When Deceased Govt Employee Married Second Wife Without Divorcing First Wife, Only The Latter Will Get Family Pension: Rajasthan High Court

Rajasthan High Court has accepted the petition by the first wife of a deceased government employee for family pension on the grounds that no valid divorce took place between them since “social divorce” was not recognized by our legal system. In this light, since the marriage with the second wife was not valid as per the Hindu Marriage Act, 1955 (“the Act”), she could not be seen as “widow” of the deceased employee for being entitled to the family pension.

“Thus, the second marriage of anyone, without dissolution of first marriage cannot be treated as a valid marriage and such second wife cannot be treated as a 'widow' of the deceased Government Servant in terms of Rule 66 & 67 of the Rules of 1996…In cases where the deceased employee had a second wife without legally divorcing the first wife, only the first wife would be entitled to the pension benefits”

Furthermore, the bench of Justice Anoop Kumar Dhand opined that authorities could not ask for succession certificate for claiming family pension since the certificate was granted for recovery of debt or security and family pension did not fall within that purview.

A petition was filed by the first wife of the deceased government employee (“petitioner”) seeking family pension. The government employee retired in 1983 and in 1987, a divorce petition was filed by him. However, the same got returned to be filed before the competent court of law. After that no such petition was filed. Furthermore, as a reply to the application for maintenance filed by the Petitioner, the employee had admitted her to be his legally wedded wife but it was contended that social divorce had taken between them.

In 2016, the government employee died after which the petitioner filed an application seeking family pension. However, the State directed her to get a succession certificate. The State also argued that before his death, the government employee had submitted an application before the Pension Department to enter the name of the second wife and her children as nominees for the pension.

After hearing the contentions, the Court held that since separation following a social divorce did not affect legal status of marriage, the petitioner remained the wife of the government employee till his death and now had become his widow.

“Social divorce" could be an informal term used in some communities to describe a situation where a couple separates and ceases to live as husband and wife without going through the legal process of divorce. This might be accepted socially within a community but has no legal recognition. Such separations do not affect the legal status of the marriage, and the couple would still be considered legally married until a formal divorce is obtained through the courts.”

The Court further held that Rule 66 of the Rajasthan Civil Services (Pension) Rules, 1996 (“the Rules”) defined “family” that included widow/widower. However, the term “widow” was not defined in the Rules. It was held that as per Section 5 of the Act, at the time of the marriage between two Hindus, neither should have a spouse living and any marriage contravening conditions under Section 5 were void as per Section 11 of the Act. In this background, it was held that,

“Hence, it is clear that marriage covered by Section 11 of the Act of 1955 are void from inception and a Hindu woman, who married a Hindu male during subsistence of his marriage, has not been included in the definition of 'family' under the Rules of 1996. The word 'widow' has been kept under Rule 67 for getting family pension and the word “widows” is not included in this Rule.”

The Court further observed that recognizing such relation would be detrimental to public interest as that would facilitate the employees contracting second marriage, which was legally impermissible.

In this light, the Court ruled that the second wife of the employee was not entitled to the family pension since the same was paid to the “wife” and not to those whose marriage was “no marriage” in the eye of law.

On the question of Succession Certificate, the Court held that as per the Indian Succession Act, 1925, a succession certificate was granted for recovery of debt or security, and family pension did not fall in that purview.

The Court referred to the Patna High Court case of Ganga Ram v. The Chairman, Bihar State Electricity Board, Vidyut Bhawan, Patna in which it was held that pension was not in the nature of debt, rather it was a property and there was no need for succession certificate for receiving family pension.

Finally, the Court also ruled that even though the marriage with the second wife was illegal, the children born out of that marriage were legitimate and shall be entitled to the terminal benefits of the deceased as per the Rules.

Accordingly, the petition was allowed, directing the State to give family pension to the petitioner as well as the legitimate children of the deceased with all the arrears with interest @ 9% without pressing on the succession certificate, within 2 months from receiving copy of the order.

Title: Urmila Devi v State of Rajasthan & Ors.

Citation: 2024 LiveLaw (Raj) 400

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