The entitlement to pension under the CCS (Pension) Rules, 1972 is subject to the recognition of marriage under the Hindu Marriage Act, 1955, and customary law.

Heard Mr. K. Roy, learned counsel appearing for the petitioner as well as Mr. B. Dutta, learned State counsel for the respondent Nos. 1, 2 and 3, Mr. A. Roy Barman, learned CGC appearing for the respondents No. 4 and 5 and Mr. R.C. Debnath, learned counsel appearing for the respondent No.6.

2. Here is a dispute which arises for adjudication before this court under its extraordinary jurisdiction in terms of Article 226 of the Constitution between two ladies who have claimed to be the wives of one Thaingya Mog who died on 20.11.2008. Late Thaingya Mog was serving as a Constable under the Department of Home. After his death a survival certificate was issued by the Sub-Divisional Magistrate, Shantirbazar, South Tripura under No. F.(2)/SDM/STB/SFC/2007/75 dated 22.09.2009 referring the petitioner as well as Smt. Chaingoya Mog, the respondent No.6 respectively as the second wife and the first wife of late Thaingya Mog. However, named of their children are also incorporated in the said survival certificate. So far the status of the children are concerned there is no dispute. Even according to Mr. Roy, learned counsel appearing for the petitioner, no dispute exists between the petitioner and the respondent No.6, as they have arrived at an amicable settlement. Both of them are agreeable to share the pension equally. Even some amount, out of the DCRG and other retiral benefit, was released to the petitioner without any objection from any parties. But when the question of release of the pension emerged, despite the declaration filed by the respondent No.6 and others that the petitioner is the second wife of late Thaiongya Mog, the Accountant General, Tripura has raised objection by the communication dated 14.07.2010 (Annexure-R-1 to the counter-affidavit filed by the respondent Nos. 1, 2 and 3). From the office of the Senior Deputy Accountant General (A&E), Tripura. It has been communicated that in terms of the provisions of CCS (Pension) Rules, 1972 which has been adopted by the Govt. of Tripura, the second wife cannot be granted any family pension as the second wife is not a legally married wife under the Hindu Marriage Act, 1955. Marriage by a Hindu after the commencement of Hindu Marriage Act, 1955, during the life-time of the first wife, will be a nullity and will have no legal effect. From the office of the Accountant General, Tripura, it has been clearly opined that only the first wife, the respondent No.6 would be entitled to receive the family pension on account of death of late Thainga Mog, Ex-constable of police.

3. Mr. K. Roy, learned counsel has referred to the provision of Rule 54(7)(a)(i) of the CCS (Pension) Rules, 1972 which, however, provides that where the family pension is payable to more widows then one, the family pension shall be paid to the widows in equal share. According to Mr. Roy, learned counsel appearing for the petitioner, since late Thaingya Mog had left two widows, both the widows are entitled to get equal share of the pension of late Thaingya Mog.

4. It is not in dispute that both the petitioner and the respondent No.6 filed an application to the Superintendent of Police, South Tripura, Udaipur for release of their pension and other retiral benefits on account of late Thaingya Mog. Later on, one Deputy Secretary to the Govt. of Tripura, by the communication dated 27.11.2010 written to the Director General of Police, West Tripura Agartala (Annexure R-5 to the counter-affidavit), observing that the Law Department opined that the second wife will not be entitled to the family pension as she is not the legally wedded wife. However, the 'rival-claimant' may get her right, if it is established in the court of competent Jurisdiction.

5. By filing a separate affidavit, the respondents No. 4 and 5 stood by what they opined by their said communication dated 14.07.2010. They have categorically asserted that the second wife, the petitioner herein, cannot be considered as the legally married wife and as such she is