Nirmala Devi vs State Of Himachal Pradesh & Ors.

Ajay Mohan Goel, Judge (Oral)

By way of this writ petition, the petitioner has inter alia prayed for the following reliefs:-

The grievance of the petitioner is that she has been denied family pension by the Department, to which, she is entitled to, on account of the death of her husband namely Shri Ram Krishan, who died on 25.03.2019, who had retired as a Patwari upon attaining the age of superannuation on 29.02.1996, on the ground that she happens to be the second wife of late Shri Ram Krishan. As per the petitioner, she solemnized marriage with Ram Krishan on 17.01.1974, which was duly registered on 18.02.1974. The petitioner does not dispute that this marriage was solemnized during the subsistence of first marriage of her husband. As per the petitioner, the first wife of Sh. Ram Krishan passed away on 29.05.1980 issueless. The husband of the petitioner retired from service of the respondent-Department as a Patwari on 29.02.1996 and died on 25.03.2019. Four children were born out of the wedlock between her and late Shri Ram Krishan. They are all major and none of them is entitled for family pension.

Learned Counsel for the petitioner argued that in light of the fact that the petitioner is the widow of late Shri Ram Krishan, who was the erstwhile employee of the respondent-Department, she is entitled to family pension, as she is fully eligible to receive the same.

On the other hand, contention of learned Additional Advocate General is that as the petitioner happens to be the second wife of Shri Ram Krishan, therefore, she is not entitled to family pension and her case has been rightly rejected by the department.

Having heard learned Counsel for the parties and having perused the pleadings as well as documents appended therewith, this Court is of the considered view that in the peculiar facts of this case, denial of family pension to the petitioner is not justified. It is a matter of record that the petitioner indeed is the second wife of late Shri Ram Krishan. However, it could not be disputed by the State that the first wife of Shri Ram Krishan died in the year 1980 when Shri Ram Krishan was still in service and she died issueless. This obviously means that during her lifetime, first wife of Ram Krishan was not granted any family pension, as there was no occasion for her to receive family pension, as her husband was alive and was in service. Shri Ram Krishan passed away on 25.03.2019 and as observed hereinabove, it is not the case of the respondents that after the death of Shri Ram Krishan, family pension was paid to his first wife and thereafter another lady is claiming the same. Herein, fact of the matter is that the family pension is not being paid to anyone after the death of Shri Ram Krishan. It is also not in dispute that whereas no child was born out of the wedlock of Ram Krishan and his first wife, the petitioner and Ram Krishan have four children, all of whom are major and not entitled to receive family pension, as has been submitted by learned Counsel for the petitioner.

Hon’ble Supreme Court of India in Smt. Shiramabai and others Versus The Captain Record Officer and another, (Civil Appeal No. 5262 of 2023), decided on 18.08.2023, has been pleased to hold under similar circumstances that in case a man and women cohabit continuously for long term, then one can draw a presumption in favour of a valid marriage. Hon’ble Apex Court also held that though this presumption is rebuttable, but heavy onus is placed on the one who seeks to deprive the relationship of its legal origin, to prove that no marriage had indeed taken place.

In this case, there is none except the petitioner who is claiming the family pension after the death Shri Ram Krishan. Though the petitioner is not the first wife of Shri Ram Krishan, however, his first wife pre-deceased him and died issueless. Therefore, in the said facts, the act of the respondents denying the family pension to the petitioner is held to be bad in law as the grant thereof is not going to cause prejudice to anyone.

In light of above discussion, this writ petition is allowed and impugned letters/orders dated 24.05.2019 and 18.07.2019 are quashed and set aside. The respondents are directed to release the family pension to the petitioner forthwith from the due date. Arrears as may be due to the petitioner, be released in her favour within three months from today. If the arrears are paid within three months from today, then no interest thereupon shall be payable, however, if the same are not paid within three months from today, then they shall entail simple interest @ 6% per annum as from the date of this judgment. Regular monthly family pension be paid to the petitioner, starting from the month of May, 2026.

The writ petition stands disposed of in above terms, so also pending miscellaneous application(s), if any.