THE ACCOUNTANT GENERAL (A AND E) vs S. THAMIZHARASI
- Court
- Madras High Court
2026:MHC:3657
WA No. 3444 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 31-08-2026
CORAM
THE HON'BLE MR JUSTICE S. M. SUBRAMANIAM
AND
THE HON'BLE MR.JUSTICE KRISHNASWAMY GOVINDARAJAN
WA No. 3444 of 2023
and
CMP No.28181 of 2023
1. The Accountant General (A & E)
Chennai-600 018.
2. The Branch Office of Accountant General
(A & E),
Natrampalli Thirupattur District.
..Appellant(s)
Vs
1. S.Thamizharasi
2. The State of Tamil Nadu
Rep. by the Block Educational Officer,
Natrampalli, Tirupathur,
Tirupathur District.
..Respondent(s)
PRAYER: Writ Appeal filed under Clause 15 of Letters Patent to set aside the
order passed in WP.No. 7911 of 2022 dated 22.09.2023.
For Appellant(s): Mr.S.MAHESH
for Mr.V.Vijayashankar
For Respondent(s): Ms.S.SRIMATHI
FOR M/S.KRISHNA LAW ASSOCIATES
FOR R1
Mr.K.Rajesh,
Government Advocate FOR R-2
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JUDGMENT
(Judgment of the Court was delivered by S.M.Subramaniam J.)
The Accountant General of Tamil Nadu preferred the present Intra Court
Appeal under Clause 15 of Letters Patent challenging the writ order dated
22.09.2023, passed in WP.No. 7911 of 2022.
2.The first respondent Smt.S.Thamizharasi filed a writ petition claiming
family pension with effect from 01.05.2020. The claim of the first respondent
for grant of family pension on account of the death of her husband R.Saman
was rejected by the Accountant General of Tamil Nadu vide proceedings
dated 03.10.2019 and 06.09.2021, mainly on the ground that as per the
documents, the second marriage between the first respondent and the
deceased R.Saman took place on 16.05.1991 before the date of divorce of the
first wife Smt.S.Nalini i.e.12.06.2006. In other words, the second marriage
with the first respondent was solemnised even before the date of divorce of
his first wife. Therefore, the second marriage between the deceased
R.Saman and the first respondent became invalid under the provisions of the
Hindu Marriage Act, 1955. Further order was passed by the Accountant
General on 06.09.2021. On verification of further facts and documents, a
finding was made by the Accountant General that the mutual separate
agreement entered into by the late Government servant R.Saman and his first
wife Nalini does not have any legal validity as the dissolution of their marriage
notwithstanding the registration of the agreement. Hence, the second
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marriage with the first respondent would be rendered as null and void as per
the Hindu Marriage Act, 1955.
3.The facts verified by the Accountant General made it clear that there
is no valid divorce obtained by the deceased R.Saman from his first wife
through a competent Court of Law. The marriage was annulled based on a
mutual agreement, which was registered under the Registration Act, which
cannot be construed as a valid divorce under the provisions of the Hindu
Marriage Act, 1955. When the marriage between the deceased employee
R.Saman and his first wife Nalini was not dissolved as per law, the second
marriage of the deceased employee with the first respondent is null and void
and therefore, the first respondent cannot be construed as a legally wedded
wife of the deceased employee R.Saman.
4.In the context of the fact that the second marriage of the deceased
employee with the first respondent is null and void in the eye of law, the
provisions under the Tamil Nadu Pension Rules 1978 is to be considered.
The term “family pension” has been defined under Rule 3 (1) (e) of the Tamil
Nadu Pension Rules 1978, which reads as under:
3(1)(e). ‘Family Pension’ means ‘family pension,
1964’ admissible under Rule 49 but does not include
dearness allowance.
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5.Rule 49 of the Tamil Nadu Pension Rules provides family pension.
Sub Rule 7 (a) (i) of theTamil Nadu Pension Rules Pension Rules reads as
under:
“7(a) (i) Where family pension is payable to more
widows than one, the family pension shall be paid to
widows in equal shares.
(ii)On the death of widow, her share of the family
pension shall become payable to her eligible child;
[Provided that if the widow is not survived by any child,
her share of the family pension shall cease to be
payable] [Provided that if the widow is not survived by
any child, her share of family pension shall be payable
to the other widows in equal shares, or if there is only
one such widow, in full to her.]
(b) Where the deceased Government servant or
pensioner is survived by a widow but has left behind
eligible child or children from another wife who is not
alive, the eligible child or children shall be entitled to the
share of family pension which the mother would have
received if she had been alive at the time of the death of
the Government servant or pensioner.
[Provided that on the share or shares of family pension
payable to child or children or to a widow or widows
ceasing to be payable, such share or shares shall be
payable to the other widow or widows and or to the
other child or children otherwise eligible, in equal
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shares, or if there is only one widow, or child, in full, to
such widow or child] (C) Where the deceased
Government servant or pensioner is survived by a
widow but has left behind eligible child or children from a
divorced wife or wives, the eligible child or children shall
be entitled to the share of family pension which the
mother would have received at the time of the death of
the Government servant or pensioner had she not been
so divorced.
[Provided that on the share or shares of family pension
payable to such a child or children or to a widow or
widows ceasing to be payable such share or share shall
be payable to the other widow or widows and or to other
child or children otherwise eligible, in equal shares, or if
there is only one widow or child, in full, to such wid6ow
or child]
Explanation: For the purpose of this rules, the second
wife shall be eligible for the benefits of family pension
only if the second marriage-
(i)Solemnised as per the customary law prevailed
among the community before the date of
commencement of the Hindu Marriage Act, 1955
(Central Act 25 of 1955); or
(ii)Solemnised under the Mohammadan Law in which
bigamy is permissible.”
6.Rule 19 of the Tamil Nadu Government Servants Conduct Rules,
1973, reads as follows:
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19. Bigamous marriage:-
(1) (i) No Government servant shall, enter into or
contract, a marriage with a person having a spouse
living; and
(ii) No Government servant having a spouse living shall
enter into or contract a marriage with any person:
Provided that the Government may permit a
Government servant to enter into, or contract, any such
marriage as is referred to in clause (i) or clause (ii) if
they are satisfied that-
(a) such marriage is permissible under the personal law
applicable to such Government servant and the other
party to the marriage; and
(b) there are other grounds for so doing.
(2) No Government servant involve himself in any act
involving moral turpitude on his part including any
unlawful act, which may cause embarrassment or
which may bring discredit to Government.
1
7.In the case of R.Rajathi Vs.The Superintendent Engineer , the
Division Bench of this Court had elaborately considered the scope of Rule 49
of the Tamil Nadu Pension Rules, 1978.
1
(2018 (1) Writ L.R725)
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8.The cardinal principles laid down by the Court is that “payability /
eligibility of family pension for more than one widow would arise only if two
wives are permissible under law. Such a situation was considered by the Rule
maker since the marriage solemnised prior to the Hindu Marriage Act, 1955,
was considered as valid. Prior to the year 1955, contracting a second
marriage during the life time of the first wife was permitted and therefore, the
sharing of family pension arose and the provision was enacted. However,
after 1955, second marriage is not only a misconduct under the Government
Servants Conduct Rules but an offence. Therefore, the question of now
sharing the family pension in respect of an invalid marriage would not arise at
all.
9.Rule 49 of the Tamil Nadu Pension Rules deals with “Family Pension”.
Rule 49 (7) (a) (i) contemplates that "Where family pension is payable to more
widows than one, the family pension shall be paid to widows in equal shares."
10.Relying on the above provision, applications are filed by the second
wives, seeking family pension after the death of the deceased employee.
11.Question arises, whether a pension can be shared under Rule 49(7)
(a)(i) of the Tamil Nadu Pension Rules, 1978, when the marriage is invalid.
12.The language employed in Rule 49(7)(a)(i) is that, “where family
pension is 'payable' to more widows than one”. Therefore, if the family pension
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is payable to more widows than one, then alone, the family pension can be
shared, but not otherwise.
13.Question of 'payability' would arise only if the applicant is the widow.
The question of widow would arise only if the marriage is a valid marriage.
Based on an invalid marriage, the second wife cannot claim the status as
“widow”. When admittedly, the applicant is the second wife of the deceased
employee and she is not a widow, then the family pension is not payable and
the question of invoking Rule 49(7)(a)(i) would not arise.
14.Further question arises, why such a rule has been incorporated in
the Tamil Nadu Pension Rules. It is obvious that at the time of framing the
Rules, the employees, who have solemnized second marriage prior to the
year 1955, i.e., before the Hindu Marriage Act , was considered as a valid
marriage. In those circumstances, when the second marriage was a valid
marriage, the Rule contemplates sharing of the family pension. Therefore,
only if the second marriage is valid under the Law, then alone, the pension is
payable, which can be shared between two widows, but not otherwise. When
the Pension Rule was enacted, there were many such cases, where,
employees had two wives and the marriage with the second wife was
solemnized prior to the Hindu Marriage Act before the year 1955 and thus, this
Court is of the considered opinion that those circumstances cannot be taken
undue advantage by the second wife, whose marriage was solemnized after
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the Hindu Marriage Act and became invalid. Thus, the second marriage
solemnized during the lifetime of the first wife is an invalid marriage and an
invalid marriage would not provide the second wife status as “widow”. When
she is not holding the status as 'widow', the family pension is not payable and
consequently, the family pension cannot be shared or paid.
15.Even looking into the provisions independently, Rule 49(7)(a)(i)
speaks about sharing of family pension between widows. It does not speak
about sanctioning of family pension to the second wife. Rule 49(7)(a)(i) says
that, where family pension is payable to more widows than one, then it is to be
divided in equal shares. When the provision is unambiguous regarding the
sharing of family pension between two widows, the said provision cannot be
applied for the purpose of sanctioning family pension for the second wife,
whose marriage was not solemnized in accordance with law.
16.That apart, a Division Bench of the High Court of Bombay, in the
case of Smt..Shamal Mahadeo Tate vs. District Collector, Solapur, Zilla
2
Parishad Compound and others , held as follows:-
"12 . In our considered opinion, the substantial issue
elucidated hereinabove stands squarely answered by the Supreme
Court in a catena of judgements and the position of law in this
regard stands more than well- settled.
2
( 2022 0 Supreme(Bom) 23)
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12.1 The Supreme Court, in Rameshwari Devi case (supra),
has clearly opined that the putative second wife cannot be described
as the widow of the deceased government employee. The Supreme
Court applied the statutory provisions under Section 5 (i) read
with Section 11 of the HMA and held that the marriage of the
deceased employee to the putative second wife is void as, at the
time of such marriage, his first wife was alive and his marriage with
her was still subsisting. That being the case, the Supreme Court
ruled that the second wife in such cases is not entitled to family
pension.
12.2 The Supreme Court in the case of Raj Kumari vs.
Krishna , 2015 (14) SCC 511 similarly opined that normally, family
pension is given to the legally wedded wife of a deceased
government employee. In the aforesaid case, the deceased
government employee had married the plaintiff therein while the
former's first wife was alive and his marriage with her was still
subsisting. As such, the Supreme Court held that the plaintiff could
by no stretch of imagination be described as the legally wedded wife
of the deceased government employee.
12.3 A view similar to the above has also been adopted by
this Court in Draupada @ Draupadi Jaydev Pawar & Ors. vs.
Indubai (supra). The learned Single Judge has, with authority,
referred to the judgements passed in the Chanda Hinglas Bharati
(supra) and Rameshwari Devi (supra). The relevant excerpts are
Paragraphs 35 to 37 and are reproduced herein below:
"35. During the course of arguments
of Chanda Hinglas Bharati (supra) in November,
2015 the counsel of second wife placed heavy
reliance on the earlier judgment of the Division
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Bench in the case of Jaywantabai. The judgment
of learned Single Judge in the case of "Kantabai"
was not placed before the Division Bench. The
learned Judges of the Division Bench in the case
of Chanda Hinglas Bharati have considered
number of judgments. The ratio laid down by the
Division Bench is specific and clears all the
doubts in respect of interpretation of Rule 116(6)
(a)(i) of Maharashtra Civil Services (Pension)
Rules and Rule 26 of Maharashtra Civil Services
(Conduct) Rules. The Division Bench has
referred and relied the cases of Rameshwari
Devi (supra) and Vidyadhari v. Sukhrana Bai ,
reported in (2008) 2 SCC 238. The Division
Bench has held thus:
“The Maharashtra Civil Services (Pension)
Rules were brought into force in the year 1982.
Rule 116 (6)(a)(i) opens with the clause, "Where
the Family Pension is payable to more widows
than one". The provisions of Sub-Rule 6(a) (i) of
Rule 116 of the Rules would apply only in a case
where the family pension is payable to more
widows than one. The primary question would
be, whether the family pension is payable to
more widows than one. When would a second
widow or more than one widows be entitled to
pension. In our considered view, more widows
than one would be entitled to pension only if the
Hindu employee has married the woman (widow)
before the coming into force of the Hindu
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Marriage Act on 18.5.1955 and in case of
employees where such marriage is permissible
under the personal law applicable to the said
employee or Government servant and the other
party to the marriage. It appears from the
provisions of Maharashtra Civil Services
(Conduct) Rules that the marriage during the life
time of a spouse could be accepted only if the
marriage is permissible under the person law
applicable to both the parties to the marriage."
36. In the said judgment , the Division
Bench has rightly linked up meaning of widow to
the status of wife who is a legally wedded wife. It
considered section 5 which speaks about
'Conditions of Valid Marriage and section 11 on
'Void marriages and section 17 wherein
'Punishment for bigamy' is stated. It also took into
account provisions of sections 494 and 495 of
the Penal Code, 1860 pertaining to bigamy and
also relied on Rule 26 of the Maharashtra Civil
Services (Conduct) Rules, 1979, which states
thus:
"26. Contracting of marriages
(1) No Government servant shall enter into,
or contract, a marriage with a person having a
spouse living; and
(2) No Government servant, having a
spouse living, shall enter into or contract, a
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marriage with any person;
Provided that the Government may permit
a Government Servant to enter into, or contract,
any such marriage as it referred to in clause (1)
or clause (2), if it is satisfied that--
(a) such marriage is permissible under the
personal law applicable to such Government
servant and the other party to the marriage; and
(b) there are other grounds for so doing."
37. The reasoning given by the Division
Bench is consistent with the other provisions of
law as mentioned above wherein the second
marriage is held void. The Indian legal system
has adopted monogamy as a legal structure of
the marriage institution and, therefore, occasional
fractures of second marriage in subsistence of
first marriage are held void in law. The second
woman cannot be given a status of a legally
wedded wife and, as rightly observed by the
Division bench, she is not a widow in true and
legal sense. A wrong may exist in the Society on
a large scale, however it cannot be justified as a
righteous custom because of its magnitude. In
order to buttress this point, it will not be out of
place to give example of give and take of dowry
which throws light on the wide gap between the
legality and the reality. To take lenient view
towards the wrong doers is contrary to law laid
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down by the legislature. Thus, gap should not be
widened by the decision of the Court but it is to
be bridged. It is mandatory for the Court to
interpret a law which gives true effect to the
legislative intent. The Division Bench in the case
of Chanda Hinglas Bharati has referred to the
relevant provisions under different acts regarding
the consequences of second marriage and the
status of second woman." [emphasis supplied]
12.4 We may state that the decision in the Jaywantabai case
(supra) has been expressly overruled by a Full Judge Bench of this
Court in the Kamalbai case (supra) in view of the decisions of the
Supreme Court in the Rameshwari Devi case ( supra) and the Raj
Kumari case (supra). We may usefully refer to Paragraphs 13 and
14 of the said decision , which read thus:
"13. In the present matters, we are concerned
with the entitlement of the second wife to family
pension upon the death of the Government
employee. For the purpose of family pension the
word "family" will have to be interpreted. Subrule (5)
of Rule 111 of the Pension Rules defines "family" in
relation to the Government servant. Rule 111(5)(i)
initially read as "wife or including judicially separated
wife or wives in the case of male government
servants". Under notification dated 18-1-2016 clause
(i) has been amended and the word "wife" is
substituted with the word, "legally wedded wife". The
provision now is read as legally wedded wife or
wives. Rule 111 deals with Retirement
Gratuity/Death Gratuity. Rule 115 enables the
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Government servant to nominate one or more
persons to receive the retirement gratuity/death
gratuity. Proviso (I) to sub-rule (I) of Rule 115
restricts the right of the Government servant to
nominate any person other than a member of his
family in case he has family. The provision would
make it clear that unless wife is legally wedded wife
as provided under Rule 111(5)(i) of the Pension
Rules, the government servant has no right to
nominate such a person. Rule 111(5) of the Pension
Rules excludes a wife that is not a legally wedded
wife from the definition of family. If the marriage is
not legal and valid, the said woman would not be
brought within contour of the definition "Family".
Proviso (ii) to Rule 115(1) enables the Government
servant to nominate any other person if he has no
family, but sub Rule 4 of Rule 115 of the Pension
Rules further prescribes that if at the time the
government servant had made nomination who had
no "family" at the time of making it, same shall
become invalid in the event of the government
servant subsequently acquiring the "family". Reading
Rules 111 and 115 of the Pension Rules conjointly
the only irresistible conclusion that can be drawn is
that a nomination can be made by a government
servant only of a person who is member of the
family, if the said Government servant has a family.
The definition of family embodied in Rule 111(5)(i)
specifically provides that legally wedded wife or
wives only would be a member of the family. The one
that is not a legally wedded wife is excluded from the
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definition of the term "family".
14. The family pension was initially governed
by the Family Pension Scheme 1964 as contained in
the Government Resolution dated 08th May, 1964.
Same is incorporated in Rule 116. The
nomenclature, "Family Pension" connotes payment
of pension to the family, a woman who is not legally
married cannot be included in the definition of
family." [emphasis supplied]
12.5 Thus, in light of the judicial decisions as outlined
hereinabove, the Petitioner in the present case would not be entitled
to family pension under the Pension Rules notwithstanding the
death of the first wife as the Petitioner's marriage to the deceased
itself is void under the HMA."
17.In the present case, the facts established are that the deceased
employee entered into a mutual agreement of divorce with his first wife Nalini
and registered the said document, which cannot be construed as a valid
divorce under law. Even before the agreement, the deceased employee
married the first respondent as his second wife. Therefore, the second
marriage is null and void and in view of the principles discussed above in the
context of the Tamil Nadu Pension Rules, 1978, the first respondent is not
entitled for family pension. Pertinently, the first respondent is a retired
Headmistress and receiving pension from the State Government.
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18.For all these reasons, the writ order impugned dated 22.09.2023
passed in WP.No.7911 of 2022 is set aside. The Writ Appeal stands allowed.
No costs. Consequently, connected miscellaneous petition is closed.
(S.M.S.,J.) (K.G.R.,J.)
31-08-2026
Index: Yes/No
Speaking/Non-speaking order
Neutral Citation: Yes/No
SLI
To
The Block Educational Officer,
Natrampalli, Tirupathur,
Tirupathur District.
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S.M.SUBRAMANIAM, J.
AND
KRISHNASWAMY GOVINDARAJAN, J.
SLI
WA No. 3444 of 2023
and
CMP No.28181 of 2023
31-08-2026
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