The main legal point established in the judgment is that the second wife and her children are not entitled to family pension as per the Assam Services (Pension) Rules, 1969, and the provisions of the Hindu Marriage Act, 1955, which prohibit a second marriage during the subsistence of the first marriage and mandate monogamy for government servants.

B.K. Sharma, J.

1. The issue raised in both the writ petitions being the same, they were heard analogously and are being disposed of by this common judgment and order. The issue is, whether the second wife whom the deceased employee of the Government of Assam had married during the validity of his first marriage and her children are entitled to family pension or it is the first wife, who alone is entitled to get the family pension in respect of her deceased husband to the exclusive of others.

2. Although the facts involved in both the writ petitions towards claim of family pension are naturally different, but the basic issue is one and the same as indicated above. Suffice is to say that both the Petitioners involved in the two writ petitions are the second wives of the respective deceased employees. Both of them got married to the respective deceased employees during the subsistence of his first marriage. However, a few basic facts material for the purpose of disposal of the writ petitions are indicated below:

WP (C) No. 6582 of 2004

3. The Petitioner in this case, who is admittedly the second wife of the deceased employee claims that she was married to him namely Late Sirajul Islam Bora on 1.7.1990 as per the customary rules and practice. The marriage was also registered with the Registrar of Muslim Marriages. Out of the said wedlock a male child was born. The Petitioner admits that Late Bora was married at that time having contacted the first marriage with the Respondent No. 5 in 1982. The Petitioner claims that the first marriage of Late Bora had broken down and he and his first wife were living separately. There was no issue from the first marriage. It is the case of the Petitioner that as per the personal law applicable to the parties, a second marriage during the subsistence of the first wife is permissible.

4. Late Bora died on 15.11.93 in an extremist violence. The Petitioner made an application before the District Judge, Darrang praying for succession certificate in respect of the estate of Late Bora and the succession certificate was issued to her on 5.6.95. The succession certificate was issued in respect of death cum retirement gratuity (DCRG), Group Insurance Scheme (GIS) Money, payment of last salary and the ex gratia payment. It is on that basis the Petitioner claims that she is entitled to the benefit of the special family pension as admissible in respect of Late Bora. Be it stated here that the ex gratia payment of Rs. 1,00,000/- is pursuant to a scheme formulated by the Government of Assam in case of death of a Government employee as in the case of Late Bora. It is on record that an amount of Rs. 50,000/-in respect of ex gratia payment was sanctioned in favour of the Respondent No. 5 to which effect an order was passed on 7.3.1998.

5. From the documents annexed to the writ petition, it appears that the departmental authorities mentioning the names of both the wives i.e. the Petitioner and the Respondent No. 5 processed the case relating to grant of family pension. It also appears that a recommendation was made for payment of the balance Rs. 50,000/- of the aforesaid ex gratia amount in favour of the Petitioner. The Petitioner became aggrieved on issuance of Annexure-9 letter dated 13.9.2002 by which sanction of special family pension in favour of the Respondent No. 5 being the first wife of late Bora was conveyed. According to the Petitioner she alone is entitled to receive the family pension and all other pensionary dues.

WP (C) No. 799 of 2005

6. As in the first case, in this case also the Petitioner is the second wife of the deceased employee namely Babuli Khound. As per the averments made in this writ petition, the husband of the Petitioner got married with the Respondent No. 5, his first wife on 30.4.79 and out of the said wed lock a female child was born on 20.5.81. According to the Petitioner, she (the first wife) had been living separately from her husband till his death on 24.10.99. The deceased husb