Can wife of second marriage solemnized during first obtain pensionary benefits of dead husband? Madras High Court refers issue to larger bench

The Madras High Court recently referred to a larger Bench a petition filed by the second wife of a deceased man seeking disbursement of her husband’s pensionary benefits to her (Malarkodi v. The Chief Internal Audit Officer)..The petitioner is the second wife of the deceased husband. Since the second marriage was solemnized during the subsistence of the first, a complex question with respect to its validity was presented before the Single Judge Bench of Justice S Vaidyanathan..The second marriage took place while the first wife, who was the petitioner's sister, was still alive. The first wife later passed away.In 2015, the petitioner’s husband made an application to make his first wife the nominee to his pension account. However, he passed away before the process was completed..After her husband’s demise, an application made by the petitioner to the Chief Internal Audit Officer for withdrawal of the pension amount from his account was rejected. Consequently, the current petition was filed before the High Court..It was observed by the Court that the Rules applicable to the employees of the Tamil Nadu Electricity Board require the existence of a valid marriage in order to extend pensionary benefits..However, since the union between the petitioner and her husband was solemnized before the first wife’s demise, the applicability of the Rules was in question. The issue was discussed at length by the Court..Justice Vaidyanathan noted that the Hindu Marriage Act, 1955 does not permit second marriage while the first wife is still alive. However, he observed that as per the Domestic Violence Act, 2005,“Even without marriage, when the factum of live-in-relationship between a man and woman is established, it is held to be legally valid, and over a period of time, the woman attains the status of a wife. But, after the demise of the husband, if two wives are alive, the second one will not attain the legal status of 'wife' unless Personal Law permits.".After reflecting upon the stream of jurisprudence established by various High Courts and the Supreme Court, the Single Judge Bench noted that since the Domestic Violence Act is a special enactment, it shall take precedence over the general law, ie the Tamil Nadu Pension Rules, 1978..Despite referring the matter to a larger bench in view of its complexity, Justice Vaidyanathan stated,“I am of the view that, the second wife attains the deeming status of a wife from the date of demise of the first wife, in case, the husband is alive on the date of demise of the first wife.”.The Court framed two issues to be considered by the larger bench:(i) Whether Rule 49 of the Tamil Nadu Pension Rules, 1978, can take away the rights guaranteed for women under the Protection of Women from Domestic Violence Act, 2005; and(ii) Whether a concubine, after the enactment of the Domestic Violence Act, 2005, attains the status of a companion/wife after the demise of the first wife during the lifetime of her husband and that, due to continued live-in relationship, whether she attains the status of a wife, in order to get pensionary and other terminal benefits due to the deceased person..Advocate D Kalaivani appeared for the petitioner, while the respondents were represented by Advocate Fakkir Mohideen..[Read Order Here]