JUDGMENT AND ORDER :

Heard Mr. A.K. Hussain, the learned counsel appearing for the petitioner. The respondent Nos.1, 3, 4, 5, 6 and 7 are represented by Mr. D. Nath, the learned Addl. Sr. Govt. advocate. Mr. R.K. Talukdar, the learned counsel represents the Accountant General (A&E) (respondent No.2), while Mr. P. Nayak, the learned standing counsel for the Finance Department represents the respondent No.8.

2. The claim here is to family pension benefits for the 3rd wife of late Sunanda Ram Boro, who served as a L/Naik in the Assam Police. The employee initially married one Nageswari Boro, but after the 1st wife died, he married Joymati Boro. When the govt. employee died on 28.02.2000, the surviving 2nd wife (Joymati Boro) was granted the family pension and DCRG on account of late Sunanda Ram Boro. The 2nd wife expired on 26.06.2006 and thereafter the 3rd wife Numali Boro had put forward her claim for receiving family pension.

3. The claim of the 3rd wife was forwarded by the IGP(OSD) to the Accountant General, Assam, on 16.10.2006 with suggestion that the 3rd wife is entitled to draw family pension, under Rule 143 of the Assam Services (Pension) Rules, 1969 (hereinafter referred to as the “Pension Rules”). However, in the counter affidavit filed by the Accountant General on 27.07.2010, it is averred that since the marriage with the 3rd wife was solemnized during the lifetime of the 2nd wife, the same being prohibited under the Hindu Marriage Act, 1955, the 3rd wife Numali Boro is disentitled to claim family pension, after the death of the 2nd wife. In fact an advisory was also issued to the IGP(L) in respect of the earlier recommendation, to re-examine the case under the provisions of the Hindu Marriage Act.

4. Under Rule 24 of the Assam Civil Services (Conduct) Rules, 1965 (hereinafter referred to as the “Conduct Rules”), a govt. servant is prohibited from contracting a bigamous marriage. But if such marriage is permissible under the personal law applicable to the employee, Government’s prior permission has to be obtained for marrying a 2nd time.

5. Undoubtedly late Sunanda Ram Boro is covered by the Hindu Marriage Act and under Section 11 thereof, any marriage solemnized during the subsistence of the marriage is void. It must also be kept in mind that the Supreme Court in Khursheed Ahmad Khan Vs. State of Uttar Pradesh reported in (2015)8 SCC 439 had declared that contracting a 2nd marriage while the spouse is alive, without permission from the Government, is a misconduct.

6. If those factors are taken into account, the claim made by the 3rd wife for continuation of the family pension after the death of the first recipient, cannot be justified. But the learned counsel for the petitioner submits that since no disciplinary action was taken against the govt. servant for re-marrying and there is no declaration of a void marriage against the petitioner, the 3rd wife should be allowed the family pension benefits. He further submits that the children born from the 2nd wife are residing in common residence, with their stepmother (3rd wife).

7. Responding to the above submission, Mr. R.K. Talukdar and Mr. D. Nath as the learned counsel for the respondents submit that Hindu Marriage Act and the Conduct Rules prohibit a govt. servant from contracting a 2nd marriage when the earlier marriage is subsisting. Hence no service benefit can be claimed by the illegally wedded wife. It is also pointed out by the respondents that the children born from the 2nd wife (late Joymati Boro) have now attained majority and the law do not allow unmarried daughter above 21 years and son above 18 years, to receive family pension.

8. The mere fact that no disciplinary action was not taken against the govt. servant for marrying again during the subsistence of the 2nd marriage, cannot in my view, confer legitimacy to the marriage prohibited under the Hindu Marriage Act. Moreover, since the Conduct Rules require the govt. servant to secure permission to contract a 2nd

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