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The Bombay High Court yesterday held that the putative second wife of a deceased government employee is not entitled to family pension after demise of first wife where the first wife was receiving family pension.

Factual Matrix

The petitioner here, Shamal Tate is the 'second wife' of deceased government employee one Mahadeo Narayan Tate. Allegedly, Mahadeo Tate married his second wife since he had no children with his first wife.

After the death of Mahadeo Tate, the first wife and Shamal Tate came to settlement wherein the first wife had claim to the family pension and the second wife got major chunk of retirement benefits in the nature of gratuity, group insurance and leave salary.

Subsequently, the first wife passed away. Shamal Tate approached authorities to claim the family pension several times. The fourth time a joint meeting was held between Principal Secretary (Finance), Additional Secretary (Law and Judiciary) and Additional Secretary (Revenue). In the meeting, a decision was taken that Tate was not entitled to the family pension. She has challenged that decision in court. 

Arguments advanced 

Shamal Tate represented by Adv. Ashok Tajane submitted that under Rule 116 (6)(a)(i) of the Pension Rules family pension is allowed to be paid to a second wife. He further submitted that Tate is entitled to pension since under Rule 111 (5)(i) of the Pension Rules states  “[legally wedded wife] or wives including judicially-separated wife or wives in the case of a male Government servant."

Amicus Curie

The Court had appointed Dhrupad Patil as amicus in the matter. Patil submitted to the court that the marriage between Tate and her husband is void and if even after that she is given the family pension then "it would render the statutory provisions of the HMA nugatory."

Patil further submitted that Mahadeo Narayan Tate entered into the second marriage without taking permission of the Government which was required of him under Rule 26 of the Maharashtra Civil Services (Conduct) Rules, 1979 since his first wife is still living. 

Order

The Bench of Justices Milind N. Jadhav and S.J. Kathawalla opined that Tate will not be entitled to the family pension. The Court relied on various decision of the Supreme Court, including, Rameshwari Devi vs. State of Bihar wherein the Apex Court had held that putative second wife cannot be described as the widow of the deceased government employee when the first spouse is alive and marriage legally subsisting. 

Thus the Court concluded, 

"...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."

The Bench further stated that by entering into the settlement with the first wife, Tate has essentially given up any claim to the family pension and hence is now estopped. 

Cause Title: Smt. Shamal Mahadeo Tate V. The District Collector, Solapur & Ors.