Does a woman in a live-in relationship have the right to pension?: Madras high court refers the question to larger bench [READ ORDER]

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 facts of the case

S Kaliperumal(who works for the Tamil Nadu Electric Generation and Distribution Corporation in Kumbakonam)was married to Sushila his first wife ( his nominee in official documents). 

Sushila was suffering from cancer, so he married Sushila's sister Malarkodi. All three were living in the same house. The couples have three sons and three daughters. Subsequently, Sushila died. 

In 2015, Kaliaperumal made an application to make his first wife the nominee to his pension account.  His sons and daughters agreed. However, he passed away before the process was completed. 

After her husband’s demise, an application made by the petitioner(Malarkodi) 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.

A single-judge bench comprising of Justice S Vaidhyanathan referred to the question for due consideration of the larger bench.  He 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, if the live-in-relationship is established, then the woman attains the status of a wife. The march of law happens only while considering the co-habitation that, continues after the death of the first wife.

Court observations 

"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," the court stated.

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. Also, when an unknown relationship comes to be known after the demise of the husband, such woman may not be entitled to any relief, unless Personal Law permits more than one marriage or a declaration is obtained from the competent Judicial Forum with regard to her legal status, after making the first wife as a party, if she is alive."

Observations of the larger bench:

1) 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.

2) 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 terminals

Advocate D Kalaivani appeared for the petitioner, while the respondents were represented by Advocate Fakkir Mohideen.

[READ ORDER]