Jayashree Gangadhar Hiremath v. Nirmala Gangadhar Hiremath

9.1. They would next submit that Trial Court failed to consider and misinterpreted the evidence of Applicant's witness No. 3 i.e. the real brother of Gangadhar about his presence at the time of marriage of wife) and Gangadhar and also his denial of existence of marriage of Respondent (1st wife) and Gangadhar. They would submit that evidence of Applicant's witnesses has not been correctly appreciated by the Courts below.

9.2. They would submit that both Courts below failed to consider that marriage between Respondent (1st wife) and Gangadhar was dissolved by customary divorce and the same was affirmed and stated by Gangadhar in his examination-in-chief filed in Criminal Misc. Application No. 384 of 2012.

9.3. They would submit that both Courts below erred in considering the order dated 14.03.2013 passed in Criminal Misc. Application NO. 384 of 2012, wherein the Court did not adjudicate the question of divorce and relationship between the parties. They would submit that both Courts below failed to consider that Gangadhar preferred a 6 of 26 challenge to the said order dated 14.03.2013 in Criminal Appeal NO. 65 of 2013, which was pending.

9.4. Next, they would submit that both Courts below failed to consider that Respondent (1st wife) did not deny the averments made by Gangadhar in his examination-in-chief regarding dissolution of their marriage.

9.5. Finally, they would submit that the District Court erred in holding the nomination of Revision Applicant (2nd wife) by Gangadhar of no importance and consequence. They have urged to re-appreciate the facts and overturn both the impugned orders.

10. Ms. Pawar, learned Advocate appearing on behalf of Respondent (1st wife), would submit that Respondent got married to Gangadhar on 05.06.1983 whereas Applicant (2nd wife) got married to Gangadhar subsequently on 02.02.1989. She would submit that marriage of wife) with Gangadhar was admittedly during the subsistence of his first marriage. She would submit that Respondent and Gangadhar had one son namely 'Subodh' which was an admitted fact by Gangadhar and they both cohabited together for six years.

10.1. She would submit that both Courts below have taken cognizance of the Judgment and Order dated 14.03.2013 passed by the Court in Criminal Misc. Application No. 384 of 2012 wherein 7 of 26 Gangadhar was directed to pay maintenance amount and alimony of Rs. 4000/- per month to the Respondent (1st wife) for herself and her son’s maintenance. She would therefore submit that during subsistence of the first marriage with Respondent (1st wife), marriage of Gangadhar with the Applicant (2nd wife) was void and illegal.

10.2. She would submit that Gangadhar had never divorced the wife) during his lifetime despite which he performed second marriage with Applicant (2nd wife), which is illegal and void. Hence, she would submit that Respondent is the only legally wedded wife of Gangadhar and thus entitled to get family pension.

10.3. On the issue of nomination of Applicant (2nd wife) by Gangadhar to receive pension, she would submit that being a nominee cannot confer any legal right and legal status on Applicant (2nd wife) to claim pension in her favour. She would vehemently submit that wife) would not be entitled to claim family pension at all, rather she has received the Family pension for the last 10 years without being entitled to the same to the exclusion of the Respondent (1st wife).

10.4. She would submit that both the twin orders under challenge are well reasoned and cogent orders, which do not call for any interference as they are passed correctly in accordance with the 8 of 26 provisions of the said Act read with the Pension Rules. Hence, she would submit that the present Civil Revision Application be therefore dismissed.

11. I have heard both the learned Advocates for the respective parties and perused the pleadings. Submissions made by Advocates has received due consideration of the Court.

12. The facts in the present case as delineated herein above are not at all in dispute. This is a case where Applicant (2nd wife) has been receiving pension pursuant to his demise by virtue of her nomination by the husband. It is seen that Applicant (2nd wife) has received pension from the year 2014 until March, 2024 when the Competent Authority issued a letter dated 15.03.2024. However, from March, 2024 until today issuance of pension has been withheld due to pendency of the present Civil Revision Application filed by Applicant (2nd wife).

13. This is a case where deceased Gangadhar has admitted that he was married to Respondent (1st wife). This is so because Gangadhar was directed to pay maintenance to Respondent (1st wife) for herself and their son 'Subodh', which he was duly paying at the rate of Rs. 4000/- per month until his demise. Thus, there is no dispute about this 9 of 26 fact that deceased Gangadhar, was paying maintenance to the wife) during his lifetime.

14. It is seen that, Gangadhar was working as Talathi at Akkalkot until his demise in 2014, thus he was a government servant. It is seen that Gangadhar nominated Applicant (2nd wife) as his nominee in the nomination form to receive family pension. In these facts, it is obvious that Gangadhar suppressed the fact of subsistence of his first marriage with Respondent (1st wife) because he was in Government service and if he would have disclosed the fact about his first marriage, then he would have been charged for misconduct under Rule 26 of the Maharashtra Civil Services (Conduct) Rules, 1979 and that might have affected his service adversely.

15. The question therefore is that, in such a case where admittedly there are two marriages performed, how much weightage is required to be given to the fact of the first marriage being hidden from the Competent Authority by Gangadhar. In the present case, it is seen that Gangadhar got married to Applicant (2nd wife) in 1989, thus his marriage with the Respondent (1st wife) lasted for six (6) years. Thereafter, Gangadhar stayed with the Applicant (2nd wife) until his demise on 02.04.2014 i.e. for 25 years. 10 of 26

16. It is seen that Gangadhar and Respondent i.e. his 1st wife had one son whereas Gangadhar and Applicant i.e. his 2nd wife had four (4) children. All five children are major today. Hence, the issue of eligibility of family pension is a dispute between the Applicant (2nd wife) and Respondent (1st wife). Both the parties led evidence before the Trial Court. From the evidence it is clear and proven that Gangadhar had not divorced or was legally separated from wife).

17. In that view of the matter, both the Courts below have held that Gangadhar's marriage with Applicant (2nd wife) was performed during the subsistence of his first marriage with Respondent (1st wife). Therefore the second marriage was illegal and void. Based on this, both Courts below have after considering various citations of the Supreme Court and High Courts concluded that Respondent (1st wife) is the legally wedded wife of Gangadhar and entitled to get family pension of her deceased husband. The citations which have been cited by the Applicant (2nd wife) before the Trial court and District Court, have been adequately dealt with by both the Courts below and clearly distinguished on facts.

18. It is seen that, Respondent (1st wife) examined herself below Exh. '29' along with one witness below Exh. '42' and led her oral evidence. That apart, she relied upon various documents namely 11 of 26 marriage invitation card below Exh. '38' and Exh. '39', a certified copy of Judgment in Criminal Misc. Application No. 384 of 2012 filed below Exh. '80' and death certificate of Gangadhar filed below Exh. '77' in support of her case. As opposed to this, Applicant (2nd wife) examined herself below Exh. '54' and two other witnesses below Exh. '74' and Exh. '75'. Applicant (2nd wife) relied upon documentary evidence consisting of her Ration card below Exh. '65', copies of Aadhar card of Gangadhar and his four (4) children below Exh. '69' to Exh. '72', verified copy of pension payment order received by her below Exh. '73' and certified copy of sanction of pension below Exh. '74'. Both the Courts below have taken cognizance of the aforementioned oral and documentary evidence including cross-examination of the witnesses before passing their Judgments.

19. From the above pleadings and record, it is also seen that by Judgment and Order passed in Criminal Misc. Application No. 384 of 2012 maintenance and alimony of Rs. 4000/- per month was awarded to Respondent (1st wife) and her son Subodh and Gangadhar paid the same to them during his lifetime. This is an important circumstance which has been taken into cognizance by both the Courts below.

20. Though Mr. Salgar has referred to two decisions of the Supreme Court in support of Applicant's case, he would fairly argue that, the present lis is pertaining to eligibility of Family pension between the 12 of 26 wife) only. He would submit that all five (5) children are major and therefore they would not be entitled to family pension. He has invoked Rule 116 of the Maharashtra Civil Services (Pension) Rules, to contend that under Sub- Rule 6, thereof it is stated that where family pension is paid to more than one widow, the family pension must be paid to them in equal shares.

21. After taking instructions from Applicant (2nd wife), he would argue and submit that in view of the above Rule, Applicant is consenting to apportionment of the family pension equally between herself and respondent (1st wife). Thus, he would submit that wife) is ready and willing to concede 50 % of the family pension in favour of Respondent (1st wife). The said submission of Mr. Salgar, cannot be countenanced in the facts of the present case, primarily because in the present case, marriage of Gangadhar with wife) is during the subsistence of the first marriage with the Respondent (1st wife).

22. Further, the Rule invoked by Applicant, cannot be made applicable in the present case as it would only apply to more than one widow being entitled to pension and would apply only if a Hindu employee has married a woman (widow) before the coming into force of the Hindu Marriage Act on 18.05.1955 and in the case of employee 13 of 26 where such marriage is permissible under the personal law applicable to the said employee or the Government servant and the other party to the marriage. Thus Rule 116 seeking equal apportionment of family pension to more than one widow does not apply in the facts of the present case. That apart, Applicant (1st wife) has received full pension for the past 10 years already when she is not entitled and eligible for the same in law.

23. In support of Applicant’s submissions, Mr. Salgar has referred to and relied upon the two following decisions of the Apex Court and persuaded me to consider and apply them to the facts of the present case:-

(i) Vidhyadhari and Others Vs. Sukhrana Bai and Others[1]

(ii) Tulsa Devi Nirola and Others Vs. Radha Nirola and Others[2].

24. In the case of Vidhyadhari and Others (first supra), some facts in that case were some what similar to the facts in the present case as argued by Mr. Salgar. In that case, Sukhrana Bai was the 1st wife but she had no children with the deceased husband. Vidhyadhari was the 2nd wife and she had 2 sons and 2 daughters with the husband. Two separate applications were filed under Section 372 of the said Act by both the widows for obtaining Succession Certificate. In the present

14 of 26 case, Applicant has not filed any such Application. Their deceased husband was working as CCM Helper in Western Coalfields Ltd. and expired while in service. In that case, Vidhyadhari i.e. 2nd wife stated that she was nominated by her husband for receiving amounts under Provident Fund, Family Pension Scheme and Coal Mines Deposits Life Scheme and she received a sum of Rs. 45,036/- towards gratuity from the employer and therefore she claimed that Succession Certificate be granted to her on the basis of nomination made by her husband to the exclusion of the 1st wife.

24.1. Oral and documentary evidence was led by both widows. The Trial Court held that Vidhyadhari i.e. 2nd wife was the legal widow of the deceased husband / employee. It was held that her four (4) children were sired by the deceased husband / employee and were his legal heirs. The Trial Court held that Succession Certificate was to be issued in favour of Vidhyadhari i.e. 2nd wife and not in favour of Sukhrana Bai i.e. 1st wife. In that case, the Trial Court based its conclusion on the reasons that the deceased husband was married to the 1st wife and there were no issues from the wedlock and thereafter, he married Vidhyadhari and for about 20 - 25 years lived with her until his death and during this time the 1st wife never came to stay with him. 15 of 26

24.2. On the basis of these findings the Trial Court dismissed the case of the 1st wife. While arriving at this conclusion Trial Court referred to the decision of the Supreme Court in the case of M. Govindaraju Vs. K. Munisami Gounder[3] and held that the deceased husband belong to the "Shudra" community and in that community if a wife deserts her husband and no effort is made by the husband to take her back as his wife then under Hindu Law it is presumed that divorce has taken place between the two. On this basis of customary law, a finding was given that the husband had divorced the 1st wife and solemnized the 2nd marriage with Vidhyadhari and therefore marriage with the 2nd wife cannot be said to be illegal.

24.3. The High Court however, came to a different conclusion that the alleged customary divorce between the husband and 1st wife was not established and it allowed the Appeal of the 1st wife and directed that Succession Certificate be granted in favour of the 1st wife. The matter was carried to the Supreme Court.

24.4. After considering the pleadings and evidence on record, the Supreme Court accepted the finding of the High Court that the 1st wife was the legally wedded wife while Vidhyadhari (2nd wife) couldn't claim that status, since there was no evidence of any divorce between

24.5. The Supreme Court held that on the issue of nomination, the law was well settled. It held that Vidhyadhari ( 2nd wife) can claim the death benefits being a nominee and can always file Application under Section 372 of the said Act, as there is nothing in that Section to prevent such a nominee from claiming certification on the basis of nomination. However, Supreme Court clarified that no doubt Vidhyadhari ( 2nd wife) can claim to be a legal heir but she could not claim that status to the exclusion of the legal heirs of deceased as her only status was that of a nominee.

24.6. Since the 1st wife i.e. Sukhrana Bai was the legally wedded wife of the deceased, the Supreme Court held that in grant of Succession Certificate, the Court has to use its discretion where the rival claims as in that case were made for Succession Certificate by both widows to the movable properties of the deceased. The Supreme Court further clarified that merely because Sukhrana Bai (1st wife) was the legally wedded wife, that by itself did not entitle her to a Succession Certificate in comparison to Vidhyadhari, who all through had lived with the deceased employee as his wife and had borne his four (4) children and had claimed Succession Certificate on behalf of her children. The Supreme Court held that the four children were 17 of 26 legitimate legal heirs and in the facts of that case, Supreme Court held that though it agreed with the High Court that Sukhrana Bai (1st wife) was the only legitimate wife, yet the Supreme Court chose to grant Succession Certificate in favour of Vidhyadhari (2nd wife) who was the nominee and mother of the employee’s four (4) children.

24.7. The Supreme Court held that balance of equities was required to be maintained in that case and therefore the 1st wife and four (4) children of the 2nd wife were entitled to 1/5th share equally. Thus, the Supreme Court apportioned and assigned 1/5th share to the 1st wife in the facts of that case.

25. However such are not the facts herein. There are no rival claims by both the wives of deceased Gangadhar. Claim is made only by the wife) for Succession Certificate. All four children of wife) are major. Rather, Respondent (1st wife)'s only son Subodh lives with her and is a person with disability. He is entirely dependent on Respondent (1st wife).

26. Mr. Salgar, has heavily relied upon the decision to contend that the said decision has also been followed by the Supreme Court in the case of Tulsa Devi Nirola and Others (second supra), wherein similar facts and circumstances existed and the 2nd wife therein was nominated under the Pension Rules. 18 of 26

27. In so far as the decision in the case of Tulsa Devi Nirola and Others (second supra) is concerned, though it makes a reference to Vidhyadhari’s case, the said decision is on entirely different facts which are clearly distinguishable. In that case the deceased employee during the subsistence of his first marriage solemnized second marriage and sired three (3) children with his second wife. However, in that case the employee / husband during his lifetime in order to avoid disputes between his two wives, executed Banda Patra (settlement deed) dated 30.06.2008 christened as a partition deed, by which he divided his movable and immovable properties between his two wives before his retirement on 30.06.2009. Under this settlement deed both his wives received the benefits. The husband subsequently expired on 13.04.2015.

27.1. The 1st wife applied for Succession Certificate but it was denied in view of the settlement deed as she had received the benefit. The Appeal was also dismissed. Before the Supreme Court, the 1st wife staked her claim for family pension under the Pension Rules namely the Sikkim Services (Pension) Rules, 1990 and claimed equitable distribution of Family pension. The said case was decided by Supreme Court on the basis of applicability of the Hindu Marriage Act, 1955, to the state of Sikkim and it held that on the date of the second marriage 19 of 26 in that case, the Hindu Marriage Act, 1955 had not been in force in the state of Sikkim.

27.2. Therefore, the Supreme Court held that there was nothing placed on record to show that the second marriage was invalid. The Supreme Court referred to the settlement / partition deed executed by the husband during his lifetime and held that in that view of the matter, nomination of the 2nd wife to receive Family pension cannot be held to be bad and she is not required share it equally with the 1st wife. The Supreme Court in fact held that if the settlement deed would not have been executed and acted upon, then different considerations may have arisen.

27.3. In view of the above distinguishing facts, the decision in the case of Tulsa Devi Nirola and Others (second supra) cannot apply to the facts in the present case.

28. Coming back to the decision in Vidhyadhari and Others (first supra), it is seen that the facts therein are not identical to the facts in the present case. In the present case all four (4) children of the 2nd wife are major unlike the consideration in Vidhyadhari's case considered by the Supreme Court which held that they would be entitled to a proportionate share each. Further, in the present case the wife) has already received family pension rather has 20 of 26 been receiving family pension from the year 2014 onwards i.e. for the last 10 years to the complete exclusion of Respondent (1st wife) due to her nomination. The most important distinguishing factor is that in the present case the Revision Applicant (2nd wife) has not filed any application for Succession Certificate. She has only contested the Application filed by the Respondent (1st wife).

29. Hence, due to the above observations and findings, the decisions relied upon by Mr. Salgar cannot be considered and applied ipso facto to the facts in the present case.

30. When the Court would be faced with rival claims for grant of Succession Certificate, in that case the Court can use its discretion. In the present case it is only the Respondent (1st wife) who has immediately after the demise of her husband filed Application below Section 372 of the said Act for grant of Succession Certificate in her favour. In the meanwhile, on the basis of nomination / nominee the Applicant has already received the terminal benefits and has been receiving the Family pension entirely to the exclusion of the wife). The finding returned by the learned Trial Court and upheld by the District Court that Respondent (1st wife) is the legally wedded wife, while the Applicant (2nd wife) cannot claim that status, undoubtedly, in the facts of this case needs to be upheld and is therefore confirmed. 21 of 26

31. Here is a case where the Respondent (1st wife) along with her son have been abandoned after six (6) years of cohabitation by the husband. Thereafter, the husband married the Applicant (2nd wife) and lived with her for 25 years until his demise in the year 2014 and has sired four (4) children with the Applicant (2nd wife). The Applicant (2nd wife) was nominated by the husband to receive the benefits but as a nominee, she could not have received the benefits as his legal heir to the exclusion of the Respondent (1st wife) as the marriage with the first wife was subsisting and the husband was paying Rs.4000/- per month to Respondent (1st wife) and their son under the orders of the Court. Thus, the reliance of the Applicant (2nd wife) on the facts in the case of Vidhyadhari and Others (first supra) cannot be countenanced. In the present case all four (4) children of the Applicant (2nd wife) are major. Considering the fact that Applicant (2nd wife) has received Family pension entirely to the exclusion of the Respondent (1st wife) for the past 10 years despite the subsistence of the first marriage, the submission and proposal for apportionment advanced by Mr. Salgar, that henceforth the Family pension be apportioned between the two (2) parties namely Applicant (2nd wife) equally cannot be countenanced.

32. In fact, on the pervious date of hearing, Respondent (1st wife) has travelled all the way from Solapur, to attend the Court Proceeding 22 of 26 before me and when the aforementioned proposal was made by Mr. Salgar, she submitted that grave injustice was meted out to her since, the entire Family pension was received by Applicant (2nd wife) for her own benefit for the last 10 years. She vehemently opposed the proposal for equal apportionment of family pension at this stage and submitted to the Court that in view of the conduct of the Applicant (2nd wife) of receiving the entire family pension for the last 10 years in the past without seeking the imprimatur of the Court under Section 372 of the said Act. This Court should uphold both orders passed by the Courts below and direct payment of entire Family pension in her favour atleast for the next 10 years so that equitable justice can be delivered by the Court.

33. I find complete merit in the submissions advanced by and in favour of Respondent (1st wife). The Applicant (2nd wife) before me has not even applied for Succession Certificate despite being well aware of the fact about the subsistence of the first marriage of her husband. The husband in the present case was paying Rs. 4000/- per month as permanent alimony to the Respondent (1st wife) and her son under orders of the Court until his demise.

34. In this view of the matter and the observations and findings herein above, I find no reason and cause to interfere with both the twin Judgments and Orders passed by the Trial Court and the District 23 of 26 Court. Both the Judgments dated 15.03.2022 and 07.01.2023 are reasoned and cogent decisions delivered by both the Courts below after hearing both the parties and after considering their respective cases and the relevant facts and citations cited.

35. The deceased Gangadhar, was a Government servant and therefore at the time of nomination of the Applicant (2nd wife), he could not have recorded and disclosed the admitted fact of the subsistence of his marriage with Respondent (1st wife). Hence, merely on the basis of nomination the Applicant (2nd wife), in the facts and circumstances of the present case where admittedly the second marriage has taken place during the subsistence of the first marriage has got an unfair advantage for 10 long years. The case of the wife) worsens because she has not even filed any Application seeking Succession Certificate under Section 372 of the said Act.

36. Hence, both the Judgments and Orders dated 15.03.2022 passed by Trial Court and 07.01.2023 by District Court deserve to be upheld and are so upheld and confirmed.

37. This Court appreciates the efforts of Ms. Shilpa Pawar, learned Advocate appointed through legal aid to espouse the cause of the 24 of 26 wife). Her fees shall be released by the Legal Aid Department in accordance with law.

38. The Competent Authority / Department which has issued the letter dated 15.03.2024 through the Astt. Accounts Officer PR-12 to the Treasury Office, Solapur is directed to take cognizance of a server copy of this order and shall ensure release of Family pension to wife) with immediate effect including release of any arrears from March, 2024 or the period from which release of Family pension to Applicant (2nd wife) has been stopped by the said Competent Authority / Department.

39. The Competent Authority / Department shall not insist on a certified copy of this order and act immediately on a server copy of this order and ensure that the arrears of the Family pension are paid over to Respondent (1st wife), within a period of two (2) weeks from the date on which the server copy is placed before the Competent Authority / Department.

40. Accordingly, the Family pension shall be paid to the Respondent (1st wife). Respondent (1st wife) is directed to give all necessary bank details and compliances to the Competent Authority / Department within a period of one (1) week from today along with server copy of this order and shall act upon the same as directed in this Judgment. 25 of 26

41. Civil Revision Application is dismissed. Amberkar [ MILIND N. JADHAV, J. ] 26 of 26 TRAMBAK UGALMUGALE