# Writ-A No. -57990 of 2014 Ram Mohini Devi (Smt.) v. State of U.P. & Ors

- **Citation:** (2015) 1 ILRA 460
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2015-02-26
- **Bench:** Suneet Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/writ-a-no-57990-of-2014-ram-mohini-devi-smt-v-state-of-u-p-ors-43197
- **Pages:** 8

## Headnote

Uttar Pradesh Retirement Benefits Rules,
1961-Rule 3(3), 5(i), Rule 7(c)-claim of
family pension-by second wife with
consent of first wife-in service record her
name already shown as nominee-heldwhen marriage itself void-consent of
first
wife-immaterial-
rejection-heldproper-petition
dismissed.
1 All] Ram Mohini Devi (Smt.) State of U.P. & Ors.
461
Held: Para-33
For
the
reasons
and
law
stated,
hereinabove, the second wife cannot
claim pension on the consent of the first
wife, even if the second wife is eligible
under
the
Rules
to
receive
family
pension, as long as, the first wife is alive
or does not remarry.
Case Law discussed:
1988 (25) ACC 119; [(2001) 1 U.P.L.B.E.C.
8691]; [(2004) 3 U.P.L.B.E.C 2292]; [2000 (1)
ESC 577 (S.C.)]; 2000 (1) ESC 135 (S.C.); AIR
1984 SC 346.

## Text

460
 INDIAN LAW REPORTS ALLAHABAD SERIES
further stated that she had voluntarily
gone with the applicant and on her own
sweet will marriage with accused Ajit and
the said fact was also informed by her
parent that she would marry with Ajit
Singh but her parents were against the
said marriage. In her statement she also
stated that Ajit had not enticed her away
and she has voluntarily accompanied with
Ajit. The court below while deciding the
custody of the victim on the application
filed by the applicant as well as Ajit Singh
had also tried to know wish of the victim
who has stated that she wants to go with her
husband Ajit Singh but finding her to be
minor, it found proper for sending her Nari
Niketan till she attained majority. It is well
settled law that a minor can not be confined
in Nari Niketan against her wishes. In this
regard, the Judgement of this Court in the
case of Smt. Parvati Devi Vs. State of U.P.
and another reported in 1992 All Crl. Cases
32 in which it has been observed by the
Apex Court that the confinement of a victim
in Nari Niketan against her wishes, cannot be
authorised under any provisions of the Code.
There is no such legal provision wherein the
Magistrate has been authorized to issue
directions that a minor female child shall,
against her wishes, be kept in Nari Niketan.
7. In the case of Mrs. Kalyani
Chaudhory Vs State of U.P. and others
reported in 1978 Criminal Law Journal
103, a Division Bench of this Court held
that no person can be kept in protective
home unless she is required to be kept
there
either
in
pursuance
of
the
Suppression
of
Immoral
Traffic
in
Women and Girls Act or under some
other law permitting her detention in such
a Home.
8. In the case in hand, the question
of the applicant being a minor is
irrelevant as even a minor cannot be kept
in protective home against her will. The
applicant may hardly be said that she is
not a women or girl which come within a
preview of Suppression of Immoral
Traffic in Women and Girls Act. Thus, it
is clear cut case of illegal confinement of
minor
against
her
wishes
violating
fundamental right. Hence, the impugned
order dated 26.05.2014 passed by the
Special Judge/ Additional Sessions Judge,
Court No.1, Kasganj is hereby quashed
and it is directed the Superintendent of
Nari Niketan, Mathura to release the
victim Dolly daughter of Gajraj Sing be
set at liberty to go in according to her own
wish.
9. The present application stands
disposed of.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.02.2015
BEFORE
THE HON'BLE SUNEET KUMAR, J.
Writ-A No. -57990 of 2014
Ram Mohini Devi (Smt.)
 ...Petitioner
Versus
State of U.P. & Ors.
...Respondents
Counsel for the Petitioner:
Sri Gopal Srivastava, Sri H.R. Mishra
Counsel for the Respondents:
C.S.C.
Uttar Pradesh Retirement Benefits Rules,
1961-Rule 3(3), 5(i), Rule 7(c)-claim of
family pension-by second wife with
consent of first wife-in service record her
name already shown as nominee-heldwhen marriage itself void-consent of
first
wife-immaterial-
rejection-heldproper-petition
dismissed.
1 All] Ram Mohini Devi (Smt.) State of U.P. & Ors.
461
Held: Para-33
For
the
reasons
and
law
stated,
hereinabove, the second wife cannot
claim pension on the consent of the first
wife, even if the second wife is eligible
under
the
Rules
to
receive
family
pension, as long as, the first wife is alive
or does not remarry.
Case Law discussed:
1988 (25) ACC 119; [(2001) 1 U.P.L.B.E.C.
8691]; [(2004) 3 U.P.L.B.E.C 2292]; [2000 (1)
ESC 577 (S.C.)]; 2000 (1) ESC 135 (S.C.); AIR
1984 SC 346.
(Delivered by Hon'ble Suneet Kumar, J.)
1. The petitioner is the second wife
of Prem Narain Srivastava (deceased),
according to the petitioner, the marriage
was solemnized, with the consent of the
first wife namely Smt. Kunti Devi in
1954. The husband of the petitioner a
Gram Panchayat Adhikari was working
with the respondent no. 3, Zila Panchayat
Raj Adhikari, Basti. The petitioner was
nominated for receiving gratuity, G.P.F.
and life insurance. The husband retired on
31.03.1997, on attaining the age of
superannuation, subsequently, died on
20.10.2002;
petitioner
made
an
application for family pension which was
not granted, aggrieved, the petitioner
approached the Court by filing (Writ
Petition no. 53165 of 2003) petition
challenging the rejection order dated
04.03.2004, passed by the respondent no.
2, Director, Pension Nideshalaya, U.P.
Lucknow. The writ petition was allowed
by judgment and order dated 15.07.2013.
The operative portion of judgment being
relevant is extracted:
"The petitioner has brought on record
the papers showing nomination made by
her husband in her favour in respect of the
Gratuity, General Provident Fund and
Group Insurance, as Annexure-2 to the
writ petition. Said statement has been
made in paragraph-8 of the writ petition.
In paragraph-12 of the counter affidavit,
whereunder paragraph-8 of the writ
petition has been replied, said statement
of fact has not been denied. Thus, this fact
is established that husband of the
petitioner had made nomination in favour
of the petitioner for his other post retiral
benefits and the first wife of late Prem
Narain Lal Srivastava has given her
affidavit that she has no objection in case
the petitioner is granted family pension.
However, I find that in the impugned
order the Director, Pension Directorate,
Lucknow has failed to advert to those
material facts and documents. Thus, the
impugned order has been passed without
application of mind and as such, the same
needs to be quashed. Accordingly, the
order dated 04.03.2004 passed by the
Director,
Pension
Directorate,
U.P.,
Lucknow, the respondent no. 1, is hereby
quashed. The matter is remitted back to
the Director, Pension Directorate, U.P.,
Lucknow, to reconsider the same afresh
after giving opportunity to the petitioner
and pass appropriate order in accordance
with law within six weeks from the date
of communication of this order.
Accordingly, the writ petition is
allowed.
No order as to costs."
2. The order was not complied with,
aggrieved the petitioner filed Contempt
Petition1 (No. 2965 of 2014), the Court
on 13.05.2014 directed the Director,
Pension Nideshalaya, U.P., Lucknow to
comply the order of the writ court. The
respondent no. 2 by impugned order dated
24.06.2014 rejected the claim of the
petitioner, for the reason, that since the
deceased employee, in the pension paper,
462
 INDIAN LAW REPORTS ALLAHABAD SERIES
had mentioned the name of both the
wives, accordingly, direction/opinion was
sought from the State Government. The
Government vide letter dated 23.10.2013,
pursuant to Government Order dated
24.08.1966, opined that in the event of the
deceased employee having two wives the
senior wife would be entitled to family
pension until her death/remarriage. The
family pension being non transferable
cannot be given to the petitioner, even on
an
affidavit
of
the
senior
wife
relinquishing her claim, to family pension
in favour of the petitioner.
3. Sri H.R. Mishra, learned Senior
Advocate,
assisted
by
Sri
Gopal
Srivastava, learned counsel appearing for
the petitioner would submit that since the
first wife has no objection, in case second
wife is given family pension and further
the first wife had given her consent, on an
affidavit, to the competent authority, thus,
would contend, that the petitioner, also
being a nominee for gratuity, G.P.F., and
group insurance, is entitled to family
pension, further, the impugned order is in
teeth of the judgment and order dated
15.07.2013 passed in the earlier writ
petition.
4. In rebuttal, learned Standing
Counsel, would submit that the impugned
order is legal, family as defined in the
Rules, would not include the second wife,
hence the petitioner is not entitled to
family pension, as long as, the first wife is
alive and eligible to receive the family
pension.
5. Rival submissions fall for
consideration.
6. The sole question to be
determined is as to whether the first wife
(senior wife), of the deceased employee,
could relinquish her claim to family
pension upon the second wife under the
Rules.
7. It is not in dispute between the
parties that the provisions of the Uttar
Pradesh Retirement Benefits Rules, 19612
is applicable in respect of the grant of
family pension. The Rules have been
framed in exercise of powers conferred
under the proviso to Article 309 of the
Constitution of India. Rule 2 provides that
the Rules shall apply to all officers under
the rule making power of the Governor.
8. Further, the pension provisions
contained in Civil Service Regulations
shall continue to apply to the officers
except in so far as they are inconsistent
with any of the provisions of these rules.
9. Sub-section (3) of rule 3 defines
"family", part relevant for the case is
extracted:
"[(3) "Family" means the following
relatives of an officer:
(i) wife, in the case of any male
officer;
(ii) husband, in the case of a female
officer;
(iii).......................
(iv)........................
(v).........................
(vi)........................
(vii)........................
(viii)......................
(4)........................
(5).........................
10. Part-II of the Rules provides for
Death-cum-Retirement Gratuity and PartIII deals with Family Pension.
1 All] Ram Mohini Devi (Smt.) State of U.P. & Ors.
463
11. Rule 7(1) under Part-III
provides, family pension may be granted
to the family of an officer who dies. Rule
7(1) is as follows:-
"7. Family Pension.-(1) A family
pension
not
exceeding
the
amount
specified in sub-rule (2) below may be
granted for a period of ten years to the
family of an officer who dies, whether
after retirement or while still in service
after completion of not less than 20 years'
qualifying service:"
12. Sub-rule (3) of rule 7 provides
that pension shall not be payable under
this Part to a person mentioned thereunder
and would include a widowed female
member of the family, in the event of her
remarriage and to a person who is not a
member of the deceased officer's family,
sub-rule reads as follows:-
"(3) No pension shall be payable
under this Part-
(a) to a persons mentioned in clause
(b) of sub-rule (4) below, unless the
pension sanctioning authority is satisfied
that such person was dependent on the
deceased officer for support;
(b) to an unmarried female member
of the family, in the event of her
marriage;
(c) to a widowed female member of
the family, in the event of her remarriage;
(d) to a brother of the deceased
officer on his attaining the age of 18
years; and
(e) to a person who is not a member
of the deceased officer's family.
(4) Except as may be provided by a
nomination under sub-rule (5) below:
(a) a pension sanctioned under this
Part shall be granted-
(i) to the eldest surviving widow, if
the deceased was a male officer or to the
husband, if the deceased was a female
officer;
(ii) failing the widow or husband, as
the case may be, to the eldest surviving
son;
(iii) failing (i) and (ii) above, to the
eldest surviving unmarried daughter;
(iv) these failing, to the eldest
widowed daughter; and
Note.-
The
expression
"eldest
surviving widow" occurring in clause (a)
(i) above, should be construed with
reference to the seniority according to the
date of marriage with the officer and not
with reference to the age of surviving
widows.
(5) A Government Servant shall
immediately after his confirmation, make
a nomination in Form "E" indicating the
order in which a pension sanctioned under
his part should be payable to the members
of his family, and to the extent it is valid,
the pension will be payable in accordance
with
such nomination provided the
nominee concerned is not ineligible, on
the date on which the pension may
become payable to him or her to receive
the pension under the provisions of subrule(3). In case the nominee concerned is
or has become ineligible to receive the
pension under the said sub-rule, the
pension shall be granted to the person
next lower in the order in such
nomination. The provisions of sub-rules
(5)(b),(7) and (8) of Rule 6 shall apply in
respect of nominations under this subrule.
(6)(a) a pension awarded under this
part shall not be payable to more than one
member of the deceased officer's family at
the same time.
(b) If a pension awarded under this
part ceases to be payable before the expiry
464
 INDIAN LAW REPORTS ALLAHABAD SERIES
of the period mentioned in the proviso to
sub-rule (1) on account of death or marriage
of the recipient or any other causes, it will be
regranted to the person next lower in the
order mentioned in sub-rule (4) or to the
person next lower in the order shown in the
nomination under sub-rule (5), as the case
may be, who satisfies the other provisions of
this part."
13. A bare perusal of the Rules, is
indicative that the definition of family
does not include the second wife, it only
refers to 'wife', and family pension, as per
Rule 7(1), is granted to the member of the
'family' of an officer, sub-rule 3(e) of
Rule 7 provides, pension is not payable to
a person who is not a member of the
deceased/officer's family, sub-rule 4(a)(i)
provides that pension shall be sanctioned
under Part III to the eldest surviving
widow and the note appended to the rule
clarifies that expression "eldest surviving
widow"
should
be
construed
with
reference to the seniority according to the
date of marriage with the officer and not
with reference to the age of surviving
widows.
14. Sub-rule (5) requires the
Government Servant to make nomination
indicating the order in which pension
sanctioned would be payable to the
members of his 'family', provided the
nominee concerned is not ineligible, on
the date on which the pension may
become payable to him or her to receive
the pension under the provisions of subrule (3) of rule 7. Thus, the scheme of the
Rules
provide
that
in
case
the
Government servant leaves behind two
wives, the second wife not being a
member of the family, is not eligible to
family pension, as long as, the first wife
survives. Further, there could not have
been any nomination in favour of the
second wife as she was ineligible to have
been nominated under sub-rule (5), being
not a member of the family, thus,
ineligible to receive pension under subrule (3) of rule 7.
15. Learned counsel for the
petitioner has not brought on record
Form-E i.e. nomination in favour of the
petitioner
for
pension,
whereas,
nomination to receive the gratuity and
other payments have been brought on
record.
Nomination
for
death-cumretirement gratuity is dealt with under rule
6 and is not applicable to nominations for
pension under sub-rule (5) of rule 7, both
being under different Part of the Rules.
16. Taking a case that there was
nomination in favour of the second wife,
the pension would have been payable in
accordance to such nomination provided
the nominee is not ineligible, on the date
on which the pension became payable to
her under sub-rule 3 of rule 7. In the facts
of the present case, since the first wife is
alive on the date on which the family
pension became due, the second wife
cannot set up a claim for family pension
even on the consent of the first wife,
further, nomination in favour of second
wife would be invalid as she being not a
member of the government servants
family (sub-rule (3)(e) of rule 7).
17. Learned Standing Counsel
would submit that after enactment of
Hindu Marriage Act 19553 the second
marriage would be void, hence the second
wife would otherwise be ineligible for
family pension.
18. There is merit in the argument of
learned Standing Counsel, provided the
1 All] Ram Mohini Devi (Smt.) State of U.P. & Ors.
465
second marriage was contracted after the
enactment
of
Hindu Marriage
Act,
however, in the facts of the present case,
it is pleaded that the petitioner had
contracted marriage with the Government
Servant
in
1954
i.e.
before
the
commencement of Hindu Marriage Act,
hence her marriage would not be void.
19. The Hindu Marriage Act came
into force on 18.05.1955, the Act
amended and codified the law relating to
marriage among Hindus. Section 4
provides that the Act has an overriding
effect. Section 4 is extracted:
"4. Overriding effect of Act.-Save as
otherwise expressly provided in this Act.-
(a) any text rule or interpretation of
Hindu law or any custom or usage as part
of that law in force immediately before
the commencement of this Act shall cease
to have effect with respect to any matter
for which provision is made in this Act;
(b)
any
other
law
in
force
immediately before the commencement of
this Act shall cease to have effect in so far
as it is consistent with any of the
provisions contained in this Act."
20. Section 5 provides the the
conditions for Hindu marriage between
two Hindus and one of the condition
provides that neither party should have a
spouse living at the time of marriage.
Section 5(i) is reproduced:-
"5. Conditions for a Hindu marriage.-
A marriage may be solemnized between
any two Hindus, if the following
conditions are fulfilled, namely:-
(i) neither party has a spouse living
at the time of marriage;"
21. Section 11 provides for
void marriages. Section 11 is as follows:-
"11. Void Marriages.- Any marriage
solemnized after the commencement of
this Act shall be null and void and may,
on a petition presented by either party
thereto [against the other party]4, be so
declared by a decree of nullity if it
contravenes any one of the conditions
specified in clauses (i), (iv) and (v) of
section 5."
22. Section 29 of the Hindu
Marriage
Act
saves
the
marriages
performed between Hindus before the
commencement of the Act. Section 29(1)
is reproduced:-
"29.
Savings.-(1)
A
marriage
solemnized between Hindus before the
commencement of this Act, which is
otherwise valid, shall not be deemed to be
invalid or ever to have been invalid by
reason only of the fact that the parties
thereto belonged to the same gotra or
pravara or belonged to different religions,
castes or sub-divisions of the same caste."
23. Thus as per the scheme of the
Hindu Marriage Act, marriage between
two
Hindus
solemnized
before
the
commencement of the Hindu Marriage
Act, which was otherwise legal and valid,
would be saved under Section 29 of the
Act and would not be void under Section
11. Thus, the marriage between the
deceased government servant and the
petitioner cannot be said to be a void
marriage, as being solemnized prior to the
enactment of the Hindu Marriage Act.
Had the Government servant contracted a
second marriage after the commencement
of the Hindu Marriage Act, the marriage
would have been void under the Hindu
Marriage Act and a nullity in the eye of
466
 INDIAN LAW REPORTS ALLAHABAD SERIES
law, second wife would have no right of
being a legally wedded wife.
24. Further, the U.P. Government
Servant Conduct Rules, 1956 which came
into force on 28th July, 1956, rule 29
prohibits a Government Servant from
bigamous marriage. Rule 29 reads as
follows:-
"29. Bigamous marriages-(1) No
Government servant who has a wife living
shall contract another marriage without
first obtaining the permission of the
Government, notwithstanding that such
subsequent marriage is permissible under
the personal law for the time being
applicable to him."
25. Thus, two Hindus cannot contract
marriage after the enforcement of the Hindu
Marriage Act, if any of them is having a
living spouse, the marriage would be a
nullity and would also not be protected under
the Conduct Rules, as well as, the pension
rules, therefore, the "second wife" as referred
to under the pension rules would only
include second wife whose marriage is
permissible under the personal law, but in the
case of Hindus the second wife will have no
right, whatsoever, as the law prohibits
second marriage, as long as, the government
servant has a spouse who is alive. Thus for
harmonious construction of the Rules
governing pension, wherever, the rule
provides for wives, it has to be interpreted as
per the law governing marriage as applicable
to the government servant and in cases where
the second marriage is void under the law,
second wife will have no status of a widow
of the government servant.
26. As regards, eligibility to family
pension, the pension is to be disbursed as
per the provisions of the Rules. The rules
clearly state that only eligible person is
entitled to receive family pension but
where pension awarded ceases to be
payable on the death or marriage of the
recipient or for any other reason, it will be
regranted to the persons next lower in the
order mentioned in sub-rule (4) of Rule 7.
The hindu second wife would not be
eligible for family pension as long as the
first wife is alive and has not remarried.
There is no provision in the Rules for
relinquishment of family pension in
favour of another person.
27. The Supreme Court in Bakulabai
and another v. Gangaram and another5,
held that the marriage of a Hindu woman
with a Hindu male with a living spouse
performed after the coming into force of
the Hindu Marriage Act, 1955 is null and
void and the woman is not entitled to
maintenance under Section 125 of the
Cr.P.C.
28. This Court in Shakuntala Devi
(Smt.)
Versus
Executive
Engineer,
Electricity
Transmission
Ist
U.P.
Electricity
Board,
Allahabad
and
another6, while dealing with two wifes
wherein the nomination was in favour of
the second wife it was held that it cannot
defeat the claim of the legally wedded
wife, only legally wedded wife is entitled
to retiral benefits and provident fund and
appointment
under
Dying-in-Harness
Rules.
29. Similarly, view was expressed in
Poonam
Devi
(Smt.)
Versus
Chief
Engineer, Electricity Board and others7.
30.

The
Supreme
Court
in
Rameshwari Devi Versus State of Bihar
and others8, where the Government
servant being a Hindu having two living
1 All] Smt. Urmila Devi Vs. State of U.P. & Ors.
467
wives died while in service, held that second
marriage was void under the Hindu law and
hence second wife having no status of widow
is not entitled to anything, however, children
from the second wife would equally share
the benefits of gratuity and family pension as
per law.
31. In G.L. Bhatia v. Union of India
and another9, the Supreme Court held that
if a nomination is made contrary to
statutory
provision,
it
would
be
inoperative. In the facts of that case, the
husband of the deceased employee
claimed family pension while nomination
was not in his favour. The authorities
rejected the claim of the husband for the
reason that he was staying separately from
the wife and thus was not entitled to
family pension. The Apex Court held that
the husband was entitled to family
pension, where the rights of the parties are
governed by statutory provisions, the
individual nomination contrary to the
statute will not operate.
32. The Apex Court in Smt. Sarbati
Devi and another Versus Smt. Usha
Devi10, AIR 1984 SC 346, held that a
mere nomination made in an insurance
policy does not have the effect of
conferring on the nominee any beneficial
interest in the amount payable under the
life insurance policy on the death of the
assured. The nomination only indicates
the hand which is authorised to receive
the amount on the payment of which the
insurer gets a valid discharge of its
liability under the policy. The amount,
however, can be claimed by the heirs of
the assured in accordance with the law of
succession governing them.
33. For the reasons and law stated,
hereinabove, the second wife cannot
claim pension on the consent of the first
wife, even if the second wife is eligible
under the Rules to receive family pension,
as long as, the first wife is alive or does
not remarry.
34. I do not find any illegality or
infirmity in the order.
35. The writ petition is, accordingly,
dismissed.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.02.2015
BEFORE
THE HON'BLE DR. DHANANAJAYA YESHWANT
CHANDRACHUD, C.J.
THE HON'BLE PRADEEP KUMAR SINGH
BAGHEL, J.
THE HON'BLE SUNEET KUMAR, J.
Writ-C No. 58211 of 2014
Smt. Urmila Devi
 ..Petitioner
Versus
State of U.P. & Ors.
...Respondents
Counsel for the Petitioner:
Sri Bimal Prasad
Counsel for the Respondents:
C.S.C., Sri R.B. Yadav
Uttar
Pradesh
Scheduled
Comodities
Distribution Order 2004- clause 28-pending
appeal-G. O. Creating third party rights if
proper? Whether the direction contained for
interim arrangement by creating third party
rights
in
case
of
'Vinod
Misra'
and
'Jagannath Upadhyay' is proper? held-'No'
in absence of interim order in appeal-not
annulled
the
order
under
appealaccordingly interim mandamus issued in
Vinod Misra and Jagannath Upadhyay not
correct law.
Held: Para-24