IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR BEFORE HON'BLE SHRI JUSTICE VIVEK JAIN

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ON THE 13 OF OCTOBER, 2025 WRIT PETITION No. 854 of 2023 SMT. KAUSHALYA BARKADE Versus THE STATE OF MADHYA PRADESH AND OTHERS Appearance:

Shri Uma Shankar Jayaswal - Advocate for the petitioner. Ms. Akashmi Trivedi - Advocate for the respondent No.3.

ORDER By way of this petition, the petitioner has sought the payment of family pension to her.

2. The husband of the petitioner late Shri Attar Singh Barkade expired on 17.12.2018. The said person had retired on 30.04.2007 and more than 11 years after his retirement, he expired in the year 2018.

3. The petitioner is admittedly second wife of the deceased government servant, who married the government servant during lifetime of first wife. From the first wife namely Shanti Bai, the deceased employee had two children and from the petitioner, the deceased employee had three children. Admittedly, Shanti Bai expired on 11.08.2007 and much prior to her death, the petitioner had married the deceased employee.

4. Counsel for the petitioner had raised a similar contention that since the petitioner and her deceased husband are members of "Gond" Tribe, which is a notified Scheduled Tribe in the State of Madhya Pradesh in terms of Article 366 (25) of the Constitution of India, therefore, in terms of Section 2 (2) of the Hindu Marriage Act, 1955 the provisions of the said act would not apply to the petitioner and the deceased husband could have married a second wife during lifetime of first wife. The judgement of Co-ordinate Bench in W.P. No.3494/2015 was heavily relied.

5. Per contra, it is contended by counsel for the respondent that irrespective of personal law, since M.P. Civil Services Conducts Rules, 1965 applied to the deceased employee, therefore, as per Rule 22(1), there being bar on bigamous marriages, therefore, by placing reliance on judgement of Coordinate Bench in W.P. No.6948 of 2023, it has been argued that second wife is not entitled to family pension because the second marriage of the deceased government servant during lifetime of first marriage had no legal sanctity so far as the employer is concerned. It will be irrespective of the personal law as service rules barred bigamous marriages.

6. In the present case, the first question that arises for determination is whether Hindu Marriage Act, 1956 would not apply to the petitioner and her deceased husband in view of Section 2(2) of Hindu Marriage Act. Heavy reliance was placed on judgement of Coordinate Bench in W.P. No.3494/2015. However, the aforesaid issue has been considered by the Supreme Court in the case of Labishwar Manjhi v. Pran Manjhi, (2000) 8 SCC 587, whereby the Hon'ble Apex Court held that mechanically the provisions of Hindu Law cannot be excluded to Schedule Tribes. It has to be proved that the concerned Tribe has not been "Hinduised" or that its customs and traditions are different from the religions to which Hindu Marriage Act applies i.e. Hindu, Sikh, Jain and Buddhist religions, which have similar sets of societal traditions. The Hon'ble Court held that in the absence of proving different sets of customs and traditions, the Tribals cannot simply seek relaxation from the provisions of the act governed by Hindu Law. The Hon'ble Apex Court ultimately held that Santhals would not be excluded from operation of Hindu Succession Act, because nothing has been proved that the said Tribe has not been Hinduised. The Hon'ble Apex Court held as under:-

"1. Heard learned counsel for the parties.

2. The present appeal is directed against the judgment and order dated 27-1-1986, passed by the High Court whereby the second appeal of the respondent was allowed while the concurrent findings of the two courts below were set aside.

3. The short facts are that the father of Respondents 2 and 3 and husband of Respondent 1 filed a suit against the appellant for declaration that they being agnates of the deceased husband, inherited the property accordin