Can second wife's son entitle to claim pension- if 1st wife has no objection

This query is : Resolved 

Guest (Querist)
02 May 2012

give solution

A married with B
B leaved to A and married to C
A married to D without given divorce to C

A employed in ARMY. He mention first wife C name in army record.
one day A died.
D second wife son claim for Pension claim- Army deny- direction that First produce Divorce decree of First Wife.
First wife has no objection- Given notary affidavit.
Whats solution ?

Can second wife claim in this situation-I know its not possible in my view- But any solution you have.

My client D living in Delhi- I Needs Lawyer in Delhi who can handle this case in my assistant. Preference to fresher

Tajobsindia (Expert)
03 May 2012

1. YES. It is very much possible that second wife son gets pension as both wives have "agreement notarised". The Army Authorities are wrong in asking as per book "divorce certificate".
Here is what a 2009 Hon'ble SC case Law says involving two wives of a deceased Karnataka Govt. Employee and more particularly the wives had already made the “agreement” similar to your clients in place and this case law squarely fits as benchmark in your query to disagree to Army's classic questioning views:

In the words and wisdom of the then Lordship Markandey Katju it was held;

“When the two wives have come to an understanding who are you to oppose it? Why should you be bothered, if one wife seeks compassionate appointment and another wants the compensatory benefits," a Bench of Justices Markandeya Katju and R M Lodha asked, while dismissing a Karnataka Government's appeal.

2. I must add that go by reasoning in above case law, essence is more important to loose case by Army is my view if you read down the full text Judgment.

PS.: I have surpassed stage of working as someonce Assistant and with above reverse reply no one may even consider me bze replies are not as per your expectation:-)

However I offer myself for correction if any.

Dear Tajobsindia,

I am unable to digest your logic, as no pension rules in India provide such thing, as you stated. Can you please give complete quotation of the referred case for my knowledge?

raj kumar makkad (Expert)
03 May 2012

No doubt case cited by tejobsindia is also in existence but basic question is that the sons born out of illegimate marriage are entitled to get service benefits of their deceased father so keeping in view this sole aspect, there is no hurdle to get the desired benefit.

Shashikant Patil (Expert)
03 May 2012

As per Army record, A submitted all details of fist wife to whom he legally wedded and she is his legally wedded wife, so Army is not wrong to ask for the divorce certificate for compliances. Army is also abide by their pension rules as per Defence Services Rules and Regulations.

Murali Krishna (Expert)
03 May 2012

1.As per pension rules legally wedded wife and her children are entitled for all the service benefits. These benefits are extended as a measure of security to the deceased employees family.

2. Pension is not an estate nor appointment on compassionate grounds. Succession certificate is useful to recover other sums like leave salary, gratuity, PF etc where nominations are not made or not subsisting.

3. Children from defacto second marriage are also legitimate children in view of S. 16 of HMA Act, if they belong to Hindu religion. Hence, they are also entitled for their share in the benefits.

4. Appointment on compassionate grounds will be per rules, which normally follows an order of preference.

5. By way of mutual agreement such rights cannot be divested since no agreement made contrary to law is valid. It seems Mr.Tajobsindia has not properly understood Supreme Court's judgement (Vidyadhari's case).

Shonee Kapoor (Expert)
04 May 2012

I am also not able to digest the logic.

Compassionate appointment is not a matter of right, it is as per the rules laid down by the department.

Without being contemptuous, I must add, that what SC can do in its inherent powers in a particular case on compassionate grounds can not be made a precedent by other courts to follow.


Shonee Kapoor

Tajobsindia (Expert)
04 May 2012

Most respected Sh. PS Dhingra, Sh. Shashikant Patil, Sh. Murali Krishna and Sh. Shonee Kapoor,

1. Since it is Experts section I am not putting definition of "family" as per M.S.Rs./B.C.S.Rs./ H.C.S.Rs./C.S.Rs. of the Government of India expecting Experts knows them by now.

2. The Judgment which I am talking is of 18-11-2009 and not 2008 (Vidyadhari's case) as pointed by one of yourkindself and I donot wish to read 2008 Judgment at all as I stand by what I quoted as earlier reply "Army will loose the case."

3. The above SC Judgment is not passed using "inherent" powers of SC. Inherent powers by SC is sparingly used we all know that!

4. As pointer one may read at leisure

5. On your question on "public policy"

Laws are meant for public and public is not meant for law. If due to consent of first wife, law does not punish the husband who has married twice it is also a public policy and the same is the case in question.

5. Reasoning aka LOGICS:-)

Now the husband (offender) is no more and has left behind his liabilities to determine the course of their life on their own with or without the resources earned by him for being an employee of the STATE. In this situation if the first wife in her discretion has shown heart to part a share of that benefit with the second wife thereby providing an other woman a scope to lead a dignified life "how the Court can be held wrong for respecting the evident human element available in the decision of the first wife and above all the laws and legal principles are set for the human beings not vice versa."

Hope with above I stands clarified?

Dear Tajobsindia,

My query still stands, which has not been satisfied, as yet. In my query, I did not seek interpretation on social issues or the law for public or public for law. My simple request was, "Can you please give complete quotation of the referred case" so that I may also see on what grounds such a judgment has been arrived at by the court. If not you may kindly provide complete citation of the case law referred by you, if the court has specifically ordered the authorities to transfer the pensionary rights to someone else than the eligible person. Please note, it is not a case of compassionate appointment, but relates specifically to pension claim.

We must not forget that pension is not a property, which can be transferred to anyone by relinquishment deed in favour of some other person. The question is not about 1st wife, 2nd wife or their children. But some hierarchy has to be observed based on eligibility conditions of each of the family members.

Tajobsindia (Expert)
04 May 2012

@ Sh. Dhingra

1. The quote - unquote in my 1st. reply is what is full quote of bench (SC) while dismissing Karnataka State's appeal and there is nothing more to add and Jstcs of the SC Bench observation is fully copy pasted from that SC Judgment itself and not made up by me which you can very well search in your law library as this Expert section does not allow annexing of files!

2. When I replied to author of this post I read in authors post “Can second wife's son entitle to claim pension- if 1st wife has no objection i.e he also adds that there is a agreement (notary affidavit) between two wives and second wife son seeking pension benefits” and beyond that I need not have to delve into when a more recent SC Case law (2009) as hyperlinked in my reply no. 2 already exists (though it was on aspect of compassionate ground appointment to second wife when “both wives entered into some agreement between them”) and I knew below i.e. year 2000 case Law which exists and has not been overuled.

3. The author (Mr Prajapati) is asking "Can second wife's son entitle to claim pension- if 1st wife has no objection" the simple answer is YES and in instance case Army will loose the case is what I commented which got challenged by one among others by your kindself. In my second reply I gave the social logics that court comes up with but you asked again so para 4 below is my last reply to you (reasoning I am giving here as to why this is my last reply - I donot wish to elasticate Expert section queries and you are welcome to post your query in Forum section where I will give you more case laws on pension benefits to second wife and or pension benefits to second wife's son and or when “agreement” made between two wives exists what happens to jobs and pension benefits of deceased Govt. employee.

4. You are missing the point making this query “too technical” is my last observation here, notwithstanding my this mild observation kindly now help yourself to YOUR own point you are again and again raising before me to your hearts content by referring below case law from your own law library Re.: 2000 AIR 735, 2000 (1) SCR 390, 2000 (2) SCC 431, 2000 (1) SCALE 262 , 2000 (1) JT 328 where it was held;

Before what was held let me refresh the case brief SC case law:

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.

Dismissing this appeal, this Court (means SC)

HELD - In this case law instance, the SC affirmed that while minor children from a second marriage could claim a share of the family pension till they turned adults, the second wife was not entitled to it. THIS IS EXACTLY WHAT THE AUTHOR (Mr. Prajapati) ASKED i.e.. CAN SECOND WIFE SON CLAIM PENSION BENEFITS TO WHICH I SAID YES AND YOUR KIND SELF CHALLENGED IT.

I hope I am clarified now, which in minimalist wordings PREVIOUSLY Sh. Makkad affirmed and if not then kindly post your further query in appropriate Forum section with you rposting link PMed to me and I will annex other HC as well as more SC case laws on pension / compassionate benefits to second wife and/or second wife's son/daughter i.e. can they get pension benefits which is YES that is what Courts says + on “agreement” between two wives where courts say second wife can even get compassionate ground appointments etc. etc.


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