The second marriage of a soldier was deemed void under Army Regulations, denying the second wife entitlement to family pension.

JUDGMENT :

Heard Sri Ashok Kumar Srivastava, the learned counsel for the petitioner, Sri S.B. Pandey, the learned Senior Advocate/Deputy Solicitor General of India assisted by Sri Varun Pandey, the learned counsel for the opposite parties and perused the material available on record.

2. By means of the instant petition filed under Article 226 of the Constitution of India, the petitioner has prayed for the following reliefs :

''(i) Issue a writ, order or direction in the nature of Certiorari for quashing of impugned orders dated 20.11.2023 and 08 April 2024 passed by Armed Forces Tribunal (RB), Lucknow annexed as Annexure 1 and 2 respectively to this petition and thereby grant her entitled Ordinary Family Pension w.e.f. 14 Jul 2016 i.e., pursuant to death of her husband on 13 Jul 2016.

(ii) Issue/pass an order or direction of appropriate nature to summon and quash/set aside orders leading to denial of petitioner's ordinary family pension w.e.f. 14.7.2016 i.e., after her husband's death on 13.7.2016.

(iii) Issue/pass an order or direction of appropriate nature to opposite parties to grant ordinary family pension, LTA and ensuing benefits to the petitioner w.e.f 14.7.2016, i.e., after her husband's death on 13 Jul.2016.

(iv) Issue a writ, order of direction in the nature of mandamus commanding respondent to pay the arrears of all dues and arrears of ordinary family pension from the due date till actual disbursement of aforesaid arrear alongwith the interest of 12% per annum.

(v) Issue a writ, order of direction which this Hon'ble Court deems fit and proper under the facts and circumstances of the case in favour of the petitioner in the interest of justice.

(vi) Allow the writ petition with cost.''

3. Briefly stated, the facts of the case as pleaded on behalf of the petitioner are that the petitioner is the second wife of late Subedar Tek Bahadur Thapa (a Gorkha from Nepal). Late Tek Bahadur Thapa was enrolled in the Indian Army on 28.11.1961 and he was discharged from service with effect from 30.11.1989. He was paid pension till his death on 13.7.2016. The petitioner claims that she got married to late Tek Bahadur Thapa on 6.3.1969. After her marriage, the petitioner learnt that her husband was already married to Smt. Dalli Maya Kumal on 7.2.1953 and he had four daughters and a son out of that wedlock. At the time of death of Tek Bahadur Thapa, all five children from his first wife were above 25 years of age and married and they were not entitled to claim family pension. In the service record of late Tek Bahadur Thapa, the name of his wife is mentioned as Smt. Dalli Maya Kumal, but the photograph affixed shows the petitioner as wife of Late Tek Bahadur Thapa.

4. The petitioner made a claim for payment of family pension which was denied on the ground that her name was not entered in the service documents of late Tek Bahadur Thapa and also that late Tek Bahadur Thapa had married Smt. Dalli Maya Kumal prior to marrying the petitioner and thus he had married plural times without obtaining sanction from the competent authority.

5. Aggrieved against the denial of her claim, the petitioner filed Original Application No. 989 of 2022 before the Armed Forces Tribunal, Regional Bench, Lucknow, which has been dismissed by means of a judgment and order dated 20.11.2023, which order has been assailed by means of the instant writ petition.

6. The Armed Forces Tribunal found that Late Tek Bahadur Thapa had married the petitioner during subsistence of his first marriage with Smt. Dalli Maya Kumal without taking permission from the competent authority and as per Regulation 333 of Defense Service Regulations, his second marriage with the petitioner was void. Regulation 333 of the aforesaid Regulations provide as follows :

''333. PLURAL Marriages.-(A) The Special Marriage Act 1954 and Hindu Marriage Act 1955 lay down the rule of 'Monogamy' that is, neither party has a spouse living at the time of marriage, these Acts also provide for decrees, of nullity of marri