A second wife from a void bigamous marriage is not entitled to family pension.

S. Thamizharasi claimed family pension with effect from 1 May 2020 on the death of her husband, R. Saman.

The Accountant General rejected her claim by proceedings dated 3 October 2019 and 6 September 2021, holding that her marriage with Saman was solemnised on 16 May 1991 while his first marriage with S. Nalini was subsisting; the first marriage was purportedly dissolved only on 12 June 2006 through a registered mutual separation agreement.

The Single Judge allowed her writ petition in W.P. No. 7911 of 2022 by order dated 22 September 2023. The Accountant General challenged that order in the present intra-court appeal.

Whether a registered mutual separation agreement between the deceased Government servant and his first wife constituted a valid divorce, thereby making his subsequent marriage legally valid?

Whether a woman whose marriage to a Hindu Government servant was void because it was contracted during the subsistence of his first marriage could claim family pension under Rule 49 of the Tamil Nadu Pension Rules, 1978?

Whether Rule 49(7)(a)(i), providing for equal distribution of family pension among more than one widow, applied to an invalid second marriage?

The Court applied Sections 5(i), 11 and 17 of the Hindu Marriage Act, 1955: a Hindu marriage contracted during the subsistence of a previous valid marriage is void, and may attract the statutory consequences of bigamy.

Under Rule 3(1)(e) read with Rule 49 of the Tamil Nadu Pension Rules, 1978, family pension is payable only to eligible members of the deceased employee’s legally recognised family; Rule 49(7)(a)(i) permits sharing only where family pension is payable to more than one legally recognised widow.

The Explanation to Rule 49(7) recognises a second wife for family-pension purposes only where the second marriage was valid under applicable customary law predating the Hindu Marriage Act or was solemnised under Mohammadan law permitting bigamy.

Relying on R. Rajathi v. The Superintendent Engineer, Rameshwari Devi, Raj Kumari v. Krishna, and the principles discussed in Smt. Shamal Mahadeo Tate v. District Collector, the Court held that a woman from a void second marriage is not a legally wedded wife or “widow” for family-pension purposes.

The deceased’s first marriage had not been dissolved by a competent court; the registered mutual separation agreement could not operate as a decree of divorce under the Hindu Marriage Act.

Since the first marriage continued to subsist when Saman married Thamizharasi in 1991, the second marriage was void under Sections 5(i) and 11 of the Act. Consequently, Thamizharasi could not claim the legal status of a wife or widow.

The Court interpreted the words “where family pension is payable to more widows than one” in Rule 49(7)(a)(i) as presupposing that each claimant is a legally recognised widow; the provision regulates sharing between eligible widows and does not independently confer pensionary entitlement on a woman whose marriage is invalid.

The exceptions in the Explanation to Rule 49(7) were inapplicable because the marriage was neither a pre-1955 customary marriage nor a marriage governed by Mohammadan law.

Accordingly, the subsequent death of the first wife did not validate the void marriage or create an entitlement to family pension.

She was therefore not a legally wedded wife or eligible widow under Rule 49 of the Tamil Nadu Pension Rules, 1978, and was not entitled to family pension.

The writ order dated 22 September 2023 in W.P. No. 7911 of 2022 was set aside; the writ appeal was allowed, without costs, and the connected miscellaneous petition was closed.