Judgment · High Court

I have heard Mr. Hussain, learned Counsel for the petitioner and Mr. U.K. Goswami, learned Standing Counsel, Education Department. Also heard Mr . T.J. Mahanta, learned Counsel for the respondent No. 5. The petitioner admittedly is the second wife of the deceased. Ac cording to her, the marriage was solemnised in the year 1990 with the consent of the first wife, the respondent No. 5. She admits that the respondent wife was m arried long before the alliance with her and that through her wedlock she had bo rne three sons and one daughter with the deceased who as on date are major in ag e. According to her, she has one unmarried daughter through her marriage who pre sently is aged 17 years. She has, therefore, in the capacity of the second wife claimed her share in the pension and other retiral benefits consequent upon the death of her husband at par with the respondent No. 5. The first wife (respondent No.

5) has resisted the claim by contending inter ali a that the matrimonial alliance of her husband with the petitioner is not legal and valid. She has also denied her consent in the second marriage. According to her, the petitioner has no legal claim to the pensionary and other retiral benef its. No other respondent has filed any affidavit. Whereas Mr. Hussain has urged that as the marriage of the petiti oner was in conformity with the religious rituals and that too with the consent of the respondent No. 5, the same is valid and that she has an equal share in th e pensionary benefits of the deceased, Mr. Mahanta has contended that as admitte dly the marriage of the petitioner was subsequent to that of the one with the re spondent No. 5, by no means the same can be said to be valid in law and, therefo re, the claim of the petitioner is misconceived. There is, however, no dissensio n that through the second marriage the petitioner has begotten one son through t he common husband, who is surviving as on date.

In the context of the controversy seeking the resolution of this Court, the admission of the petitioner that her marriage with the deceased was subsequent in point of time is of formidable significance. The parties are Hindu s and, therefore, in terms of the personal law governing them, her marriage with the late husband cannot be recognised in law. However, in terms of a catena of decisions recognising the right of such an illegitimate child of such otherwise invalid marriage as a heir of the Hindu deceased, the petitioner’s son would be entitled to have his share in the pension and other retiral benefits in that cap acity. This view amongst others finds support in the one expressed in Rameshwari Devi versus State of Bihar and others, (2000) 2 SCC 431, acknowledging the righ t of the children of the second marriage between Hindus to receive family pensio n while rejecting the same for the second wife.

The parties therein were Hindus and were governed by the Hindu Marriage Act, 1956, which did not recognise a sec ond marriage. Applying the above ratio, this Court is of the view that the son of the petitioner through the deceased would be entitled to his share in the fa mily pension as one of his heirs under the personal law governing devolution of property. The petitioner’s claim as the second wife of the deceased is hereby ne gated. In view of the above, the concerned departmental authorities would proces s the claim of the petitioner’s son and that of the respondent No. 5 in accordan ce with this determination as well as the other provisions of the relevant Rules . While making the apportionment, to obviate future controversies, the concerned authority would accord an opportunity of hearing to both the parties and also d ecide on the working arrangement for the disbursement of the amount so quantifie d. The petition stands disposed in the above terms. No costs.