WP(C) 2622/2008 BEFORE THE HON’BLE MR. JUSTICE AMITAVA ROY JUDGMENT AND ORDER (ORAL) An appropriate writ and/or direction has been sought for directing the r espondents to release to the petitioners an equal share of monthly pension, grat uity and other retiral benefits consequent upon the demise of their predecessor in interest Aniruddha Sahoo (since deceased). Whereas, the petitioner No. 1 cla ims to be his married wife, the petitioner No. 2 has been projected as his son t hrough the said matrimonial alliance. 02. I have heard Mr. KN Choudhury, Senior Advocate assisted by Mr. R Dubey, Advocate for the petitioners and Mr. K Gogoi, learned Central Government Counsel for the respondents. 03. A brief account of the pleaded facts would be essential. Accord ing to the petitioners, the petitioner No. 1 came in association with Aniruddha Sahoo, who at the relevant time, was in the service of the Central Reserve Polic e Force (hereafter for short referred to as the Force) and posted in one of its unit at Barpeta. The growing affiliation materialized in their marriage on 30.0 7.1997. The petitioners claim that at that time, he had introduced himself to b e Anil Sahoo, a resident of Orissa and disclosed his name to be Aniruddha Sahoo only after the marriage. Out of the wedlock the petitioner No. 2 was, eventuall y, born on 27.05.1999. Aniruddha Sahoo was transferred, thereafter to Kolkata i n the year 2002 and according to the petitioner No. 1, she resided with him as h is wife in the allotted Flat No. KC-593, Salt Lake City, Sector-III, Kolkata. D uring their stay, the petitioner No. 2 was admitted in Kendriya Vidyalaya. Late Aniruddha Sahoo’s job being transferable, he had to remain posted at different places. Nevertheless, he used to regularly remit money through money orders/dra fts for the maintenance of the petitioners. The petitioners have averred that t he petitioner No. 1 also had a joint savings account with Late Aniruddha Sahoo a t Andhra Bank, Salt Lake Branch at Kolkata being A/c No. SB 01/00003883. 04. While the matter rested at that, Late Aniruddha Sahoo fell ill a nd for medical treatment, was finally taken to the All India Institute of Medica l Science, New Delhi, where he was attended to by the petitioner No.1 along with her brother. He, however, passed away on 19.05.2007. According to the petitio ners, on the eve of his (Aniruddha Sahoo) death, he disclosed to the petitioner No. 1 about his previous marriage with the respondent No.6 at Orissa and the exi stence of three sons and one daughter through her. He also confided in the peti tioner No. 1 about his unhappy conjugal life with the said respondent, for which he had married her later in life. The petitioners have asserted that Late Anir uddha Sahoo just before his death, had also written and signed his declaration t o the effect that after his death the monthly pension, gratuity be released in f avour of the petitioner No. 1. 05. Bewildered by the sudden turn of events, the petitioner No. 1 be ing helpless, submitted a representation on 12.06.2007 accompanied by the suppor ting documents with the respondent authorities praying for grant of monthly pens ion and other retiral benefits due to them in law. In her said representation, the petitioner No. 1, however, limited her claim to the share of the petitioner No. 2 as the son of Aniruddha Sahoo through her. This representation was reject ed by the respondent No. 4 through his reply dated 24.07.2007 on the ground that as her name had not been referred to as his wife by Late Aniruddha Sahoo, there fore, in terms of the Central Civil Services Pension Rules, 1954 (hereafter for short referred to as the Rules), her claim was untenable. It was, further, ment ioned that the documents furnished with the representation disclosed her name to be Bhabani Sahoo and not Dharitri Sahoo. While contending that Bhabani Sahoo i s an alias of herself to Dharitri Sahoo, the petitioners have pleaded that durin g the treatment of late Aniruddha Sahoo an amount of Rs.30,000/- had been releas ed to them by the respondent authorities, which amongst others demonstrates the acceptance of their status by them as his successors in interest and, thus, they are entitled to receive their share of the pensionary benefits under the Rules. 06. The respondents in their affidavit have, in essence, contended t hat the claim of the petitioners is not sustainable in terms of Rule, 54 (8) of the Rules, firstly, in absence of her (petitioner No. 1) nomination by the decea sed and secondly in the light of the nullity of her marriage with him. Accordin g to them, the pensionary benefits have been computed and released to the respon dent No. 6 as the nominee and the first wife of the deceased. According to them , no information regarding the birth of the petitioner No.2 through the petition er No. 1, had also been conveyed to the Force. They have also expressed reserva tion with regard to the petitioner No.1’s claim of marriage with late Aniruddha Sahoo and the status of petitioner No. 2 as their son through their alliance. 07. Mr. Choudhury, with reference to Rule 54 (7) of the Rules has ur ged that it is apparent therefrom that the concept of more than one widow of a d eceased employee being eligible for pension thereunder, is not unknown in law, a nd thus having regard to the facts and circumstances of the case, the rejection of the petitioners’ claim for the retiral benefits is apparently flawed. Withou t prejudice to the above, the learned Senior Counsel has pleaded that in terms o f section 16 of the Hindu Marriage Act, 1955, even if the marriage between the p etitioner No. 1 and with Aniruddha Sahoo is held to be void, petitioner No. 2 is a legitimate child and, therefore, he is entitled to his share of the retiral b enefits as is prescribed thereby. Mr. Choudhury has urged that in order to prov ide a quietus to the lingering controversy, it is a fit case, where this Court, on a scrutiny of the materials on records would accept the claim of the petition er No. 2 as the son of Aniruddha Sahoo and direct the respondents to release 50% of the retiral benefits to the petitioner No. 1 as his natural guardian and leg al representative in law. Referring to the order dated 23.06.2008 passed by thi s Court, in the interim, restraining the respondents from releasing 50% of the a ccruing retiral benefits to the respondent No. 6, the learned Senior counsel has argued that the same be directed to be released in favour of the petitioner No. 2. In support of his contentions, Mr. Choudhury has placed reliance on the dec isions of the Apex Court in RAMESHWARI DEVI VS. STATE OF BIHAR & ORS., (2000) 2 SCC 431, VIDHYADHARI & ORS., VS. SUKHRANA BAI & ORS., (2008) 2 SCC 238 and of th is Court in AMINA KHATUN & ORS. VS. JAHURA KHATUN & ORS., 2004 (SUPPL.) GLT 67. 08. Mr. Gogoi, abiding by the pleaded stand of the respondents, has urged that in terms of the Rules, the petitioner’s claim cannot be entertained i n law and that acknowledging the respondent No. 6 to be the widow of late Anirud dha Sahoo, the retiral benefits are being released to her till date. 09. The pleadings of the parties and the arguments advanced have bee n duly considered. The letter 24.07.2007, whereby the petitioner’s representati on had been rejected, recites the following grounds in support thereof: - i) Names do not appear in the nomination form. ii) Marriage registration form along with other documents reflect the name of th e petitioner No. 1 to be Bhabani Sahoo and that of her husband to be Anil Kumar. iii) Under Rule 13 of the Rules second wife of an employee is not entitled to pe nsion. iv) No such nomination is available in the nomination form submitted by the dece ased employee. 10. Apart from the averments made on oath, bearing on the marriage b etween the petitioner No. 1 and Aniruddha Sahoo, supported by an affidavit, the petitioners have produced a copy of the marriage certificate to indicate the fac tum of marriage said to have been solemnized on 30.07.1997. A copy of the certi ficate of date of birth issued by the Director of Health Services, Government of Assam registering the birth of the petitioner No. 2, has also been brought on r ecord. A photo copy of the relevant page of the pass book relating to the Acco unt No. SB 01/00003883 has been furnished, as well. A copy of the document bein g an allotment order issued by the Director of Estates, Government of Assam pert aining to the flat referred to hereinabove, being allocated to Aniruddha Sahoo i s also a part of the records. A letter of authority by Sri Aniruddha Sahoo in f avour of Smt. Bhabani Sahoo to act as the guardian of petitioner No. 2 has been annexed, as well. The petitioners have also appended a copy of the declaration (Annexure - 6 to the writ petition), said to have been made by the deceased narr ating the circumstances under which he did enter into a second marriage with the petitioner No. 1, thereby requesting the authority concerned to defray the reti rement benefits and other related allowances in her favour. The petitioner’s re presentation dated 12.06.2007 as detailed the above facts in corroboration of th e documents referred to hereinabove. It is her categorical case that she is als o known as Bhabani Sahoo. 11. The respondent No. 6 inspite of being served with the notice of the proceeding has chosen not to arrange for her representation before this Cour t. The Office note dated 05.03.2009 clearly indicates that the notice dispatche d to her had been served, and that the A/D Card has returned thereafter. The of ficial respondents in their affidavit, though, have not clearly admitted the cor rectness of the averments made in the writ petition pertaining to the marriage o f the petitioner No. 1 with Aniruddha Sahoo and the status of the petitioner No. 2 as their son, there is no categorical denial thereof, either. Having regard to the overwhelming materials produced by the petitioners before this Court and in order to shorten the litigation and set at rest the controversy, it is consid ered appropriate to record a finding on this aspect in the instant proceeding it self. This is more so in absence of any refutation by the respondent No. 6 in t his regard. 12. On an evaluation of the pleadings of the parties and the documen ts on records, this Court is of the view that the petitioners’ claim of being th e successors in interest of the deceased Aniruddha Sahoo has to be upheld. In o ther words, this Court accepts their claim that the petitioner No. 1 had been th e second wife of Aniruddha Sahoo and that the petitioner No.2 is the son through the said wedlock. 13. Indubitably, however, as the parties, admittedly, are Hindus and are governed by the Hindu Marriage Act, 1955, the marriage of the petitioner No . 1 having been solemnized during the subsistence of the first marriage of Aniru ddha Sahoo with the respondent No. 6, the same has to be construed to be void. The above notwithstanding, in terms of the section 16 of the said Act, the petit ioner No. 2, their son has to be construed to be legitimate and that therefore, his claim for his share under the personal law to the property of Aniruddha Saho o cannot be denied, which would be in equal share with the respondent No. 6. 14. The Apex Court in RAMESHWARI DEVI (Supra), being seised with an almost identical fact situation, had upheld the apportionment of the shares of p roperty of a male deceased in equal shares between his legally married wife with her children and the children of a lady, whose marriage with him had been adjud ged to be void under the Hindu Marriage Act, 1955. The same view was reiterated by the Apex Court in VIDHYADHARI & ORS. (Supra). Incidentally, this Court in A MINA KHATUN & ORS. (Supra), had held that pension and other retirement benefits and personal properties of the deceased ought to be distributed amongst his lega l heirs as per the provisions of the personal law. The parties thereto, as were , mohammedans, this Court referred to the provisions of the Mohammedan Law while laying down this proposition. The essence of the enunciation that the pension and retirement benefits are to b e construed as personal properties to be distributed amongst the heirs in terms of the personal law, in the opinion of this Court, can be drawn to the facts and circumstances of this case, as well. This, in substance, signifies supercessio n of the provisions of the relevant Rules to the contrary governing the aspect o f entitlement to the said benefit. On a cumulative consideration of the pronoun cements noticed hereinabove, this Court is of the view that the petitioner No. 2 as the son of the petitioner No. 1 and Aniruddha Sahoo (since deceased), cannot be denied his share of pension and other retiral benefits due upon the death of his father of late Aniruddha Sahoo in equal proportion to that of the responden t No. 6. The learned Central Government Standing Counsel has also not been able to draw t he attention of this Court to any provision of law negating this view. 15. On a totality of the considerations as above, this petition, the refore, stands disposed of with a direction to the respondent authorities, more particularly, the Director General of Police, Central Reserve Police Force, Bloc k No. 1 CGO Complex, Lodhi Road, New Delhi - 03, to cause immediate steps to be taken to ensure that 50% of the pension and other accruing retiral benefits on a nd from 23.06.2008 be released in favour of the petitioner No. 2. The petitione rs would submit a certified copy of this order before the respondent No. 3, who would take necessary steps thereon forthwith to ensure that the directions passe d herein are implemented without undue delay. The petitions stands allowed to t he extent indicated hereinabove. No costs.