Friday, December 9, 2022

Bombay HC Upholds Tribunal Order Grants Pension to Second Wife

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The High Court of Bombay, Nagpur bench dismissed the writ petition filed by the Union of India, through General Manager of South East Central Railway challenging the order of CAT whereby it directed to release family pension to the second wife of its deceased Employee.

Union of India, through South East Central Railway department on being aggrieved by the decision of the Central Administrative Tribunal had moved to the High Court of Bombay, Nagpur bench comprised of Justice A.S. Chandurkar and Justice Vinay Joshi. The respondent was the second wife of the deceased employee of Central Railway department.

The one Ghasiram was working as a Gangman with SECR and retired on superannuation. Thereafter, he was getting pension on being the employee of the Central Railway Department. His wife died and eventually he also died after one year of his wife’s death. One Ganeshibai / respondent claimed to be second wife of Ghasiram and accordingly she had claimed family pension from petitioners It was her claim that she being widow of Ghasiram in the capacity of legally wedded wife, is entitled for family pension after demise of Ghasiram. Pension claim of Ganeshibai came to be rejected by petitioners SECR(South Eastern Central Railway). The claim of Ganeshibai was rejected on the count that she is not legally wedded wife of Ghasiram. 

Being aggrieved the respondent second wife filed an original application in the CAT where she claimed that she belongs to a tribal community namely ‘Gond’, and her late husband also belong to said community. As per the custom prevailing in said community, second marriage is permissible, and therefore, her marriage is legal and she is entitled for family pension. 

The CAT referred to Rule 75 of the Railway Services (Pension) Rules, 1993 (1993 Rules), wherein sub-rule [7][i][a] of Rule 75 of the 1993 Rules, stipulates that where the family pension is payable to more widows than one, the family pension shall be paid to widows in equal shares. In view of that the Tribunal had directed the petitioners to consider the case of respondent afresh in adherence to Sub-rule [7][i][a] of Rule 75 of the 1993 Rules, and also in the light of the relevant provisions of Hindu Marriage Act, 1955 and judgment delivered by the Madhya Pradesh High Court in case of Kumari Bai .vrs. Anandrao.

Thereafter, before the High court the petitioner railway authority contended that the deceased employee has not complied with Rule 21 of the Railway Servants Conduct Rules, 1966 (1966 Rules), which imposes restriction regarding marriage, as no railway servant shall enter into marriage with any person have spouse living, unless requisite permission is sought by the Railway servant on satisfying that such marriage is permissible under the personal law applicable to him and other party to the marriage. It further said that no such permission was sought by deceased Ghasiram, nor he has informed the railway administration about second marriage and therefore, due to breach of Rule 21 of 1966 Rules, the claim for family pension would not sustain. Moreover, it was also contended that that the deceased railway employee has misrepresented the railways by affixing photograph of respondent on provisional pension papers by naming her as Sunderabai, who was his first wife.

Later, the High Court held that it is apparent from the record that the deceased employee has claimed to be belonging to Gond community, a Scheduled tribe and it is an admitted fact. Moreover, petitioners have also admitted that respondent is second wife. The court further said that it was well accepted by the petitioners in their communication to the respondent second wife while rejecting her claim that though Madhya Pradesh High Court approved customary second marriage in Gond community, however, it was subject to the preceding divorce. Apparently, the authority has misdirected itself by conjointly reading two separate aspects of the judgment rendered by the Madhya Pradesh High Court.

As per the Madhya Pradesh High Court in the case of Kumaribai, It was held that provisions of Hindu Marriage Act do not apply to the people belonging to Gond community, which is a Scheduled tribe. They have their customary forms of marriage. Thus, second marriage is common among them, they follow the custom of offering Churi to the bride by bridegroom. And also there is accepted custom of leaving the wife and this results in divorce. Apparently, there is no connection in between the custom followed amongst Gond about performing second marriage and another custom of taking divorce. Both factors are distinct, and is a reiteration of two different customs followed in the community.

Thereafter, Bombay High Court said that the authority has totally misread the observations of the Madhya Pradesh High Court and the CAT has well explained the said position in the impugned judgment and rejected the reasoning furnished by petitioners on said count. In addition to it, It held that the railway department had not taken any action about his misconduct where the deceased employee had not informed about the second marriage to the department which also made him fall for non-compliance of Rule 21 of the 1966 Rules, such misconduct cannot be invoked after his demise.

“Reverting to Rule 75 [7][i][a] of 1993 Rules, it stipulates that where pension is payable to more widows than one, the family pension shall be paid to the widows in equal share. Therefore, it is apparent that the rule making authority has made provision for payment of family pension to second wife in certain contingency. Though Rule 21 of the 1966 Rules, mandates to take prior permission for second marriage, however, non-obtaining of such permission would not change the status of said marriage”, held by the Bombay High Court.

Therefore, the court upheld the decision of CAT by saying that their marriage is not void and as such respondent Ganeshibai can be called as a widow of the deceased railway employee. Mere non obtaining prior permission for such marriage in terms of Rule 21 would not change the status of marriage, which is otherwise legal and valid as per the prevailing custom in the community. Therefore, respondent Ganeshibai is entitled to pensionary benefits. 

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