FAMILY PENSION TO SECOND WIFE

[Mr. M. GOVINDARAJAN]

The employee is entitled to receive pensionary benefits as per the rules prevailing or the contract made between the employer and the employee.  The employee after his retirement is entitled to receive pension till his death. In case of his death if he is survived by his wife she will be entitled to get family pension till her death. In this article a peculiar situation is discussed. A lady contracted second marriage with an employee while his first wife is alive who also gave consent to this second marriage. The first wife died. Whether the second wife will get family pension after the death of her husband? Answer for this question is discussed with the decided case law.

In ‘T. Stella V. Metropolitan Transport Corporation Limited represented by its Chairman and Managing Director, Chennai and another’ – 2013 (5) TMI 509 - MADRAS HIGH COURT the husband of the petitioner, late Thulasilingam was employed as Light Vehicle Driver with Metropolitan Transport Corporation Limited from where he sought voluntary retirement. Prior to his retirement Shri Thulasilingam had contracted second marriage with the petitioner on 25.1.1975 while his first wife was alive. The second marriage was taken place with the consent of the first wife. The first wife died on 28.06.1980.

The children of the first wife were living with the deceased employee and petitioner jointly.  The petitioner brought up the children of the first wife after the death of Thulasilingam on 2.6.1988. Till his death Thulasilingam was availing pension. After his death the petitioner in her capacity as the second wife applied for arrears of pension and also the amount due under Family Security Scheme which were paid on 15.4.1999.  The petitioner also claimed for payment of family pension. She applied in Form 14 along with the legal heir certificate for sanction of family pension to her. She also produced necessary documents viz., marriage certificate, No objection certificate signed by the legal heirs of late Thulasilingam, death certificate of the first wife etc., Vide order dated 6.8.2007 the request of the petitioner for grant of family pension was rejected on the ground that being the second wife, the petitioner has no legal status to claim family pension.

Against this order the petitioner filed the present writ petition before the High Court, Madras challenging the said order as illegal and against law with the prayer to quash the impugned order as arbitrary and violative of the Article 14 of the Constitution. The petitioner submitted the following before the High Court:

• The petitioner was treated to be the second wife of late Thulasilingam for the purpose of settlement of arrears and having accepted that she is the second wife, she could not be denied the family pension;
• Once it was not disputed that after the death of first wife, the petitioner was living with her husband and children and has been declared as the legal heir of late Thulasilingam;
• Once the legal heirs of the deceased gave no objection, there was no justification to deny the family pension to the petitioner, when it is proved on record, that the first wife had given her consent to late Thulasilingam to marry the petitioner;
• The bar under the Hindu Marriage Act ceased to be operative after the death of first wife, therefore, her status became that of legally wedded wife as the petitioner continued to live as wife with late husband after the death of the first wife, therefore, pension cannot be denied to her.

The respondents, otherwise, contended that the petitioner is not entitled to the grant of family pension, because she was admittedly the second wife, therefore, her marriage was void in law. She is therefore not entitled to family pension.   It was further contended that as per Rules applicable, the second wife is not entitled to family pension and merely because retirement benefits were settled in favor of the petitioner in view of no objection by other legal heirs, this cannot give right to get family pension.

The High Court framed the question to decide – ‘whether inview of admission by petitioner, that she was admittedly the second wife, could family pension be paid to her?’. The High Court held that the answer to this question is negative. The second wife has no legal status. According to the Hindu Law, the marriage during living spouse is void and gives no status to the second wife, though children born from such marriage get benefits at par with the legitimate children.   The Court held that in this case it is not disputed that there is no child born from the wedlock between late Thulasilingam and the petitioner.

The High Court further held that the argument of the petitioner may be attractive but when seen in depth it has no legs to stand. The reading of Hindu Marriage Act shows that the second marriage, while first spouse is living, is not voidable but is void, therefore, mere death of the first wife cannot result in legalizing the second marriage or give the second wife with the status of wife.

The family pension is available to the widow of a person during her lifetime, therefore widow will always be the first wife, as there cannot be two widows for a person as law do not recognize two wives after coming into force of the Hindu Marriage Act. Further the petitioner herself admitted that she was only the second wife and was claiming rights as second wife.  The High Court held that no error can be found with the impugned order, declining family pension to the petitioner.   Merely because pensionary benefits were settled in favor of the petitioner, which in fact were to be paid to the children, who gave no objection for release of retirement benefits to her, cannot entitle her to claim family pension also.