( 1. ) IN this writ petition, petitioner is admittedly second wife of the deceased employee. It is also not in dispute that her marriage was performed with deceased Shri Rambahori during the lifetime of the first wife. First wife had died in the year 1994 and the second marriage was performed in the year 1990.

( 2. ) PETITIONER is claiming family pension after death of her husband namely Shri Rambahori Pyasi. Shri Rambahori Pyasi has died on 17-8-2001. Petitioner has been denied the family pension by the M. P. State Electricity Board. Death cum Retirement Gratuity has been kept in Bank deposit to be paid to the sons of the petitioner on their attaining the age of maturity.

( 3. ) THE question agitated is about the entitlement of the petitioner for pension and gratuity. Family has been defined in Sub-rule (5) of Rule 44 of M. P. Civil Services Pension Rules in relation to Govt. servant, which reads thus :

(5) For the purpose of this Rule and Rules 45 and 46 family in relation to Government servant means :

(i) Wife in the case of a male Government servant, (ii) Husband, in the case of a female Government servant, (iii) Sons including steps sons and adopted sons, (iv) Unmarried daughters including step daughters and adopted daughters, (v) Widowed daughters including step daughters and adopted daughters, (vi) Father, including adoptive parents in the case of individuals, (vii) Mothers, whose personal law permits adoption, (viii) Brothers below the age of eighteen years including step brothers, (ix) Unmarried sisters and widowed sisters including step sisters, (x) Married daughters, and (xi) Children of pre-deceased son.

It includes wife in case of male Govt. servant. Second wife is not included in the definition of family as in the lifetime of first wife, second marriage is void. In the instant case second marriage was performed admittedly in the lifetime of first wife. The children of the petitioner are in receipt of the family pension, is not in dispute. They are also entitled for Death Cum Retirement Gratuity on attaining the age of maturity. Though the nomination has been made in favour of the petitioner for receiving the gratuity, however as per Rule 46 the nomination shall not be in favour of any person or persons other than the members of his family as defined in Rule 44, in case such a members is available. It is not in dispute that such a member of family as defined in Rule 44 (5) was available when nomination was made, as such nomination can not be held good for the purpose of payment of Death Cum Retirement Gratuity. It has to be paid to the children born to the deceased from the petitioner. It has been rightly kept in fixed deposit in Nationalized Bank. In the circumstances, it is directed that the fixed deposit be continued till it is disbursed to the children of the deceased born from the petitioner.

( 4. ) THE question of payment of family pension is no more res Integra. The Apex Court in Rameshwari Devi v. State of Bihar and Ors. ,, AIR2000 SC 735 , 2000 (2 )BLJR1052 , I (2000 )DMC164 SC , [2000 (85 )FLR174 ], JT2000 (1 ) SC 328 , (2000 )I LLJ1087 SC , (2000 )II MLJ135 (SC ), 2000 (3 )MPHT60 , RLW2000 (1 )SC 101 , 2000 (1 )SCALE262 , (2000 )2 SCC431 , [2000 ]1 SCR390 , (2000 )1 UPLBEC676 , has held thus :14. It cannot be disputed that the marriage between Narain Lal and Yogmaya Devi was in contravention of Clause (i) of Section 5 of the Hindu Marriage Act and was a void marriage. Under Section 16 of this Act, children of void marriage are legitimate. Under the Hindu Succession Act, 1956, property of a male Hindu dying intestate devolve firstly on heirs in Clause (1) which include widow and son. Among the widow and son, they all get shares (see Sections 8, 10 and the Schedule to the Hindu Succession Act, 1956 ). Yogmaya Devi cannot be described a widow of Narain Lal, her marriage with Narain Lal being void. Sons of the marriage between Narain Lal and Yogmaya Devi being the legitimate sons of Narain Lal would be en