Case Note & Summary
The petitioner, Smt. Shamal Mahadeo Tate, filed a writ petition before the Bombay High Court seeking family pension as the second wife of the deceased government employee, Mahadeo Narayan Tate. The deceased married his first wife, Parvatibai, on 13.06.1962, but had no children. He married the petitioner on 17.05.1974, and they lived together from April 1974 until his death on 09.12.1996. The petitioner gave birth to three children. The deceased had endorsed the petitioner's name in his service records in 1987. After his death, the petitioner applied for family pension, but her applications were rejected by the respondents (District Collector, State of Maharashtra, and Principal Secretary, Department of Finance) on the ground that she was not a legally wedded wife due to the subsistence of the first marriage. The petitioner challenged the rejection orders dated 12.04.2017 and 27.06.2017. The court considered the legal issue of whether a second wife is entitled to family pension when the first marriage is not proved to be dissolved. The court held that under Section 114 of the Indian Evidence Act, 1872, a presumption of marriage arises from long cohabitation, and the burden to rebut it lies on the party denying the marriage. The respondents failed to prove that the first marriage was subsisting at the time of the second marriage. The court also noted that the deceased himself had declared the petitioner as his wife in service records. Accordingly, the court quashed the impugned orders and directed the respondents to grant family pension to the petitioner from the date of the deceased's death, with arrears, within three months.
Headnote
A) Family Pension - Second Wife - Entitlement - Maharashtra Civil Services (Pension) Rules, 1982 - The petitioner, second wife of a deceased government employee, claimed family pension. The court held that where a long-continued cohabitation is proved, a presumption of marriage arises under Section 114 of the Indian Evidence Act, 1872, and the burden shifts to the party denying the marriage to prove otherwise. Since the respondents failed to prove that the first marriage was subsisting at the time of the second marriage, the petitioner was entitled to family pension. (Paras 1-26) B) Hindu Marriage Act - Validity of Second Marriage - Sections 5, 11, 16 - The court noted that a second marriage during the subsistence of a first marriage is void under Section 11 of the Hindu Marriage Act, 1955. However, Section 16 provides legitimacy to children of void marriages. The court distinguished between the validity of marriage for the purpose of pension and the presumption of marriage based on long cohabitation. (Paras 10-15) C) Evidence Act - Presumption of Marriage - Section 114 - The court applied the presumption under Section 114 of the Indian Evidence Act, 1872, that a man and woman living together as husband and wife for a long period are presumed to be married. The respondents did not rebut this presumption. (Paras 16-20)
Issue of Consideration
Whether the petitioner, claiming to be the second wife of a deceased government employee, is entitled to family pension under the Maharashtra Civil Services (Pension) Rules, 1982, despite the subsistence of the first marriage, and whether a presumption of marriage can be drawn in her favour under Section 114 of the Indian Evidence Act, 1872.
Final Decision
The impugned orders dated 12.04.2017 and 27.06.2017 are quashed and set aside. The respondents are directed to grant family pension to the petitioner from the date of death of the deceased (09.12.1996) with arrears, within three months from the date of the order.
Law Points
- Family Pension
- Second Wife
- Presumption of Marriage
- Section 114 Indian Evidence Act
- 1872
- Section 5 Hindu Marriage Act
- 1955
- Section 11 Hindu Marriage Act
- Section 16 Hindu Marriage Act
- Maharashtra Civil Services (Pension) Rules
- 1982
