, the issue is with regard to the entitlement
of second wife for family pension in the equal share on the basis of
nomination. The relevant paragraphs of the abovesaid judgment is
reproduced as under:-
CWP-19578 of 2023 (O&M) 11
“21. In the aforesaid peculiar factual situation coupled with the
fact that both are widows, in their old age, and the Tribunal
having taken a middleway, whether the direction as issued by the
Tribunal under the impugned judgement deserves interference,
by us, and if so, to what extent, keeping in view, what the social
justice demands. Should we allow the claim of the petitioner in
to to, only because, she is the 1st legally wedded wife, and deny
the benefit to 5th respondent only, because, her marriage, was
during subsistence of 1st marriage of Gaddam Danam, though
since 1986 she lived with Gaddam Danam till his death, and
looked after him as wife and also being recorded in the service
records as wife.
22. We may at this very stage profitably refer the judgement of
the Hon'ble Court in the case of Vidhyadhari v. Sukhrana Bail
(2008) 2 SCC 238.
23. In Vidhyadhari (supra), the facts were that during the
subsistence of the first marriage, one Sheetaldeen working as
CCM Helper in Mines of the Western Coalfields at Pathakheda
solemnized second marriage. From that wedlock four children
were born. The first wife did not have any children. After the
death of Sheetaldeen, two separate applications came to be filed
under section 372 of the Indian Succession Act for obtaining
succession certificate with respect to the movable properties of
the deceased, one by the first wife and the other by the second
wife. The application filed by the second wife was allowed and
the application filed by the first wife was dismissed. Two appeals
were filed by the 1st wife which were allowed in her favour by
the High Court and the matter approached the Hon'ble Supreme
Court at the instance of the second wife. The High Court held
that the marriage of Sheetaldeen with the first wife is very much
subsisting when the second wife got married. Consequently, the
first wife alone was entitled to the grant of succession certificate.
The Hon'ble Apex Court held that the marriage of the second
CWP-19578 of 2023 (O&M) 12
wife during subsistence of the first marriage and in the absence
of any divorce deed or even assertion that there was customary
divorce, the High Court was right in holding that the second wife
could not claim the status of wife and the finding of the High
Court did not call for interference. The Hon'ble Apex Court,
however, further observed that the High Court ought not to have
stopped there only and the question as to whether in spite of the
factual scenario, the first wife could be rendered the succession
certificate ought to have been considered.
24. In Vidhyadhari (supra) it was held that the succession
certificate was for the purpose of collecting Provident Fund, Life
Cover Scheme, Pension and amount of life insurance and amount
of other dues in the nature of death benefits of Sheetaldeen. The
second wife was a nominee, which was not disputed and was
therefore proved. The Hon'ble Apex Court held that a nominee
like, the second wife, who was claiming the death benefits
arising out of the employment can always file an application
under section 372 of the Succession Act, as there is nothing in
that section to prevent such a nominee from claiming the
certificate on the basis of nomination. The Hon'ble Apex Court
observed that the High Court should have realized that the
second wife was not only a nominee but also was the mother of
four children of Sheetaldeen who were the legal heirs of
Sheetaldeen and their names were found in Form-A which was
the declaration of Sheetaldeen during his lifetime. It was
observed that the second wife continued to stay with Sheetaldeen
as his wife for long time and was a person of confidence for
Sheetaldeen, who had nominated her for his provident fund, Life
Cover Scheme, pension and amount of life insurance and amount
of other dues. The Hon'ble Apex Court held that under such
circumstances, she was always preferable even to the legally
wedded wife like the first wife, who had never stayed with
Sheetaldeen as his wife. The Hon'ble Apex Court observed that
CWP-19578 of 2023 (O&M) 13
the High Court should have taken into consideration these
crucial circumstances. Merely because the first wife was the
legally wedded wife that by itself did not entitle her to a
succession certificate in comparison to the second wife who all
through had stayed as the wife of Sheetaldeen, had borne his
four children and had claimed a succession certificate on behalf
of children also.
25. It is apt to reproduce paras 11 to 14 of Vidhyadhari (supra)
as under:
"11. There can be no dispute that Vidhyadhari had never
pleaded any divorce, much less customary divorce between
Sukhrana Bai and Sheetaldeen. There were no pleadings
and hence no issue arose on that count. In our opinion,
therefore, the High Court was right in holding that marriage
between Sukhrana Bai and Sheetaldeen was very much
subsisting when Sheetaldeen got married to Vidhyadhari.
Learned counsel tried to rely on Govindaraju case [(1996) 5
SCC 467 : AIR 1997 SC 10].
We are afraid the decision is of no help to the respondent as
basically the issue in that decision was about the legitimacy
of the children born to a mother whose first marriage was
not dissolved and yet she had contracted the second
marriage. This is apart from the fact that in the present case
there were no pleadings about the existence of custom and
alleged divorce thereunder. Therefore, there was no
evidence led on that issue. In our opinion the decision in
Govindaraju case [(1996) 5 SCC 467 : AIR 1997 SC 10] is
not applicable. Even the other decision in Yamanaji case
[(2002) 2 SCC 637] is not applicable as the facts are
entirely different. In Yamanaji case [(2002) 2 SCC 637]
there was a deed of divorce executed by the wife. The
question was whether there was a customary divorce. There
was a custom permitting divorce by executing deed existing
CWP-19578 of 2023 (O&M) 14
in the community to which the parties belonged. Such is not
the situation here. There is neither any divorce deed nor
even the assertion on the part of Vidhyadhari that
Sheetaldeen had divorced Sukhrana Bai. We, therefore,
accept the finding of the High Court that Sukhrana Bai was
the legally wedded wife while Vidhyadhari could not claim
that status.
12. However, unfortunately, the High Court stopped there
only and did not consider the question as to whether in spite
of this factual scenario Vidhyadhari could be rendered the
succession certificate. The High Court almost presumed
that succession certificate can be applied for only by the
legally wedded wife to the exclusion of anybody else. The
High Court completely ignored the admitted situation that
this succession certificate was for the purposes of collecting
the provident fund, Life Cover Scheme, pension and
amount of life insurance and amount of other dues in the
nature of death benefits of Sheetaldeen. That Vidhyadhari
was a nominee is not disputed by anyone and is, therefore
proved. Vidhyadhari had claimed the succession certificate
mentioning therein the names of four children whose status
as legitimate children of Sheetaldeen could not and cannot
be disputed.
13. This Court in Rameshwari Devi case [(2000) 2 SCC 431
: 2000 SCC (L&S) 276] has held that even if a government
servant had contracted second marriage during the
subsistence of his first marriage, children born out of such
second marriage would still be legitimate though the second
marriage itself would be void. The Court, therefore, went
on to hold that such children would be entitled to the
pension but not the second wife. It was, therefore, bound to
be considered by the High Court as to whether Vidhyadhari
being the nominee of Sheetaldeen could legitimately file an
CWP-19578 of 2023 (O&M) 15
application for succession certificate and could be granted
the same. The law is clear on this issue that a nominee like
Vidhyadhari who was claiming the deathbenefits arising out
of the employment can always file an application under
section 372 of the Succession Act as there is nothing in that
section to prevent such a nominee from claiming the
certificate on the basis of nomination. The High Court
should have realised that Vidhyadhari was not only a
nominee but also was the mother of four children of
Sheetaldeen who were the legal heirs of Sheetaldeen and
whose names were also found in Form A which was the
declaration of Sheetaldeen during his lifetime. In her
application Vidhyadhari candidly pointed out the names of
the four children as the legal heirs of Sheetaldeen. No doubt
that she herself has claimed to be a legal heir which status
she could not claim but besides that she had the status of a
nominee of Sheetaldeen. She continued to stay with
Sheetaldeen as his wife for long time and was a person of
confidence for Sheetaldeen who had nominated her for his
provident fund, Life Cover Scheme, pension and amount of
life insurance and amount of other dues. Under such
circumstances she was always preferable even to the legally
wedded wife like Sukhrana Bai who had never stayed with
Sheetaldeen as his wife and who had gone to the extent of
claiming the succession certificate to the exclusion of legal
heirs of Sheetaldeen. In the grant of succession certificate
the court has to use its discretion where the rival claims, as
in this case, are made for the succession certificate for the
properties of the deceased. The High Court should have
taken into consideration these crucial circumstances.
Merely because Sukhrana Bai was the legally wedded wife
that by itself did not entitle her to a succession certificate in
comparison to Vidhyadhari who all through had stayed as
CWP-19578 of 2023 (O&M) 16
the wife of Sheetaldeen, had borne his four children and
had claimed a succession certificate on behalf of children
also. In our opinion, the High Court was not justified in
granting the claim of Sukhrana Bai to the exclusion not
only of the nominee of Sheetaldeen but also to the
exclusion of his legitimate legal heirs.
14. Therefore, though we agree with the High Court that
Sukhrana Bai was the only legitimate wife yet, we would
choose to grant the certificate in favour of Vidhyadhari who
was his nominee and the mother of his four children.
However, we must balance the equities as Sukhrana Bai is
also one of the legal heirs and besides the four children she
would have the equal share in Sheetaldeen's estate which
would be 1/5th. To balance the equities we would,
therefore, choose to grant succession certificate to
Vidhyadhari but with a rider that she would protect the
1/5th share of Sukhrana Bai in Sheetaldeen's properties and
would hand over the same to her. As the nominee she would
hold the 1/5th share of Sukhrana Bai in trust and would be
responsible to pay the same to Sukhrana Bai. We direct that
for this purpose she would give a security in the trial court
to the satisfaction of the trial court."
26. In Vidhyadhari (supra) the Hon'ble Apex Court, though in
agreement with the finding of the High Court that the first wife
was only the legitimate wife, yet, chosen the second wife to
grant the certificate who was the nominee of the deceased
Sheetaldeen and mother of his four children.
27. In Vidhyadhari (supra) the Hon'ble Apex Court, however,
observed that the equities must be balanced, as the first wife is
also one of the legal heirs, besides the four children, she would
have the equal share in the estate of Sheetaldeen which would be
1/5th . To balance the equities, while granting the succession
certificate to the second wife, a rider was put that she would
CWP-19578 of 2023 (O&M) 17
protect the 1/5th share of the first wife and would hand over the
same to the first wife.
28. Recently, in Tulsa Devi Nirola v. Radha Nirola 2020 SCC
Online SC 283 the Hon'ble Apex Court held that family pension
undoubtedly is not part of the estate of the deceased and will be
regulated by the Pension Rules which confer a statutory right in
the beneficiary eligible for the same. Tulsa Devi Nirola (supra) is
a case where the second marriage was held not invalid. So far as
the grant of family pension is concerned, the nomination was
made in favour of the second wife. The rules provided for such
nomination. It was held that Rule 40 (6) of Sikkim Services
Pension Rules 1990, was conditional in nature and did not vest
an automatic statutory right in the first wife, therein, to equal
share in the family pension. In Tulsa Devi Nirola (supra), Rule
35 (5) of the Pension Rules provided that for the purpose of
Rules 36, 37 and 38, family in relation to a government servant
means wife or wives, including judicially separated wife. Rule
38 provided for nomination to be made by the government
servant in Form 1 or 2 or 3 conferring on one or more persons,
the right to receive death come retirement gratuity that may be
due to him. In the nomination form under Rule 38, the deceased
mentioned the name of the 2nd wife only. There was also a
settlement deed in favour of the first wife by the deceased
husband, under which she received certain benefits.
29. The Hon'ble Apex Court in Tulsa Devi Nirola (supra) held
the right of family pension in favour of the second wife, as the
sole nomination was in her favour. The Hon'ble Apex Court
observed that the deceased husband resided exclusively with the
second wife and occasionally visited the first wife. The deceased
was exclusively taken care of by the second wife during his
illness including the expenditure incurred on his treatment. The
contention as raised in that case that the nomination in favour of
2nd wife was only for purpose of receipt of the family pension
CWP-19578 of 2023 (O&M) 18
and per force she was required to share it equally with the 1st
wife was not accepted by the Hon'ble Apex Court.
30. In Tulsa Devi Nirola (supra) the Hon'ble Apex Court,
however, observed that if the deceased had not executed
settlement deed with regard to the movable and immovable
properties, which was accepted and acted upon by the first wife,
the Court could have considered, balancing the equities in favour
the 1st wife as well.
31. The principle as laid down in the said case with respect to
grant of family pension is that the family pension is not the
estate of the deceased and if the rules provide for nomination
and the nomination has been made, in favour of the second wife,
she would be entitled for the family pension, and the nomination
is not for the purpose of mere receipt of the family pension,
requiring her to share equally with the 1st wife, per force.
32. In view of the aforesaid judgements, we are of the
considered view that in such matters, even if it is found that the
second wife does not acquire the status of wife, for the marriage
having been contracted during the subsistence of the first
marriage, still for the service benefits and service claims of the
deceased husband, she is entitled for protection. The endeavour
of the Courts has always been to balance the equities amongst
two wives though the second may not be understood in the strict
sense as 'wife', a legally wedded. For balancing the equities, the
Courts can pass appropriate orders in favour of both the wives.
33. In the present case also, we have observed above and have
found that the first wife left the deceased Gaddam Danam in
1979, thereafter the deceased Gaddam Danam got the service in
1980, he married the present 5th respondent during the
subsistence of the first marriage with the petitioner. There is
nothing on record to show any customary divorce. On the other
hand, the divorce case was filed in the year 2011, but the same
came to end due to the death of Gaddam Danam during its
CWP-19578 of 2023 (O&M) 19
pendency. There is also nothing on record to indicate that during
the long years, since 1979 till the death of Gaddam Danam, the
first wife ever took care of Gaddam Danam. It was only for the
first time in the year 2010 the claim for maintenance was filed
just before the retirement of Gaddam Danam, and for
enforcement of such claim of maintenance, as was granted, the
order of attachment was passed in 2011 which was set aside by
this Court, but the amount was directed to be kept in abeyance
till passing of fresh orders on matter having been remitted. The
three daughters were born out of the wedlock of Gaddam Danam
with the 5
th
respondent, and even if it be taken that the marriage
of 5th respondent is void for the reason of having been
solemnized during subsistence of first marriage, the children
would be legitimate. The 5
th
respondent resided with the
deceased Gaddam Danam since after her marriage and also
attended him during his illness for which the original medical
bills were filed. During the lifetime, Gaddam Danam also
nominated her, of which there is entry in the service book.
Though that is disputed by the petitioner, being suspicious, and
even though in that respect an order of the Tribunal in the same
O.A, dated 18.03.2016 is there, in which the Tribunal observed
that such entry creates an amount of suspicion, but, we are of the
view that there is nothing on record to show that the entry in the
service record was forged. Merely because the entry was made
with different ink etc., and might have been seen with suspicion
by the Tribunal in its previous interlocutory order dated
18.03.2016, but in passing the final order, such alleged suspicion
did not prevail with the Tribunal. It is settled in law that the
suspicion, howsoever strong, it may be, cannot take the place of
proof. We are of the view that the entry in the service records,
when considered in the light of the undisputed fact that in the
family members details submitted by the deceased at the time of
his pension proposals, he gave the particulars of the 5
th
CWP-19578 of 2023 (O&M) 20
respondent and the three daughters, it can be said that the
deceased during his lifetime had nominated the 5
th
respondent in
the service records, and such an entry cannot give rise to any
suspicion. Filing of the divorce petition by Gaddam Danam
against his first wife, in 2011, is also indicative of the fact that he
wanted that after his death there may not arise any dispute, for
the benefits in favour of the 2nd wife and wanted to secure the
interests of the 2nd wife and the children from her, may be
because the first wife started litigation against Gaddam Danam
for maintenance etc., in the year 2010.
34. The submission of the learned counsel for the petitioner
placing reliance on Rule 50 of the Andhra Pradesh Revised
Pension Rules 1980 is that if the second marriage is contracted
with permission of the competent authority, such wife will have
legal status for all purposes for receiving the family pension with
the first wife and children of the first wife. He submits that the
payment of family pension to the 2nd wife is therefore dependent
upon the permission obtained. If the permission is not obtained
for marriage, the 2nd wife will have no legal status of 'wife', the
marriage being void. He submitted that there was no permission
to Gaddam Danam to solemnize 2nd marriage.
35. Before we deal with the aforesaid submission of the
learned counsel for the petitioner, we would refer to the relevant
provisions as hereinafter. We observe that this provision Rule 50
is a beneficial provision in favour of woman with whom the
government employee contracts another marriage during
subsistence of the first marriage. This provision is therefore
required to be construed liberally to achieve its very object of the
grant of family pension after the death of the government
employee in favour of and to the extent reasonably possible to
make available, both the wives, the family pension, and none of
them be deprived of the same, in particular to the 2
nd
wife with
whom the deceased government employee solemnized 2
nd
CWP-19578 of 2023 (O&M) 21
marriage during subsistence of first marriage. The issue requires
coinsideration from the view point of social justice as well.
36. Rule 50 (2) of the Andhra Pradesh Revised Pension Rules
1980 (in short 'Rules 1980'), provides that the family of the
deceased shall be entitled to a monthly family pension at the
percentage as specified therein.
37. Rule 50 (12) (b) of the Rules 1980 provides that for the
purpose of this rule 'family' in relation to government service
means Category-I (i) wife in the case of a male government
servant, or husband in the case of a female government servant.
38. The Executive Instructions (Circular Memo No.36840-
A/329/A2/Pen.I/93, F & P (FW.Pen.I) Dept., Dt 11.09.1996) on
the point of grant of family pension to the second living wife
provides as under:
"Irrespective of the Personal Laws if a Government
employee having a living wife contracted second marriage
after the introduction of the Andhra Pradesh Civil Services
(Conduct) Rules, 1964 without the permission of the
competent authority, such marriage is null and void and,
second wife does not have any legal status and such second
wife is not entitled to the family pension. On the other hand
if the employee contracted second marriage with
permission of the competent authority such wife will have
legal status for all purposes for receiving family pension
along with the first wife the children of the first wife in
terms of sub-rule (6) of Rule 50 of the Andhra Pradesh
Revised Pension Rules, 1980. If the second marriage is
contracted before the introduction of Andhra Pradesh Civil
Services (Conduct) Rules, 1964 Family Pension can be paid
in the same manner."
39. Rule 49 of the Rules 1980, provides for nominations. A
government servant shall on his appointment, make a
nomination in Form-I or Form-2, as may be appropriate in the
CWP-19578 of 2023 (O&M) 22
circumstances of the case, conferring on one or more persons the
right to receive the retirement/gratuity payable under Rule 47.
40. From the aforesaid provisions, it is evident that there is
provision for grant of family pension to the second living wife
also. Point No.1 of the Circular Memo dated 11.09.1996
provides for the family pension to the wives. Irrespective of
Personal Laws if the government employee having a living wife
contracted second marriage after the introduction of the Andhra
Pradesh Civil Services (Conduct) Rules 1964, without the
permission of the competent authority, such marriage is null and
void, and second wife does not have any legal status and such
second wife is not entitled to the family pension. If the employee
contracted second marriage with permission of the competent
authority, such wife will have legal status for all purposes for
receiving family pension along with the first wife, the children
of the first wife, in terms of sub-rule (6) of Rule 50 of the
Andhra Pradesh Revised Pension Rules 1980.
41. We may refer to the case of the Hon'ble Apex Court in
Badshah v. Urmila Badshah Godse (2014) 1 SCC 188, though
the same is, dealing with Section 125 of Code of Criminal
Procedure (Cr.P.C), where maintenance was claimed by the
second wife, the second marriage being performed during
subsistence of the first marriage of husband, but is of assistance
in the present case, as well.
42. In Badshah (supra) the petitioner husband therein was
already married. His second marriage was also proved between
the parties to the said case. He duped the respondent therein by
suppressing the factum of the first marriage. It was held that he
(husband) could not be permitted to deny the benefit of
maintenance to the respondents. The reasons for such course of
action, as stated by the Hon'ble Apex Court, were threefold, one
of which, we would refer, was that in such cases, purposive
interpretation needs to be given. While dealing with an
CWP-19578 of 2023 (O&M) 23
application of a destitute wife or hapless children, the Court is
dealing with the marginalised sections of the society. The
purpose is to achieve "social justice" which is the constitutional
vision, enshrined in the preamble of the Constitution of India.
The preamble to the Constitution of India clearly signals that we
have chosen the democratic path under the rule of law to achieve
the goal of securing for all its citizens, justice, liberty, equality
and fraternity. It specifically highlights achieving their social
justice. Therefore, it becomes the bounden duty of the Courts to
advance the cause of the social justice. While giving
interpretation to a particular provision, the Court is supposed to
bridge the gap between the law and society. 43. In Badshah
(supra) the Hon'ble Apex Court further observed that the Courts
have to adopt different approaches in "social justice
adjudication" which is also known as "social context
adjudication" as mere "adversarial approach" may not be very
appropriate.
44. The Hon'ble Apex Court in para-14 of Badshah (supra),
quoted, as described by Professor Madhava Menon as under:
"It is, therefore, respectfully submitted that 'social context
judging' is essentially the application of equality
jurisprudence as evolved by Parliament and the Supreme
Court in myriad situations presented before courts where
unequal parties are pitted in adversarial proceedings and
where courts are called upon to dispense equal justice.
Apart from the social-economic inequalities accentuating
the disabilities of the poor in an unequal fight, the
adversarial process itself operates to the disadvantage of the
weaker party. In such a situation, the Judge has to be not
only sensitive to the inequalities of parties involved but
also positively inclined to the weaker party if the imbalance
were not to result in miscarriage of justice. This result is
CWP-19578 of 2023 (O&M) 24
achieved by what we call social context judging or social
justice adjudication."
45. The Hon'ble Apex Court held that the provision of
maintenance would definitely fall in this category which aims at
empowering the destitute and achieving social justice or equality
and dignity of the individual. While dealing with cases under
this provision, drift in the approach from "adversarial" litigation
to social context adjudication is the need of the hour.
46. The Hon'ble Apex Court in Badshah (supra) observed that
the law regulates relationships between people. It prescribes
patterns of behaviour. It reflects the values of society. The role of
the Court is to understand the purpose of law in society and to
help the law achieve its purpose. The law of a society is a living
organism. It is based on a given factual and social reality that is
constantly changing. Change in social reality is the law of life,
responsiveness to change in social reality is the life of the law. In
both constitutional and statutory interpretation, the Court is
supposed to exercise discretion in determining the proper
relationship between the subjective and objective purposes of the
law. The Hon'ble Apex Court held that there is a non-rebuttal
presumption that the legislature while making a provision like
Section 125 Cr.P.C, to fulfill its constitutional duty in good faith,
had always intended to give relief to the woman becoming 'wife'
under such circumstances. This approach is particularly needed
while deciding the issues relating to gender justice.
47. It is apt to refer paras-20, 21 & 22 in Badshah (supra) as
under:
"20. Thus, while interpreting a statute the court may not
only take into consideration the purpose for which the
statute was enacted, but also the mischief it seeks to
suppress. It is this mischief rule, first propounded in
Heydon case [(1584) 3 Co Rep 7a : 76 ER 637] which
became the historical source of purposive interpretation.
CWP-19578 of 2023 (O&M) 25
The court would also invoke the legal maxim construction
of ut res magis valeat quam pereat in such cases i.e. where
alternative constructions are possible the court must give
effect to that which will be responsible for the smooth
working of the system for which the statute has been
enacted rather than one which will put a road block in its
way. If the choice is between two interpretations, the
narrower of which would fail to achieve the manifest
purpose of the legislation should be avoided. We should
avoid a construction which would reduce the legislation to
futility and should accept the bolder construction based on
the view that Parliament would legislate only for the
purpose of bringing about an effective result. If this
interpretation is not accepted, it would amount to giving a
premium to the husband for defrauding the wife. Therefore,
at least for the purpose of claiming maintenance under
Section 125 CrPC, such a woman is to be treated as the
legally wedded wife.
21. The principles of Hindu Personal Law have developed
in an evolutionary way out of concern for all those subject
to it so as to make fair provision against destitution. The
manifest purpose is to achieve the social objectives for
making bare minimum provision to sustain the members of
relatively smaller social groups. Its foundation spring is
humanistic. In its operation field all though, it lays down
the permissible categories under its benefaction, which are
so entitled either because of the tenets supported by clear
public policy or because of the need to subserve the social
and individual morality measured for maintenance.
22. In taking the aforesaid view, we are also encouraged by
the following observations of this Court in Capt. Ramesh
Chander Kaushal v. Veena Kaushal [(1978) 4 SCC 70 :
1978 SCC (Cri) 508] : (SCC p. 74, para 9)
CWP-19578 of 2023 (O&M) 26
"9. ... The brooding presence of the constitutional empathy
for the weaker sections like women and children must
inform interpretation if it has to have social relevance. So
viewed, it is possible to be selective in picking out that
interpretation out of two alternatives which advances the
cause - the cause of the derelicts."
48. We are of the view that the object of providing family
pension to wife after the death of the husband / government
employee cannot be different from the object of providing
maintenance during lifetime of the husband in case of divorce.
49. In our view, Rule 50 of the Rules 1980 is with intend to
give relief to the woman becoming wife. Under such
circumstances, even the wife from the second marriage was
made entitled for family pension, as the main object of this rule
was to give family pension to the wives i.e., more than one, and
for that reason, to clarify the expression 'wife' used in Rule 50
(12) of the Rules 1980, Circular Memo dated 11.09.1996 was
issued providing that irrespective of the personal Laws. The only
thing that requires consideration is the permission from the
department for second marriage.
50. We have already referred to the judgement of the Hon'ble
Apex Court in Vidhyadhari (supra) & Tulsa Devi Nirola (supra)
that family pension is not the estate of the deceased. The
nominee shall be the sole beneficiary. If the nomination is in
favour of the second wife, she would be entitled to the family
pension and not merely for the purpose of receipt of the family
pension. There being nomination in favour of the 5th respondent
by the deceased made during his lifetime, as per the pension
proposals, as also entry in the service book, the 5th respondent
would be entitled to family pension because of the nomination,
irrespective of the fact that there was no permission taken from
the department by the deceased government employee for
second marriage. The point of permission may become relevant,
CWP-19578 of 2023 (O&M) 27
if the 2nd wife also claims family pension, but there is neither
permission for 2nd marriage to the government employee nor
nomination in favour of 2nd wife.
51. Consequently, even if there was no permission for 2nd
marriage, the 5
th
respondent cannot be denied family pension
because of the Circular, provision rule 50 (12), when she had
been nominated by the deceased Gaddam Danam.
52. In view of the above, we do not find force in the above
submission of the learned counsel for the petitioner on the point
of the permission.
53. In view of the above consideration, we find that to do
complete justice between the petitioner and the 5th respondent, it
is necessary to balance the equities in the facts and
circumstances of this case.
54. The order passed by the Tribunal is in advancement of the
social justice doing justice, to both the petitioner and the 5th
respondent.
55. We may observe that the amount of Rs.3,60,000/- was
attached towards arrears of maintenance amount of the first wife
under the orders of the Court as the maintenance awarded by the
Family Court was not paid to the first wife. The FCOP.No.232 of
2011 was finally dismissed for want of prosecution, by order
dated 03.07.2014. There is nothing on record to show that such
amount was paid to the first wife/petitioner. We are of the view
that such amount if not paid, but as that is the arrears towards
maintenance granted to the petitioner during the lifetime of and
against, the deceased Gaddam Danam, that amount should go to
the petitioner the 1st wife, notwithstanding the dismissal of the
FCOP No.232 of 2011 for default.
56. In the rest amount of dues towards the service benefits of
the deceased, to balance the equities, we provide that the same
shall go to the 5
th
respondent including the claim for medical
bills.
CWP-19578 of 2023 (O&M) 28
57. With respect to the family pension, we provide that the
petitioner and the 5th respondent, both shall be entitled in equal
shares.
58. With the aforesaid directions and modification in the
judgement of the Tribunal, the writ petition stands allowed in
part.
59. Let the official respondents grant the benefit, as aforesaid,
within a period of 6 (six) weeks from the date of receipt the copy
of this judgement, without insisting for succession certificate
from any of the parties i.e., the petitioner and the 5th respondent.
60. No order as to costs.”
11. So far as the judgments cited by learned counsel for the
respondents are concerned, perusal of the facts of the judgments would show
that in Nishan Singh's case (supra) the issue was involved with regard to
police help to the petitioner who had got married without being legally and
validly divorced. In Smt. Manjula. N's case (supra), there was no material on
record to show that the respondent therein was a nominee of the deceased
employee in service record. A perusal of the facts and circumstances of the
judgments cited by learned counsel for the respondents would show that the
same are totally different from the facts and circumstances of the present case
and as such, the same does not support case of the respondents.
12. Taking into consideration the abovesaid peculiar facts and
circumstances of the case and the above referred judgments, present writ
petition is allowed. Petitioner No.1 (widow) of late Tirath Singh, who has
been declared nominee in the service record and was wholly dependent upon
the late Tirath Singh, is held entitled for grant of appointment on
CWP-19578 of 2023 (O&M) 29
compassionate ground, the respondents are directed to permit petitioner No.1
to join the duty in pursuance to the appointment letter dated 12.09.2023
(Annexure P-27) issued to petitioner No.1 within a period of 02 weeks from
the date of receipt of certified copy of this order.
13. Pending application(s), if any, also stand(s) disposed of.
(DEEPINDER SINGH NALWA)
JUDGE
May 29, 2025
dinesh
Whether speaking : Yes
Whether reportable : Yes
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