JUDGMENT

A. S. NAIDU, J. — The point which needs determination in the present writ application is as to whether “two widows” of a Government employee are entitled to receive family pension in consonance with Rule 49(6)(i) of the Orissa Civil Services (Pension) Rules, 1992 (hereinafter referred to as “Pension Rules, 1992”) read with Rule 56 (6)(a)(i) of the said Rules. For the sake of brevity, the aforesaid two rules are quoted herein below :

“49. Death/retirement gratuity - (1) In the case of a Gov¬ernment servant, who has completed five years of qualifying service, on retirement from service shall be paid a Retirement Gratuity equal to one-fourth of his last emoluments for each completed six monthly period of qualifying service subject to a maximum of 16 1/2 times of the emoluments.

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(6) For the purpose of this rule and Rules 50,52 and 53, “family” in relation to a Government servant means-

(i) wife or wives (including judicially separated wife or wives) in the case of a male Government servant:”

Rule 56 of the Pension Rules deals with family pension which reads as follows :

“56. Family Pension - (1) The Provisions of this rule shall apply -

(i) to a Government servant entering service in a pensionable establishment on or after the 1st January, 1964; and

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(6)(a)(i) Where the family pension is payable to more than one widow the family pension shall be paid to widows in equal shares.”

Relying upon the aforesaid two Rules, the petitioner, claiming to be the second wife of late Gatikrishna Nayak who retired as a primary school teacher of Rasal L.P. School of Dhenkanal district and has expired on 30.9.76, has filed this writ application for issuance of writ of mandamus to the opp. parties, directing them to release 50% of family pension along with T.I. in her favour. It is asserted that in consonance with Rule 8 of the Orissa Aided Educational Institutions (Non-Govt. Filly Aided Primary School Teacher Retirement Benefit) Rules, 1986, her husband, late Gati Krishna Nayak, was entitled to receive pension and after his death, the two widows of late Gati Krishna Nayak are also enti¬tled to receive family pension. It is emphatically asserted that the petitioner married said Gati Krishna Nayak prior to 1947 and out of the said wed-lock, a son was born on 1.7.1947. The mar¬riage being before 18th May, 1955, when the Hindu Marriage Act was not promulgated, the same could not be treated as void though the first wife of late Gati Krishna Nayak was alive at the rele¬vant time.

2. It is no more res integra that in consonance with Section 5 of the Hindu Marriage Act (Act 25 of 1955), for a lawful marriage the necessary condition required is, neither party should have a spouse living at the time of marriage. The marriage in contravention of this condition would be null and void.

Similarly in consonance with Rule 24 (2) of the Orissa Government Servants' Conduct Rules, 1959, no Government servant having a spouse living can enter into or contract a marriage with any person. The proviso to the said rule reads as follows :

“Provided that the Government may permit a Government serv¬ant to enter into or contract any such marriage as is referred to in Clause (1) or Clause (2), if they are satisfied, that :

(a) such marriage is permissible under the personal law applica¬ble to such Government servant and the other party to the mar¬riage; and

(b) there are other grounds for so doing.”

Thus, though the Orissa Government Servants’ Conduct Rules creates a bar for second marriage, under the provisions of Rule 24(2), a Govt. servant can marry after obtaining prior permission, if his case is covered under the proviso. The Orissa Government Servants’ Conduct Rules, 1959 was promulgated only on April 7, 1950 and cannot be retrospectively made applicable.

3. The learned Addl. Govt. Advocate submits that according to the provisions of the Hindu Marriage Act, the second marriage being ab initio void, the word ‘wives’ appearing in the