The first wife is entitled to family pension under Hindu law, as a second marriage during subsistence is void, and any contrary affidavit cannot override her legal rights.

JUDGMENT :

Sanjay Kumar Medhi, J.

The subject matter of this writ petition is a claim for family pension. As per case projected, the petitioner is the first wife of one Pabin Chandra Brahma, who was working as an Assistant Teacher of the Sairabari L.P. School in the district of Mushalpur, who had retired from services in the year 2012. After such retirement, the husband of the petitioner was getting his pension and he had passed away on 18.09.2018.

2. It is the case of the petitioner that on such eventuality, the family pension is required to be paid to the petitioner, more so, when her name has been recorded as the nominee in the Service Book of the deceased government employee. It is the further case of the petitioner that her husband had entered into a second marriage with the respondent no. 6, which was however, during the subsistence of the marriage with her and it appears that certain documents which were in the custody of the respondent no. 6 were utilized and accordingly, the petitioner was deprived from the pensionary benefits.

3. I have heard Ms. G. Borah, learned counsel for the petitioner. I have also heard Ms. D. Das Barman, learned State Counsel for the official respondents and Ms. K. Devi, learned counsel for the respondent no. 6.

4. Ms. Borah, the learned counsel for the petitioner has submitted that it is not in dispute that the second marriage with the respondent no. 6 was entered into during the subsistence of the marriage of the deceased government servant with the petitioner and the parties being Hindus, the said marriage is invalid in the eyes of law. It is also submitted that the petitioner's name being given as the nominee in the Service Book of the deceased government servant, there is no reason for depriving the petitioner from the family pension. She has also informed that the petitioner is aged about 80 years having six children and one of the children is mentally challenged and therefore, grave hardship is being faced in her day to day life.

5. Ms. Barman, the learned State Counsel, has contended that as per the Assam Services (Pension) Rules, 1969 (Rules of 1969), the petitioner being the wife would be the person who is entitled to the family pension. However, there is an affidavit which was submitted by the present petitioner whereby she had expressed no objection if the pension amount is given to the respondent no. 6. In fact, a copy of the said affidavit along with the forwarding letter dated 12.02.2024 issued by the Dy. Inspector of Schools, Mashalpur to the Director of Pension was also placed before this Court which has been made a part of the record vide order dated 21.05.2025.

6. Ms. Devi, learned counsel for the respondent no. 6 has submitted that the aspect that her client is the second wife of the deceased government employee is not disputed. However, she relies upon an affidavit by the petitioner whereby no objection was given if the family pension was paid in the account of her client. She has drawn the attention of this Court to the affidavit filed by the petitioner which was duly notarized and signed by the petitioner in accordance with law. She has also submitted that both the petitioner and the respondent no.6 are actually sisters and she and her client is personally aware of such affidavit being filed. She has also referred to the pleadings made in paragraph 12 of the writ petition wherein the petitioner has stated that she