Second wife of Hindu government servant not entitled to family pension, rules Bombay High Court

Mumbai: In a significant ruling, the Bombay High Court recently held that a Hindu woman who marries a Hindu man during the subsistence of his first marriage, cannot claim share in the family pension, after his death. The HC further ruled that such a wife cannot be termed as a ‘widow’ of the deceased husband. The ruling was pronounced by a bench presided over by Justice Sandeep Shinde, who also held that a family pension is a ‘welfare scheme’ and cannot be treated as the ‘estate’ of a deceased.

The bench pronounced the ruling while dismissing an appeal filed by a 55-year-old woman, who claimed the right to her husband’s family pension. The woman had married her husband, a primary school teacher in a zilla parishad school. This second marriage took place during the subsistence of his first marriage, with another lady, who was living separately.

The husband died in May 2001, before which he executed a will and bequeathed all his movable and immovable properties along with the family pension to his second wife. She accordingly approached a lower court for probate of the will, however, her plea was rejected and thus, she petitioned the HC. Having considered all the contentions, Justice Shinde said, “I hold that such (second) marriages are void from inception.

Also, a woman performing marriage with a Hindu government servant during the lifetime of his wife cannot be said to be his widow.” The bench further said the definition of “family” under the provisions of the Maharashtra Civil Services (Pension) Rules, 1982, includes only ‘wife and a judicially separated wife.’

“Thus, I hold that a Hindu woman who marries a Hindu man during the subsistence of his first marriage is excluded from the pension scheme of the Maharashtra Civil Services Pension Rules and such a woman is not entitled to the family pension,” Justice Shinde ruled. Justice Shinde also dismissed the contention of the second wife, claiming that since her husband had bequeathed his pension to her through his will, she was entitled to the same.

“The rules designate the persons who are entitled to receive the family pension. Thus, no other person except those designated under the rules are entitled to receive family pension. The family pension scheme is in the nature of a welfare scheme and therefore it does not form part of his estate,” Justice Shinde held.

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