A second marriage contracted during the subsistence of a first marriage is void, disentitling the second wife to pensionary benefits. However, a minor child born from such a void marriage remains entitled to a proportionate share of the family pension under the applicable pension rules.

JUDGMENT & ORDER :

(Ashutosh Kumar, CJ.)

We have heard Mr. S. Nath, learned Advocate for the petitioners; Ms. A. Gayan, learned Central Government Counsel for respondent Nos.1 to 4 and Mr. H.K. Das, learned Senior Advocate/Amicus Curiae, assisted by Mr. N.K. Sarma, learned Advocate.

2. The petitioners, namely, Smti. Bharati Saikia (petitioner No.1), the second wife of the deceased employee (Late Amal Saikia) and Mousum Saikia (petitioner No.2), their minor son, aged about 12 years, through the petitioner No.1, have sought a share of family pension, death gratuity and other retiral benefits, like – Leave Encashment, Group Insurance, Provident Fund, etc., as dependants of the deceased Railway employee, asserting their eligibility under the Railway Services (Pension) Rules, 1993 (hereinafter to be referred as the “Pension Rules of 1993”), particularly, Rules 70 and 75(7)(i)(a) and (b), which prayer was denied by the Central Administrative Tribunal, Guwahati Bench, Guwahati (hereinafter to be referred as the “Tribunal”) in Original Application No.040/00264/2020 vide order dated 22.03.2023.

3. The Tribunal was of the view that the balance of convenience stood in favour of the first wife, i.e. Smti. Malati Saikia (respondent No.5) and her children. The respondent/Railway was thus directed to grant family pension and other retiral benefits to her, who is the first and legally married wife of the deceased employee.

4. Hence, this writ petition.

5. Late Amal Saikia, employed as a Jamadar Peon at the Pay Office, Lumding, N.F. Railway since 30.04.1990, was previously married to Smti. Malati Saikia (respondent No.5) in the year 1987, with whom he had a son by the name of Jitumoni Saikia (aged about 24 to 25 years).

6. The claim of the petitioners is that Malati Saikia was separated from the deceased employee in the year 2001, after which he married the petitioner No.1 (Smti. Bharati Saikia) in 2010, and they lived together in a Railway Quarter until his death. The petitioner No.1 was unaware of the first marriage of her late husband until his death. According to her, Rule 75(7)(i)(a) of the Pension Rules of 1993 mandates equal sharing of family pension amongst the widows and Rule 70 includes wives and sons (including from a second marriage) for death gratuity, irrespective of personal law restrictions.

7. The Railway Authorities had contended before the Tribunal as also before this Court that the deceased employee had never disclosed his second marriage or son during his service and Malati Saikia (respondent No.5) was the officially declared wife as per his family declarations. It was further argued that the second marriage was void under the Hindu Marriage Act, 1955, as the deceased employee had not divorced the respondent No.5 and thus, the petitioners were not entitled to the benefits. On the other hand, respondent No.5 claimed to be the legally married wife, asserting her marriage in the year 1988 and birth of 3(three) children out of their wedlock and separation in 2001 due to her being driven out. She also claimed that the marriage of the deceased employee with the petitioner No.1 was void as it was during the subsistence of her marriage with him.

8. Rule 70 of the 1993 Rules provides for grant of death gratuity. For the purpose of the said Rule 70, “family” under sub-clause (5) thereof, inter alia, includes wife or wives including judicially separated wife or wives in the case of a male Railway servant and sons including step-sons and adopted sons. Rule 75 deals with Family Pension Scheme for Railway