( 2026:HHC:41634 ) IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No. 16846/2026 Decided on: 28.09.2026 Tapita Devi …Petitioner Versus State of H.P. & Ors. .…Respondents. ……………………………………………………………………………. Coram Ms. Justice Jyotsna Rewal Dua, Judge. Whether approved for reporting?1 For the petitioners: Mr. Sanjeev Bhushan, Sr. Advocate with Mr. Sohail Khan, Advocate. For the respondents: Ms. Seema Sharma, Deputy Advocate General, for respondents No.1 to 3. Mr. Rajesh Kosh, advocate, for respondent No.4. Jyotsna Rewal Dua, J Notice. Ms. Seema Sharma, learned Deputy Advocate General, Mr. Rajesh Kosh, learned counsel, accept notice on behalf of the respective respondents. Keeping in view the grievance of the petitioner, the decision relied upon by the petitioner in support of her claim, and the order being passed hereinafter, there is no necessity to call for reply from the respondents. The matter has been accordingly heard at this stage. 1 Whether reporters of the local papers may be allowed to see the judgment? yes 2 ( 2026:HHC:41634 ) 2. The petitioner feels aggrieved against the rejection of her claim by the respondents vide order dated 18.05.2026 for grant of family pension on the ground that she is the second wife of late Shri Sukh Ram Chauhan, who retired as a regular employee in the respondent-Police Department during the year 1998 and had been drawing regular pension. The case set up by the petitioner is that Shri Sukh Ram Chauhan solemnized his first marriage with Smt. Satya Devi, who was the elder sister of the petitioner. No children were born from this wedlock. During the subsistence of the aforesaid marriage, Shri Sukh Ram Chauhan solemnized his second marriage with the petitioner, who was the sister of his first wife. This marriage was solemnized during the year 1979. The petitioner lived with Shri Sukh Ram Chauhan as his wife for almost 44 years, discharging all matrimonial obligations, and the couple was blessed with five children. The petitioner has also placed on record a legal heir certificate issued by the competent authority on 24.05.2023, wherein, apart from her name figuring as the wife of late Shri Sukh Ram Chauhan, the names of their children also figure. The first wife of Shri Sukh Ram Chauhan passed away on 08.12.2020. He nominated the present petitioner as the recipient of pension after his death vide application dated 11.05.2023 (Annexure P-1), submitted to respondent No. 5. Shri Sukh Ram Chauhan died on 15.05.2023. The petitioner thereafter 3 ( 2026:HHC:41634 ) requested the respondent-Department for release of family pension in her favour. Her case was deliberated upon by the respondent- Department and rejected on 18.05.2026, primarily for the reason that family pension cannot be granted to the second wife under the existing legal provisions, as the second marriage solemnized during subsistence of first marriage is not recognized under the Hindu Marriage Act. 3. Learned counsel for the petitioner relied upon Urmila Devi vs State of Uttar Pradesh & Others2 in support of her claim of family pension. The facts of that case as noticed in the judgment were as under: - “2. Brief facts necessary for the adjudication of this petition are that the petitioner is the second wife of late Shri Surat Ram. According to the petitioner, her marriage took place with late Shri Surat Ram on 03.04.1987, during the subsistence of the marriage of Shri Sugat Ram with Smt. Reshmu Devi. Smt. Reshmu Devi is stated to have died on 18.11.2015. As per the petitioner, there was no child born out of the wedlock between late Shri Surat Ram and Smt. Reshmu Devi. However, there are two children born out of the wedlock of the marriage of the petitioner with Shri Surat Ram, who are both major and married. Shri Surat Ram is stated to have died on 06.04.2021. The case of the petitioner for the grant of family pension has been rejected vide Annexure P- 12, dated 18.02.2022, on the ground that she is not the first wife of late Shri Surat Ram and had contacted marriage with him during the subsistence of his first marriage, hence this petition. 2 CWP No. 6033 of 2022, decided on 30.03.2026 4 ( 2026:HHC:41634 ) 3. The case of the petitioner is that she is the widow of late employee of the respondent-Department and is entitled to family pension, as she is eligible to receive the same.” In the aforesaid case also, pension was denied to the petitioner on the ground that she had solemnized marriage with the government employee during the subsistence of his first marriage. The Court held as under: - “5. It is a matter of record that the petitioner happens to be the second wife of late Shri Surat Ram, as has been observed by me hereinabove also. It is also a matter of record that the first wife of Shri Surat Ram pre-deceased him. She died in the year 2015, whereas Shri Surat Ram passed away in the year 2021. Obviously, herein it is not the case of the respondents that after the death of Shri Surat Ram, family pension was paid to his first wife and after the death of his first wife, now another lady is claiming the same. Here, the family pension has not been paid to anyone after the death of Shri Surat Ram. It is also not in dispute that whereas, no child was born out of the wedlock between Shri Surat Ram and his first wife Smt. Reshmu Devi, there are two major children born out of the marriage of the petitioner with late Shri Surat Ram, who are above twenty five years of age, and thus, not entitled to receive family pension. 6. Hon’ble Supreme Court of India in Smt. Shiramabai and others Versus The Captain Record Officer and another, (Civil Appeal No. 5262 of 2023), decided on 18.08.2023, has been pleased to hold under similar circumstances that in case a man and women cohabited continuously for long term, then one can draw a presumption in favour of a valid marriage. Hon’ble Apex Court also held that though this presumption is rebuttable, but heavy onus is placed on the one who seeks to deprive the relationship of its legal origin to prove that no marriage had indeed taken place. 5 ( 2026:HHC:41634 ) 7. In the present case, there is none except the petitioner who is claiming the family pension after the death of Shri Surat Ram. Though she is not the first wife of Shri Surat Ram, but the first wife of Shri Surat Ram, pre-deceased Shri Surat Ram, issue- less, and, therefore, in case family pension is ordered to be granted in favour of the present petitioner, no prejudice is going to be caused to anyone. 8. Accordingly, this petition is allowed. The act of the respondents of denying family pension to the petitioner is held to be bad in law. Annexure P-12, dated 18.02.2022, is quashed and set aside and respondents are directed to release family pension to the petitioner forthwith. Arrears as are due to the petitioner, be paid within three months from today and if that is done, no interest shall be paid thereupon. If arrears are not paid within three months, they shall entail interest 6% as from the date of this judgment. Regular family pension be paid to the petitioner from the month of May, 2026. The aforesaid decision was affirmed by the Hon’ble Division Bench in State of H.P. & Anr. Vs. Urmila Devi & Anr3 inter alia, placing reliance upon the decision rendered in Umawati Vs. HPSEB & Ors.4 The relevant portion from the decision is as under: - 3. The learned Single Judge had referred to the judgment in Shiramabai w/o Pundalik Bawa and others vs. Captain Record Officer for O.I.C. Records, ASC Centre (South), Gaya, Bihar and another, (2014) 16 SCC 773, wherein the Apex Court has held that there is a presumption in favour of the validity of the marriage if the perties cohabit together for long. Further, it was noticed that there was no issue 3 LPA. 418 of 2026, decided on 17.07.2026. 4 LPA No. 545/2025 decided on 25.04.2026 6 ( 2026:HHC:41634 ) from the first wife and, therefore, no prejudice would be caused to anyone. 4. The said issue also stands considered by us in LPA No. 545 of 2025, titled Umawati vs. HPSEB and others, decided on 25.04.2026, wherein the appeal filed by Umawati was allowed. It was held that while dealing with matters relating to pensionary benefits, the authorities are required to adopt a sensitive and positive approach consistent with the constitutional values of empowerment and dignity, particularly while considering the claims of weaker sections. The entitlement to family pension was also considered while interpreting the Rule of the Central Civil Services (Pension) Rules, 1972. The relevant part thereof reads as under…………” 15. In the case at hand, this Court is dealing with an appellant who was in a bigamous relation with the deceased (Sh. Jai Ram) held not to be immoral by the apex court in Rameshchandra(supra). The appellant belongs to a marginalized section of society. Hence, it becomes the bounden duty of this Court to advance the constitutional vision of social justice. The approach to be adopted is one of “social justice adjudication” as opposed to a purely “adversarial approach”. Therefore, the role of the Court is to understand the purpose of law in society and to assist the law in achieving its intended purpose. An interpretation which reduces the subordinate legislation to a futility should be avoided, and a view that the rule making authority made the rule only for the purpose of bringing about an effective result should be adopted. 16. In this regard, a reference can be made to (2014) 1 SCC 188 titled as Badshah vs. Urmila Badshah Godse and another. Relevant extract whereof reads as under:- 14. Of late, in this very direction, it is emphasized that the Courts have to adopt different approaches in “social justice adjudication”, which is also known as “social context adjudication” as mere “adversarial approach” may not be very appropriate. There are number of social justice legislations giving special protection and benefits to vulnerable groups in the society. Prof. Madhava Menon describes it eloquently: “It is, therefore, respectfully submitted that “social context judging” is essentially the application of equality jurisprudence as evolved by Parliament and the Supreme Court in myriad situations presented before courts where unequal parties are pitted in adversarial 7 ( 2026:HHC:41634 ) proceedings and where courts are called upon to dispense equal justice. Apart from the social- economic inequalities accentuating the disabilities of the poor in an unequal fight, the adversarial process itself operates to the disadvantage of the weaker party. In such a situation, the judge has to be not only sensitive to the inequalities of parties involved but also positively inclined to the weaker party if the imbalance were not to result in miscarriage of justice. This result is achieved by what we call social context judging or social justice adjudication.”[5] 15. Provision of maintenance would definitely fall in this category which aims at empowering the destitute and achieving social justice or equality and dignity of the individual. While dealing with cases under this provision, drift in the approach from “adversarial” litigation to social context adjudication is the need of the hour. 16. The law regulates relationships between people. It prescribes patterns of behavior. It reflects the values of society. The role of the Court is to understand the purpose of law in society and to help the law achieve its purpose. But the law of a society is a living organism. It is based on a given factual and social reality that is constantly changing. Sometimes change in law precedes societal change and is even intended to stimulate it. In most cases, however, a change in law is the result of a change in social reality. Indeed, when social reality changes, the law must change too. Just as change in social reality is the law of life, responsiveness to change in social reality is the life of the law. It can be said that the history of law is the history of adapting the law to society’s changing needs. In both Constitutional and statutory interpretation, the Court is supposed to exercise direction in determining the proper relationship between the subjective and objective purpose of the law. 17. Cardozo acknowledges in his classic “….no system of jus scriptum has been able to escape the need of it”, and he elaborates: “It is true that Codes and Statutes do not render the Judge superfluous, nor his work perfunctory and mechanical. There are gaps to be filled. There are hardships and wrongs to be mitigated if not avoided. Interpretation is often spoken of as if it were nothing but the search and the discovery of a meaning which, however, obscure and latent, had none the less a real and ascertainable pre- existence in the legislator’s mind. The process is, indeed, that at times, but it is often something more. The ascertainment of intention may be the least of a judge’s troubles in ascribing meaning to a stature.” Says Gray in his lecture “The fact is that the difficulties of so-called interpretation arise when the legislature has had no meaning at all; when the question which is raised on the statute never occurred to it; when what the judges have to do is, not to determine that the legislature did mean on a point which was present to its mind, but to guess what is would have intended on a point not present to its mind, if the point had been present.” 18. The Court as the interpreter of law is supposed to supply omissions, correct uncertainties, and harmonize results with justice through a method of free decision— “libre recherché sceintifique” i.e. “free Scientific research”. We are of the opinion that there is a non- rebuttable presumption that the Legislature while making a provision like Section 125 Cr.P.C., to fulfill its Constitutional duty in good faith, had always intended to give relief to the woman becoming “wife” under such circumstances. This approach is particularly needed while deciding the issues relating to gender justice. We already have examples of exemplary efforts in this regard. Journey from Shah Bano[8] to Shabana Bano[9] 8 ( 2026:HHC:41634 ) guaranteeing maintenance rights to Muslim women is a classical example. 19 In Rameshchandra Daga v. Rameshwari Daga [10], the right of another woman in a similar situation was upheld. Here the Court had accepted that Hindu marriages have continued to be bigamous despite the enactment of the Hindu Marriage Act, 1955. The Court had commented that though such marriages are illegal as per the provisions of the Act, they are not ‘immoral’ and hence a financially dependent woman cannot be denied maintenance on this ground. 20. Thus, while interpreting a statute the court may not only take into consideration the purpose for which the statute was enacted, but also the mischief it seeks to suppress. It is this mischief rule, first propounded in Heydon’s Case[11] which became the historical source of purposive interpretation. The court would also invoke the legal maxim construction ut res magis valeat guam pereat, in such cases i.e. where alternative constructions are possible the Court must give effect to that which will be responsible for the smooth working of the system for which the statute has been enacted rather than one which will put a road block in its way. If the choice is between two interpretations, the narrower of which would fail to achieve the manifest purpose of the legislation should be avoided. We should avoid a construction which would reduce the legislation to futility and should accept the bolder construction based on the view that Parliament would legislate only for the purpose of bringing about an effective result. If this interpretation is not accepted, it would amount to giving a premium to the husband for defrauding the wife. Therefore, at least for the purpose of claiming maintenance under Section 125, Cr.P.C., such a woman is to be treated as the legally wedded wife. 21. The principles of Hindu Personal Law have developed in an evolutionary way out of concern for all those subject to it so as to make fair provision against destitution. The manifest purpose is to achieve the social objectives for making bare minimum provision to sustain the members of relatively smaller social groups. Its foundation spring is humanistic. In its operation field all though, it lays down the permissible categories under its benefaction, which are so entitled either because of the tenets supported by clear public policy or because of the need to subserve the social and individual morality measured for maintenance. 17. The sole contention urged on behalf of the respondent-Corporation is that, in terms of the Central Civil Services (CCS) Pension Rules, the appellant is not entitled to grant of family pension. The relevant Rule 50 (6) of the CCS Pension Rules reads as follow:- (6) The family pension shall be payable to the members of the family of the deceased Government servant or pensioner in the following order, namely:- (i) subject to provisions of sub- rule (8), widow or widower, (including a post-retiral spouse and judicially separated wife or husband), (ii) subject to provisions of sub-rule (9), children (including adopted children, step children and children born after retirement of the pensioner), (iii) subject to provisions of sub-rule (10), dependent parents (including adoptive parents) of the deceased Government servant or pensioner, 9 ( 2026:HHC:41634 ) (iv) subject to provisions of sub-rule (11), dependent siblings (i.e. brother or sister) of the deceased Government servant or pensioner, suffering from a mental or physical disability, Explanation.- For the purposes of this rule, ‘widow’ and ‘widower shall mean a spouse, legally wedded to the deceased Government servant or the pensioner. 8(c) Where the deceased government servant or pensioner is survived by more widows than one, the family pension shall be paid to the widows in equal shares and on the death or ineligibility of a widow her share of the family pension shall become payable to her child or children who fulfil the eligibility conditions in sub-Rule (9) (See GID 22 below this Rule). (22). Settlement of Family Pension between two wives of a Government servant or Pensioner under Central Civil Services (Pension) Rules, 2021.-It is directed to say that Department of Pension, in supersession of the Central Civil Services (Pension) Rules, 1972 has notified the Central Civil Services (Pension) Rules, 2021 and Rule 50 of the Central Civil Services (Pension) Rules, 2021 deals with payment of family pension on death of a Government servant / pensioner. 2. In accordance with Rule 50 (6) of the CCS (Pension) Rules, 2021. family pension shall be pavable to the members of the family of the deceased Government servant or pensioners in the following order. (i) Subject to provisions of sub-rule (8), widow or widower, (including a post-retiral spouse and judicially separated wife or husband) (ii) subject to provisions of sub-rule (9), children (including adopted children, step children and children born after retirement of the pensioner), (ii) subject to provisions of sub-rule (10), dependent parents (including adoptive parents) of the deceased Government servant or pensioner, (iv) subject to provisions of sub-rule (11), dependent siblings (i.e. brother or sister) of the deceased Government servant or pensioner, suffering from a mental or physical disability. whereas the Explanation to Rule 50 (6) (1) of the CCS (Pension) Rules, 2021 states that - For the purpose of this rule, 'widow' and 'widower' shall mean a spouse, legally wedded to the deceased Govemment servant or the pensioners. 3. Whereas Rule 50(8)(c) of the CCS (Pension) Rules, 2021 states that-Where the deceased Govemment servant or pensioner is survived by more widow than one, the family pension shall be paid to the widows in equal shares and on the death or ineligibility of a widow, her share of the family pension shall become payable to her child or children who fulfil the eligibility conditions mentioned in sub-rule (9). 4. In this regard, references have been received in this department regarding eligibility of family pension to the second wife when the first wife is alive. Having second wife when the first wife is alive is against the provisions of Hindu Marriage Act, 1955 and also contradictory to the provisions of CCS (Pension) Rules, 2021. The matter has been examined and it has been decided that such cases need to be processed in accordance with 10 ( 2026:HHC:41634 ) the provisions of CCS (Pension) Rules, 2021 and the issue of second wife or second marriage being legal or otherwise, may be decided first in consultation with Department of Legal Affairs on case-to-case basis for deciding the eligibility for Family Pension. 5. All Ministries/Departments are requested to follow the process of consultation with Department of Legal Affairs before arriving at decision regarding Settlement of Family Pension between two wives under Central Civil Services (Pension) Rules, 2021. Such cases must be brought to the notice of the officer dealing with the pensioners' benefits in the respective Ministry/Department by the attached/subordinate offices. 18. Rule 50(8) of the CCS (Pension Rules), 2021 provides for family pension to two wives. Moreover in terms of GID 22 second wife would not be entitled to family pension when the first wife is alive .The wife of Jai Ram had died prior to his marriage with the appellant, as is evident from Annexure P-1 (page 32 of the paper book). The marriage inter se late Sh. Jai Ram and the appellant is illegal in terms of Section 5(i) of the Hindu Marriage Act; however, in terms of the law laid down by the Apex Court in Ram Chandra’s case (supra), the same is not immoral. In Ram Chandra’s case despite holding the marriage to be illegal, the right to claim maintenance was up-held. The object of providing family pension cannot be different from the object of providing maintenance. 19. In the case at hand, late Sh. Jai Ram and the appellant cohabited from 6.5.1994 till immediately prior to the filing of the petition seeking restitution of conjugal rights by the present appellant in August 2006. The long cohabitation inter se the parties, the entry of the name of the appellant in the service book/pension record of the deceased Sh. Jai Ram (though subsequently withdrawn), the fact that late Sh. Jai Ram had two sons and two daughters from his previous marriage, all of whom have attained majority and none of whom is claiming any right over the family pension due to the family of late Sh. Jai Ram, when considered with relevant factors like economic empowerment, social justice, dignity of the individual requires this Court to be sensitive to and positively inclined towards the weaker party. Thereby, in our considered view, the appellant, who is financially weak and economically dependent, would be entitled to pension. 20. In taking the aforesaid view, we are also encouraged by the following observations of the Apex Court in Capt. Ramesh Chander Kaushal vs. Veena Kaushal, (1978) 4 SCC 70: “The brooding presence of the Constitutional empathy for the weaker sections like women and children must inform interpretation if it has to have social relevance. So viewed, it is possible to be selective in picking out that 11 ( 2026:HHC:41634 ) interpretation out of two alternatives which advances the cause- the cause of the derelicts.” 21. In view of the aforesaid discussion, the present appeal is allowed. The impugned judgment dated 03.04.2025 passed in CWP No. 7584 of 2023 is hereby set aside. The appellant is held entitled to the grant of family pension in respect of late Shri Jai Ram. 5. In view thereof, there is no plausible reason as such to take a different view. Resultantly, the present appeal, being devoid of any merit, is dismissed, so also the pending miscellaneous applications, if any.” In view of the above, notwithstanding decision at Annexure P-7 dated 15.08.2026, this writ petition is disposed of with a direction to the respondents including respondents No.1 to 3 to reconsider the case of the petitioner for grant of family pension, in accordance with law, keeping in view the decisions rendered in Urmila Devi2 and Umawati4. The case shall be decided afresh within four weeks from today. The order so passed be also communicated to the petitioner. In case the petitioner is found eligible for family pension, the same shall be released to her within a further period of two weeks thereafter. The instant petition to stand disposed of in above terms. Pending miscellaneous applications, if any, shall also stand disposed of. Jyotsna Rewal Dua Judge 28th September, 2026(rohit)