IMPORTANT POINT
Children born from void and voidable marriages are considered legitimate under Section 16 of the Hindu Marriage Act, and thus entitled to rights in the estate of their parents, including family pension benefits.

JUDGMENT :

(Sanjay Kumar Medhi, J.) :

The claim for family pension is the subject matter of dispute in this petition filed under Article 226 of the Constitution of India. As per the facts projected, the petitioner no. 1 is the wife of one Ranjit Das, who was working as Superintendent in the Assam Public Service Commission (APSC). The petitioner nos. 2 and 3 are the daughters. The husband of the petitioner no. 1 had taken voluntary retirement in the year 1992 and was getting the pension. The said Ranjit Das expired on 02.05.2019 and accordingly, the petitioners had submitted a representation for payment of family pension and other benefits. However, such family pension and other retirement benefits were not released to the petitioners and therefore the present writ petition has been filed.

2. I have heard Shri AR Shome, learned counsel for the petitioners. I have also heard Shri TJ Mahanta, learned Senior Counsel assisted by Ms. P. Sarma, learned counsel for the APSC; Ms. S. Sarma, learned Standing Counsel, Health & Family Welfare Department and Shri D. Nandi, learned counsel for the private respondent no. 10.

3. Shri Shome, learned counsel for the petitioners has submitted that there was an issue regarding the marriage with the petitioner no. 1. It is submitted that the respondent no. 10 was the earlier wife. However, there was a divorce proceeding and in the meantime, the deceased had married the petitioner no. 1 and out of the said marriage, the petitioner nos. 2 and 3 were born. He has also informed that the petitioner no. 2 – daughter has been married in the meantime. However, the petitioner no. 3 is an unmarried daughter, who was dependent on the deceased father. It is submitted that even if some issue arises on the validity of the marriage with the petitioner no. 1, the rights of the petitioner no. 3 cannot be denied. In this connection, he has referred to Section 16 of the Hindu Marriage Act wherein legitimacy of children born from marriage which are void and voidable has been laid down. Shri Shome has also submitted that in the nomination of the deceased, it is the names of the petitioners which were given and therefore, there should not arise any question regarding their entitlements. The learned counsel has also relied on the following case laws-

i. Deokinandan Prasad Vs. the State of Bihar and Ors. [1971(2) SCC 330];

ii. Rameswari Devi Vs. State of Bihar and Ors. [(2000) 2 SCC 431] and

iii. Anjali Sharma Dutta Vs. the State of Assam [WP(C)/4724/2017 decided on 17.09.2018].

4. In the case of Deokinandan Prasad (supra), the Hon’ble Supreme Court has laid down that pension is a property which an incumbent has a right and such right cannot be withheld as it comes under Article 19(1)(f) of the Constitution of India. In the case of Rameswari Devi (supra), right of the children of a second marriage of an employee who is a Hindu has been recognized.

5. Per contra, Shri Nandi, learned counsel appearing for the respondent no. 10 has submitted that apart from the serious suppression of materials facts in the writ petition, the claim itself is not maintainable. It is submitted that the respondent no. 10 is the wife of the deceased. He has also contended that though the deceased had instituted a divorce proceeding, the same was rejected and the subsequent appeals including the appeal before the Hon’ble Supreme Court were dismissed. In this connection, the respondent no. 10 has drawn the attention of this Court to the orders dated 30.10.2013 passed by the Hon’ble Division Bench of this Court in Mat.App./2/2009 and also the one dated 07.05.2013 passed by the Hon’ble Supreme Court in SLP No. 16256-16257/2013. It is submitted that the respondent no. 10 continued in the status of the wife of the deceased and under the personal laws governing the parties, second marriage is not permissible. As regards the nomination issue, the learned counsel for the respondent no. 10 has clarified that all along it was the name of the respondent no. 10