Smti. Bharati Saikia And Anr. vs Union Of India And 4 Ors

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GAHC010221142023

2026:GAU-AS:6168-DB
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
WP(C) N O .5994 OF 2023
1. Smti. Bharati Saikia,
Wife of Late Amal Saikia,
Railway Quarter No.T/22 (A), Office Colony, Children
Park, PO: Lumding, District: Hojai, PIN - 782447.
2. Mousam Saikia,
Son of Late Amal Saikia,
Railway Quarter No.T/22 (A), Office Colony, Children
Park, PO: Lumding, District: Hojai, PIN - 782447.
…..Petitioners
-Versus-
1. Union of India, represented by General Manager,
N.F. Railway, Maligaon, Guwahati – 781011, Assam.
2. The General Manager, N.F. Railway,
Maligaon – 781011.
3. The Financial Advisor and Chief Accounts Officer,
N.F. Railway, Maligaon – 781011.
4. The Chief Cashier, N.F. Railway, Maligaon,
Guwahati – 781011, Assam.
5. Smt. Malati Saikia,
Wife of Late Amal Saikia,
Village: Uttar Sangchaki, PO: Dakshin Sangchaki,
Singimari, Nagaon, PIN – 782426.
…… ..Respondents

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– B E F O R E –
HON’BLE THE CHIEF JUSTICE MR. ASHUTOSH KUMAR
HON’BLE MR. JUSTICE ARUN DEV CHOUDHURY
For the Petitioner(s) Mr. S. Nath, Advocate.
:
For the Respondent(s) Ms. A. Gayan, Central Government Counsel for respondent
:
Nos.1 to 4.
Mr. H.K. Das, Senior Advocate/Amicus Curiae, assisted by Mr.
:
N.K. Sarma, Advocate.
Date of hearing : 05.05.2026.
Date of judgment 06.05.2026 .
:
UDGMENT RDER
J & O
(Ashutosh Kumar, CJ)
We have heard Mr. S. Nath , learned Advocate for the
petitioners ; Ms. A. Gayan , learned Central Government Counsel for
respondent Nos.1 to 4 and Mr. H.K. Das , learned Senior Advocate/Amicus
Curiae , assisted by Mr. N.K. Sarma , learned Advocate.
2. The petitioners , namely , Smti. Bharati Saikia (petitioner No.1) , the
second wife of the deceased employee (Late Amal Saikia) and Mousum
Saikia (petitioner No.2) , their minor son , aged about 12 years , through the
petitioner No.1 , have sought a share of family pension , death gratuity
and other retiral benefits , like – Leave Encashment , Group Insurance ,
Provident Fund, etc. , as dependants of the deceased Railway
employee , asserting their eligibility under the Railway Services (Pension)
Rules , 1993 (hereinafter to be referred as the “ Pension Rules of 1993 ” ) ,
particularly , Rules 70 and 75(7)(i)(a) and (b) , which prayer was denied by

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the Central Administrative Tribunal , Guwahati Bench , Guwahati
“ ”
(hereinafter to be referred as the Tribunal ) in Original Application

No.040/00264/2020 vide order dated 22.03.2023.
3.
The Tribunal was of the view that the balance of convenience
stood in favour of the first wife i.e. Smti . Malati Saikia (respondent No.5)
,
and her children. The respondent/Railway was thus directed to grant
family pension and other retiral benefits to her , who is the first and legally
married wife of the deceased employee.
4. Hence , this writ petition.
5. Late Amal Saikia , employed as a Jamadar Peon at the Pay
Office , Lumding , N.F. Railway since 30.04.1990 , was previously married to
Smti. Malati Saikia (respondent No.5) in the year 1987 , with whom he had
a son by the name of Jitumoni Saikia (aged about 24 to 25 years).
6. The claim of the petitioners is that Malati Saikia was separated
from the deceased employee in the year 2001 , after which he married
the petitioner No.1 (Smti. Bharati Saikia) in 2010 , and they lived together
in a Railway Quarter until his death. The petitioner No.1 was unaware of
the first marriage of her late husband until his death. According to her ,
Rule 75(7)(i)(a) of the Pension Rules of 1993 mandates equal sharing of
family pension amongst the widows and Rule 70 includes wives and sons
(including from a second marriage) for death gratuity , irrespective of
personal law restrictions.
7. The Railway Authorities had contended before the Tribunal as
also before this Court that the deceased employee had never disclosed

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his second marriage or son during his service and Malati Saikia

(respondent No.5) was the officially declared wife as per his family

declarations. It was further argued that the second marriage was void
under the Hindu Marriage Act 1955 as the deceased employee had not
, ,
divorced the respondent No.5 and thus the petitioners were not entitled
,
to the benefits. On the other hand respondent No.5 claimed to be the
,
legally married wife asserting her marriage in the year 1988 and birth of
,
3(three) children out of their wedlock and separation in 2001 due to her
being driven out. She also claimed that the marriage of the deceased
employee with the petitioner No.1 was void as it was during the
subsistence of her marriage with him.
8. Rule 70 of the 1993 Rules provides for grant of death gratuity. For
the purpose of the said Rule 70 , “ family ” under sub-clause (5) thereof ,
inter alia , includes wife or wives including judicially separated wife or
wives in the case of a male Railway servant and sons including step-sons
and adopted sons. Rule 75 deals with Family Pension Scheme for Railway
Servants , 1964 , which was applicable in case of the deceased
employee.
Rule 75(7)(i)(a) and (b) provide that where the family pension is
payable to more widows than one , the family pension shall be paid to

the widows in equal shares and on the death of a widow , her share of

the family pension shall become payable to her eligible child.
9. Based on these provisions under the Pension Rules of 1993 the
,
petitioners have staked their claim on the family pension which, as noted
,
above was disallowed by the Tribunal.
,

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10. The contention on behalf of the petitioner No.1 , therefore , is that

notwithstanding her marriage with the deceased employee during the

subsistence of his marriage with respondent No.5, of which she was not in

the know of , she was entitled to the proportionate share in the family

pension and other death benefits.
11. The claim of the petitioner No.1 is not based on sound reasons.
12. Regardless of the usage of the words “ wives ” / “ widows ” in the
Rules in question , what is to be noted is that under Rule 21 of the Railway
Services (Conduct) Rules , 1966 , there is a restriction regarding marriage
which prescribes that no Railway servant shall enter into a marriage with
any person having a living spouse , unless requisite permission is sought by
the Railway servant on satisfying that such marriage is permissible under
the personal law applicable to him and other party to the marriage.
13. The provisions of the Pension Rules of 1993 would refer to only
such claims of employees or their dependants , where second marriage
during the subsistence of the first marriage , is permissible and not
otherwise. In the case of the petitioner No.1 and the deceased
employee , the provisions of the Hindu Marriage Act apply proprio vigore
making such marriage of the deceased employee with the petitioner

No.1 void.
14. In a Full Bench decision of Bombay High Court in Kamalbai -Vs-
State of Maharashtra & Ors. :: (2019) 3 Mh. L.J (FB) 921
, where the
prime question for consideration was whether the second wife would be
entitled for pensionary benefits it was held that the family pension
,

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cannot be claimed by a second wife if she is not a legally wedded wife ,
and if the second wife is a legally wedded wife , then she would be
entitled for family pension , e specially if the provisions of the Hindu
Marriage Act would apply to the parties. Any marriage solemnized in

contravention to the conditions specified in Clauses (i) , (iv) and (v) of
Section 5 would be void marriage within the meaning of Section 11 of the

Hindu Marriage Act. In that context , a second wife cannot be called a
legally wedded wife and , therefore , she cannot claim her entitlement to
family pension.
15. The provisions of the Pension Rules of 1993 have to be read
harmoniously and the expression “ wives ” or “ widows ” have to be read as
referable to such persons on whom the provisions of Hindu Marriage Act
do not apply and where personal law permits of second marriage during
the subsistence of the first marriage. Even in such cases , the consent of
the subsisting partner and of the Railways have to be obtained.
16. In the case of the petitioners , the marriage of petitioner No.1
with the deceased employee is a void marriage , disentitling her to any
pensionary benefits. However , the minor son (petitioner No.2) would be
entitled to the proportionate share in the family pension according to the
Pension Rules of 1993.
17. For the reasons , referred to above , the order passed by the
Tribunal is not interfered with , except to the extent of the claim of
petitioner No.2 (the minor son of the deceased employee) regarding his
proportionate share in the family pension in accordance with the Pension
Rules of 1993, which shall be payable to him.

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18. The impugned order dated 22.03.2023 passed by the Tribunal in

Original Application No.040/ 00264/2020 is modified to the extent
indicated above.
19. This writ petition is thus partially allowed.

JUDGE CHIEF JUSTICE
Comparing Assistant