1 WP 7774.2022 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR WRIT PETITION NO.7774 OF 2022 Laxmi wd/o Arun Mahato, Aged about 55 years, Occupation-Service (Sweeper), R/o. Civil Lines, 160 Gade, Ravi Nagar, Nagpur. .. Petitioner ..Versus.. 1. The State of Maharashtra, Through its Principal Secretary, Public Health Department, 5th Floor, Mantralaya, Mumbai. 2. Dean, Indira Gandhi Government Medical College and Hospital (MAYO), Hansapuri Road, Nagpur. 3. Accountants General Office, Civil Lines, West High Court Road, Nagpur. 4. The Chief Accounts Officer, Pay and Accounts Office, Indira Gandhi Government Medical College and Hospital, Hansapuri Road, Nagpur. 5. Pushpa Mahato, Aged about 45, Major, R/o. C/o. Laxmanrao Ambulkar Timki, Bhankheda, Nagpur. .. Respondents 2025:BHC-NAG:7010-DB 2 WP 7774.2022 Mrs. Rashi Deshpande, Advocate for Petitioner. Shri A.S. Fulzele, Additional Government Pleader for Respondent Nos.1 to 4/State. Mrs. Pushpa D. Sood, Advocate for Respondent No.5. …………… CORAM : SMT. M.S. JAWALKAR, AND PRAVIN S. PATIL, JJ. RESERVED ON : 01 st JULY, 2025. PRONOUNCED ON : 22 nd JULY, 2025. JUDGMENT [Per : Pravin S. Patil, J.] 1. Rule. Rule made returnable forthwith. By consent of the learned Counsel for the parties, the matter is taken up for final disposal. 2. By this petition, the petitioner is questioning the judgment and order dated 12.09.2022 passed by the learned Member, Maharashtra Administrative Tribunal, Nagpur Bench, Nagpur in Original Application No.503/2001 whereby the Learned Tribunal dismissed Original Application filed by the petitioner by holding that the Tribunal cannot decide the status of petitioner whether she is legally wedded wife of deceased Arun. Consequently, the claim of petitioner to release the death- cum-pensionery benefits of deceased Arun Mahato was also 3 WP 7774.2022 came to be rejected by directing the petitioner as well as respondent no.5 to produce Succession Certificate. The petitioner, being aggrieved by the said judgment, seeks indulgence of this court in the matter. 3. The factual matrix of the present petition, in brief, can be stated as under : The petitioner claims to be widow of deceased Arun Mohato. Deceased Arun Mohato was working as an Attendant on permanent post at Indira Gandhi Government Medical College and Hospital, Nagpur. It is the submission of the petitioner that her marriage was performed with Arun in the year 1979. Out of the said wedlock, they were blessed with two children namely, Deepak and Aarti. Deepak was born on 21.02.1981 and Arti was born on 21.04.1983. It is further undisputed fact in the present matter that deceased Arun, while working as Attendant, was expired on 15.02.2021. In view of death of Arun, petitioner moved application in the capacity of widow before respondent no.2 on 24.02.2021 and 25.03.2021 for release of family pension and other retirement benefits of deceased Arun. After filing the application by the petitioner to 4 WP 7774.2022 the respondent no.2 office, the respondent no.2, by communication dated 29.05.2021, informed the petitioner that respondent no.5 Smt. Pushpa also moved an application dated 25.03.2021 along with a death certificate of Arun and requested to release the family pension and other retirement benefits in her favour. As such, in view of two claimant as a widow of deceased, the respondent no.2 is not in a position to release the pensionary benefits and family pension in the matter. Hence, respondent no.2 informed the petitioner to obtain the Succession Certificate, so that proper decision can be taken in the matter. 4. Present petitioner, along with her son, filed Original Application No.503/2021 before the learned Maharashtra Administrative Tribunal, seeking thereby direction to disburse family pension, death-cum-retirement gratuity, provident fund and other retirement financial benefits in the capacity of legally wedded wife of deceased Arun. Along with the same, further prayer was made that her son namely Deepak should be granted an appointment on compassionate ground. 5 WP 7774.2022 5. Before the learned Tribunal, respondent no.5 appeared and came with a submission that the petitioner is not the legally wedded wife of deceased Arun. She claimed that she is the second legally wedded wife of deceased Arun and, therefore, she along with her daughters is entitled for the benefits such as family pension and other retirement benefits etc. Respondent no.5, in support of her submission, has relied upon the affidavit sworn by deceased Arun Mahato, dated 30.11.2018. In the said affidavit, it is stated by deceased Arun that his first wife was present petitioner Smt. Laxmi Arun Mahato. However, since last 30 years, they are residing separately and, therefore, he has performed the second marriage with respondent no.5 and out of the said marriage, they were blessed with two daughters, namely Aarti and Durga. Hence, according to deceased, after his death, the entry of his second wife should be recorded in all official documents. 6. Respondent no.5 further relied upon the nomination forms which were submitted by the deceased to the office stating therein that she was nominee of deceased and 6 WP 7774.2022 accordingly is entitled for entire benefits after the death of deceased Arun. 7. In the background of above said factual position, the learned Tribunal decided the matter by the impugned judgment dated 12.09.2022. Learned Tribunal, by relying upon the judgment of this court in the case of Chandrakant Punju Wagh .vs. Chairman and Managing Director and another, reported in 2018 (4) Mh.L.J. 840 hold that the Tribunal can not go into the question of facts and the issue as to who is the legally wedded wife of the deceased Arun can be decided only by obtaining the Succession Certificate, wherein the Competent Court will decide the entitlements of the person to claim death- cum-retirement benefits of deceased Arun. 8. Petitioner, being aggrieved by the judgment and order of learned Maharashtra Administrative Tribunal, filed present petition and restricted her prayer only to the extent of releasing family pension and death-cum-retirement benefits as permissible under relevant rules in her favour as she is the only legally wedded wife of deceased. 7 WP 7774.2022 9. The learned counsel appearing for the petitioner has relied upon the following judgments to support her case : 1. Kamalbai w/o Venkatrao Nipanikar .vs. State of Maharashtra and others, reported in 2019 (3) Mh.L.J. 921 [FB]. 2. Kamal Mahaling Patil .vs. Indubai Mahaling Patil and others, reported in 2019 (4) Mh.L.J. 594, 3. Smt. Violet Issac and others .vs. Union of India and others, reported in 1991 SCC (1) 725. 10. Respondent No.5 vehemently opposed the petition by stating that she possessed the Certificate of Registration of Marriage with deceased dated 23.05.2017, the affidavit of deceased in her favour dated 30.11.2018 and in the service record, her name was nominated by deceased. Hence, considering these documentary evidence, she is entitled for family pension and death-cum-retiral benefits of deceased in her favour. Accordingly, she supported the decision of Maharashtra Administrative Tribunal in the matter. 11. The learned counsel appearing for respondent no.5 has relied upon the following case laws in support of her 8 WP 7774.2022 submission : 1. Rameshwari Devi .vs. State of Bihar and others, reported in AIR 2000 SC 735. 2. Ramesh Chandra Rampratapji Daga .vs. Rameshwari Ramesh Chandra Daga, reported in AIR 2005 SC 422. 3. Badshah .vs. Sou. Urmila Badshah Godse, reported in 2014 AIR SCW 256. 4. Captain Ramesh Chander Kaushal .vs. Mrs. Veena Kaushal and others, reported in AIR 1978 SC 1807. 5. Vidyadhari .vs. Sukhrana Bai, reported in AIR 2008 SC 1420. 6. M. Govindaraju .vs. K. Munisami Gounder (D) and others, reported in AIR 1997 SC 10. 12. We have heard both the counsels at length. Perused the entire record and also gone through the judgments relied upon by both the parties in the matter. 13. It is clear from the record that Deceased Arun and present petitioner and respondent no.5 belonging to Hindu Family. Their marriage was solemnized as per the Hindu Rites and Customs. Hence, they are governed by the provisions of 9 WP 7774.2022 Hindu Marriage Act. It is further admitted fact that deceased was rendering service at respondent no.2-Government Medical College and, therefore, his services were governed by Maharashtra Civil Services Rules. As such, Pensionary Benefits can be released according to the Maharashtra Civil Services (Pension) Rules, 1982. 14. Under the Hindu Marriage Act, 1955 the legal position is very much clear that any person, who belongs to Hindu Community is barred to perform the second marriage when first marriage is in existence. Section 5 (i) of the Hindu Marriage Act reads as under : Section 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 the marriage. (ii) ... As such, the issue of marriage is to be considered in the light of the provisions of Hindu Marriage Act. 10 WP 7774.2022 15. In respect of releasing of family pension and death- cum-retirement benefits to employee, Rule 116 of the Maharashtra Civil Services (Pension) Rules, 1982 is applicable. As per the said Rule, respondent no.2 is required to release the pensionary benefits to the legally wedded wife. 16. In the light of submission made by the parties in the matter, according to us, the issue involved in the present matter, whether the petitioner or respondent no.5, who claims to be the second legally wedded wife of deceased Arun, is entitled for the family pension and death-cum-retirement benefits of deceased Arun. 17. From the perusal of documents, which respondent no.5 herself placed on record, particularly affidavit of deceased dated 30.11.2018, which clearly states that petitioner is the first wife of deceased Arun and residing separately since last 30 years. It is also clear from the record that though they are residing separately but their marriage was neither dissolved nor declared null and void by any competent court of law. To substantiate this fact, affidavit dated 30.11.2018 placed on 11 WP 7774.2022 record by respondent no.5 is reproduced in vernacular as under : dksVZ fo|eku dk;Zdkjh naMkf/kdkjh lkgsc] ukxiwj izfrKkFkhZ % Jh v#.k yksVu egkrks] o; vankts 56 o"ksZ] O;olk; uksdjh] jkg.kkj ihMCY;wMh ladwy] jktuxj] ikxy[kkuk pkSd] ukxiwj izfrKki= eh izfrKkFkhZ ‘kiFkiwoZd [kkyhyizek.ks lR; dFku djrks dh] 1- eh egkjk”V jkT;kpk dk;epk jfgoklh vlwu ukxiwj e/;s ojhy fnysY;k iR;koj LFkk;h okLrO; djhr vkgs- 2- ek>h ifgyh iRuh ukes lkS-y{eh v#.k egkrks gh gksrh] ijarw vkEgh nks?ksgh ekxhy vankts 30 o”kkZ iklwu osxosxGs jkgkr vkgksr o vkepk vkilkr dkghgh laca/k ukgh o rh dqBs vkgs ;k fo”k;h eyk dkghgh ekfgr ukgh- 3- uarj eh nwljs yXu iq”ik ¼tkr&gyck½ fgps lkscr dsysys vlwu rhps iklwu eyk nksu eqyh ukes ¼1½ dq-vkjrh v#.k egkrks vkf.k ¼2½ nqxkZ v#.k egkrks ;k izek.ks vkgsr- 4- eh vkrk ek>h nwljh iRuh o nksu eqyh g;kaps lkscrp jkgkr vlwu eh R;kaps uko ekÖ;k loZ ‘kkldh;] dkxnksi=h jsdkWMZyk rlsp lOghZl jsdkWMZyk lq/nk uksan dsysyh vkgs- ek>h v’kh bPNk vkgs dh] tj Hkfo”;kr ek>k ewR;q >kY;kl rj ek>s loZ vafre laLdkj gs gyck lektkps fjrh fjoktkuqlkjp dj.;kr ;kos o rs loZ dk;Z ek>h nqljh iRuh o eqyh g;kp djrhy] ekÖ;k ifgY;k iRuhpk rlsp ek>s egkrks dqVqackrhy lnL;kapk ekÖ;koj dkghgh gDd] vf/kdkj] laca/k jkg.kkj ukgh o rs vafre laLdkjkps dk;Z dj.;kpk lq/nk R;kauk vf/kdkj jkg.kkj ukgh- dfjrk izfrKk i= lknj- ukxiwj izfrKkFkhZ fnukad 30-11-2018 lgh o fu’kk.kh vaxBk v#.k ,y- egkrks lR;kiu ojhy ifjPNsnkrhy etdwj ekÖ;k ekghrhuqlkj lR; vkgs] djhrk eh vkt fnukad 30-11-2018 jksth ukxiwj eqDdkeh lgh dsyh] ojhy etdwj pqdhpk vk<GY;kl eh Hkk-na-fo- dye 199 o 200 uqlkj naMkl ik= jkghy- eh izfrKkFkhZl vksG[krks izfrKkFkhZ lgh o fu’kk.kh vaxBk v#.k ,y- egkrks 12 WP 7774.2022 18. From Clause (2) of this affidavit, it is clear that petitioner was the first wife of deceased and since last 30 years, she was residing separately. It is nowhere stated in the affidavit that his earlier marriage was declared as null and void or by order of any competent court of law marriage with petitioner was held to be dissolved. On the other hand, from averment of affidavit, it is clear that deceased has performed the second marriage with the respondent no.5 during existence of first marriage. From this document, their remains no doubt that the respondent no.5 is the second wife of the deceased Arun. 19. In the case of Kamalbai Venkatrao Nipanikar (supra), the issue was referred to the Full Bench, whether the second wife is entitled to claim family pension under the Maharashtra Civil Services (Pension) Rules, 1982. The Hon’ble Full Bench answered the said reference as under : “In cases to which Maharashtra Civil Services (Pension) Rules, 1982 apply, the family pension can be claimed by a widow, who was legally wedded wife of the deceased employee. Second wife, if not a legally wedded wife would not be entitled for family pension and if the second wife is legally wedded wife, then should be entitled for the family pension.” 13 WP 7774.2022 20. As already stated, as per Section 5 (i) of the Hindu Marriage Act, the second marriage is not permissible if the first marriage is in existence. Therefore, considering the provisions of law and the affidavit as stated above, it is crystal clear that though the respondent no.5 is the second wife of deceased, but she cannot be termed as a legally wedded wife of deceased Arun. Hence, considering the law laid down by the Hon’ble Full Bench, we have to hold that the petitioner being the legally wedded wife is only entitled for the family pension and death- cum-retirement benefits of deceased Arun. 21. In the present matter, what we observed that though finding of learned Tribunal are in favour of petitioner, the learned Tribunal refrain from exercising the powers in view of judgment of this court in the case of Chandrakant Wagh, reported in 2018 (4) Mh.L.J. 840. However, in our considered opinion, the facts of the present case are not disputed and therefore Tribunal has wrongly relied upon the said judgment. 22. In the present matter as the judgment of Tribunal is under challenge, we feel it expedient to record our view on the 14 WP 7774.2022 finding recorded by Tribunal. 23. The impugned judgment of the learned Tribunal, according to us, is not sustainable in the eyes of law, because if we perused particularly para nos.15, 16 and 17 of the judgment, what we found that the learned Tribunal had specifically recorded the finding that “though the respondent no.5 stated that she is the wife of deceased Arun, from the record it is clear that the petitioner was the first wife of deceased Arun”. Learned Tribunal also relied upon the affidavit dated 30.11.2018 to reach to this conclusion. However, the learned Tribunal recorded the finding that though the affidavit is on record, the issue as to who is the legally wedded wife of deceased Arun is required to be decided by the competent court. 24. It is further pertinent to note that in the present case, respondent no.5 claimed that out of second wedlock with deceased Arun, she was blessed with two daughters namely Aarti and Durga. Learned Tribunal recorded the finding that, “birth certificates and Adhar Cards of Aarti and Durga shows 15 WP 7774.2022 that they were born on 07.05.2016 and 26.12.2017”. It is further recorded that “one document came to be filed by respondent no.5 stating that semen of deceased Arun was used by the Test Tube Baby Centre, but the said document was not signed by any Doctor nor it has any seal”. “On the contrary, applicant has filed document on record issued by Urban Family Welfare Centre, Mayo General Hospital, Nagpur stating that deceased Arun had undergone vasectomy operation (family planning operation) on 18.03.1984. The said document is duly signed by Doctor and bears the stamp”. Hence, learned Tribunal reached to the conclusion that the document filed by respondent no.5 is not reliable. 25. It is further pertinent to note that the learned Tribunal also reached to the factual conclusion that the documents placed on record by the respondent no.5 about birth of Aarti and Durga are not reliable because at one place, the date of birth of Ku. Aarti was shown as 31.07.2014, whereas the birth certificate of Ku. Aarti shows that she was born in the year 2016. Hence, there was material available before Tribunal to reach to the conclusion that respondent no.5 failed to prove 16 WP 7774.2022 that she is legally wedded wife of deceased Arun and secondly her daughters/issues were born out of the wedlock of deceased Arun. 26. We have also perused the same documents filed with the petition and we reached to the conclusion that the findings recorded by Tribunal are correct. Once it is held that the document filed by respondent no.5 creates doubt, there is no reason for the Tribunal to hold that the evidence is required to verify whether Aarti and Durga were born in the year 2016- 2017 and whether they are the daughters of deceased Arun. According to us, learned Tribunal, on the basis of finding recorded by him, particularly in para nos.15 to 17, there was no reason to hold that Tribunal cannot decide the issue, as to whether, petitioner is the first legally wedded wife or respondent no.5 is legally wedded wife of deceased Arun. 27. Now let us deal with the case laws relied by learned counsel appearing for respondent no.5. Firstly, she has relied upon the case of Rameshwari Devi .vs. State of Bihar and others and Badshah .vs. Sou. Urmila Godse (supra). However, both 17 WP 7774.2022 judgment of Hon’ble Supreme Court of India has been considered by the Hon’ble Full Bench in the case of Kamalbai w/o Venkatrao Nipanikar .vs. The state of Maharashtra and others. Hence, the said judgments are not helpful to the respondent no.5. 28. In the case of Ramesh Chandra (supra), if we perused para no.12, it will be clear that Hon’ble Supreme Court of India had specifically observed “A Hindu Marriage can be dissolved only in accordance with the provisions of the Act by obtaining a decree of divorce from the court. In the absence of any decree of dissolution of marriage from the court, it has to be held that in law the first marriage of the wife subsisted when she went through second marriage on 11-07-1981 with the present husband. The appeal preferred by the wife, therefore, against grant of decree of declaration of her second marriage as void, has to be rejected whatever may be the circumstances which existed and the hardships that the wife had to undergo, as alleged, at the hands of her second husband. Hence, it is clear that Hon’ble Supreme Court also of the same view that marriage can be dissolved only by a decree of divorce from the 18 WP 7774.2022 competent court of law. Hence, this judgment is also not helpful to respondent no.5. 29. In the case of Captain Ramesh Chander (supra), the issue involved in the said matter about the entitlement of maintenance. The issue pertaining to the entitlement of second wife or death-cum-gratuity benefits is not at all discussed. Hence, same is not applicable to respondent no.5. 30. Lastly, respondent no.5 has relied upon the case of Vidyadhari .vs. Sukhrana Bai (supra). In this respect, it is stated that the issue in the said petition was whether the second wife can claim the Succession Certificate on the basis of nomination besides her marriage with the deceased. Accordingly, Hon’ble Supreme Court has held that certainly the second wife can approach to the competent court of law for grant of Succession Certificate and considering her claim, court can decide whether she is entitled for the Succession Certificate or not, but in the said judgment, it is not decided that the second wife is entitled for the pensionary benefits as of right in the matter. 19 WP 7774.2022 31. In view of above, we are of the considered opinion that the view taken by the Full Bench in the case of Kamalbai Nipanikar (supra) is the correct view and the same is applicable to the present case. In the present case, the same issue is involved whether the respondent no.5 is entitled for the pensionary benefits or not and according to us, respondent no.5 failed to establish that she is second legally wedded wife of deceased Arun and, therefore, not entitled to the pensionary benefits. For the aforesaid reasons, we proceed to pass the following order : O R D E R (1) The writ petition is allowed. (2) The impugned order dated 12.09.2022 passed by the learned Maharashtra Administrative Tribunal, Nagpur is hereby quashed and set aside. (3) The communication issued by respondent no.2 dated 29.05.2021 is hereby quashed and set aside. (4) It is declared that petitioner being legally wedded wife is entitled to family pension and other retirement benefits of deceased husband Arun Mahato and accordingly, respondent 20 WP 7774.2022 no.2 is directed to release the same in favour of petitioner expeditiously. 32. Rule is made absolute in the above terms. (Pravin S. Patil, J.) (Smt. M.S. Jawalkar, J.) Gulande