A marriage under the Special Marriage Act is void if either party has a living spouse, and proper parties must be included in civil litigation to validate claims.

ORDER

This writ petition is preferred challenging the order of the first respondent dated 05.02.2015 and for a consequential direction to authorise the family pension to the petitioner.

2. The petitioner claims to be a legally wedded wife of Thiru.S.D.Nasheer Basha who was in Government service and got retired as Deputy Collector on 30.09.1992 and died on 13.04.1999. The petitioner claims that the marriage had taken place on 12.02.1981 and later was solemnised in the presence of Registrar of Marriages, Basvanthapuri, Bangalore on 19.03.1981 under the Special Marriage Act, 1954 .

3. It is averred that the first wife of the deceased Government servant was one Kalisan Rahiman and she deserted him and her whereabouts are not known and as the second wife Tmt.Stella @ Sella Bai was suffering from illness, Nazeer Basha had married the petitioner as the third wife. She claims that after his retirement he was paying a sum of Rs.1,500/- per month as maintenance till the date of his death i.e. on 13.04.1999. As she is entitled to family pension under the Tamil Nadu Pension Rules, she had applied to the Tahsildar, Salem for legal heirship certificate and by proceedings dated 28.05.1999, the Tahsildar had relegated the petitioner to the Civil Court as the said Nazeer Basha had married 3 women belonging to different religions.

4. Pursuant to which, the petitioner had filed the suit in O.S.No.384 of 2001 on the file of the First Additional District Munsif, Salem and by judgment and decree dated 19.06.2003, the suit was decreed and she was declared as the legally wedded wife of Nazeer Basha. Based on enclosing these documents, she had made representations and since the same was not considered, she approached this Court in W.P.No.15441 of 2009 and by order dated 09.11.2011, the writ petition was disposed of directing the respondents to consider the representation and pass orders.

5. Pursuant to which, the first respondent by impugned order dated 05.02.2015, had rejected the claim of the petitioner on the ground that no proper documents had been submitted to establish her claim as the third wife. Assailing the same, the petitioner had preferred the above writ petition.

6. Mr.M.Ravi, learned counsel for the petitioner contended that the petitioner had submitted the certificate of marriage registered under the Special Marriage Act dated 19.03.1981 which would establish the special marriage. Further by relying on the proceedings of the Tahsildar dated 28.05.1999, he contended that the Tahsildar after an enquiry had categorically stated that the said Nazeer Basha had 3 wives belonging to different religions and the same was marked to the petitioner.

7. Further it is his vehement contention that by judgment and decree dated 19.06.2003, the Civil Court had already declared the petitioner to be the legally wedded wife of the deceased Nazeer Basha. He further contended that when all these documents are unimpeached and not disputed by anyone, it is established that the petitioner is the third wife and therefore the respondents had rejected the claim merely on flimsy reasons.

8. It is his further contention that in fact the second respondent District Collector, Salem, had also sent a report confirming that the petitioner is the third wife, but merely stating that she had not been nominated by the deceased, the claim has been erroneously rejected and he contended that the nomination alone will not exclude the legal representatives from receiving the pensionary benefits and sought for indulgence of this Court.

9. Per contra, Mrs.V.Yamuna Devi, learned Special Government Pleader for the respondents 1 to 3 argued that when the deceased has submitted the Form-3 containing the details of the family, the petitioner has not been listed as a member and further one S.Shameem @ Zamrud is the first wife having a son and daughter and one Stella @ J.Sella Bai is the second wife having 3 sons and 1 daughter.

10. Further she contended that the civil court judgment relied on by