Second Marriage During Subsisting First Marriage is Void; Only Legally Wedded Wife Entitled to Family Pension.

Late Shri Pramod Kumar Bedharak, a Railway employee, died in harness on December 7, 2011.

Two women, Smt. Shakuntala Devi and Smt. Shimla Devi, claimed to be his legally wedded wives and sought compassionate appointment and other terminal benefits.

Smt. Shimla Devi, the first wife, asserted her marriage was never dissolved and the purported second marriage to Smt. Shakuntala Devi was void *ab initio* under the Hindu Marriage Act, 1955.

Smt. Shakuntala Devi, the second wife, claimed her marriage solemnized in May 2005 was valid due to previous desertion by Smt. Shimla Devi and customary divorce prevalent in their 'Shudra/Hela' community.

The Railway Administration, facing rival claims, directed both claimants to obtain a succession certificate as a precondition for considering their applications, issuing orders dated March 30, 2012, July 5, 2012, and November 5/7, 2012.

Both claimants challenged the impugned orders insisting on a succession certificate, arguing it was contrary to Railway Board Circulars and settled legal positions.

1. Whether the second marriage of Late Shri Pramod Kumar Bedharak with Smt. Shakuntala Devi was a valid marriage, given the subsistence of his first marriage with Smt. Shimla Devi.

2. Whether Smt. Shakuntala Devi (the second wife) is entitled to family pension and other retiral benefits under the Railway Services (Pension) Rules, 1993.

3. Whether the children born from the second marriage are eligible for compassionate appointment.

4. Whether the Railway Administration was justified in insisting on a succession certificate from the claimants for the disbursal of family pension and consideration of compassionate appointment.

The court primarily applied the Hindu Marriage Act, 1955, specifically the principle that a second marriage solemnized during the subsistence of a first marriage is void *ab initio*.

It relied on the Supreme Court's judgment in *Rameshwari Devi v. State of Bihar & Others* ((2000) 2 SCC 431), which affirmed the invalidity of a second marriage under Hindu law if a spouse is living.

The court also considered Rule 75(7)(i)(a) of the Railway Services (Pension) Rules, 1993, which provides for family pension to "widows" in equal shares, interpreting "widows" to mean legally wedded wives only.

Furthermore, the court considered the Railway Board Circular No. E(NG)II/91/RC-1/136 dated January 2, 1992, concerning compassionate appointments for children of a second wife.

The Tribunal also drew upon the Allahabad High Court's decisions in *Smt. Vimla Srivastava v. State of U.P. and others* (Writ A No. 60881 of 2015, decided on December 4, 2015) and *Smt. Madhuri Mishra v. State of U.P and others* (Writ ‘A’ No. 1811 of 2023, decided on March 16, 2023) regarding the eligibility of married daughters for compassionate appointment.

The Tribunal found that Smt. Shimla Devi was the undisputed first legally wedded wife and that her marriage with the deceased employee was never dissolved by a competent court.

Contrary to Smt. Shakuntala Devi's claim, the Tribunal ruled that the concept of customary divorce based on desertion, as presented in *M. Govindaraju v. K. Munisami Gounder* (AIR 1997 Supreme Court 10), was not applicable due to differences in geographical location and community customs, and no evidence was adduced to prove such a custom in Uttar Pradesh.

Consequently, it concluded that Smt. Shakuntala Devi's marriage was void *ab initio* under the Hindu Marriage Act, 1955, aligning with the precedent set in *Rameshwari Devi*.

The term "widows" in Rule 75 of the Railway Services (Pension) Rules, 1993, was interpreted to apply only to legally wedded wives, thus excluding Smt. Shakuntala Devi from receiving family pension.

However, regarding compassionate appointment, the Tribunal referenced *Prakash Saxena v. Union of India and others* (OA No. 924 of 2012, decided on December 13, 2018) and *Smt. Namita Golder & Another v. Union of India & Others* (W.P.C.T. No. 20 of 2010, decided on July 14, 2010), holding that children born from a second marriage, even if void, are legitimate and cannot be denied consideration for compassionate appointment if they meet other eligibility requirements.

The Tribunal deemed the Railway Administration's insistence on a succession certificate for family pension and compassionate appointment to be unjustified, as the rules provide clear mechanisms for disbursal and consideration of claims.

It was concluded that only Smt. Shimla Devi, the legally wedded first wife, is entitled to family pension, and the respondents were directed to release the family pension in her favour within three months.

The impugned orders insisting on a succession certificate for family pension and compassionate appointment were quashed and set aside.

The Tribunal further directed the respondents to consider the claims for compassionate appointment, including those made by the children of the second marriage, without insisting on a succession certificate and after due inquiry, in accordance with applicable Rules, within three months from the receipt of the order.

All connected Miscellaneous Applications were also disposed of.