Owing to conflicting judgments prevailing in this regard and observing that women are to be respected and protected, more so, in the light of the Protection of Women from Domestic Violence Act, 2005 (DV Act), Justice S Vaidyanathan referred the issue to the Chief Justice to be placed before a larger bench to arrive at a finality on the issue. 

While Rule 49 of the Tamil Nadu Pension Rules, 1978 states that there should be a valid marriage and even as per the Hindu Marriage Act, a second marriage is valid only if solemnised after the demise of the first wife, the domestic violence Act had come into vogue to protect the interest of women, who end up as a second wife or a concubine as a result of a long live-in relationship with a male companion. 

However, Justice Vaidyanathan while deliberating on the issue relating to a plea made by a second wife seeking pensionary benefits, held: “It cannot be lost out of sight that, after the enactment of the DV Act, even without marriage, when the factum of live-in relationship is established, it is held to be legally valid, and over a period of time, the woman attains the status of a wife.” 

“When there is a specific enactment of the DV Act, the Rule 49 of the TN Pension Rules, will take a backseat, as DV Act, will come to the driver’s seat and the woman will have to be given protection and the Rule cannot supersede the Statute mentioned supra,” Justice Vaidyanathan said. 

Further, on pointing out that the march of law happens only while considering the cohabitation that continues after the death of the first wife, Justice Vaidyanathan held: ‘When the Rule specifically gives relief to more than one widow, taking into account Personal Law, the question of the validity of the second marriage does not arise at all during the subsistence of the first marriage.” 

“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,” Justice Vaidyanathan observed. He also pointed out though he is bound by a division bench judgment, which has not accounted for the DV Act, there are different judgments on the issue including that of his and hence a finality is needed. 

The reference had gained grounds after a woman moved the court seeking terminal benefits of a Tangedco employee S Kaliyaperumal on claiming to be his second wife. She had submitted that after her sister’s death owing to cancer in 2009, she had married him. Moreover, her husband, who had retired from service in 2004, had made an application in 2015 for replacing her name with that of her deceased sister. However, shortly after that, her husband died and her plea for pension and other retirement benefits as per the pension rules have not come through. 

She had also submitted that the children of the deceased have no objection to her getting the terminal benefits including pension.