On Tuesday, the Nagpur bench of the Bombay high court upheld the right of a woman to be the sole nominee for the service benefits of her husband, a retired watchman from the maintenance command of the Indian Air Force. However, the court has upheld the family court order despite the fact that the woman had left behind her husband and three children and eloped with a 19-year-old man.
While rejecting an appeal jointly filed by the husband and his second wife, the bench of Justice AS Chandurkar and justice NB Suryavanshi said,
The allegations of adultery have no relevance in the present case, as the same do not in any manner affect the merits of the claim of Asha (name changed).
The watchman had married Asha in July 1979 at Nagpur as per Hindu rites and customs. In February 1989, Asha eloped with a 19-year-old man with who continues to live with her even today. Thus, Asha had failed to perform her duties as a wife and mother and has led an adulterous life, claimed the retired watchman.
The husband said being a watchman, he was required to do night duty, leaving his small children at home, and hence he married for a second time in February 1995, and replaced Asha’s nomination with that of his second wife’s.
Declaring that the act of the maintenance command to replace Asha’s nomination from the watchman’s service record by the name of his second wife was illegal, the family court had directed the maintenance command to add Asha’s name in his record again.
The family court had passed the order on the proceedings initiated by Asha in December 2010, after she got to know that her name was removed from the service record of her husband.
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Both of them had moved HC, challenging the 2018 order of a family court at Nagpur, declaring that Asha, being his legally wedded wife, was entitled to be the sole nominee of the watchman for claiming service benefits after him.
Bombay High Court (Nagpur Bench)
It was argued on his behalf that the change of nomination being a service matter, the family court had no jurisdiction to decide on it or to direct his employer to delete the name of his second wife and re-enter Asha’s name in the record. However, the high court refused to accept the contention saying that the declaration in respect of the nomination was been granted by the family court as per clause (d) of the explanation to section 7 (1) of the Family Courts Act, 1984, which confers jurisdiction on the lower court to entertain a suit or proceeding for an order or injunction “in circumstances arising out of a marital relationship.”
Upholding the family court’s order on the nomination, the high court said,
Since the nomination and subsequent deletion of the name of Asha was a circumstance arising out of her marital relationship, the family court had jurisdiction to entertain the prayers and grant her relief.
Further, the high court noted that though Asha lived in adultery, admittedly no competent court had dissolved her marriage with the watchman, and thus she continued to be his legally wedded wife. The bench also confirmed the direction to restore Asha’s nomination, as the judges noted that under the General Provident Fund (Central Services) Rules, 1960, the legally wedded wife ceases to be part of the employee’s family only when the employee proves that she has been judicially separated from him or has ceased to be his wife under the customary law of the community.
Adultery By Wife No Ground To Deny Nomination
The high court found the allegations that Asha was leading adulterous life and had failed to perform duties of a mother and wife and her desertion had compelled the watchman to perform second marriage “unacceptable” and said the allegations did not further the case of the watchman in any manner, in absence of declaration and dissolution of his first marriage by decree of a competent court.
The court also said the watchman’s second marriage cannot be said to be legal and therefore the second wife could not have been nominee of the watchman.
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