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PETITIONER: RAMESHWARI DEVI

       Vs.

RESPONDENT: STATE OF BIHAR AND OTHERS

DATE OF JUDGMENT:       27/01/2000

BENCH: D.P.Wadhawal, S.N.Phukan

JUDGMENT:

     D.P.  Wadhwa, J.

     Leave granted.

     Appellant  is  aggrieved by judgment dated  April  23, 1998 of the Division Bench of the Patna High Court passed in Letters  Patent Appeal affirming the judgment of the learned single Judge dated April 26, 1996.

     Dispute  concerns  to  payment of family  pension  and death-cum-  retirement gratuity to two wives of Narain  Lal, who  died  in 1987 while posted as Managing Director,  Rural Development  Authority of the State of Bihar.  Appellant  is the first wife.  Narain Lal is stated to have married second time with Yogmaya Devi on April 10, 1963 while the appellant was still alive.  From the first marriage he had one son and from  the second marriage four sons born in 1964, 1971, 1972 and  1976.   Learned single Judge in his judgment held  that children  born  to Narain Lal from the wedlock with  Yogmaya Devi  were  entitled  to  share   the  family  pension   and death-cum-retirement   gratuity  and   further  that  family pension  would be admissible to the minor children only till they  attained majority.  He also held that the second  wife Yogmaya  Devi  was not entitled to anything.  Appeal by  the first   wife  Rameshwari  Devi   against  the  judgment  was dismissed by the Division Bench.  According to her there was no  marriage  between  Narain Lal and Yogmaya Devi  and  the children   were,  therefore,   not  legitimate.    Aggrieved Rameshwari Devi has come to this Court.

     On  filing of the special leave petition notices  were issued  to  the  respondents.  In response  thereto  counter affidavits  have been filed by - (1) Yogmaya Devi, (2) State of Bihar and (3) Accountant General (A&E) II Patna.

     Stand  of the State Government is that Rameshwari Devi was  the  legally  married wife of Narain Lal.   He  married again  to Yogmaya Devi in April, 1963 and that the  marriage with  Yogmaya  Devi  was against the provisions  of  law  as contained  in  Sections 5 and 11 of the Hindu Marriage  Act, 1955.   It was, therefore, a void marriage.  Second wife had thus no status and could not claim any share from the estate of Narain Lal as per the provisions of Hindu Succession Act,

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1956.    Accordingly  State   Government  sanctioned  family pension  and gratuity to Rameshwari Devi by its order  dated August  22,  1995.   By  this  order  the  State  Government cancelled  its previous two orders dated September 23,  1993 and  October 6, 1993.  Group insurance and final  withdrawal of  GPF  had  already been sanctioned  to  Rameshwari  Devi. However,  in  compliance  with the order of the  High  Court dated  April 26, 1996 in writ petition filed by Yogmaya Devi family  pension, gratuity, GPF, pay for unutilised leave and group  insurance  were sanctioned to Rameshwari and her  son and minor sons of Yogmaya Devi.

     Accountant  General in his affidavit has only to refer to  the  action  of the State Government in  cancelling  its earlier order dated September 23, 1993 and fresh order dated August  22, 1995 authorising all the payments to  Rameshwari Devi  being the sole recipient of family pension and  death- cum-retirement  gratuity.   Accountant General says that  on the orders of the State Government it authorised full family pension and full gratuity to Rameshwari Devi.  Reference was then made to writ petition filed by Yogmaya Devi in the High Court  and  when  the State Government on the basis  of  the order of the High Court issued fresh order dated October 17, 1996 Accountant General accordingly authorised 50% of family pension  and  death-cum-retirement  gratuity  to  the  minor children  of  Yogmaya Devi.  A direction was issued  to  the Treasury  Officer to recover excess amount of family pension and  death-cum-retirement  gratuity paid to Rameshwari  Devi and   further   to   reduce     her   family   pension   and death-cum-retirement gratuity by 50%.  Accountant General is non-committal if the children of Yogmaya Devi are legitimate or  illegitimate children of Narain Lal and rightly so.   He has  merely to act as per the directions issued by the State Government.

     Rameshwari  Devi  has  disputed  the  very  factum  of marriage  between Narain Lal and Yogmaya Devi.  Her case  is that  nothing has come on record to show that there was  any valid  marriage solemnized as per Hindu law between  Yogmaya Devi  and Narain Lal.  Yogmaya Devi says that from the  time of  her marriage with Narain Lal in April, 1963 she has been continuously  living  with Narain Lal as his wife.   At  the time  of her marriage she had no knowledge if Narain Lal had earlier been married.  She has referred to various judgments of  this  Court  to show that when two  persons  are  living together  for  long  years  as husband  and  wife,  in  such circumstances,  even  in absence of proof, a presumption  of valid  marriage between them would arise.  She says  nothing has  been  brought on record to rebut that presumption.   In Badri  Prasad  vs.   Dy.  Director of Consolidation  &  Ors. [(1978) 3 SCC 527] this Court said that a strong presumption arises  in  favour of wedlock where the partners have  lived together for a long spell as husband and wife.  Although the presumption  is  rebuttable, a heavy burden lies on him  who seeks  to  deprive  the relationship of legal  origin.   Law leans in favour of legitimacy and frowns upon bastardy.  The Court  further  observed that if men and women who  live  as husband  and wife in society are compelled to prove, half  a century  later,  by  eye-witness  evidence  that  they  were validly  married, few will succeed.  There have been various other  judgments  of  this Court holding where a man  and  a woman  live together for long years as husband and wife then a  presumption arose in law of legality of marriage  existed between the two, though the presumption is rebuttable.

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     An  inquiry  report  dated December 11, 1987  of  ADM, Danapur  Sub  Division, Danapur, Patna has been  brought  on record.   According  to this report on inquiry it was  found that Narain Lal had married twice.  First time to Rameshwari Devi  in  1948 and second time to Yogmaya Devi on April  10, 1963.   There is mention of one son from his first  marriage with  Rameshwari  Devi  and  four sons  from  marriage  with Yogmaya Devi.  Two persons have testified to the marriage of Yogmaya  Devi with Narain Lal.  Both Narain Lal and  Yogmaya Devi  had  lived  together as husband and wife  at  all  the places  wherever Narain Lal was posted.  This fact was  also verified  from the colleagues of Narain Lal and their wives. That  four  sons were born to Narain Lal from  his  marriage with Yogmaya Devi has also been similarly testified.

     Now,  when  first  order was cancelled  by  the  State Government  and second passed depriving Yogmaya Devi and her children  of any right in the pensionary benefits of  Narain Lal,  she  filed writ petition in the High Court, which,  as noted  above,  was allowed by the learned single  Judge  and later  appeal  filed  by Rameshwari Devi  against  that  was dismissed  by the Division Bench of the High Court which  is impugned.   Learned  single Judge referred to Section 16  of the  Hindu  Marriage Act, 1955 holding that even though  the marriage  of  Narain  Lal with Yogmaya Devi was  void  their children  would be legitimate and thus would be entitled  to claim  share in the family pension and  death-cum-retirement gratuity of Narain Lal but only till they attained majority. Learned  single  Judge accordingly issued direction  to  the State  Government to issue fresh sanction order for  payment of  arrears  of  family   pension  and  death-cum-retirement gratuity to the minor children born from the wedlock between Yogmaya  Devi  and Narain Lal till they attain majority  but nothing would be payable to Yogmaya Devi.

     Mr.   Dubey,  counsel for Rameshwari  Devi,  submitted that  inquiry  conducted by the State Government as  to  the marriage  of Narain Lal with Yogmaya Devi was incompetent as there  was no lawful authority with the State Government  to hold  such an inquiry.  It was for Yogmaya Devi to establish her  right of her being married to Narain Lal in a court  of law.   Mr.   Dubey  said under the  relevant  Conduct  Rules applicable to Narain Lal he could be charged with misconduct of  his having married a second time during the life time of his  first wife.  It is only in that circumstance when there is  charge of misconduct there could be an inquiry as to the marriage  of  Narain Lal with Yogmaya Devi.  He referred  to Rule 21 of the Central Civil Service (Conduct) Rules as well as  to  Rule  23 of the Bihar Government  Servant’s  conduct Rules, 1976, which are as under:-

     CCS  Rules "21.  Restriction regarding marriage (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  marriage with any person :  Provided that  the Central  Government may permit a Government servant to enter into,  or  contract, any such marriage as is 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.   (3)  A Government servant who has married or marries a person other than of Indian nationality shall forthwith intimate the fact to the Government.

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     Bihar Government Servant’s Conduct Rules,1976

     23.    Restrictions   regarding    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  marriage with any person :  Provided that Government  may permit  a Government servant to enter into, or contract, any such  marriage as is referred to in clause (4) 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.  (3) A Government servant  who has  married  or  marries  a person  other  than  of  Indian Nationality  shall  forthwith  intimate   the  fact  to  the Government."

     We  may  also note two judgments of this Court on  the question  when  there  is  charge of  misconduct  against  a Government  servant.  In State of Karnataka and another  vs. T.   Venkataramanappa  (1996 (6) SCC 455) the respondent,  a police  constable was prosecuted at the instance of his wife for  having  contracted second marriage.  He was  discharged for want of evidence.  A departmental inquiry was instituted against him for having contracted second marriage, for which he   was   suspended.    He    approached   the    Karnataka Administrative  Tribunal against the order of suspension and for stopping of the inquiry against him on the ground that a criminal  court had discharged him of the offence of bigamy. Tribunal  accepted the stand of the respondent, quashed  the departmental  proceedings  and  lifted the  suspension.   On appeal filed by the State this Court said as under:  --

     "There  is  a  string  of   judgments  of  this  Court whereunder  strict  proof  of solemnisation  of  the  second marriage, with due observance of rituals and ceremonies, has been  insisted  upon.   The   prosecution  evidence  in  the criminal  complaint may have fallen short of those standards but  that  does  not  mean that the State  was  in  any  way debarred  from  invoking  Rule  28 of  the  Karnataka  Civil Service Rules, which forbids a government servant to marry a second  time without the permission of the Government.  But, here  the  respondent being a Hindu, could never  have  been granted  permission by the Government to marry a second time because  of  his personal law forbidding such marriage.   It was thus beyond the ken of the Tribunal to have scuttled the departmental  proceedings  against  the  respondent  on  the footing  that such question of bigamy should normally not be taken  up  for  decision in departmental enquiries,  as  the decisions of competent courts tending to be decisions in rem would  stand  at  the highest pedestal.  There was  a  clear fallacy  in such view because for purposes of Rule 28,  such strict  standards, as would warrant a conviction for  bigamy under   Section  494  IPC,  may   not,  to  begin  with,  be necessary."

     In  State  of  W.B.  and others vs.   Prasenjit  Dutta (1994  (2)  SCC 37) departmental proceedings were  initiated against  the  respondent,  who was a member  of  the  Police Service  of the State of West Bengal under Rule 5(4) of  the West  Bengal Services (Duties, Rights and Obligations of the Government  Employees)  Rules, 1980 for having contracted  a second marriage.  That Rule says that no government employee

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who  has  a  wife/husband   living  shall  contract  another marriage without previously obtaining the dissolution of the first  marriage in accordance with law for the time being in force,  notwithstanding such second marriage is  permissible in  the  personal  law of the community to which he  or  she belongs.   On  an inquiry made by an officer, appointed  for the  purpose,  and  on his report that  the  respondent  was guilty  of  misconduct  alleged, an order of  dismissal  was passed by the disciplinary authority.  Respondent approached the  High  Court and the order of his dismissal was  stayed. Nevertheless  High  Court  was of the view that  the  second marriage was a serious matter, which could not be left to be decided by the departmental authorities, in proceedings such as  these,  and  a  civil  or  matrimonial  court  needs  to pronounce  thereon properly and finally.  On appeal filed by the State Government this Court said:  --

     "The  view  of  the High Court may be correct  that  a matter  such as the present one concerning the existence  or not  of a relationship of husband and wife is normally to be dealt  with in a matrimonial or a civil court.  It cannot at the  same  time  be said that the  departmental  authorities cannot  go  into such question for the limited  purposes  of sub-rule  (4)  of  Rule  5 of  the  aforesaid  Rules.   When contracting  another  marriage,  in   the  presence  of  the previous  one,  has  been termed to be  misconduct  visiting departmental  punishment  it is difficult to keep  suspended action  under  the Rule till after a proper adjudication  is made  by  the civil or matrimonial court.  It  would,  thus, have to be viewed that the departmental proceeding could not be  shut in the manner in which the High Court has done  and it  would  have to go on to some finality at a  departmental end,  on the culmination of which, it may then give rise  to the  delinquent approaching the civil court for  determining his matrimonial status."

     But  then  it is not necessary for us to  consider  if Narain  Lal  could  have been charged of  misconduct  having contracted  a second marriage when his first wife was living as  no disciplinary proceedings were held against him during his  lifetime.   In the present case, we are concerned  only with  the  question  as  to who is entitled  to  the  family pension  and  death-cum-retirement gratuity on the death  of Narain  Lal.  When there are two claimants to the pensionary benefits  of a deceased employee and there is no  nomination wherever required State Government has to hold an inquiry as to  the  rightful claimant.  Disbursement of pension  cannot wait  till  a  civil court pronounces  upon  the  respective rights of the parties.  That would certainly be a long drawn affair.   Doors of civil courts are always open to any party after  and  even before a decision is reached by  the  State Government as to who is entitled to pensionary benefits.  Of course,  inquiry conducted by the State Government cannot be a  sham affair and it could also not be arbitrary.  Decision has  to  be  taken in a bona fide  reasonable  and  rational manner.   In  the  present case an inquiry  was  held  which cannot  be  termed as sham.  Result of the inquiry was  that Yogmaya  Devi and Narain Lal lived as husband and wife since 1963.  A presumption does arise, therefore, that marriage of Yogmaya  Devi  with Narain Lal was in accordance with  Hindu rites  and  all  ceremonies  connected with  a  valid  Hindu marriage  were performed.  This presumption Rameshwari  Devi has been unable to rebut.  Nevertheless, that, however, does not make the marriage between Yogmaya Devi and Narain Lal as

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legal.   Of  course, when there is a charge of bigamy  under Section  494 IPC strict proof of solemnisation of the second marriage  with due observance of rituals and ceremonies  has been insisted upon.

     It cannot be disputed that the marriage between Narain Lal  and Yogmaya Devi was in contravention of clause (i)  of Section 5 of the Hindu Marriage Act and was a void marriage. Under  Section 16 of this Act, children of void marriage are legitimate.   Under the Hindu Succession Act, 1956, property of  a male Hindu dying intestate devolve firstly on heirs in clause (1) which include widow and son.  Among the widow and son,  they  all  get  shares (see Sections  8,  10  and  the Schedule  to the Hindu Succession Act, 1956).  Yogmaya  Devi cannot be described a widow of Narain Lal, her marriage with Narain  Lal being void.  Sons of the marriage between Narain Lal and Yogmaya Devi being the legitimate sons of Narain Lal would  be  entitled to the property of Narain Lal  in  equal shares  along with that of Rameshwari Devi and the son  born from  the marriage of Rameshwari Devi with Narain Lal.  That is,  however, legal position when Hindu male dies intestate. Here,  however, we are concerned with the family pension and death-cum-retirement  Gratuity payments which is governed by the  relevant  rules.  It is not disputed before us that  if the  legal  position  as aforesaid is correct, there  is  no error with the directions issued by the learned single Judge in the judgment which is upheld by the Division Bench in LPA by  the  impugned judgment.  Rameshwari Devi has raised  two principal  objections  :  (1) marriage between Yogmaya  Devi and  Narain  Lal has not been proved, meaning  thereby  that there  is  no  witness  to the  actual  performance  of  the marriage  in  accordance  with   the  religious   ceremonies required  for a valid Hindu marriage and (2) without a civil court  having  pronounced upon the marriage between  Yogmaya Devi  and  Narain  Lal in accordance with Hindu  rights,  it cannot  be  held that the children of Yogmaya Devi with  her marriage  with Narain Lal would be legitimate under  Section 16  of  the  Hindu Marriage Act.  First  objection  we  have discussed above and there is nothing said by Rameshwari Devi to  rebut  the  presumption  in   favour  of  marriage  duly performed  between  Yogmaya  Devi and Narain  Lal.   On  the second  objection,  it  is correct that no civil  court  has pronounced  if there was a marriage between Yogmaya Devi and Narain  Lal  in accordance with Hindu rights.   That  would, however,  not  debar  the State Government  from  making  an inquiry  about  the existence of such a marriage and act  on that  in order to grant pensionary and other benefits to the children  of  Yogmaya Devi.  On this aspect we have  already adverted  to above.  After the death of Narain Lal,  inquiry was made by the State Government as to which of the wives of Narain  Lal  was his legal wife.  This was on the  basis  of claims filed by Rameshwari Devi.  Inquiry was quite detailed one  and there are in fact two witnesses examined during the course of inquiry being (1) Sant Prasad Sharma, teacher, DAV High  School, Danapur and (2) Sri Basukinath Sharma, Shahpur Maner who testified to the marriage between Yogmaya Devi and Narain  Lal having witnessed the same.  That both Narain Lal and  Yogmaya  Devi were living as husband and wife and  four sons  were  born to Yogmaya Devi from this wedlock has  also been  testified  during  the course of  inquiry  by  Chandra Shekhar  Singh, Rtd.  District Judge, Bhagalpur, Smt.  (Dr.) Arun  Prasad,  Sheohar,  Smt.   S.N.  Sinha,  w/o  Sri  S.N. Sinha, ADM and others.  Other documentary evidence were also collected  which  showed  Yogmaya Devi and Narain  Lal  were living  as  husband  and  wife.  Further, the  sons  of  the

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marriage  between Yogmaya Devi and Narain Lal were shown  in records as sons of Narain Lal.

     Having  considered  all  the  facts  of  the  case  as presented before us we do not find any error in the impugned judgment  of  the  Division Bench of the  Patna  High  Court upholding  the judgment of the learned single Judge referred to  in  the  beginning  of   this  judgment.   The   appeal, therefore,  fails and is dismissed.  However, there shall be no order as to costs.