BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:
04. 04/2014 CORAM THE HONOURABLE MR.JUSTICE R.MAHADEVAN W.P.(MD)No.13372 of 2012 P.Visalakshiamma ... Petitioner Vs. 1.The Director of Schools Higher Education, Chennai 600 006. 2.The Chief Educational Officer, Nagercoil, Kanyakumari District. 3.The Accountant General, Accountant General's Office, Chennai 18. [Vide Substitute Petition in M.P.[MD]..No.2 of 2012, dated 02.01.2013]. 4.The Sub Treasury Officer, Vilavancode, Kuzhithurai Post, Kanyakumari District. 5.Vasanthakumari Thankachy : Respondents PRAYER Writ Petition is filed under Article 226 of the Constitution of India for the issue of a Writ of Mandamus directing the respondents 1 to 4 herein to give all family benefits, including the family pension on the death of the petitioner's husband N.Sthanunathan Thambi, retired Chief Educational Officer. !For Petitioner ... Mr.K.Sreekumaran Nair ^For Respondent Nos.1,2&4 ... Mr.J.Gunaseelan Muthiah Government Advocate For Respondent No.3 ... Mr.P.Gunasekaran For Respondent No.5 ... Mr.M.Ajmal Khan Senior Counsel For Mr.Md.Imran :ORDER
*********** This Writ Ppetition is filed by the legally wedded wife of Late N.Stanunthan Thambi for a direction to the respondents 1 to 4 to give all family benefits including the family pension to her superseding the claim of the fifth respondent, the second wife of late N.Stanunthan Thambi .
2. The brief facts of the case are as follows: The petitioner married one N.Stanunthan Thambi in the year 1958 and has two daughters, out of the wedlock. The said N.Stanunthan Thambi deserted the petitioner in the year 1965 and married the fifth respondent and has three sons out of the wedlock. The marriage between the petitioner and N.Stanunthan Thambi was not dissolved. The said N.Stanunthan Thambi retired as Chief Education officer and passed away, on 13.09.2012. N.Stanunthan Thambi had nominated the fifth respondent, specifying her as his wife. The petitioner, after the death of N.Stanunthan Thambi, sent notice, dated 20.09.2012, asking the respondents to pay the retirement benefits to her alleging that the nomination would not confer any right on the nominee to take away the money/benefits and the nominee has to distribute the same to the legal heirs. Since there was no reply, the petitioner has approached this Hon'ble Court.
3. The Learned Counsel appearing for the petitioner painstakingly contended that since the second wife has no legal sanctity, the fifth respondent is not entitled to receive the benefits including pension. Even though the petitioner and N.Stanunthan Thambi were living separately, the marriage was not dissolved and that the petitioner continues to be legally wedded wife. The learned counsel also contended that the fifth respondent is not a wife and only a concubine and it is settled law that a nominee is bound to distribute the benefits among the legal heirs. The learned counsel, in support of his contention, has also placed reliance upon an order of this Court in Felix Vs. Jemi and others reported in 2002 (2) TNLJ83and Sarbati Devi Vs. Usha Devi reported in AIR1984SC346 4. Per contra, the learned Senior Counsel appearing for the fifth respondent would contend that even though petitioner is the first wife, there was no connection between the petitioner and N.Stanunthan Thambi for the past 47 years, and except for the maintenance case, the petitioner was never interested in living with the deceased N.Stanunthan Thambi, which is evident from the fact that she never took any steps for restitution and all along it is only the fifth respondent, who had taken good care of N.Stanunthan Thambi until his death. Only because of the love and affect towards the fifth respondent, N.Stanunthan Thambi had nominated her. The learned Senior Counsel also contended that at the worst scenario, even if the fifth respondent is found to be ineligible for retirement benefits, her sons would be eligible as even illegitimate children are entitled to a share in the property of the deceased as per the Hindu succession Act. The learned Senior Counsel has also placed reliance upon the Judgments in Poongavanam & others Vs.Thangamani and others reported in 2012 (2) LW291and Vidhyadhari Vs. Sukhrana Bai and others reported in 2008 (2) SCC238 5. The respective learned counsels appearing for the respondents 1 to 4 submitted that they are willing to abide by any orders that are to be passed by this Court.
6. I have considered the above submissions and perused the records carefully.
7. It is not in dispute that the petitioner is the legally wedded wife of late N.Stanunthan Thambi and despite the separation for nearly 47 years, there was no dissolution of marriage.
8. In the Judgment in Felix Vs. Jemi and others reported in 2002 (2) TNLJ83 relied upon by the learned counsel for the petitioner, this court has held as follows: ". It is also settled position of law that if an employee has a family at the time of making a nomination, the nomination shall be made in favour of one or more member of his family and any nomination made by such employee in favour of a person, who is not a member of the family, shall be void. If that be so, even assuming that the deceased had nominated the third defendant entitled to collect the terminal benefits, the nomination itself would be void and under the circumstances, I am of the view that the third defendant is not entitled to claim the terminal benefits in pursuance of the nomination". ". It is therefore clear from the aforesaid decisions and discussion that by virtue of nomination, the appellant is not entitled to claim the status as wife. Moreover, the marital status between P.W1 and the deceased had not come to an end by virtue of operation of any law. The recognition of public about the third defendant as wife of the deceased, would not confer the legal status as the wife. Both the Courts below gave a concurrent finding against the third defendant in respect of the status as the wife of the deceased and there is no reason to interfere in the finding. For the reasons stated above, the Second Appeal fails and is dismissed"..
9. In the Judgment in Sarbati Devi Vs. Usha Devi reported in AIR1984SC346 the Apex Court has held as follows: ". We approve the views expressed by the other High Courts on the meaning of Section 39 of the Act and hold that a mere nomination made under Section 39 of the Act does not have the effect of conferring on the nominee any beneficial interest in the amount payable under the life insurance policy on the death of the assured. The nomination only indicates the hand which is authorized to receive the amount, on the payment of wich the insurer gets a valid discharge of its liabiity under the policy. The amount, however, can be claimed by the heirs of the assured in accordance wiht the law of succession governing them"..
10. The law that emanates from the above Judgments is that a nomination will not confer absolute right over the benefits. A nominee is a person who is temporarily put in charge of the benefits and is bound to distribute the same between the legal heirs. If the nominee is also a legal heir, he/she would be entitled to her share.
11. In the Judgment in Poongavanam & others Vs.Thangamani and others reported in 2012 2 LW291 relied upon by the learned Senior Counsel for the fifth respondent, this Court, after analyzing the Tamil Nadu Pension Rules, 1978, held as follows:- ".14. In view of the above, the second wife is not entitled to anything, however, the children of the deceased employee born out of the second wedlock, would be entitled to share in the family pension and death-cum-retirement gratuity.
15. Accordingly, the appellant and the children of the appellants 2 to 5 are not eligible to get family pension, but, the children of the second wife who are treated as legitimate children are entitled to 1/8 share as held by the first appellate Court. As per Rule 49(6)(i) of the Tamil Nadu Pension Rules, the first respondent/defendant/first wife is being a widow, the family pension is payable to her upto the date of her death or remarriage, whichever is earlier and the second wife is not entitled to any share in the family pension.".
12. In the judgment in Vidhyadhari Vs. Sukhrana Bai and others reported in 2008 (2) SCC238 the Apex Court has held that the legally entitled wife alone is not entitled to succession certificate.
13. For better appreciation, Rule 49(7)(a)(i) of the Tamil Nadu Pension Rules, 1978, is extracted hereunder: ".Where family pension is payable to more widows than one, the family pension shall be paid to widows in equal shares.".
14. From the above it is clear that where family pension is payable to more widows than one, the family pension shall be paid to widows in equal shares. However, it is to be seen as to the circumstances when the said rule can be applied.
15. Section 5 of the Hindu Marriage Act, 1955, reads as under: ".5. Conditions for a Hindu Marriage- A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely:- (i). neither party has a spouse living at the time of the marriage; (ii).at the time of the marriage, neither party- (a)is incapable of giving a valid consent to it in consequence of unsoundness of mind; or (b) though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or (c)has been subject to recurrent attacks of insanity (iii) the briedgroom has completed the age of [twenty-one years]. adn the bride, the age of [eighteen years]. at the time of the marriage; (iv).the parties are not within the degrees of prohibited relationship, unless the custom or usage governing each of them permits of a marriage between the two (v).the parties are not sapindas of each other, unless the custom or usage governing each off them permits of a marriage between the two"..
16. From the above section, after the coming into force of Hindu Marriage Act, 1955, an Hindu male or female cannot marry again during the subsistence of the first marriage. Such a marriage would be void abinitio. Therefore, this court is of the view, that the marriage if any with the fifth respondent is not valid in the eye of law and therefore, she cannot be termed as a widow in the strict sense as per Rule 49 (7) of the pension rules, 1978.
17. Rule 49(6) of the Tamil Nadu Pension Rules, 1978, which deals with period for which pension is payable reads as follows: ". The Period for which the family pension is payable shall be as follows- (i) in the case of a widow or widower upto the date of death or remarrigae, whichever is earlier; (ii) in the case of a son until he attains the age of [twenty five]. years; (iii) in the case of an unmarried daughter, until she attains the age of [twenty five years]. or until she gets married, whichever is earlier: Provided that if the son or daugher of a Government servant including the son or daughter, born after retirement from the marraige solemnized before or after retirement of a Government servant, is suffering from any disorder or disability of mind [including mentally retarded]. or is physically crippled or disabled, whether such handicap manifests before or ater retirement or death while in service of a Government servant so as to render him or her unable to earn a living]. even after attaining the age of [25 years]. in the case of the sons and [25 years]. in the case of the daughter, the family pension shall be payable to such son or daughter for life subject to the following conditions namely- (i) if such son or daughter is one among two or more children of the Government servant, the family pension shall be initally payable to the minor children in the order set out in the clause (iii) of sub-rule (8) until the last minor child attain the [age of 25]. and thereafter the family pension shall be resumed in favour of the son or daughter suffering from disorder or disability of mind or who is physically crippled or disabled and shall be payable to him/her for life. (ii) if there are more than one such son or daughter suffering from disorder or disability of mind [including mentally retarded]. or who are physically crippled or disabled, the family pension shall be paid- (a) in the order of their birth, irrespective of the sex of the child and the immediate younger of him order her will be eligible for family pension only after the elder above him or her becomes ineligible for family pension. (b). in cases of twin children to such twin children in equal shares. In the event of any of such children ceasing to be eligible for family pension his or her share of family pension will become payable to the other such child and when both such children become ineligible for family pension the family pension will become payable to the next eligible child or twin children, as the case may be]. (iii).the family pension shall be paid to such son or daughter through the guardian as if he or she were a minor; (iv) before allowing the family pension for life to any such son or daughter the sanctioning authority shall satisfy that the handicap is of such a nature as to prevent m or her from earning his or her livelihood and the same shall be evidenced by a certificate obtained from a medical officer not below the rank of a Civil Surgeon setting out, as far as possible the exact mental or physical condition of the child. (v).the person receiving the family pension as guardina or such son or daugher shall produce every three years a certificate from a medical officer not below the rank of a Civil Surgeon to the effect that he or she continues to suffer from disorder or disability of mind or continues to be physically crippled or disabled. (vi).such daughter shall not be eligible for family pension from the date on which she gets married. (vii).the family pension payable to such son or daughter shall be stopped if he or she starts earning his [or]. her livelihood. (viii). It shall be the duty of the guardina of such son or daughter to furnish every month to the Treasury of Bank, as the case may be a certificate to the effect that he or she has not started earning his or her livelihood; and in the case of such daughter that she ha snot yet married. (ix) in the case of a mentally retarded son or daughter, the family pension shall be payable to a person nominated by the Government Servant or the pensioner as the case may be,and in case no such nomination has bee furnihsed to the Head of Office by such Government Servant or pensioner during his life time, to the pension nominated by the spouse of such Government servant of family pensioner, as the case may be, later on.".
18. The son or daughter mentioned in class I Heirs as per section 8 of the Hindu Succession Act 1956, would also include an illegitimate childer. In the present case, since the children of the 5th respondent have already crossed 25 years of age, they would not be eligible for any pension and being a widow, only the petitioner would be eligible for pension. With regard to other benefits, the children of the 5th respondent are eligible for a share in the retirement benefits alone.
19. At the final stages of hearing, the counsel for the petitioner and the fifth respondent submitted that the parties have agreed to settle the dispute amicably by sharing the pension equally and entered into a memorandum of compromise and pleaded the same may be recorded and the Writ Petition may be closed.
20. In light of the above legal proposition, it is to be seen whether such a plea can be entertained by this court under Article 226 of the Constitution of India.
21. The parliament to protect the interest of women, who end up as a second wife or a concubine as a result of long living with a male companion, has enacted the Protection of Women from Domestic Violence Act, 2005. Section 2(f) of the said Act reads as follows: ".Domestic Relationship". means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marrige, or through a relationship in the nature of marrigae, adoption or are family members living together as a joint family.".
22. The relationship between the fifth respondent would certainly fall under the definition as the deceased N.Stanunthan Thambi and the 5th respondent have lived together as husband and wife for 47 years now. The fact that he has declared the fifth respondent as his wife in the nomination column could itself be taken as public disclosure. The purpose of enacting such a law could only to make way for a maintenance for not only a legally wedded wife but also to a second wife or concubine. The concept of paying pension to the family members is to enable them to lead a decent life after the life time of the pensioner. Therefore, under the facts and circumstances, the memorandum of compromise is accepted and recorded. The respondent 1 to 4 are directed to disburse the pension in equal share to the petitioner and fifth respondent until the life time of both of them and in case of death of either one of them, the surviving party shall be entitled to full pension. With the above directions, the writ petition is disposed of. No costs. NB To 1.The Director of Schools Higher Education, Chennai 600 006. 2.The Chief Educational Officer, Nagercoil, Kanyakumari District. 3.The Accountant General, Accountant General's Office, Chennai 18. 4.The Sub Treasury Officer, Vilavancode, Kuzhithurai Post, Kanyakumari District.