Pension is payable to the widow and then to the eligible minor children.

One Abimannan was working as Havildhar in Indian Army and retired as such from service and thereafter he was receiving pension. While so, he expired on 5.4.1994. There is no dispute that the present petitioner is the widow of late Abimannan. Though disputed by the petitioner, for the purpose of this writ petition, it is assumed that the aforesaid Abimannan had married for the second time during life time of his first wife and the third respondent is the daughter begotten through the second marriage.

2. The dispute in the present writ petition is relating to eligibility of the third respondent to receive 50% of the family pension payable after the death of Abimannan. The second respondent in Proceedings No.G4/VI/MISC/DSC-96 dated 29.2.96 has sanctioned payment of 50% of the family pension to the third respondent on the footing that she was begotten through the second wife.

3. It is the contention of the petitioner that the deceased had nominated her as the beneficiary in the pension papers. It is further contended that the second respondent has committed illegality in allowing payment of 50% of the pension to the respondent No.3. On the aforesaid allegation, prayer has been made to quash the proceedings dated 29.2.1996 and to direct the respondents 1 & 2 to pay the family pension and other benefits to the petitioner.

4. A counter affidavit has been filed on behalf of the respondents 1 & 2 wherein it is indicated that apart from the petitioner and her four sons begotten through the petitioner, the deceased had married one lady Smt. Nainammal and had begotten two daughters through the second marriage and those two daughters are also the legal heirs as apparent from the legal heir certificate issued. It has been indicated that though the second marriage with Smt. Nainammal during the lifetime of the first wife was illegal and void under the Hindu Marriage Act, 1955, under the provisions of paragraph 9 of the Army Instruction 51/1980, the children of the second wife are entitled for the share of family pension. It has been indicated that since the second marriage is void, Smt. Nainammal is not entitled to any pension but, the children born to her are entitled to receive the pension as per the Army Instruction.

5. In course of hearing, the learned counsels appearing for the respondents 1 & 2 and for the respondent No.3 submitted that even though the second marriage was void, the children begotten through the second marriage shall be deemed to be the legitimate children of the deceased and are entitled to the properties of the deceased and therefore, the payment of pension to the third respondent cannot be characterised as illegal. In support of such contention, they have placed reliance upon a decision of the Supreme Court reported in 2000 AIR SCW 273 (RAMESHWASRI DEVI v. STATE OF BIHAR AND OTHERS).

6. As already indicated, it is unnecessary for me to decide about the factual aspect as to whether there was a second marriage with Smt. Nainammal and as to whether two daughters were born. For the purpose of deciding this writ petition, I proceed on the assumption that there was a second marriage and two daughters, including the respondent No.3, were born through such second marriage.

7. In view of the provisions contained in Sections 5(1) and 11 of the Hindu Marriage Act, the second marriage, if any, was void and as such Smt. Nainammal cannot be considered as wife (widow) of the deceased. However, Section 16 of the Act makes it clear that the children begotten through such void marriage shall be legitimate. However, in view of Section 16(3), such legitimacy shall not confer upon such children any right in or to any property of the person other than their parents. The question in this writ petition is not as to whether such children born through the alleged second marriage have any right to succeed to the properties of the deceased or not. The question is whether the third respondent is entitled to get the family pension.

8. The