Judgment:
O. P. Garg, J.
1. Two rival claimants of the retiral and other service benefits consequent upon the death of their alleged husband late Nand Kishore have filed these petitions under Article 226 of the Constitution of India with the prayer that a direction be issued to the Executive Engineer, Electricity Transmission Sub-Division, George Town, Allahabad-respondent No. 1 to release the entire amount in their favour and for offering an appointment under the U. P. Recruitment of Dependents of Government Servant (Dying-in-Harness) Rules, 1974 (hereinafter referred to as 'the Rules').
2. Put briefly, the facts governing the two petitions are that Nand Kishore was employed as a class-IV employee in the Electricity Board and at the relevant time, was working in the office of the Executive Engineer, Electricity Sub-Division, Electricity Transmission First, 57-George Town, Allahabad. He met with an accidental death due to electric shock on 12th May, 1990. Consequent upon his death, certain payments under the heads of General Provident Fund, Gratuity, Pension and other benefits as admissible under law, became due. Smt. Shakuntala Devi, who has filed Civil Misc. Writ No. 27291 of 1991 admittedly was the legally wedded wife of the deceased employee. Out of the wedlock, Km. Sangeeta, a female child took birth. Smt. Shakuntala Devi applied for the dues as admissible under the law. The departmental authorities required her to produce a certificate of succession, a copy of post-mortem certificate and a certificate about the date of death of the deceased. Smt. Shakuntala Devi furnished all the above documents. A succession certificate which was issued in her favour in Succession Case No. 271 of 1991 on 4.12.1991 by Civil Judge (Junior Division) was also obtained by her. An inquiry was made by the revenue authorities of the Tahsil and it was reported that Smt. Shakuntala and her daughter Km. Sangeeta were the only legal heirs left by thedeceased employee-Nand Kishore. Before the payment could be released in favour of Smt. Shakuntala Devi, Smt. Bhawan Mati Devi, petitioner of Civil Misc. Writ No. 3058 of 1993 appeared at the scene and claiming herself to be the widow of the deceased employee required the department to release the benefits in her favour. The department obviously was in a quandary and when neither of the women was getting the payments released in her favour, they filed the present writ petitions for direction by this Court to the departmental authorities to release the payment in their respective favour.
3. Counter and rejoinder-affidavits have been exchanged.
4. Both these writ petitions came up for hearing on 11.2.2000 on which date, both the writ petitions were disposed of and a direction was issued to the respondents to release the payments in favour of Smt. Shakuntala Devi if she produces a succession certificate. It was further directed that the question of appointment of Smt. Shakuntala Devi as dependant of late Nand Kishore may also be considered by them according to law. On the move of Smt. Bhawan Mati Devi, on whose petition none appeared at the time of hearing of the writ petitions, the order dated 11.2.2000 was recalled by order dated 7.4.2000 and it is in these circumstances that both these writ petitions have come up again for hearing by this Court.
5. Heard Sri H. N. Singh, learned counsel for the petitioner-Smt. Shakuntala Devi and Sri P. C. Srivastava assisted by Sri A. I. Naqvi on behalf of Smt. Bhawan Mati Devi and Sri Arvind Kumar appearing on behalf of the respondent No. 1-employer.
6. As said above, it is an indubitable fact that Smt. Shakuntala Devi was the legally wedded wife of late Nand Kishore. Smt. Bhawan Mati Devi claims herself to have married late Nand Kishore in the month of May, 1978 and in support of her marriage, she has filed a certificate ofPradhan of the village. She is also armed with an unquestionable nomination made by the deceased in her favour for payment under the ex-gratia compensation scheme. According to Smt. Bhawan Mati Devi, though Smt. Shakuntala Devi had married the deceased employee, she was divorced in the year 1985 by adopting chuttan chutta method prevalent in the Pal Biradari. According to her, it was a Talaq by panchayat on account of the fact that the relations between Smt. Shakuntala Devi and her husband were highly strained. The case of Smt. Bhawan Mati Devi is that she being the subsisting widow of the deceased employee and having a nomination in her favour, is entitled to receive the amount payable under the various heads as a result of death of late Nand Kishore as well as to other benefits admissible under the law.
7. Except the bald assertion made by Smt. Bhawan Mati Devi, there is nothing on record to indicate that Smt. Shakuntala Devi was divorced by her husband. On the other hand, the stand taken by Smt. Shakuntala Devi is that in proceedings under Section 125 of the Code of Criminal Procedure, her husband had candidly admitted her to be his only wife and Km. Sangeeta as his daughter and had mentioned that he has not married any other woman, Sri H. N. Singh, learned counsel for Smt. Shakuntala Devi pointed out that in the absence of a decree of divorce, late Nand Kishore being a Hindu male, could not have married Smt. Bhawan Mati Devi, another woman as under the law, marriage by a Hindu male with another woman during the subsistence of the other spouse is void. In support of his submissions, Sri Singh placed reliance on the decision of the Apex Court in Bakulabai and another v. Gangaram and another, 1988 (25) ACC 119, in which it was held that the marriage of a Hindu woman with a Hindu male with a living spouse performed after the coming into force of the Hindu Marriage Act, 1955, is null and void and the woman is not entitled to maintenance under Section 125 of the Code of CriminalProcedure. On the strength of this decision of the Apex Court, it was urged that Smt. Bhawan Mati Devi could not many late Nand Kishore as Smt. Shakuntala Devi, the earlier legally wedded wife was surviving. Even if it be taken that divorce had taken place in the year 1985 in between late Nand Kishore and Smt. Shakuntala Devi, Smt. Bhawan Mati Devi could have been married in the month of May, 1978, with late Nand Kishore as at that time admittedly Smt. Shakuntala Devi had not been divorced. After the commencement of Hindu Marriage Act, 1955, a Hindu male cannot have two wives at a time. Therefore, there can be no escape from the finding that the assertions of Smt. Bhawan Mati Devi that she had married late Nand Kishore in the month of May, 1978 and that Smt. Shakuntala Devi was divorced in the year 1985 are incorrect. In any case, marriage of Smt. Bhawan Mati Devi in the year 1978 could not have taken place and if it has, in fact, taken place, it was ab initio void in law.
8. Now the question is whether Smt. Bhawan Mati Devi, on the strength of nomination made by the deceased in her favour for ex gratia compensation scheme is entitled to collect the entire amount which is payable to Smt. Shakuntala Devi.
9. Sri P. C. Srivastava referred to the General Provident Fund (Uttar Pradesh) Rules, 1985, to support his contention that a nomination made under Rule 5 is effective in favour of Smt. Bhawan Mati Devi and the definition of the term 'family' as mentioned in clause (c) of Rule 2 in the case of male subscriber (deceased) and the widow or widows and children of a deceased son of the subscriber. It was also stressed that the proviso to sub-clause (c) (i) of Rule 2 makes it clear that if a subscriber proves that his wife has been judicially separated from him or has ceased under the customary law of the community to which she belongs to be entitled to maintenance, she shall henceforth be deemed to be no longer a member of the subscriber's family in matters to which these Rules relate unless the subscribersubsequently intimates in writing to the Account Officer that she shall continue to be so regarded. I have given thoughtful consideration to the matter and find that reference to the definition contained in Rule 2 is otiose. Rule 2 (c) does not permit that a Hindu male can have two wives at a time. A Mohammedan male can have more than one wife under the personal law. It is for this reason that the expression 'wife' or 'wives' in sub-clause (i) of clause (c) has been used. The proviso to sub-clause (i) to clause (c) will not be applicable in the instant case as late Nand Kishore had not proved before the department that Smt. Shakuntala Devi had been judicially separated and had ceased to be the member of his family. It is true that nomination with regard to ex gratia compensation scheme is in favour of Smt. Bhawan Mati Devi. Learned counsel for Smt. Bhawan Mati Devi placed reliance on a decision of Division Bench of this Court in Aqueela Kamal v. Oriental Fire and General Insurance Co. Ltd. Lucknow and another, AIR 1995 All 299, to support his submission that the amount covered by the nomination has to be released in favour of the nominee. I have thoroughly scrutinized the aforesaid decision and find that it is not applicable to the facts of the present case for one simple reason that in that case, there was no dispute between the rival claimants. In that case, it was held that the insurance company is bound to pay the amount of compensation to the nominee without requiring him to furnish a succession certificate. That was a case of personal accident policy which was covered by Sections 38 and 39 of the Insurance Act. Reliance was also placed on the decision of Delhi High Court in Mrs. Uma Sehgal and another v. Dwarka Dass Sehgal and others, AIR 1982 Del 36, wherein it was held that a nominee is entitled to receive insurance money in his own right absolutely and that he is neither a trustee nor agent of legal heirs of assured. The aforesaid decision does not lay down the correct law as it has been overruled by the Apex Court in Smt. SarbatiDevi and another v. Smt. Usha Devi, AIR 1984 SC 346, in which it was observed that a mere nomination made under Section 39 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 authorised to receive the amount on the payment of which the insurer gets a valid discharge of its liability under the policy. The amount, however, can be claimed by the heirs of the assured in accordance with the law of succession governing them. In a recent decision of the Apex Court in G. L. Bhatia v. Union of India and another, 2000 (1) ESC 135 (SC). It was ruled that if a nomination is made contrary to the statutory provision, it would be inoperative. In that case, the husband of the deceased-employee claimed family pension while nomination was not in his favour. The forums below have taken the view agreeing with the authorities that since the nomination was not in favour of the husband and the husband was staying separate from the wife, the husband would not be entitled to family pension in question. This view cannot be sustained in view of the provisions contained in Rule 54 of the Rules. It is too well-settled that where rights of the parties are governed by statutory provisions, the individual nomination contrary to the statute will not operate.
10. In view of the well-settled legal position with regard to the nomination, Smt. Bhawan Mati Devi-petitioner is not entitled to collect amount for herself to the exclusion of Smt. Shakuntala Devi and her daughter. The fact remains that Smt. Shakuntala Devi is a legally wedded wife of deceased Nand Kishore. She was never divorced. In proceedings under Section 125, Code of Criminal Procedure, her husband had admitted her to be his wife and Km. Sangeeta, minor as his daughter. On the death of Nand Kishore, revenue authorities have reported that Smt. Shakuntala Devi and her daughter Km. Sangeetawere the only legal heirs of the deceased employee. A succession certificate in Case No. 271 of 1991 had already been issued in favour of Smt. Shakuntala Devi though subsequently on the move of Smt. Bhawan Mati Devi, its operation had been stayed. Smt. Bhawan Mati Devi could not marry late Nand Kishore in the month of May, 1978, as at that time Smt. Shakuntala Devi, wife of late Nand Kishore was alive and no divorce between Nand Kishore and Smt. Shakuntala Devi had taken place. Smt. Bhawan Mati Devi cannot, therefore, be treated as the legally wedded wife of late Nand Kishore. The nomination in favour of Smt. Bhawan Mati Devi is for the limited purpose as indicated in the decision of the Apex Court in Smt. Sarbati Devi and another's case (supra).
11. In the conspectus of above discussions, Civil Misc. Writ Petition No. 3058 of 1993 filed by Smt. Bhawan Mati Devi turns out to be devoid of any merit and substance and is accordingly dismissed. Civil Misc. Writ Petition No. 27291 of 1991 filed by Smt. Shakuntala Devi is allowed and it is directed that the respondent-department shall release the pensionary benefits, amount of General Provident Fund, gratuity, leave encashment, etc., in favour of Smt. Shakuntala Devi within a period of one month from the date of production of a certified copy of this judgment and order before respondent No. 1. It is further directed that the question of appointment on compassionate ground of Smt. Shakuntala Devi under the U. P. Recruitment of Dependents of Government Servant (Dying-in-Harness) Rules, 1974, shall also be considered. It shall, however, be open to the respondent No. 1 to inquire about the means and the financial condition of Smt. Shakuntala Devi and as to whether the appointment of Smt. Shakuntala Devi is necessitated so as to tide over the financial crisis on account of sudden death of the bread winner.