Jaymati Brahma Vs the State of Assam and 5 Ors.

The subject matter of this writ petition is a claim for family pension. As per case projected, the petitioner is the first wife of one Pabin Chandra Brahma, who was working as an Assistant Teacher of the Sairabari L.P. School in the district of Mushalpur, who had retired from services in the year 2012. After such retirement, the husband of the petitioner was getting his pension and he had passed away on 18.09.2018.

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It is the case of the petitioner that on such eventuality, the family pension is required to be paid to the petitioner, more so, when her name has been recorded as the nominee in the Service Book of the deceased government employee. It is the further case of the petitioner that her

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husband had entered into a second marriage with the respondent no. 6, which was however, during the subsistence of the marriage with her and it appears that certain documents which were in the custody of the respondent no. 6 were utilized and accordingly, the petitioner was deprived from the pensionary benefits.

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I have heard Ms. G. Borah, learned counsel for the petitioner. I have also heard Ms. D. Das Barman, learned State Counsel for the official respondents and Ms. K. Devi, learned counsel for the respondent no. 6.

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Ms. Borah, the learned counsel for the petitioner has submitted that it is not in dispute that the second marriage with the respondent no. 6 was entered into during the subsistence of the marriage of the deceased government servant with the petitioner and the parties being Hindus, the said marriage is invalid in the eyes of law. It is also submitted that the petitioner's name being given as the nominee in the Service Book of the deceased government servant, there is no reason for depriving the petitioner from the family pension. She has also informed that the petitioner is aged about 80 years having six children and one of the children is mentally challenged and therefore, grave hardship is being faced in her day to day life.

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Ms. Barman, the learned State Counsel, has contended that as per the Assam Services (Pension) Rules, 1969 (Rules of 1969), the petitioner being the wife would be the person who is entitled to the family pension. However, there is an affidavit which was submitted by the present petitioner whereby she had expressed no objection if the pension amount is given to the respondent no. 6. In fact, a copy of the said affidavit along with the forwarding letter dated 12.02.2024 issued by the Dy. Inspector of

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Schools, Mashalpur to the Director of Pension was also placed before this Court which has been made a part of the record vide order dated 21.05.2025.

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Ms. Devi, learned counsel for the respondent no. 6 has submitted that the aspect that her client is the second wife of the deceased government employee is not disputed. However, she relies upon an affidavit by the petitioner whereby no objection was given if the family pension was paid in the account of her client. She has drawn the attention of this Court to the affidavit filed by the petitioner which was duly notarized and signed by the petitioner in accordance with law. She has also submitted that both the petitioner and the respondent no.6 are actually sisters and she and her client is personally aware of such affidavit being filed. She has also referred to the pleadings made in paragraph 12 of the writ petition wherein the petitioner has stated that she would not have any objection if the family pension is equally apportioned between the petitioner and the respondent no. 6.

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Ms. Borah, learned counsel for the petitioner has stoutly refuted the aspect of submitting any affidavit making such declaration. She has submitted that the petitioner is illiterate and puts her thumb impression. However, she points out that in the affidavit alleged to have been submitted by her client, the signature appears which itself would prima facie show that the affidavit is a manufactured one. She has also reiterated that as per law, there is no concept of second wife under the Hindu Marriage Act, 1955 and accordingly no pensionary benefits can be paid to such second wife.

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The learned counsel for the petitioner has also relied upon the case of the Hon’ble Supreme Court in G.L. Bhatia Vs. Union of India reported

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in (1999) 5 SCC 237 wherein it has been laid down that the right to family pension cannot be defeated by making a nomination contrary to the Pension Rules and such nomination would have to be considered as inoperative. She submits that even if the affidavit in question which otherwise is disputed by her is taken into consideration, that cannot override the mandate of the Rules governing the field.

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The rival contentions have been duly considered and the materials placed before this Court have been carefully perused.

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From the pleadings exchanged and submissions advanced by the rival parties, it is not in dispute that the petitioner is the legally married wife of the deceased employee, who had passed away in the year 2018. In fact, the respondent no. 6 has candidly admitted the aforesaid aspect.

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The Hindu Marriage Act, 1955 (Act of 1955), which governs the parties does not envisage any second marriage and in fact one of the conditions for a Hindu marriage has laid down under Section 5(i) which states that neither party should have a spouse living at the time of the marriage. Section 11 of the said Act lays down that if there is a contravention of the aforesaid clause, such marriage would be void. However, Section 16 lays down that children born out of void and voidable marriage would however be legitimate.

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In the instant case, there is another aspect as advanced by the learned counsel for the respondent no. 6 which is in the form of an affidavit alleged to have been filed by the petitioner. The said affidavit which has been made part of the records along with the forwarding letter dated 12.02.2024, as observed above would however reveal that a no objection

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was given by the petitioner, if the amount in question is paid in the bank account of the respondent no.6. The execution of the affidavit however is categorically denied by the petitioner, who further contends that she is an illiterate whereas the affidavit contains her signature. Even without going to the aspect as to whether the affidavit said to have been filed on 19.10.2023 is a manufactured one or not, the aspect that the petitioner is the first wife is not in dispute. The parties being Hindus and there is no concept of any second marriage, the respondent no. 6, as such cannot have any claim over the family pension.

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Under Rule 143 of the Pension Rules of 1969, family pension is only provided for the wife and other dependents who have been named and does not envisage any such payment to a second wife. There is also a note appended where two or more widows exist. The said note has to be construed to be in the context of a marriage other than a Hindu marriage and even in case of a Hindu marriage which was solemnized prior to the enactment of the 1955 Act. The said note is extracted hereinbelow-

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“Note1. In case where there are two or more widows pension will be payable to eldest- surviving widow. On her death it will be payable to the next surviving window, if any. The terms eldest would mean seniority with reference to the date of marriage.”

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Further, as per Rule 143(iii), such pension is not payable to more than one member. For ready reference, the Rule is extracted hereinbelow-

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“(iii) Pension awarded under the rules in this Section will not be payable to more than one member of an officer’s family at the same time. It will first be admissible to the widow/ widower and thereafter

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to the minor children.”

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In view of the aforesaid discussion, this Court is of the opinion that since the law holding the field provides for payment of family pension to the first wife, the petitioner would be entitled to the relief claimed. Accordingly, family pension is directed to be released to the petitioner. However, it is also clarified that there would be no bar for the contesting parties, namely, the petitioner and the respondent no. 6 to come to any agreement for apportionment of the family pension, if the petitioner so desires.

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The aspect of release of family pension be undertaken and completed expeditiously and preferably within an outer limit of 60 days from today and in that regard, the petitioner would provide all cooperation.

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The writ petition accordingly stands allowed in the manner indicated above.

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Jaymati Brahma v. the State of Assam and 5 Ors.

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Jaymati Brahma v. the State of Assam and 5 Ors.

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