Gauhati High Court
Smti. Bharati Saikia And Anr vs Union Of India And 4 Ors on 4 September, 2025
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GAHC010221142023
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/5994/2023
1.SMTI. BHARATI SAIKIA AND ANR.
W/O LATE AMAL SAIKIA, RAILWAY QUARTER NO. T/22 (A), OFFICE
COLONY, CHILDREN PARK, P.O.-LUMDING, DIST-HOJAI, PIN-782447
2: MOUSAM SAIKIA
S/O LATE AMAL SAIKIA RAILWAY QUARTER NO. T/22 (A) OFFICE COLONY
CHILDREN PARK P.O.-LUMDING DIST-HOJAI PIN-78244
VERSUS
1.UNION OF INDIA AND 4 ORS
REPRESENTED BY GENERAL MANAGER, N.F RAILWAY, MALIGAON,
GUWAHATI-11, 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-11 ASSAM
5:SMT. MALATI SAIKIA
W/O LATE AMAL SAIKIA VILL- UTTAR SANGCHAKI P.O.-DAKSHIN
SANGCHAKI SINGIMARI NAGAON PIN-78242
For Petitioners : Mr. S. Nath, Advocate.
For the Respondents : Ms. A. Gayan, Central Government Counsel for respondent
Nos.1 to 4.
: Mr. N. Sarma, Advocate for respondent No.5.
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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
04.09.2025
(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.
N. Sarma, learned Advocate for respondent No.5.
The petitioner No.1 is the second wife of the deceased railway employee,
whereas petitioner No.2 is her minor son.
They are aggrieved by the order dated 22.03.2023 passed by the Central
Administrative Tribunal, Guwahati Bench (in short, "Tribunal") in WA
No.040/00264/2020, whereby their claim for being paid their share in the death-
cum-retirement benefits of the deceased employee has been rejected.
On perusal of the order impugned in the present petition, it appears that
the claim of the petitioners was rejected on the ground that the deceased
railway employee was married to one Malati Saikia with whom he was never
divorced. Thus, the marriage of petitioner No.1 with the deceased employee
was a void marriage, according to Section 11 of the Hindu Marriage Act, 1955.
Mr. S. Nath, learned counsel for the petitioners, however, has drawn the
attention of this Court to Section 70(5) of the Railway Services (Pension) Rules,
1993, which provides that for the purposes of Rules 71, 73, 74, which deal with
persons to whom gratuity or death-cum-retirement gratuity is to be paid, the
'family' would include wife or wives including judicially separated wife or wives
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in case of male railway servant.
This being the Scheme for payment of pension, the learned counsel for
the petitioners asserts, the petitioners are entitled to a share in the pension.
The records reveal that respondent No.5 (first wife of the deceased
employee) was long separated with her husband because of his intemperate
behavior but was getting maintenance from him. There was neither judicial
separation nor divorce and her marriage subsisted till the time the deceased
employee survived.
We have also seen the two judgments of Bombay High Court and
Karnataka High Court, respectively, wherein there is a clear acknowledgment of
the right of a second wife to receive family pension/death gratuity in view of the
definition of 'family' in the Railway Service Rules, which includes wife or wives,
as the case may be.
In the State Pension Rules and elsewhere, a second wife whose marriage
is void, is not entitled to pension but the children born out of the second wife
are definitely entitled to their share in the pension.
We have requested Mr. R.K.D. Choudhury, learned Deputy Solicitor General
of India to assist us in this matter.
Re-notify on 14.10.2025.
JUDGE CHIEF JUSTICE
Comparing Assistant
