The main legal point established in the judgment is that under the Hindu Marriage Act, 1955, a marriage with a living spouse is void, and the second wife has no entitlement to family pension. Additionally, a nomination contrary to statutory provisions does not confer entitlement to family pension.

Tarlok Singh Chauhan, J.

The plaintiff is the appellant, who aggrieved by the judgments and decrees passed by both the learned courts below, has filed the instant appeal.

2. The plaintiff has filed a suit claiming therein that she was entitled to family pension being legally wedded wife of deceased Havaldar Sohan Singh. It is averred that since the first wife of deceased Sohan Singh did not bear any male child, she persuaded her husband to take Fargati (customary divorce), and thereafter, the plaintiff solemnized Gandharav marriage on 16.1.1974 as per the will of his first wife. The first wife of Sohan Singh died on 6.11.1989 and after Sudhikaran, the plaintiff solemnized Brahm marriage on 15.2.1990 and the necessary Bhoj was given to the Biradri as per the prevailing customs. Out of the wedlock three children were born. The plaintiff being legally wedded wife of Sohan Singh made protracted correspondence with the defendants to release family pension in her favour, but to no avail. Hence, the suit.

3. The defendants filed written statement wherein preliminary objections regarding maintainability, valuation, cause of action, locus standi etc. were taken. On merit, it was averred that deceased Sohan Singh had retired on 4.2.1970 and was getting pension. As per record, he had married one Parwati Devi in the year 1936 and she was the only wife of deceased Sohan Singh. Defendants denied the factum of marriage between the plaintiff and deceased Sohan Singh and on such basis denied her entitlement for family pension.

4. The learned trial court on 20.8.2002 framed the following issues:

1. Whether the plaintiff is legally wedded wife of deceased Hav. Sohan Singh, as alleged? OPP

2. Whether the marriage of the plaintiff with Hav. Sohan Singh was solemnized during the life time of his previous wife Parwati Devi? If so, its effect? OPD

3. Whether the plaintiff is entitled to the relief of declaration, as prayed for? OPD

4. Whether the order No.G4/V/Misc/AMC/2001 dated 15th Feb. 2001 passed by CCDA (P) Allahabad is illegal, as alleged? OPP

5. Whether the plaintiff is entitled to the relief of mandatory injunction, as prayed for? OPP

6. Whether the suit in the present form is not maintainable, as alleged? OPD

7. Whether the suit has not been properly valued for the purposes of court fee and jurisdiction, as alleged? OPD

8. Whether the suit is bad for non-joinder and mis-joinder of necessary parties, as alleged? OPD

9. Whether no proper notice under section 80 C.P.C. has been served on the defendants, as alleged? OPD

10. Whether the plaintiff has no locus standi to file the present suit, as alleged? OPD

11. Whether the plaintiff has no cause of action to file the present suit, as alleged? OPD

12. Relief.

5. After recording the evidence and evaluating the same, the suit was dismissed and the appeal preferred against the judgment and decree also met with the same fate constraining the plaintiff to file the instant appeal.

6. The appeal came to be heard on 30.10.2007 and the following substantial questions of law were framed:

1. Whether the married couple can have a divorce as per the customs in the Birdari?

2. Whether the plaintiff not able to prove the relationship of legally wedded wife of Sohan Singh?

3. Whether the learned courts below have misread and mis-appreciated the oral and documentary evidence ion record and findings recorded are perverse and liable to be set aside?

4. Whether the findings are based on mere conjectures and surmises and are liable to be set aside?

Substantial Questions of Law No. 1 to 4:

7. Since all the substantial questions of law are intrinsically interlinked and interconnected, therefore, they are taken up together for consideration and are being disposed of by a common reasoning.

8. At the outset, it may be observed that the very premise on which the suit of the plaintiff proceeds is that Sohan Singh was already having a living spouse at the time when he allegedly performed Gandharav marriage with the plaintiff.

9. Admittedly,