Will live-in female partner be entitled to pensionary benefits? Larger bench of Madras HC to decide

  • Shaheen Parween
  • 10:13 PM, 10 Jun 2021

The Madras High Court recently referred to a larger bench a question as to whether a woman having a continued live-in-relationship with a man during his lifetime attains the status of a wife after the demise of his first wife in order to get pensionary and other terminal benefits due to the deceased person.

The matter was referred by a single bench led by Justice S Vaidhyanathan to a larger bench on a plea filed by the second wife of a deceased man praying for disbursement of his pensionary benefits to her.

The petitioner submitted that the deceased had married her sister who was added as a nominee in the pension account of the deceased.

Since the portioner’s sister was suffering from cancer, she was asked to marry her husband and all lived under the same roof with their three sons and three daughters.

After the death of the petitioner’s sister, her husband applied for making the petitioner as the legal nominee, but before the change could be affected, the husband died.

The petitioner submitted that she is entitled to pension and other retirement benefits of her husband in terms of Rule 49 of the Tamil Nadu Pension Rules, 1978 . Moreover, the children of the deceased have no objection for the Petitioner getting the terminal benefits of the deceased, including pension.

The Court observed “The Hindu Marriage Act, 1955 does not permit second marriage. Second marriage becomes valid, if solemnized after the demise of the first wife. But, it cannot be lost out of sight that, after the enactment of the Domestic Violence Act, 2005, even without marriage, when the factum of live-in-relationship between a man and woman is established, it is held to be legally valid, and over a period of time, the woman attains the status of a wife. But, after the demise of the husband, if two wives are alive, the second one will not attain the legal status of 'wife' unless Personal Law permits”.

 The Court further elaborated “The Domestic Violence Act, 2005, nowhere states that, a married man cannot have a live-in-relationship with an unmarried woman, so also, a married woman cannot have relationship with any person, more Page No.8 of 15 https://www.mhc.tn.gov.in/judis/ W.P.No.5706 of 2021 particularly, when Section 497 of the Indian Penal Code has been struck down by the Supreme Court. The Supreme Court has held that, in a live-in-relationship between a male and female, who do not have a spouse, a situation like the present one on hand may arise, only after the demise of the legally wedded person.”

Further it was observed that under the Domestic Violence Act, 2005,” if the live-in-relationship is established, then the woman attains the status of a wife. The march of law happens only while considering the cohabitation that, continues after the death of the first wife”.

The Court observed that When there is a specific enactment of the Domestic Violence Act, 2005, Rule 49 of the Tamil Nadu Pension Rules, 1978 will take a backseat,” as Domestic Violence Act, 2005, will come to the driver’s seat and the woman will have to be given protection and the Rule cannot supersede the Statute.”

The Court was of the view that “the second wife attains the deeming status of a wife from the date of demise of the first wife, in case, the husband is alive on the date of demise of the first wife. Also, when unknown relationship comes to be known after the demise of the husband, such woman may not be entitled to any relief, unless Personal Law permits more than one marriage or a declaration is obtained from the competent Judicial Forum with regard to her legal status, after making the first wife as a party, if she is alive.”

The Court taking note of the fact that” women are to be respected and protected, more so, in the light of the Protection of Women from Domestic Violence Act, 2005,” referred  the issue to a larger bench.