Second wife married during first wife's lifetime eligible for pension nominee entry after first wife's death, given long cohabitation, family insistence, major heirs' no-objection, and no other claimants, overriding technical voidness.

JUDGMENT :

Sandeep Sharma, J.

By way of instant petition, petitioner has prayed for following reliefs :

“i) Issue a writ of certiorari to quash Annexure P-5 issued by the respondent No.5.
ii) Issue a writ of mandamus directing the Respondent authorities to enter the name of the second wife of the petitioner in the pension record.”

2. In the year 1973, petitioner came to be appointed as Carpenter/Foreman on regular basis with the respondent-department. In the year 1994, petitioner solemnised marriage with Ms. Kamlesh Devi, daughter of Mr. Ghoundlu Ram, but since no child was born out of their wedlock, Ms. Kamlesh Devi and her parents insisted upon petitioner to solemnise second marriage and as such, during subsistence of his first marriage with Ms. Kamlesh Devi, petitioner solemnised second marriage in accordance with Hindu rites and customs with Ms. Jawala Devi i.e. younger sister of Ms. Kamlesh Devi.

3. Petitioner retired in the year 2003 and since then, he has been drawing pension under PPO No.62182/HP, Case No.P-2/62182/M- 11/2003-04/183. On 20.04.2020, first wife of the petitioner i.e. Ms. Kamlesh Devi expired. After death of his first wife, named hereinabove, petitioner filed representation dated 31.01.2021, praying therein respondent-department for change of nominee in the pension record and enter the name of Ms. Jawala Devi instead of Ms. Kamlesh Devi.

4. On 29.04.2021, petitioner again made a representation/reminder to the respondent-department with the prayer to enter the name of Ms. Jawala Devi, instead of Ms. Kamlesh Devi, but fact remains that such representation of him was rejected vide letter dated nil (Annexure P-5) on the ground that second wife of the petitioner is not eligible for family pension. In the afore background, petitioner has approached this Court in the instant proceedings praying therein to set aside aforesaid order (Annexure P-5) and issue directions to the respondents to enter the name of his second wife in the service record, in place of Ms. Kamlesh Devi, who expired on 20.04.2020.

5. Respondents No.1 to 4 as well as respondent No.5 have filed replies, wherein facts, as have been noticed hereinabove, have not been disputed, rather, attempt has been made to refute the claim of the petitioner on the ground that since petitioner had solemnised second marriage during the subsistence of his earlier marriage and in the service record, name of earlier wife i.e. Ms. Kamlesh Devi stood recorded, there was no occasion, if any, for respondents to enter the name of the second wife. While placing reliance upon Section 5 of the Hindu Marriage Act, i.e. condition for a Hindu marriage, it has been submitted at the behest of respondents that second marriage of the petitioner with Ms. Jawala Devi during subsistence of his first marriage with Ms. Kamlesh Devi was otherwise illegal and as such, his prayer for entering the name of the second wife in the service record is not tenable.

6. I have heard the parties and gone through the record of the case.

7. It is not in dispute that in the year 1994, petitioner had solemnised marriage with Ms. Kamlesh Devi, as a result thereof, name of Ms. Kamlesh Devi was recorded as nominee of the petitioner in the service record. As per averments contained in the petition, which have not been rebutted, petitioner herein solemnised second marriage with the younger sister of his first wife, that too on the insistence of Ms. Kamlesh Devi, as no issue had born out of the wedlock of petitioner and Ms. Kamlesh Devi.

8. Though petitioner had retired in the year 2003