Can second wife claim family pension after first wife’s death? Punjab and Haryana High Court says no

“It is settled law that a second marriage contracted during the subsistence of a first valid marriage is null and void, that a woman in such a relationship does not acquire the status of ‘wife’ or ‘widow’ for family pension purposes, and that the subsequent death of the first wife does not retrospectively cure the defect so as to create a fresh pensionary right in favour of the second woman,” the April 24 order noted.

The death of the first wife does not retrospectively create a fresh pensionary right in favour of the second wife, Justice Sandeep Moudgil said.

The Punjab and Haryana High Court said that the principal issue was whether the petitioner could be treated as the “widow” of Hari Singh to claim family pension after his first wife Mohinder Kaur’s death, even though the second wife’s marital status was not legally valid. It was held that the situation must be dealt with based on the pension regime and earlier rulings, not just on fairness.

It was found that Major Hari Singh was serving as an NCC whole-time officer, which is a civil post governed under the CSS Pension Rules, not the Army rules, and accordingly, under these rules, family pension can only be claimed by the legally wedded spouse in a valid marriage.

In the earlier civil case, it was found that even if the marriage ceremony was factually proved by the petitioner, it would remain invalid, as when she got married to the man, the first wedding was still subsisting which, by law, makes the second marriage void.

The Punjab and Haryana High Court ruled that her attempt to invoke pensionary benefits under the Army pension rules or even the CSS rules to step into the shoes of the first wife after her demise cannot be sustained.

Pension grant depends on valid marital status: Court

• Provisions permitting the division of family pension between more than one widow or its continuance to the surviving widow are premised on the existence of two or more legally recognised widows. 
• A void marriage cannot be validated, nor can a woman be treated as a widow when her claim had already been rejected by the court.
• It is settled law that a second marriage contracted during the subsistence of a first valid marriage is null and void, and the woman in such a relationship does not acquire “wife” or “widow” status for family pension.
• The subsequent death of the first wife does not retrospectively cure the defect to create a fresh pensionary right in favour of the second woman.
• The right to family pension depends on having a valid marital status at the time of the employee’s death, and cannot arise later just because the legally recognised widow has died.

Independent right of co-widow to share pension

• Advocate K S Boparai, representing the petitioner Priya, contended that she was denied pensionary benefits earlier because the co-widow, Mohinder Kaur, was receiving the family pension.
• He submitted that after Kaur died in 2006, Priya became entitled to the pension as per Rule 98 of the Army Pension Rules, which allowed the pension to be shared among widows.
• It was argued that her pension claim was sent by the President’s Secretariat to the Ministry of Defence in 2016, but no action was taken.
• Boparai submitted that her client’s marriage to Major Singh was duly proved, but earlier, Mohinder Kaur, being the first wife, was held entitled to claim the full pensionary benefits by the court. 
• He asserted that the court did not consider her client’s independent right as a co-widow to share the pension, and after Kaur’s death, his client was the only surviving widow and was eligible for the pensionary benefits, so the earlier ruling cannot operate to bar her present claim.
• He added that the petitioner’s right to family pension arose when her husband died, and the state is obligated to pay it, as a pension is a legal right, not a favour. 

State’s arguments

• Senior panel counsel Ghena Vaishnavi, on behalf of the state, averred that the petitioner’s claim under Army pension rules is not valid, as the late Major Singh retired from the Army in the rank of Major.
• However, as per the service record, he was a National Cadet Corps (NCC) Whole Time Officer, a civilian post governed by Central Civil Services (CCS) Pension Rules, not Army Pension Rules, since there is no proof he served in the regular Army.
• It was argued that even under the CCS Pension Rules, the petitioner had failed to prove her status as the legally wedded wife of Singh, which was a requirement for claiming family pension, which had previously been denied to her by the court in her special leave petition.
• The counsel for the state argued that unless and until the petitioner proves her status as a lawful spouse under the meaning of CSS Rules, she cannot claim a pension.