Manemma vs State Of Telangana

This writ petition is filed seeking to declare the action of the respondents 2 to 4 in issuing the impugned proceedings dated 21.09.2017 sanctioning the net family pension of late Pandurangaiah in favour of 5th respondent and consequently direct the respondents 2 to 4 to pay net family pension of late Pandurangaiah only to the petitioner.

The brief facts leading to filing of this writ petition are as under:

2.1. Petitioner is the wife of late M.Pandurangaiah. Petitioner married to late Pandurangaiah on 05.05.1977, who is an employee in Animal Husbandry Department. Late Pandurangaiah married 5th respondent while first marriage between the Pandurangaiah and the petitioner was subsisting and thus, husband of the petitioner committed an offence of bigamy. On the complaint given by the petitioner, respondents 2 and 3 initiated departmental proceedings against her husband and initially her husband was dismissed from service by order dated 02.11.2000 for the offence of bigamy. However, the appellate authority set aside the dismissal order on the ground that Pandurangaiah had obtained customary divorce from the petitioner and thereafter, married 5th respondent and thus, he was reinstated into service.

2.2. While so, late Pandurangaiah filed O.P.No.45 of 1998 against the petitioner for divorce before the Senior Civil Judge’s Court, Mahabubnagar and the same was dismissed by judgment dated 09.04.2002. Aggrieved by the same, Pandurangaiah filed appeal before the High Court vide CMA (SR) No.34890 of 2003 and the same was dismissed by the Hon’ble High Court vide order dated 18.08.2003. Petitioner submitted another complaint before the Department enclosing the copies of judgment passed in O.P.No.45 of 1998 and order in CMA(SR)No.34890 of 2003 and brought to the notice of the Department that Pandurangaiah failed to prove customary divorce. Consequently, the respondents reopened the departmental proceedings against Pandurangaiah and vide order dated 19.02.2011 imposed penalty of compulsory retirement from the service, thus, then the same has become final.

2.3 Late Pandurangaiah received the pension after retirement and died on07.02.2015 by leaving the petitioner as his first wife. It is contended that petitioner being first wife of Pandurangaiah is entitled to pension of her late husband and accordingly, she submitted relevant papers to the respondents 2 and 3 for sanction of family pension. However, 2nd and 3rd respondents processed the proposals of 5th respondent, who is second wife of Pandurangaiah and consequently, 4th respondent sanctioned net pension of Rs.21,887/-per month to the 5th respondent vide order dated 21.09.2017.

2.4. It is further contended that 2nd and 3rd respondents imposed punishment of compulsory retirement of Pandurangaiah only on the complaint given by the petitioner that he committed the offence of bigamy and therefore, upon death of late Pandurangaiah, petitioner is alone entitled to family pension being first wife. Petitioner had also submitted family member certificate dated 14.10.2016 issued by the Tahsildar, Wanaparthy, as per which, she is only legally wedded wife of late Pandurangaiah. Therefore, it is prayed that order dated 21.09.2017 be set aside and further direction to respondents to pay net family pension to the petitioner herein.

This Court by order dated 09.10.2017, granted interim stay of the impugned proceedings dated 21.09.2017 sanctioning the net family pension of late Pandurangaiah in favour of 5th respondent including payment of net pension pending disposal of the writ petition.

Respondent no.3 filed counter, which is also sworn on behalf of respondent Nos.1 and 2. In the counter it is stated that late Pandurangaiah was appointed as Livestock Assistant in Animal Husbandry Department on 04.06.1979. The marriage of late Pandurangaiah and the petitioner was performed on 05.05.1977 and as per the statement of petitioner dated 03.07.1978, she never stayed with her husband. Therefore, the marriage and divorce were prior to appointment of late late Pandurangaiah in the Department and the marriage of petitioner was not subsisting at the time of appointment. Late Pandurangaiah retired on compulsory retirement on 21.09.2010, thereafter, he submitted representation dated 04.09.2012 appointing the 2nd wife Smt. M.Venamma i.e. respondent No.5 as nominee and for family pension benefits. Representation dated 04.09.2012 and letter dated 13.12.2012 of the Assistant Director of Animal Husbandry, Siddipet, were submitted to the Accountant General (A&E), Hyderabad for further process no representation was received by the respondent office from the first wife. Therefore, the Department is justified in submitting nominee of second wife of late Pandurangaiah to the Accountant General for family pension benefits and it is finally prayed that the writ petition is devoid of merits and liable to be dismissed.

Respondent no.5 filed counter denying the allegations made in the writ affidavit and contended that she is the legally wedded wife of late Pandurangaiah, who retired on compulsory retirement on 27.08.2010. It is contended that after the dissolution of the marriage of her husband with his first wife in the year 1979, she married her husband on 09.11.1980. After her marriage, her name was entered in service register of her husband and her name was carried in all official correspondences and out of wedlock, they were blessed with two children. It is further contended that though the petitioner left her husband in the year 1979, she tried to take undue advantage of not dissolving their marriage by demanding share in the property, her husband filed OP No.45 of 1998 for divorce, which was dismissed on 09.04.2002. Further, on compulsory retirement of her husband, pensionary benefits were sanctioned to her husband vide letter dated 08.02.2013 by the Accountant General, Hyderabad, where under her name was specifically mentioned as the beneficiary of family pension and her husband received pensionary benefits till his death i.e., 07.02.2015.

5.1. It is further contended that after death of her husband, the official respondents have sanctioned and released family pension in her favour and she has received the same till February, 2018. Aggrieved by the same, petitioner filed the present writ petition and obtained interim stay of orders dated 09.10.2017. Thereafter, the Accountant General (A&E), Hyderabad stopped the payment of family pension to her vide orders dated 24.03.2018 and her pension is being withheld by the respondents.

5.2 It is also contended that the official respondents have rightly sanctioned the family pension in her favour as per her late husband declaration in the pension papers. Even assuming that the petitioner has a claim as per rule 50(6) of AP Revised Pension Rules, 1980, it is incorporated that wife or wives are entitled for family pension of the deceased pensioner and if that is so, she can raise only the claim upto 50% family pension. It is further contended that because of interim orders, she is suffering a lot financially and mentally to lead her day to day life and finally prayed to dismiss the writ petition.

Heard learned counsel Sri M.Damodar Reddy for the petitioner, learned Govt. Pleader for Services-I & III for respondents 1 to 3, Sri K.Balakrishna learned counsel for respondent no.4 and Sri Siripuram Keshava learned counsel for respondent no.5.

Consideration:

The undisputed facts which emerges from the pleadings and the material placed on record are that petitioner is the first wife of late Pandurangaiah and that the late husband was imposed penalty of compulsory retirement by the Department on the complaint given by the petitioner that he contracted second marriage and thus, indulged in an offence of bigamy. It is also not in dispute that O.P.No.45 of 1998 filed by Pandurangaiah for divorce was dismissed and there is a clear finding that the alleged customary divorce issued by the petitioner is not proved and so also desertion alleged by Pandurangaiah. Further, the appeal filed by him in CMA (SR) No.34890 of 2003 was also dismissed.

It is also a fact that that despite submission of family member certificate, copies of judgments by the petitioner, the Department sanctioned the family pension to the 5th respondent vide proceedings dated 21.09.2017. The justification sought to be put-forth by the Department that Sri Pandurangaiah submitted representation, dated 04.09.2012 nominating the 5th respondent as his nominee for family pension benefits and that was submitted to the Accountant General, since no objection was received from the petitioner is per se improper on the part of the Department. More so, in the light of penalty of compulsory retirement imposed by the Department on the ground of bigamy, the Department is fully aware of the fact that bigamy of Pandurangaiah and the 5th respondent is not legally wedded wife of Pandurangaiah.

Further, it is also on record that petitioner submitted the copy of judgment passed in O.P.no.45 of 1998 as well as judgment passed in CMA (SR) No.34890 of 2003 and also family member certificate issued by the Tahsildar, Wanaparthy, as per which, petitioner is alone legally wedded wife of late Pandurangaiah. Therefore, the Department is not justified in forwarding the name of 5th respondent as nominee of late Pandurangaiah and the same is contrary to departmental proceedings dated 19.02.2011, by which Pandurangaiah was imposed penalty of compulsory retirement on the ground of bigamy and thus, proceedings dated 21.09.2017 is not valid.

Learned counsel for petitioner relied upon the judgment of learned single Judge of this Court in G.Bharathi and others vs. G.Prameela and others 2007 SCC Online AP 646, in support of his contention that the 2nd marriage during subsistence of earlier marriage is void.

The learned single Judge in G.Bharathi (supra), held as under:

“14. As per Rule 49 of the Revised Pension Rules, 1980, a Government servant can, on his appointment, make a nomination in favour of a person or persons to receive the death-cum-retirement benefits payable under Rule 47, and such nomination shall not be in favour of any person or persons other than the members of his family. As per sub-rule (5) of Rule 46 of the said Rules, ‘family’ in relation to Government servant for the purpose of this rule and Rules 47, 48 and 49 means—

(i) wife or wives, in the case of a male Government servant;

(ii) Husband in the case of a female Government servant;

(iii) Sons including step-sons, posthumous sons, and adopted sons (whose personal law permits such adoption);

(iv) Unmarried daughters including step daughters, posthumous daughters and adopted daughters (whose personal law permits such adoption);

(v) Widowed daughters including stepdaughters and adopted daughters;

(vi) Father; and including adoptive parents in the case of individual whose personal law permits adoption;

(vii) Mother

(viii) Brothers below the age of 18 years including step brothers;

(ix) Unmarried sisters and widowed sisters including step sisters;

(x) Married daughters; and

(xi) Children of pre-deceased son.”

The learned single Judge in the circumstances in paragraph-13 held that there was no possibility of a person having two legally wedded wives after the advent of Hindu Marriage Act, 1955 and inasmuch as marriage between a man and women, who has a spouse living, after the coming into force of that Act, would be null and void and the status of the second wife can only be that of a concubine, but not the wife of the deceased. It is also observed that concubine cannot be elevated to the status of a wife and cannot be treated as the wife of the deceased and finally concluded that concubine cannot be elevated and entitled retirement benefits of the deceased.

It is relevant to note that Rule 49 of the Pay Revised Pension Rules, 1980 prohibits a Government servant nominating the persons, who are not the members of his family, for family pension.

Learned Government Pleader for Services-III relied upon the decision of Hon’ble High Court of Calcutta in Krishna Veni vs. Union of India and others 2021 SCC Online Cal 437, wherein, the second wife of the deceased filed writ petition to grant pension cancelling the pension sanctioned in the name of first wife on the ground that first wife executed deed of declaration of divorce. The Hon’ble Apex Court in paragraph-12 held that the marriage between the deceased and first wife could only be dissolved by a decree of divorce passed by a competent court on any of the grounds as mentioned in Section 13 of the Act, unless the existence of any contrary custom was proved by evidence. Thus, the judgment relied upon by the petitioner is not applicable to the present case since alleged customary divorce given by the petitioner was not proved. In fact, O.P.No.45 of 1998 filed by late Pandurangaiah for divorce was dismissed by the Senior Civil Judge and appeal filed by him was also dismissed. Therefore, the marriage between the petitioner and late Pandurangaiah deemed to be subsisting, purported second marriage between late Pandurangaiah and the 5th respondent is legally invalid.

Conclusion:

In the light of above facts, circumstances and legal position, the impugned proceedings dated 21.09.2017 is unsustainable and liable to be set-aside/quashed and accordingly, Writ Petition is allowed. The petitioner is entitled to receive family pension of her late husband i.e., Pandurangaiah. The respondents are directed to pay the pension including the arrears within a period of eight weeks from the date of receipt of copy of this order. There shall be no order as to costs.

Pending miscellaneous applications if any shall stand closed.