(BOMBAY BENCH, MUMBAI, CAMP: NAGPUR)
Chameli Majumdar, Member (J).
1. The applicant in this Original Application has challenged the communication addressed to Learned Advocate for the applicant dated 11.03.2008 whereby the claim of the applicant to be legally wedded wife of Late railway employee and her eligibility for family pension being a sole surviving legal heir was held to be doubtful. It was further mentioned in the said letter that the applicant tried to establish herself as legally wedded wife of Late railway employee through fraudulent means. Therefore, the applicant's claim for family pension was rejected by the said communication dated 11.03.2008.
2. Applicant has filed MA No.2087/2012 seeking condonation of delay. The alleged denial of pension is a continuing wrong and give rise to recurrent cause of action. Hence the MA No.2087/2012 for codonation of delay is allowed.
3. The fact of the case as stated by the applicant is that the applicant belongs to Tribal Community namely 'Gond' and her late husband belonged to the same community. Late husband was a railway employee. The first wife did not give birth to any child, therefore, as per the custom prevailing in Gond Community, the deceased railway employee married the applicant as a 2nd wife. Although, the name of the applicant is Ganeshibai but her husband used to call the applicant by the name of the first wife being Sunderibai. When the late husband of the applicant retired, his first wife was alive but confined to bed. Name of the first wife was mentioned as Sunderibai but the photograph of the applicant was pasted with the intention that the applicant wanted the applicant to be the beneficiary of the family pension. The applicant approached the bank for pension but the bank authorities declined to give the pension for the reason that the name of the nominee on the PPO was mentioned as Sunderibai though the applicant's photograph has affixed on the PPO. The applicant's claim was rejected for family pension on the ground that as per provisions of Hindu Marriage Act, applicant being the 2nd wife of the railway employee was not entitled for pension.
4. The respondents have filed their reply. In the reply the respondents have contended that it is a fact that the deceased employee performed the marriage with Sunderibai as per available records. As per pension papers the name of Sunderibai is mentioned as nominee. The applicant miserably failed to produce any documents to prove the alleged relationship with the deceased employee. However to probe the veracity of the claim of the applicant, an enquiry was conducted by deputing a Sectional Personnel Inspector. The said Sectional Personnel Inspector submitted his report and found that the deceased employee had married twice during his life time and had two wives viz. Sunderibai and Ganeshibai. However, in the service records of the deceased employee, Sunderibai had been shown as wife and nominee. The respondents further contended that the applicant being the 2nd wife of the said employee was not entitled to family pension. In view of the provisions of Hindu Marriage Act, the second marriage during the life time of the 1st wife and without taking Divorce from the Competent Court of Law was null and void having no legal sanctity. As such, the claim of the applicant was rightly rejected by the respondents vide letter dated 11.03.2008.
5. I have heard Shri B.S. Ahire, learned counsel for the applicant and Shri Alok Upasani, learned counsel for the respondents.
6. Learned counsel for the applicant relying on sub sections 2 and 3 of section 2 of Hindu Marriage Act submits that Hindu Marriage Act, 1955 will not be applicable in case of the deceased railway employee since the employee belongs to 'Gond' Community being a Schedule Tribe. Sub sections 2 and 3 of section 2 are set out herein below:
"(2) Notwithstanding anything contained in sub-section (1), nothing contained in this Act shall apply to the members of any Scheduled Tribe within the meaning of clause (25) of article 366 of the Constitution unless the Central Government, by notification in the official Gazette, otherwise directs.
(3) The expression "Hindu" in any portion of this Act shall be construed as if it included a person who, though not a Hindu by religion, is nevertheless, a person to whom this Act applies by virtue of the provisions contained in this section."
7. Learned counsel for the applicant also relied on judgment reported in 1998 Volume (2) MPLJ 584 (Kumari Bai w/o. Anand Ram Vs. Anandram Nathu Thakur). Relevant portion of paragraph 6 and paragraph 7 are set out herein below:
"6. It is not in dispute that provisions of Hindu Marriage Act do not apply to these parties. These are people of aboriginal tribe of gonds, so they are governed by the local customs with regard to marriages. Among them it is now well accepted that ceremony of marriage need not be performed as formally as in Shastrik Hindu Law. They have their customary forms of marriages. At least in second marriages which are common among them, they follow the custom of offering Churi to the bride by bridegroom. There is also accepted custom of leaving the wife and this results in divorce when there is an expressed agreement to divorce.
7. It is also to be noticed that in a petition under section 125, Criminal Procedure Code the extent of proof to establish marriage is not of the same standard as in a complaint of bigamy for offence under section 494, Indian Penal Code. In fact among Gonds second marriage is also common. These have become accepted customs over the years among this tribe in this part of India."
8. The Hon'ble High Court held that proof of marriage is not of that standard in a proceeding under section 125 of Cr.P.C. as in a proceeding under section 494 for the offence of bigamy.
9. While exercising our jurisdiction under Administrative Tribunals Act, I am to consider whether family pension, as claimed by the applicant, is payable to her in consideration of her claim that she is the second wife. The respondents in their reply submitted that an inquiry was conducted by the Sectional Personnel Inspector who submitted his report and found that the deceased employee had married twice during his life time and had two wives, i.e., Sunderibai and the applicant, Ganeshibai. The respondents' further contention that mere pleading in the OA that applicant belongs to Schedule Tribe is not sufficient which made the second marriage valid otherwise under the Hindu Law the applicant's marriage to the deceased employee would be void and she will not be entitled to family pension. In the impugned order, the respondents have set out the enquiry report and, thereafter, in the impugned order itself held categorically that "on the basis of available records, the Sarpanch's report, PI's report and Nomination, it is clearly established that your client Smt. Ganeshibai is the 2nd wife and as per section 5(i) read with section 16 of the Hindu Marriage Act, 1955 vis-a-vis 2nd Marriage during the lifetime of 1st wife is null and void abinitio." It is further mentioned that the applicant will always remain the 2nd wife, which marriage is void. The deceased employee did not receive any permission for the 2nd marriage and so on and so forth. However, having regard to Rule 75 of Railway Services (Pension) Rules, 1993, which deals with family pension it will be evident that while granting family pension, the railway authorities held the 2nd wife entitled for pension, irrespective of the fact, whether the 2nd marriage was void or valid marriage.
10. In Railway Services (Pension) Rules, sub rule 5 of Rule 70 says as follows :
For the purpose of this rule, rules 71, 73 and 74 family, in relation to railway servant means
(i) Wife or wives including judicially separated wife or wives in the case of a male railway servant.
11. Rule 75 deals with Family Pension Scheme for Railway Servants, 1964. Sub Rule 7(i)(a) of Rule 75 stipulates that where the family pension is payable to more widows than one, the family pension shall be paid to the widows in equal shares. Therefore, from these rules it appears that rule making authorities made provision for the second wife, being aware of the situation where the railway employee may perform a second marriage during the lifetime of the first wife.
12. Having regard to the submissions made by the learned counsel for the applicant and respondents, I am of the view that it is not open to the respondents to deny the family pension to the applicant fully. The applicant, being, the 2nd wife of the deceased railway servant, as admitted in the report of the respondents as well as in the impugned order, the respondents cannot deny her, if not full, at least share of the family pension in terms of Rule 75 sub rule 7(i)(a) of Pension Rules, 1993. The respondents have admitted that the 1st wife died prior to the death of the railway employee on 25.08.2002, therefore, there is no other claimant for the family pension except the applicant. I, therefore, direct the respondents to consider the case of the applicant afresh in adherence to sub rule 7(i) (a) of Rule 75 of Railway Services (Pension) Rules, 1993 and also in the light of relevant provisions of Hindu Marriage Act and the judgment in the case of Kumari Bhai (supra).
13. The Original Application stands disposed of in terms of above directions. No order as to costs.