ROYAL GLOBAL UNIVERSITY 1ST NATIONAL MOOT COURT COMPETITION, 2021

ROYAL GLOBAL UNIVERSITY , G UWAHATI

1ST NATIONAL MOOT COURT COMPETITION , 2021

IN THE HON’BLE HIGH COURT OF MUMBAI

IN THE MATTER OF ARTICLE 226 OF THE C ONSTITUTION OF I NDIA

WRIT PETITION NO…. /2021

Ms. Pooja …………………………………………………………………………Petitioners

v.

Pension Authority of India…………………………………………………...... Respondents

UPON SUBMISSION TO THE HON ’BLE JUSTICE OF THE H IGH COURT OF

BOMBAY

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MEMORIAL FOR RESPONDENT

TABLE OF CONTENTS
LIST OF ABBREVIATIONS III

INDEX OF AUTHORITIES IV

STATEMENT OF JURISDICTION V

STATEMENT OF FACTS VI

ISSUES RAISED VII

SUMMARY OF ARGUMENTS IX

ARGUMENTS ADVANCED 10

Issue 1: Whether the present matter is maintainable under article 226 of the
Constitution of India. 10

Issue 2: Whether Priya is entitled to Pension benefits and Property rights 12

[2.1] The relation between Dr Kumar and Priya is not that of a valid marriage
hence Priya is not entitled to claim spousal benefits like Property and Pension
benefits. 12

[2.2] Priya is not entitled to claim Pension under the Central Act. 14

Issue 3: Whether Pooja is entitled to Pension benefits and Property rights 16

[3.1] Pooja is not entitled to claim a share in Dr Kumar’s pension. 16

[3.2] Pooja is not entitled to Dr Kumar’s Property after his death. 18

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LIST OF ABBREVIATIONS

ABBREVIATIONS FULL FORM

& And

AIR All India Reporter

Anr. Another

CCS Central Civil Services

Guj Gujarat

HC High Court
HMA Hindu Marriage Act

HAMA Hindu Adoption and Maintenance Act

KLT Kerala Law Times

MP Madhya Pradesh

Mad Madras

Ors. Others
SC Supreme Court

SCC Supreme Court Cases

SCR Supreme Court Weekly Report

U.P. Uttar Pradesh

V. Versus

Cr.P.C Criminal Procedure Code

INDEX OF AUTHORITIES

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STATEMENT OF JURISDICTION

The Hon’ble High Court of Mumbai is vested with the jurisdiction to hear the present matter
under Article 226 of the Indian Constitution. Article 226 reads as:

1) Notwithstanding anything in Article 32 every High Court shall have powers,

throughout the territories in relation to which it exercises jurisdiction, to issue to any person
or authority, including in appropriate cases, any Government, within those territories’
directions, orders or writs, including writs in the nature of habeas corpus, mandamus,
prohibitions, quo warranto and certiorari, or any of them, for the enforcement of any of the
rights conferred by Part III and for any other purpose

2) The power conferred by clause (1) to issue directions, orders or writs to any
Government, authority or person may also be exercised by any High Court exercising
jurisdiction in relation to the territories within which the cause of action, wholly or in part,
arises for the exercise of such power, notwithstanding that the seat of such Government or
authority or the residence of such person is not within those territories

3) Where any party against whom an interim order, whether by way of injunction or stay
or in any other manner, is made on, or in any proceedings relating to, a petition under clause
(1), without

a) furnishing to such party copies of such petition and all documents in support of the
plea for such interim order; and

b) giving such party an opportunity of being heard, makes an application to the High
Court for the vacation of such order and furnishes a copy of such application to the party in
whose favour such order has been made or the counsel of such party, the High Court shall
dispose of the application within a period of two weeks from the date on which it is received
or from the date on which the copy of such application is so furnished, whichever is later, or
where the High Court is closed on the last day of that period, before the expiry of the next
day afterwards on which the High Court is open; and if the application is not so disposed of,
the interim order shall, on the expiry of that period, or, as the case may be, the expiry of the
aid next day, stand vacated

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(4) The power conferred on a High Court by this article shall not be in derogation of the
power conferred on the Supreme Court by clause (2) of Article 32.

STATEMENT OF FACTS

Dr Kumar a resident of Janakpuri and a graduate of AIIMS Delhi was an employee the
Central Government health services. While he was in service, he married Sakshi and also
inherited 4 acres of land from his great grandfather as his ancestral property. Dr Kumar wand
Sakshi were blessed with their new born, a baby boy (Rishi) in the year 1993. Thus, he
further went on to buy a 3 bhk flat in sector 78 of Noida in the same year.

Since Dr. Kumar was in the Central Govt. service, he was under All India Transfer Liability
and hence, in the year 1995, he was transferred to Mumbai, from Delhi where he was posted
earlier. He could not bring his wife, Sakshi and his son with him, after his marriage and
resided alone in a government quarter. He used to go back to Delhi to visit his wife and his
child, but due to a heavy schedule at work, was rarely able to do so.

In 1996, Dr Kumar became friends with Priya in a seminar where she interviewed him. In the
same year he went on to purchase a residence near Chowpatty Maternity Government
Hospital, Girgaon, Mumbai, where he then served as a senior doctor. In the year 1997, he
became father for the second time, this time to a baby Girl (Amrita). Priya who was a very
good friend of Dr Kumar, was diagnosed with Jaundice. She approaches him for medical
advice and looking at her condition he advised her to be under his supervision, which she
agreed upon by her as well as Sakshi.

Even after her recovery Priya continued to reside with Dr Kumar as she was only a freelancer
and did not have any permanent place to stay and means to pay her expenses. Days went on
and Priya got closer to Dr Kumar, which resulted in them residing as husband and wife and
Priya giving birth to their child (Pooja) in the year 1999.

Sakshi was disapproving of their relationship which she came to know about in the year
2002, which resulted in her filing an FIR in the police station u/s 494 of IPC, and 17 of Hindu
Marriage Act 1955. This case was later set aside as Sakshi met with an untimely accident in
the year 2002, which resulted in her death. After this Doctor Kumar shifted with Priya and
Pooja to a new place and resided together till 2013, where Mr Kumar died suddenly out of
cardiac arrest. After his death, Priya claimed to the civil court for the family pension benefits
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and her share in Dr Kumar’s property, which was nullified on the grounds that she was not
legally married to him. The case is now pending before the Hon’ble Mumbai High Court.

ISSUES RAISED

ISSUE 1: WHETHER THE HON’BLE MUMBAI HIGH COURT HAS THE

JURISDICTION TO HEAR AND DECIDE UPON THE PRESENT MATTER

[1.1] This Hon’ble Court has the authority to decide upon this case

ISSUE 2: WHETHER PRIYA IS ENTITLED TO PENSION BENEFITS AND PROPERTY

RIGHTS

. [2.1] The relation between Dr Kumar and Priya is not that of a valid marriage hence Priya is
not entitled to claim spousal benefits like Property and Pension benefits.

[2.2] Priya is not entitled to claim Pension under the Central Act.

[2.2.1] Second wife not entitled to pension Under Rule 54 (7) of the CCS (Pension)
Rules, 1972

[2.2.2] Pension to be awarded to the second wife under the Central Civil Services Rules Act,
1964

[2.3] Assuming but not admitting that Priya was the illegitimate wife of Dr Kumar, she would
still be entitled to Pension and Property benefits.

ISSUE 3: WHETHER POOJA IS ENTITLED TO PROPERTY RIGHTS AND PENSION

BENEFITS

[3.1] Pooja is not entitled to claim a share in Dr Kumar’s pension.

[3.2] Pooja is not entitled to Dr Kumar’s Property after his death.

[3.2.1] Pooja is not entitled to inherit Dr Kumar’s personal property

[3.2.2] Pooja is not entitled to claim Dr Kumar’s ancestral property.

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[2.1] The relation between Dr Kumar and Priya is not that of a valid marriage hence Priya is
not entitled to claim spousal benefits like Property and Pension benefits. [2.2] Priya is not
entitled to claim Pension under the Central Act.

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SUMMARY OF ARGUMENTS

ISSUE 1: WHETHER THE PRESENT MATTER IS MAINTAINABLE UNDER ARTICLE

226 OF THE CONSTITUTION OF INDIA.

It is humbly contended before the Hon’ble court that the present matter should not be held
maintainable before the Hon’ble Bombay High court and should be referred to the Central
Administrative Tribunal instead. The discretionary power of the High court should not
interfere with the authority and jurisdiction of the central administrative tribunal and thus the
matter at hand should be referred to the tribunal instead, going directly to the High Court.

ISSUE 2: WHETHER PRIYA IS ENTITLED TO PENSION BENEFITS AND PROPERTY

RIGHTS

It is humbly contended before this Hon’ble court by the side Respondents that Priya is not
entitled to claim a right over Dr Kumar’s Pension and Property after his death. This
contention of the respondents is sought in a two folds’ manner –

[2.1] The relation between Dr Kumar and Priya is not that of a valid marriage hence Priya is
not entitled to claim spousal benefits like Property and Pension benefits. The invalidity of the
marriage is proven with the help of section 5, 11 and 7 of the Hindu marriage Act 1955.

[2.2] Priya is not entitled to claim Pension under Rule 54 (7) of the Central Civil Service
Rules, 1972.

ISSUE 3: WHETHER POOJA IS ENTITLED TO PENSION BENEFITS AND PROPERTY

RIGHTS

It is humbly contended before this Hon’ble Court by the present council for the Respondents
that Pooja not entitled to claim a right over Dr Kumar’s Pension and Property after his death.
This contention of the Respondent is sought in a two folds’ manner –

[3.1] Pooja is not entitled to claim a share in Dr Kumar’s pension under Rule 21 of the
Central Civil Service Rule 1964

[3.2] Pooja is not entitled to Dr Kumar’s Property after his death.

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ARGUMENTS ADVANCED

Issue 1: Whether the present matter is maintainable under article 226 of the
Constitution of India.
It is humbly contended before this Hon’ble High Court that the instant case is not
maintainable under Article 226 of the Constitution of India. This contention of the
Respondent is sought in a two-fold manner – [1.1] Discretionary Power of the High Court
does not interfere with the discretionary power of the Tribunals. [1.2] Doctrine of Unclean
Hands Disentitles the Petitioner

1. Article 226 is couched in comprehensive phraseology and it confers wide powers on the
High Courts to remedy the injustice wherever it is found1.The remedy under Article 226
of the Constitution is a discretionary remedy2. The High Court may exercise its authority
in which case it deems fit3.
2. It is humbly submitted before the Hon’ble court that the judiciary upheld the Constitution
of the Tribunals with the sole idea of offloading the tremendous pendency of the variety
of cases in the High Court. The Tribunals were set up primarily to streamline the cases for
speedy dispensation of justice.
3. Section 144 of the Administrative Tribunals Act defines the jurisdiction, powers and
authority of the Central Administrative Tribunals and Section 19(1)5 provides redressal to
an aggrieved person by any order pertaining to any matter within the jurisdiction of a
Tribunal.
4. Thus, the High Court in exercise of its jurisdiction under Article 2266 of the Constitution
of India will not interfere with the exercise of discretionary power by the Tribunals,
unless such exercise has resulted in grave and irreparable injury to the concerned and
particularly in case where such discretion is exercised by a Tribunal whose origin is
traceable to the constitutional provisions. The Court would not interfere with such
discretion exercised by the Tribunal with regard to the interlocutory orders unless it is

1 T.C. Basappa v. Nagappa, AIR 1954 SC 440

2 Sripur Paper Mills v. Commissioner of Wealth Tax, (1970) AIR 1520
3 Gujarat Steel Tubes Ltd vs Gujarat Steel Tubes Mazdoor Sabha, 1980 SCR (2) 146
4 Section 14 of The Administrative Tribunals Act, 1985
5 Section 19(1) of The Administrative Tribunals Act, 1985
6 Article 226 of The Constitution of India
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established that passing of such interlocutory order or refusal thereof had resulted in an
irreversible situation resulting in manifest injustice7.
5. This can also be observed in the case of Director General RPF and Ors. v. Ch. Sai
Babu 8which stated that –
“Normally, the punishment imposed by a disciplinary authority should not be
disturbed by the High Court or a Tribunal except in appropriate cases, that too only
after reaching a conclusion that the punishment imposed is grossly or
shockingly disproportionate, after examining all the relevant factors including the
nature of the charges proved, the past conduct, penalty imposed earlier, the nature of
duties assigned, having due regard to their sensitiveness, exactness expected and
discipline required to be maintained, and the department/establishment in which the
delinquent person concerned works.”9
6. In B.C Chaturvedi V. Union of India10, the court stated,
“The Court will not interfere unless the punishment awarded was one which shocked the
conscience of the Court. Even then, the Court would remit the matter back to the
Authority and would not normally substitute one punishment for the other.”
7. Further, it is humbly contended before the Hon’ble Court that the Central Administrative
tribunal had sufficient jurisdiction to deal with the matter at hand and there was no
violation of the fundamental rights or any other exceptional scenario which would result
in an intervention by the High court.
8. It is submitted; that the petitioner’s claim over family pension benefits is nullified as she
is not the legally wedded wife of the deceased under section 1111 and 5 of the Hindu
Marriage Act 1955.12 The legal heirs to the contested property already exist (legal heirs of
the deceased Dr Kumar from his first marriage). The paramount consideration of this
Hon’ble Court must be the welfare of the legal heirs who must cope with the loss of their
parents. Their sustenance, livelihood, maintenance and personal liberty must be the
utmost priority of the Court.
9. Thus, it is contended by the side respondents that the petitioner has no legally recognised
relationship with the deceased and hence, the judicial system has no legal obligation to
protect the pensionary and property rights of the petitioner in the matter at hand. There is

7 S. Sai Babu vs Director General of Fire Services, 2006 (5) ALD 30

8 Director General RPF and Ors. v. Ch. Sai Babu, (2003) 1 SCR 729
9 Director General RPF and Ors. v. Ch. Sai Babu [(2003) 4 SCC 331]
10B.C Chaturvedi V. Union of India, AIR 1996 SC 484
11 Section 11 of the Hindu Marriage Act 1955
12 Section 5 of the Hindu Marriage Act 1955
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no question of grave injustice or violation of any existent legal right and nor is there any
violation of any fundamental rights.
10. In Smt. Anjali Mukherjee vs. Commissioner of Police, Lalbazarr & Ors 13 , the Court held,
that in view of the decision passed in the case of L. Chandra Kumar vs. Union of India 14 ,
the jurisdiction of the learned single judge of the High Court to entertain a writ petition in
respect of the matters covered under the Administrative Tribunals Act is ousted. The
learned single judge of the High Court does not have the jurisdiction to entertain the writ
application.
11. In the instant matter, the petitioner seeks pensionary benefits as well as property rights.
The matter relating to the pensionary benefits of the deceased, in this case, is under the
jurisdiction of the Central Administrative Tribunal and thus, the decision imposed by the
Tribunal must remain unaffected.
12. Hence, concluding that the instant case is not maintainable under Article 226 15 of the
Constitution of India in this Hon’ble High Court of Mumbai.

[1.2] Doctrine of Unclean Hands Disentitles the Petitioner

13. It is humbly contended that, it is a well-known law that a person invoking the
discretionary jurisdiction of the Courts cannot be allowed to approach it with a pair of
dirty hands.16 The doctrine states that a party who is asking for a relied cannot take the
help of the court if he has acted unethically in relation to the subject of the lawsuit. 17 The
Courts have also exercised their discretion under Article 226 by refusing to grant the
discretionary relief to persons approaching with unclean hands or blame- worthy
conduct.18 A writ petition to appeal may also be rejected on the ground that conduct of the
petitioner disentitles him to any indulgence by the court.19

14. It is submitted; the Petitioner in the present case is guilty of the act of cohabiting with a
married man (Dr Kumar) while his wife was still alive. Upholding the doctrine of unclean
hands, the suit filed by the Petitioner is not maintainable in the present Court. The

13 Smt. Anjali Mukherjee vs. Commissioner of Police, Lalbazarr & Ors. (2007) 3 CLT 456
14 L. Chandra Kumar vs. Union of India (1997) 3 SCC 261
15 Article 226 of The Constitution of India
16 Arunima Baruah v. Union of India, (2007) 6 SCC 120.
17 Jai Narain Parasrampuria (Dead) and Ors. v. Pushpa Devi Saraf and Ors ., (2006) 7 SCC 756; Meyers v.
Casey (1913) 17 C.L.R. 90.
18 State of Maharashtra v. Digambar, 1995 SCC (4) 683.
19 Prestige Lights Ltd. v. SBI, (2007) 8 SCC 449
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Petitioner has acted unethically and against the moral code of the society. Hence, it is
contended that the present suit be dismissed owing to the application of the said principle.

Issue 2: Whether Priya is entitled to Pension benefits and Property rights under the
Hindu Marriage Act
It is humbly contended before this Hon’ble court by the present council for the Respondents
that Priya is not entitled to claim a right over Dr Kumar’s Pension and Property after his
death. This contention of the respondents is sought in a two folds’ manner – [2.1] Priya is not
entitled to family pension benefits [2.2] Priya is not entitled to Property benefits.

[2.1] Priya is not entitled to Pension benefits

[2.1.1] Void Marriage under section 5 and 11 of the Hindu marriage Act

15. Section 11 of the Hindu Marriage Act20 (hereinafter referred to as ‘HMA’) states -
Under Hindu Marriage Act, a marriage is not considered a valid marriage if, at the
time of marriage, either of the party has a living spouse and is not divorced. This
means the act prohibits bigamous marriage and Section 11 of the Act makes it void.
16. Section 5 of the HMA21, lays down the conditions for a valid marriage. Section 5(1) of the
Act sates that neither party should have a spouse living at time of the marriage, for that
marriage to be termed as a valid one. A marriage will be considered void if sub section (i)
of the section 5 is violated, when either the husband or wife are already married.22
17. The invalidity of the marriage can also be seen under Section 17 of HMA 23, which states
that any marriage between Hindus is void if on the date of such marriage, either party had
a husband or wife living.24
18. Further it can be stated in the case of the case of Sarla Mudgal v Union of India25 , where
the Supreme Court held, “Till the time a Hindu marriage is dissolved under the Act none
of the spouses can contract a second marriage.”26Further it was also stated that in case of a
second marriage which will be termed void under the Hindu Marriage Act, the second
wife is not entitled to claim pension benefits and maintenance.

20 Section 11, The Hindu Marriage Act, 1955

21 Section 5, The Hindu Marriage Act, 1955
22 section 5 of the Hindu Marriage Act 1956
23 Section 17, The Hindu Marriage Act, 1956
24 Section 17 of the Hindu marriage Act 1956,
25 Sarla Mudgal v Union of India (1995) 3 SCC 635
26 Sarla Mudgal v Union of India AIR 1995 SC 1531
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19. In Yamunabhai anantrao adhav vs Anantrao shivram adhav27- it was stated by the
supreme Court that a marriage which is void from its inception falls under the ambit of
section 11 of the HMA.28
20. This can be seen in the case of Bajirao Tambare v. Tolanbai Tonge,29 where it was stated
that when a marriage is considered to be void under section 5 of the HMA 1955, the wife
in this scenario is not entitled to claim maintenance under section 125 of Code which
merely spoke of the term "wife". The second wife could not thus, apply for maintenance
under section 125 of the Code because the meaning of "wife" could not be extended to the
case of a void marriage.
21. This can further be observed in the case of T. Stella v/s Metropolitan Transport
Corporation Ltd.30 that by a reading of the Hindu Marriage Act 1955, that the second
marriage, during the subsistence of the first one, or where the spouse from the first
marriage is alive, is not to be held as voidable, but is considered to be void. Thus, the
mere death of first wife cannot result in legalizing the second marriage or give the second
wife the status of wife. It was also opined -
“Furthermore, it may be noticed, that family pension is available to the widow of a
person during her lifetime, therefore widow will always be the first wife, as there
cannot be two widows for a person, as law does not recognize two wives after coming
into force of Hindu Marriage Act.”
22. Thus, it is humbly contended before the Hon’ble court that since the Petitioner had been
in an adulterous relationship with Dr Kumar from the year 1997 to 2013 (till the death of
his wife)31 and had a child with him during the period he was married to his first wife 32,
their relationship will be considered adulterous and not one of a valid marriage and thus
will not be entitled to pension benefits as a legally wedded wife of Dr Kumar.33

[2.1.1] Void Marriage under section 7 of the Hindu marriage Act

23. It is further contended by the side respondent that a marriage is only considered valid if it
complies with the conditions set under section 7 of the HMA 195534-

27 Yamunabhai anantrao adhav vs Anantrao shivram adhav, 1988 SC AIR 644

28 section 11 of the Hindu Marriage Act 1955
29 Bajirao Tambare v. Tolanbai Tonge, 1979 Mah LJ 693: (1980 Cri LJ 473)
30 T. Stella v/s Metropolitan Transport Corporation Ltd. (2013) 139 FLR 952
31 Moot Proposition
32 Paragraph 6, Moot Proposition
33 Moot proposition page 2 paragraph 1
34 Section 7 of the Hindu Marriage Act, 1955
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The provision under Section 7 states that a Hindu marriage can be solemnized following
customary rites and ceremonies of either of the parties. The following must be considered
while considering the ceremonies essential for a Hindu Marriage to take place.35
24. A reading of this along with the fact that no marital ritual or ceremony took place between
Dr Kumar and the petitioner in the said matter, which further adds to the fact that the
relationship between the petitioner and Dr Kumar was not of a valid marriage as per
section 7 of the HMA, 1955.36
25. The trial court in the case of Rasala Surya Prakasarao and others v. Rasala
Venkateswararao and others37, was of the opinion that since the valid marriage
ceremonies were not conducted under section 7 of the HMA 1955,38 for it to be termed as
a valid marriage between the plaintiff no 3 and her husband, she resided with the man in a
status of a concubine and her children from that wedlock will be considered to be
illegitimate. Further it was held that due to her status as a concubine of that man, she will
not be entitled to claim a share in the man’s estate and claim for maintenance under the
Hindu law.
26. Thus, it is humbly contended before the Hon'ble court that Since the relationship with the
petitioner was not one of marriage, she will not be entitled to claim family pension as a
means of Maintenance as the wife of Dr Kumar under the Hindu Marriage Act 1955 and
the same should go to the legitimate children of Dr Kumar.

[2.2] Priya is not entitled to Property Rights.

It is humbly contended before the Hon’ble court that the side Petitioner would not be entitled
to the property of Dr Kumar, as the relationship between the petitioner and Dr Kumar was a
bigamous one, resulting in a void marriage under the Hindu Succession Act 1955, as stated in
the abovementioned sub issue. Thus, the second wife would not be entitled to inherit the
property of her second husband in a void marriage (under section 5 39, 1140 and 741 of HMA)
and the same can be illustrated with the help of certain case laws pertaining to the matter at
hand.42

35 section 7 of the Hindu Marriage Act 1955

36 Neelavva vs The Divisional Controller, AIR 2002 Kant 347
37 Rasala Surya Prakasarao and others v. Rasala Venkateswararao and others AIR1992AP234
38 Section 7 of the Hindu Marriage Act, 1955
39 section 5 of the Hindu Marriage Act 1955
40 section 11 of the Hindu Marriage Act 1955
41 section 7 of the Hindu Marriage Act 1955
42 Sri Mahaveer @ Vilas Shanthappa @ Shantagowda Patil and others.Vs. Sukumar tulajagonda Patil and other.
ILR 2011 KAR 2077
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It can be observed in the case of- Rameshwari Devi vs State of Bihar And Others43

Under the Hindu Succession Act, 1956 the property/estate of a male Hindu dying intestate
can be inherited firstly on his heirs in clause (1) which include the widow and the son.
Among the widow and son, they all get shares ( Sections 8, 10 and the Schedule to the Hindu
Succession Act, 1956).

“The respondent (second wife), cannot be described as a widow of Narain Lal, as her
marriage with Narain Lal was void under section 5 and 11 of the Hindu marriage Act and
hence was not entitled to the pension and the gratuity fund of the family.”

A similar observation was made by the Apex court in the case of Vidyadhari & Ors v.
Sukhrana Bai & Ors44 –

It was stated by the Supreme court in this matter that with regards to a share in the property
of the deceased husband, the first wife being the legally wedded wife is entitled to a share in
the property of her deceased husband, while the second wife, not being his legally wedded
wife or being his bigamous wife, will not be entitled to any share in his property.

Thus, taking an inference from the abovementioned case laws it is contended by the side
respondents that the Hindu marriage Act clearly does not have provision for providing the
family pension benefits as well as property rights to the second wife, and only the widow (the
first wife) should be entitled to claim such benefits.

ISSUE 3: Whether Priya is entitled to receive pension under the Central Civil Services
(Pension) Rules, 1972.
It is humbly contended before this Hon’ble Court by the council for the Respondent that the
Petitioner (Priya) is not entitled to claim pension benefits under the Central Civil Services
(pension) Rules, 1972. This contention of the Respondent is sought in a two-fold manner –
[3.1] Dr Kumar is not entitled to receive pension under the Central Civil Services Rules, 1972
[3.2] Priya not entitled to receive pension under Rule 54 of the Central Civil Services
(Pension) Rules, 1972

[3.1] Dr Kumar is not entitled to receive pension under the Central Civil Services Rules, 1972

It is contended that Dr Kumar, is guilty of misconduct under the Central Civil (Pension)
Rules, 1972. He was cohabiting with the Petitioner while still married to his first wife

43 Rameshwari Devi vs State of Bihar And Other 2000(2) SCC 431

44 Vidyadhari & Ors v. Sukhrana Bai & Ors 2008 (1) RCR (Civil) 900
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(Sakshi) and even raised a daughter with the Petitioner. This conduct of Dr Kumar is violative
of Rule 3 Rule 21, and Rule 54 of the Central Civil Services (Pension) Rules, 1972. Owing to
this, Dr Kumar shall not be entitled to claim Family Pension.

27. As per Rule 21 of the Central Civil Services (Conduct) Rules 45, no Government servant
who has a spouse living, shall enter into another marriage. Provided that the Central
Government may permit a Government servant to enter into or contract, any such
marriage if it is satisfied that the same is permissible under the personal law applicable to
such Government Servant. 46
28. The Khurshed Ahmed Khan V. UOI47 was one such case wherein the judgment by a Bench
of Justices T.S. Thakur and A.K. Goel was on a petition filed by Khursheed Ahmad Khan
against the Uttar Pradesh government’s decision to remove him from service as Irrigation
Supervisor for contracting a second marriage when his first marriage was still in
existence. His ouster was based on Rule 29 (1) of the Uttar Pradesh Government Servant
Conduct Rules, 1956. The Supreme Court held that the entitlement available under
Muslim Personal Law to take a second wife did not exempt Muslim men from this
requirement of prior permission.
29. The material facts of the aforementioned case align with the matter at hand. Herein, the
Hindu Personal Law which is applicable to Dr Kumar (hereinafter referred to as “the
deceased”) does not allow a man to enter into a bigamous relationship, and in the event
that the employee does enter into such a relationship, the State rules for Government
Servants require a disclosure of the same.
30. It is submitted that; the deceased failed to fulfil the requirements of Rule 21 of the CCS
(Pension) Rules governing his employment. He voluntarily cohabited and raised a child
with the Petitioner during the lifetime of his deceased first wife (Sakshi) without
intimating the authorities about the same.
31. Further, the Central Civil Services (Conduct) Rules under Rule 3 48 states that every
Government servant shall at all times--
a. Maintain absolute integrity;
b. Do nothing which is unbecoming of a Government servant
c. Maintain high ethical standards and honesty

45 Rule 21 of the Central Civil Servant (Conduct), 1964

46 Rule 21 of the Central Civil Services (Conduct), 1964
47 Khurshed Ahmed Khan V. UOI 2015 III AD SC 91
48 Rule 3, Central Civil Services (Pension) Rules, 1972
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d. Refrain from doing anything which is or may be contrary to any law, rules,
regulations and established practices;
32. The Supreme Court, in the case of State of Punjab and Ors vs Ram Singh 49 opined that the
definition of misconduct may not be definite but includes moral turpitude, it must be
improper or wrong behaviour; unlawful behaviour, wilful in character; forbidden act, a
transgression of established and definite rule of action or code of conduct but not mere
error of judgment, carelessness or negligence in performance of the duty; the act
complained of bears forbidden quality or character.
33. It is submitted; that the behaviour of the deceased during the course of his employment
was violative of Rule 3 of the CCS (Pension) Rules 50, which require him to refrain from
performing acts that are unbecoming of a Government Servant. Further violating Rule 3,
the deceased entered into illicit relations with the Petitioner, while adultery had not been
decriminalised and was a criminal offence under section 497 of the Indian Penal Code51
(hereinafter referred to as “IPC”). The deceased had jumped the law with his brazenness
and now the Petitioner is trying to take shelter under the judgment of the Hon'ble
Supreme Court, which came at a later stage.
34. Rule 9 (2) (a) of the CCS (Pension) Rules 52, states that the Central Government has the
power to withhold or withdraw pension even as a result of a minor penalty proceedings
instituted against a government servant.
35. In the case of Prem Chand vs The State of Uttar Pradesh53 the court held the petitioner’s
contention that the petitioner having cohabited with a married lady with her consent does
not amount to a misconduct is patently erroneous.
36. It is submitted; that although, it is true that in Joseph Shines vs Union of India 54 , the
Hon'ble Supreme Court has struck down Section 497 of IPC 55 and the result of the
judgment of the Hon'ble Supreme Court is that the act of adultery is not a punishable
crime. Nowhere, it was mentioned that it is an act, which can freely be resorted to, by any
one and escape from civil consequences also. Just as adultery can constitute a ground for
divorce, it would also be an act, unbecoming of a civil servant in terms of conduct rules.

49 State of Punjab and Ors vs Ram Singh AIR 1999 SC 2378

50 Rule 3, Central Civil Services (Pension) Rules, 1972
51 Section 497, Indian Penal Code, 1860
52 Rule 9 (2) (a) of the CCS (Pension) Rules
53 Prem Chand vs The State of Uttar Pradesh, AIR 2020 SC 237
54 Joseph Shines vs Union of India, 2018 SCC OnLine SC 1676.
55 Section 497, Indian Penal Code, 1860
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37. It is submitted; the deceased by entering into an adulterous relationship with the
Petitioner has disgraced the moral code applicable to the Government Servants under
Rule 3 of the CCS (Pension) Rules and thus, it is within the power of the Central
Government under Rule 9 to withhold the payment of pension owing to his gross
misconduct.

[3.2] Priya not entitled to receive pension under Rule 54 of the Central Civil Services
(Pension) Rules, 1974

Second wife not entitled to pension Under Rule 54 (7) of the CCS (Pension) Rules, 1972 56

38. It is humbly contended that the Petitioner being the second widow of the government
employee arising from a void marriage is not entitled to receive a share in the family
pension fund under section 54 (7) of the CCS Rules, 1972. This section states that-

“In case a deceased Government servant leaves behind more than one widow or a widow
and eligible offspring from another widow, they are entitled to family pension in respect
of that deceased Government servant.”57

39. Thus, it can be seen from the abovementioned rules that the first widow and the off
springs from both the widows are entitled to receive a share in the family pension fund
and the second wife (the petitioner) should not get any part of the same.
40. It is submitted; that the reason for not including the second as a nominee of the family
pension fund is due to the status of her marriage with Public servant (Void under section
11 of the HMA 1955). 58
41. Section 11 of the Act59 states that any marriage which is solemnized after the Act's
effective date is null and void and may be annulled by a declaration of nullity against the
other party if it violates any of the provisions set out in Clauses I (iv), and (v) of Section 5
of the Hindu Marriage Act.60 The marriage cannot be lawfully solemnized if either side
has a partner/wife alive at the time of the marriage, according to Section 5 (1) of the
HMA.61
42. Thus, as a result, any Hindu male's second marriage after the enactment of the 1955 Act
within the lifetime of his first wife is void and has no legal effect to it. In the basis of any

56 Rule 54 (7) of the CCS (Pension) Rules, 1972

57 Rule 54 (7) of the CCS (Pension) Rules, 1972
58 Section 11 of the Hindu marriage Act 1955
59 Section 11 of the Hindu marriage Act 1955
60 Section 5 of the Hindu marriage Act 1955
61 Section 5 of the Hindu marriage Act 1955
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tradition, such a marriage cannot be legitimate. In reality, a rule that contradicts an

explicit rule of law has no legal standing. As a result, the second wife would not be
eligible for the family allowance as a lawfully married wife under these cases.
43. This can be observed in the case of G. Padmavathy vs The Chairman62 on 19 December,
2018-

“That the second wife shall be eligible for the benefits of family pension, if
the second marriage was solemnized as per customary law prevailed among community
before the date of commencement of Hindu Marriage Act, 1955. It means that if
the second marriage was after the coming into force of Hindu Marriage Act, 1955,
the second marriage is void and the second wife is not entitled to the benefits of
family pension.”

44. Further it can also be observed in the case of – Smt. Joycee Chyne vs. Bharat Sanchar
Nigam Limited63 in this case, the justice referred to section1164 and 565 of the HMA which
is to be held Pari Materia with section 4 (a)66 and Section 24 of the Succession Act67.
Both the provisions provide that marriage is permissible provided that neither party has a
spouse living. Thus, this read along with section 54 (7) of the CCS Rules, 197268 rightly
conveys to the fact that the second wife will not be entitled to the family pension fund in
the matter at hand.
45. The Court, in the case of T Stella Vs Metropolitan Transport Corporation Limited69 , held -

“that the tribunal said that according to Hindu Marriage Act, second marriage while the
first spouse is living, is not voidable but void, therefore, mere death of the first wife
cannot result in legalizing the second marriage.”

46. Thus, taking an inference from the abovementioned cases it is contended before the
Hon’ble court that since the Petitioner was in a relationship with Dr Kumar while he was
married to his first wife, the petitioner will not be considered as the second wife of Dr
Kumar and will not be entitled to a share in the family pension fund.

62 G. Padmavathy vs The Chairman, (2018) 3 MLJ (CRL) 278

63 Smt. Joycee Chyne vs. Bharat Sanchar Nigam Limited, 2018 SCC OnLine Megh 21
64 section 11 of the Hindu marriage Act 1955
65 Section 5 of the Hindu marriage Act 1955
66 Section 4 (a) of the Hindu Succession Act 1956
67 Section 24, Hindu Succession Act, 1954
68 Rule 54 (7) of the CCS (Pension) Rules, 1972
69 T Stella Vs Metropolitan Transport Corporation Limited, (2013) 3 MLJ 278
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PRAYER

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