An invalid marriage, such as a second marriage during the lifetime of the first wife, does not entitle the second wife to claim family pension under the Tamil Nadu Pension Rules.

JUDGMENT :

(Prayer: Writ Petition filed Under Article 226 of the Constitution of India, to issue a Writ of Certiorarified Mandamus, calling for the records of the 2nd respondent by in his proceedings Pen 32/4/ppt/5158/ 11-12/A90 4018 dated 16.2.2012, quash the same and consequently direct the respondent to sanction the family pension from the date of death of petitioner-s husband namely Dhanushkotti.)

1. The order of rejection, rejecting the claim of the writ petitioner for grant of family pension is under challenge in the present writ petitioner.

2. The writ petitioner states that her husband Late Mr.Dhanushkotti got married one Janniammal, who is none other than the elder sister of the writ petitioner. The said Janniammal was suffering an illness and therefore, the husband of the writ petitioner married the writ petitioner as second wife. It is an admitted fact that the petitioner married the deceased employee Late Mr.Dhanushkotti on 14.09.1975, when his first wife was alive. The husband of the writ petitioner was working as Teacher in Primary School. He retired from service on 31.05.1997. After his retirement, he was receiving pension and died on 10.06.2010. Thereafter, the petitioner submitted an application for grant of family pension. The said application was rejected by the Principal Accountant General of Tamil Nadu on the ground that the second marriage of deceased employee Late Mr.Dhanushkotti with the petitioner Tmt.Santhi was solemnized on 14.09.1975, admittedly, when the first wife was alive. Therefore, the petitioner is not eligible for family pension. A Government employee, contracting a second marriage during the lifetime of the first wife is a misconduct and he is liable to be prosecuted for bigamous marriage. That apart, the second marriage during the lifetime of the first wife is not a valid marriage under the Hindu Marriage Act, 1955 and therefore, the second wife cannot be construed as a widow within the meaning of Tamil Nadu Pension Rules, 1978. When the marriage became invalid, the question of granting family pension under the Tamil Nadu Pension Rules would not arise at all.

3. As per the pension scheme, the family pension is to be paid only to the spouse i.e., legally wedded spouse of an employee. Once the authorities came to know that the family pensioner is not a legally wedded spouse of the deceased employee, then they cannot sanction and pay the family pension. In such circumstances, the spouse has to establish that he/she is the legally wedded spouse of the deceased employee.

4. The scope of Tamil Nadu Pension Rules for grant of family pension under Rule 49 was elaborately considered by the Hon-ble Division Bench of this Court in the case of R.Rajathi Vs. The Superintendent Engineer dated 05.06.2018 in W.A.No.977 of 2017. That apart, Rule 49 (7) of Pension Rules contemplates the pension is payable for more than one widows. The language employed is “payable”. Thus, if more than one widow is eligible for family pension and such family pension is payable to the second widow, then only the question of sharing the pension under Rule 49 of the Pension Rules would arise, but not otherwise. The payability/eligibility of family pension for more than one widow would arise, only if two wives are permissible. Such a situation was considered by the Rule makers since the marriage solemnized prior to Hindu Marriage Act, 1955 was considered as valid. Prior to the year 1955, contracting a second marriage during the lifetime of the first wife was permitted and therefore, the sharing of family pension arouse and the provision was enacted. However, after the year 1955, second marriage is not only misconduct under the Government Servants Conduct Rules, but prohibited. Therefore, the question of now sharing of family pension in respect of invalid marriage would not arise at all.

5. Rule 49 of the Tamil Nadu Pension Rules deals with “Family Pension”. Rule 49 (7) (a) (i) contemplates that “Where family pension is payable to mor