1. The petitioner herein has prayed to quash and set aside the order dated 09.04.1997 passed by the Commissioner, Surat Municipal Corporation and thereby to direct the respondent authorities to pay the retiral benefits of the deceased Gunvantbhai Pachabhai Chaudhary to the petitioner and any other consequential benefits as nominee of the deceased.
2. It is the case of the petitioner that she got married to one late Shri Gunvantbhai Pachabhai Chaudhary who was employed in the respondent department. Due to the said wed lock the petitioner gave birth to four children. It is the say of the petitioner that the deceased nominated the petitioner for the retiral, insurance and other consequential benefits. Said Gunvantbhai passed away on 30.07.1996. The respondent corporation paid Rs. 40000/- to the petitioner immediately being the nominee of the deceased. The petitioner thereafter time and again requested the respondent department for payment of retiral and other benefits accruing on the demise of her husband but to no avail. Being aggrieved by the said inaction on the part of the respondent corporation, the present petition is preferred.
3. Ms. Renu Singh, learned advocate appearing for Mr. Yogesh Ravani for the petitioner submitted that the petitioner was residing together with Gunvantbhai Chaudhary. She has drawn the attention of this Court to the identity card issued by the Election Commissioner of India pertaining to both the petitioner and the deceased. She submitted that the petitioner and her son Kalpesh were nominated for all the retiral benefits.
3.1 Ms. Singh further submitted that the deceased was married to one Dinuben prior to his marriage to the petitioner but the same was dissolved by mutual consent amidst the community members. She submitted that the petitioner, the deceased and Smt. Dinuben belong to tribal community and therefore the traditional way of dissolution of marriage was resorted to. She submitted that even the deceased had nominated the name of the petitioner as nominee of the deceased.
4. Heard. The deceased was first married to one Dinaben. Out of the said wed lock, a son and a daughter were born. Thereafter, during the pendency of the said marriage, the deceased remarried the petitioner. Out of the said wedlock , four children were born. It is the case of the petitioner that the marriage between the deceased and Smt. Dinaben was dissolved by way of community tradition and thereafter the petitioner married the deceased. However, it is required to be noted that the dissolution of marriage was not done as per the legal provisions.
4.1 The dispute involved in the present case is with regard to retiral benefits between two wives of the deceased employee of the respondent corporation. The petitioner has to establish that she is legally wedded wife of the deceased. The deceased had not divorced his first wife legally. Dissolution/divorce of marriage by following community tradition cannot be accepted in the present case. The deceased ought to have obtained a valid decree of the court of law for divorce. As per the Hindu Marriage Act, if the first wife is alive, the husband cannot remarry. A customary divorce cannot be accepted under the law. In view of the provisions of the Hindu Marriage Act, when it is clear that the first marriage was not dissolved, this Court does not find any infirmity in the impugned order passed by the Commissioner.
4.2 After considering the relevant rules governing a government employee, the Commissioner came to the conclusion that Sm. Dinaben is entitled to the family pension. As far as the other benefits such as gratuity, provident fund, insurance etc. are concerned, the Commissioner has considered Smt. Dinaben, her two children and four children of the petitioner as the legal heirs. This Court does not find any reason for causing interference in the same.
5. In the premises aforesaid, petition is dismissed. Rule is discharged. Interim relief, if any, stands vacated.
(K.S. JHAVERI, J.) Divya//