Offspring From An Illegitimate Marriage Of Deceased Also Entitled To Family Pensionary Benefit: Gauhati High Court [Read Order]

"Even the offspring of a wife of a deceased, whose marriage may not be legitimate, would also be entitled to the family pensionery benefit pertaining to such deceased," the Single Bench of Justice Achintya Malla Bujor Barua held.

The order was passed in a writ petition filed by one Nikita Sutar, minor daughter of the second wife of the deceased, Chandra Chetry Sutar. As per the facts of the case, the deceased entered into a marriage with the Petitioner's mother, after his first wife left him.

The question before the Court was whether a child from such a marriage will be entitled to the deceased's family pension.

The Bench noted that this issue is no longer res integra and was discussed by the Supreme Court in Rameshwari Devi v. State of Bihar & Ors., (2000) 2 SCC 431.

In this case, the dispute before the Supreme Court was between two wives namely Rameshwari Devi and Yogmaya Devi. Whereas the pensionary benefits of their deceased husband Narain Lal were being paid to the first wife, Rameshwari Devi, his second wife, Yogmaya Devi and her children had instituted a writ petition before the Patna High Court, which was allowed by the Single Judge by providing that the minor children of Yogmaya Devi would also be entitled to a share of the family pensionery benefit. The appeal filed against the judgment of the Single Judge failed and accordingly, a further appeal was carried before the Supreme Court.

The Supreme Court arrived at a conclusion that although Yogmaya Devi cannot be described as a widow of the deceased, as her marriage was void, but the sons of the marriage between Narain Lal and Yogmaya Devi being the legitimate sons of Narain Lal would be entitled to the property of Narain Lal in equal share along with the wife Rameshwari Devi and the other children of Rameshwari Devi.

It had observed thus,

"It cannot be disputed that the marriage between Narain Lal and Yogmaya Devi was in contravention of clause (i) of Section 5 of the Hindu Marriage Act and was a void marriage. Under Section 16 of this Act, children of void marriage are legitimate. Under the Hindu Succession Act, 1956, property of a male Hindu dying intestate devolve firstly on heirs in clause (1) which include widow and son. Among the widow and son, they all get shares. Yogmaya Devi cannot be described a widow of Narain Lal, her marriage with Narain Lal being void. Sons of the marriage between Narain Lal and Yogmaya Devi being the legitimate sons of Narain Lal would be entitled to the property of Narain Lal in equal shares along with that of Rameshwari Devi and the son born from the marriage of Rameshwari Devi with Narain Lal."

In view of the law laid down by the Supreme Court in this case, the High Court held that the Petitioner would be entitled to the deceased's pensionary benefits and directed the concerned authority to decide the share of the petitioner to the family pensionary benefits, vis-à-vis other Respondents.

Case Title: Nikita Sutar Minor v. State of Assam & Ors.

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