IMPORTANT POINT
Children born to deceased Government Servant out of second void marriage would be entitled to share family pension and death-cum-retirement-gratuity alongwith wife and children of first marriage but family pension would be admissible to the minor children only till they attain majority.

JUDGMENT

D.P. Wadhwa, J.-Leave granted.

2. Appellant is aggrieved by judgment dated April 23, 1998 of the Division Bench of the Patna High Court passed in Letters Patent Appeal affirming the judgment of the learned single Judge dated April 26, 1996.

3. Dispute concerns to payment of family pension and death-cum-retirement gratuity to two wives of Narain Lal, who died in 1987 while posted as Managing Director, Rural Development Authority of the State of Bihar. Appellant is the first wife. Narain Lal is stated to have married second time with Yogmaya Devi on April 10, 1963 while the appellant was still alive. From the first marriage he had one son and from the second marriage four sons born in 1964, 1971, 1972 and 1976. Learned single Judge in his judgment held that children born to Narain Lal from the wedlock with Yogmaya Devi were entitled to share the family pension and death-cum-retirement gratuity and further that family pension would be admissible to the minor children only till they attained majority. He also held that the second wife Yogmaya Devi was not entitled to anything. Appeal by the first wife Rameshwari Devi against the judgment was dismissed by the Division Bench. According to her there was no marriage between Narain Lal and Yogmaya Devi and the children were, therefore, not legitimate. Aggrieved Rameshwari Devi has come to this Court.

4. On filing of the special leave petition notices were issued to the respondents. In response thereto counter affidavits have been filed by-(1) Yogmaya Devi, (2) State of Bihar and (3) Accountant General (A & E) II Patna.

5. Stand of the State Government is that Rameshwari Devi was the legally married wife of Narain Lal. He married again to Yogmaya Devi in April, 1963 and that the marriage with Yogmaya Devi was against the provisions of law as contained in Sections 5 and 11 of the Hindu Marriage Act, 1955. It was, therefore, a void marriage. Second wife had thus no status and could not claim any share from the estate of Narain Lal as per the provisions of Hindu Succession Act, 1956. Accordingly State Government sanctioned family pension and gratuity to Rameshwari Devi by its order dated August 22, 1995. By this order the State Government cancelled its previous two orders dated September 23, 1993 and October 6, 1993. Group insurance and final withdrawal of GPF had already been sanctioned to Rameshwari Devi. However, in compliance with the order of the High Court dated April 26, 1996 in writ petition filed by Yogmaya Devi family pension gratuity, GPF, pay for unutilised leave and group insurance were sanctioned to Rameshwari and her son and minor son of Yogmaya Devi.

6. Accountant General in his affidavit has only to refer to the action of the State Government in cancelling its earlier order dated September 23, 1993 and fresh order dated August 22, 1995 authorising all the payments to Rameshwari Devi being the sole recipient to family pension and death-cum-retirement gratuity. Accountant General says that on the orders of the State Government it authorised full family pension and full gratuity to Rameshwari Devi. Reference was then made to writ petition filed by Yogmaya Devi in the High Court and when the State Government on the basis of the order of the High Court issued fresh order dated October 17, 1996 Accountant General accordingly authorised 50% of family pension and death-cum-retirement gratuity to the minor children of Yogmaya Devi. A direction was issued to the Treasury Officer to recover excess amount of family pension and death-cum-retirement gratuity paid to Rameshwari Devi and further to reduce her family pension and death-cum retirement gratuity by 50%. Accountant General is non-committal if the children of Yogmaya Devi are legitimate or illegitimate children of Narain Lal and rightly so. He has merely to act as per the directions issued by the State Government.

7. Rameshwari Devi has disputed the very factum of marriage between Narain Lal and Yogmaya Devi. Her case is