Madras High Court orders family pension to 2nd wife : Citing SC judgment

Coming to the rescue of the second wife of a deceased doctor, the Madras High Court has directed the Director of Local Fund Audits to sanction family pension with effect from the date of her husband’s death.

C Sarojini Devi had challenged the order of the Director of Local fund Audits, Chennai, refusing to grant family pension on the ground that the marriage between the petitioner and doctor, a deceased government employee, was not valid and she cannot be considered to be the legal representative.

Citing a Supreme Court judgment, Justice Anand Venkatesh allowed her petition and said “… this court has to necessarily lean towards the presumption of marriage rather than branding the petitioner as a concubine.”

“This will be the most appropriate way to deal with the facts of the present case, if justice has to be done to the petitioner,” the judge said, quashing the order.

The doctor, A Chinnasamy married Sarojini Devi in 1975 during the subsistence of his first marriage and had three children through her.

After the first wife died in 1997, he nominated the petitioner on May 11, 1999 to receive the family pension after his death.

It was submitted that the petitioner lived with Chinnasamy for nearly 12 years even after the death of the first wife.

The special government pleader said the petitioner cannot be considered to be the deceased government employee’s legal heir.

Citing an apex court judgment, the judge said the supreme court has held that “law presumes in favour of marriage and against concubinage, when a man and woman have co-habitated continuously for a long time.”

It was very easy to brand the petitioner as a concubine and deprive her of her livelihood. However, the fact remains that she lived with the deceased from 1975 upto his death in 2009, Justice Venkatesh said.

This means that the petitioner lived with him for nearly 34 years, the judge said, adding she also gave birth to three children.

If the petitioner had made this claim when the first wife was alive, then obviously she will not be entitled for the pension since her relationship is not recognized by law, the court said.

After the first wife died, the petitioner lived with Chinnasamy till his death.

“During this period, it can always be construed that the petitioner and the deceased Dr A Chinnasamy were living as husband and wife and their long co-habitation itself raises that presumption of marriage.”

Besides Chinnasamy had also nominated the petitioner to receive the family pension, the court said.

Quashing the order, the judge directed officials to sanction family pension with effect from the date of Chinnasamy’s death on January 20,2009.

Officials should disburse the pension arrears within 12 weeks from the date of receipt of a copy of the order, the judge said, adding the petitioner shall be continued to be paid the family pension till her lifetime.

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