Heard Mr. D. Choudhury, learned Advocate for the petitioner, Mr. B. Goswami, learned Advocate for the respondent Nos 1 to 3 and Mr. Sur, learned CGSC for the respondent Nos 4 and 6. None appears for the respondent No.5 in spite of service of notice. The admitted position in this case is that the petitioner herein was the legally married wife of the deceased late Madhab. During the subsistence of that marriage and after 1955 ie, after coming into effect of the Hindu Marriage Act, 1955, the deceased Madhab Chandra Das married respondent No.5 for the second time, this marriage would be a void marriage under section 11 of the Hindu Marriage Act, 1955 as section 11 provides as follows :

“11. Void Marriage-Any marriage solemnized after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto(against the other party), be so declared by a decree of nullity if it contravenes any one of the conditions specified in clauses (i), (iv) and (v) of section 5.”

2. Clause (1) of section 5 of the Hindu Marriage Act provides as follows:

“(i) Neither party has a spouse living at the time of marriage.”

3. A marriage to be valid must fulfill three of the conditions enacted in section 5 as mentioned in section 11. The present section i.e., section 11 provides itself that contravening any one of the conditions shall render the marriage solemnized after the commencement of this Act to be null and void from its inception. After 1955 the law is that marriage in case of Hindus can only be monogamous and in that view of the matter the respondent No.5 cannot be deemed to be wife in the eye of law, but it is made clear by section 16 of the Hindu Marriage Act that the children out of such a void marriage shall be illegitimate children in the eye of law but gives all the legitimacy for the purpose of inheritance even when a decree of nullity is obtained. So, the children born out of such union shall not be deprived of their right to get share of the property equally with the legitimate children. It is in that background that we must decide the present controversy. The present controversy in this writ application is that the nomination was given by the deceased Madhab Chandra Das in favour of the respondent No.5 to get the family pension and the authority now on the basis of that nomination wants to give the family pension to respondent No.5 and not to the petitioner. Mr. Choudhury, learned Advocate for the petitioner draws my attention to Rule 136 of the Assam Services (Pension) Rules, 1969. Rule 136 (1) provides for nomination. There Rule 136 (1) (a) provides that the family for the purpose of this Rule will include the following relatives of the officer:

“(i) Wife in the case of a male officer.”

The proviso to Rule 136 (2) is quoted below :

“Provided that if at the time of making the nomination the officer has a family,

the nomination shall not be in favour of any person or persons other than the

members of his family.”

4. Rule 136 (4) provides that if at the time of making the nomination the officer has a family consisting of more than one member, the person or persons so specified shall not be other than member or members of his family. Hence, in view of the clear proviso of law deceased Madhab Chandra Das had no right to nominate the respondent No.5 as she shall not come within the definition of family. Rule 137 (4) (e) provides as follows:

“137. (4)(e) No pension will be payable under this Rule to a person who is not

a member of an officer's family.”

Rule 137 (6) provides as follows :

“Permanent Govt servants may at any time after their confirmation in Govt

service, make a nomination in Form No. 16 (pension), indicating the order in which a pension sanctioned under this, section should be paid to the members of his family; and, to the extent that it is valid, the pension shall be payable in accordance with such nomination, provided the persons concerned are eligible, on the date from which the pension may fall due,

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