Whether Woman In Live-in Relationship Entitled to Pensionary Benefits? Madras High Court Refers Question To Larger Bench

The Madras High Court has referred to the larger bench a question as to whether a woman, living in a continued live-in relationship during the man's lifetime, attains status of wife after the death of his first wife in order to get the Pensionary Benefits following husband's death.

A single judge bench comprising of Justice S Vaidhyanathan referred the following question for due consideration of the larger bench:

"...a concubine, after the enactment of the Domestic Violence Act, 2005, attains the status of a companion/wife after the demise of the first wife during the lifetime of her husband and that, due to continued live-in- relationship, whether she attains the status of a wife, in order to get pensionary and other terminal benefits due to the deceased person."

The development came in a petition filed by the second wife of a deceased man seeking quashing of the order passed by the Superintendent Engineer, TANGEDCO rejecting her application seeking withdrawal of pension amount on account of husband's death.

The petitioner, sister of the deceased's first wife, was added as a nominee in his pension account after his first wife died in 2009 due to cancer.

It was the case of the petitioner that she was asked to marry the deceased, husband of her sister. It was also submitted that both the petitioner and first wife of the deceased (sister of petitioner) lived under the same roof after her sister's marriage.

It was thus submitted that she was entitled to pension and other retirement benefits of her husband in terms of Rule 49 of the Tamil Nadu Pension Rules, 1978.

Pursuing the facts of the case, the Court observed thus:

"The Hindu Marriage Act, 1955 does not permit second marriage. Second marriage becomes valid, if solemnized after the demise of the first wife. But, it cannot be lost out of sight that, after the enactment of the Domestic Violence Act, 2005, even without marriage, when the factum of live-in-relationship between a man and woman is established, it is held to be legally valid, and over a period of time, the woman attains the status of a wife. But, after the demise of the husband, if two wives are alive, the second one will not attain the legal status of 'wife' unless Personal Law permits."

The Court observed that the Domestic Violence Act, 2005 "does not state that a married man cannot have a live-in-relationship with an unmarried woman or married woman cannot have relationship with any person" more particularly when sec. 497 of the Indian Penal Code has been struck down by the Supreme Court.

The Court was also of the view that Rule 49 of the Tamil Nadu Pension Rules, 1978 will take a backseat and "Domestic Violence Act, 2005 will come to the driver's seat" as the woman will have to be given protection and the Rule cannot supersede the Statute.

"In the light of the Domestic Violence Act, 2005, if the live-in-relationship is established, then the woman attains the status of a wife. The march of law happens only while considering the co- habitation that, continues after the death of the first wife." The Court observed.

Furthermore, it said:

"I am of the view that, the second wife attains the deeming status of a wife from the date of demise of the first wife, in case, the husband is alive on the date of demise of the first wife. Also, when unknown relationship comes to be known after the demise of the husband, such woman may not be entitled to any relief, unless Personal Law permits more than one marriage or a declaration is obtained from the competent Judicial Forum with regard to her legal status, after making the first wife as a party, if she is alive."

The following questions were referred to the larger bench:

(i) Rule 49 of the Tamil Nadu Pension Rules, 1978, can take away the rights guaranteed for women under the Protection of Women from Domestic Violence Act, 2005.

(ii) a concubine, after the enactment of the Domestic Violence Act, 2005, attains the status of a companion/wife after the demise of the first wife during the lifetime of her husband and that, due to continued live-in- relationship, whether she attains the status of a wife, in order to get pensionary and other terminal benefits due to the deceased person.

Title: Malarkodi @ Malar v. The Chief Internal Audit Officer & Ors.

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