HMA | Second Marriage During Subsistence Of First Marriage Doesn't Get Legitimized Upon Death Of First Wife: Orissa High Court
The Orissa High Court has held that solemnisation of second marriage, which is void ab initio, by a Hindu man during subsistence of his first marriage does not get legitimised/legalised upon the death of the first wife. While deciding the plea of the second wife of an ex-government employee for grant of family pension, the Division Bench of Justice Dixit Krishna Shripad and Justice...
The Orissa High Court has held that solemnisation of second marriage, which is void ab initio, by a Hindu man during subsistence of his first marriage does not get legitimised/legalised upon the death of the first wife.
While deciding the plea of the second wife of an ex-government employee for grant of family pension, the Division Bench of Justice Dixit Krishna Shripad and Justice Chittaranjan Dash remarked –
“In the case at hand, admittedly the Appellant entered the wedlock with the deceased employee during the subsistence of first marriage with another woman. That act itself constitutes the offence of bigamy punishable under Section 17 of the Hindu Marriage Act, 1955 and Section 495 of the erstwhile Indian Penal Code, 1862 [sic]. Granting family pension to the so called 'second wife', amounts to placing premium on illegality.”
The appellant herein was the second wife of a former government employee. Since she was not provided with the family pension upon his death, she had knocked at the doors of the High Court by filing a writ petition. The High Court had earlier asked the opposite party authority to consider the writ petition as her representation and to decide her entitlement accordingly.
As per the order of Court, the Controller of Accounts, Odisha passed an order negating the claim of the appellant on the ground that she was the second wife of the ex-government employee and as per Rule 56(6)(d) of the Odisha Civil Services (Pension) Rules, 1992 ('the 1992 Rules'), she is not entitled to receive family pension.
Being aggrieved, she again approached the High Court seeking nullification of the above order. However, the Single Bench did not find any fault with the findings of the authority and upheld the impugned order. Therefore, she preferred this intra-court appeal before the Division Bench challenging the Single Judge's order.
It was vehemently submitted on her behalf that the 1992 Rules specifically employ the expression 'wife'/'wives' and therefore, being the second wife of the deceased employee and especially when the first wife has also passed away, she is entitled to family pension. However, the Court outrightly rejected such interpretation of Rules by observing –
“Family pension under the Rules is payable to the widow on the death of an employee subject to complying with certain terms & conditions. To be a widow, a valid marriage between the woman & the deceased employee is a sine qua non. The word 'wives' appearing in the Rules does not authorize an employee to contract marriage with multiple persons by way of polygamy or polyandry.”
Justice Shripad, who authored the judgment, made it abundantly clear that use of the term 'wives' in the Rules does not give a license to a government employee to enter into multiple marriages against the avowed objectives of the Hindu Marriage Act as well as the IPC.
“The interpretation sought to be placed by the Appellant's counsel on the subject Rule by stressing on the rules of dictionary & grammar, spurns at the root of such a policy and therefore, does not merit acceptance. After all, the sages of law say that law is neither a slave of dictionary nor a servant of grammar book.”
It was the further contention of the counsel for the appellant that she entered into the wedlock since the first wife of the ex-government employee was unable to beget any child. The Court was taken aback by such submission. Throwing out such contention, it remarked –
“The vehement submission of learned counsel for Appellant that, her client entered into wedlock because the first wife did not beget any child is too dangerous to be accepted, inasmuch as that shakes the very corner stone of the institution of marriage, whose sanctity is founded inter alia on monogamy. The Act does not recognize childlessness as a justifiable circumstance for entering into wedlock with a person who is already in the subsisting wedlock with another.”
The Bench also nixed the suggestion that even if the second marriage during the subsistence of the first marriage is void ab initio, it get legitimised upon the subsequent death of the first wife. It accordingly held –
“The vehement submission of learned counsel for the appellant that even if the second marriage when solemnized was null & void because of subsisting first marriage, on the death of first wife it gets legitimized and therefore the arguable voidness of the said marriage would evaporate, is not supported by any standard treatises on Hindu Law of Marriage. What is void ab initio, does not become valid by the happening of subsequent event, there being the maxim ex nihilo nihil fit, meaning out of nothing, nothing comes out.”
Resultantly, the order of the Single Judge was upheld. The writ appeal was dismissed negating the entitlement of the appellant to the family pension, she being second wife of such employee.
Case Title: Kankalata Dwivedi v. State of Odisha & Ors.
Case No: Writ Appeal No. 1460 of 2025
Date of Judgment: January 13, 2026
Counsel for the Appellant: M/s. Madhumita Panda, J. Bhuyan & D. Behera, Advocates
Counsel for the Respondents: Mr. J.K. Khandayatray, Addl. Standing Counsel
Citation: 2026 LiveLaw (Ori) 7