RUHINI DAS Vs. STATE OF ASSAM AND OTHERS

JUDGEMENT

(1.) Heard Mr. D. Choudhury, learned Advocate for the petitioner, Mr. B. Goswami, learned Advocate for the respondent Nos. 1 to 3 and Mr. Sur, learned C.G.S.C. for the respondents Nos. 4 an 6. None appears for the respondent No. 5 in spite of service of notice. The admitted position in this case is that the petitioner herein was the legally married wife of the deceased Lt. Machab. During the subsistence of that marriage and after 1955 i.e., after coming into effect of the Hindu Marriage Act, 1955, the deceased Madhab Chandra Das married respondent No. 5 for the second time, this marriage would be a void marriage under Sec. 11 of the Hindu Marriage Act, 1955, as Sec. 11 provides as follows:

(2.) Clause 1 of Sec. 5 of the Hindu Marriage Act provides as follows :

(3.) A marriage to be valid must fulfill three of the conditions enacted in Sec. 5 as mentioned in Sec. 11. The present Sec. i.e., Sec. 11 provides Itself that contravening any one of the conditions shall render the marriage solemnized after the commencement of this Act to be null and void from its inception. After 1955 the law is that marriage in case of Hindus can only be monogamous and in that view of the matter the respondent No. 5 cannot be deemed to be wife in the eye of law. but it is made clear by Sec. 16 of the Hindu Marriage Act that the children out of such a void marriage shall be illegitimate children in the eye of law but gives all the legitimacy for the purpose of inheritance even when decree of nullity is obtained. So, the children born out of such union shall not be deprived of their right to get share of the property equally with the legitimate children. It is in that background that we must decide the present controversy. The present controversy in this writ application is that the nomination was given by the deceased Madhab Chandra Das in favour of the respondent No. 5 to get the family pension and the authority now on the basis of that nomination wants to give the family pension to respondent No. 5 and not to the petitioner. Mr. Choudhary, Learned Advocate for the petitioner draws my attention to Rule 136 of the Assam Services (Pension) Rules 1969. Rule 136(1) provides for nomination. Then Rule 136(1) (a) provides that the family for the purpose of this Rule will include the following relatives of the officer;