Gauhati High Court
WP(C)/6004/2023 on 23 July, 2026
GAHC010229812023
2026:GAU-AS:10193
IN THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
WRIT PETITION (CIVIL) NO. 6004 OF 2023
Smt.Shibani Dutta,
W/o Late Sankar Dutta
R/o Hospital Road, Biswas Lane,
Sudha Niketon, Karimganj, P.O. &
P.S Karimganj, Assam,
Pin- 788710.
.......Petitioner
-Versus-
1. The State of Assam
Represented by the Commissioner and
Secretary, Transformation and
Development Department, Dispur,
Guwahati- 781006.
2. The Deputy Secretary to the Government
of Assam, Transformation and
Development Department, Dispur,
Guwahati- 781006.
3. The Accountant General (A&E),
Assam, Maidamgaon, Beltola,
Guwahati- 781029.
4. Joint Director of Health Services &
Page 1 of 16
Additional District Registrar Birth and
Death, Cachar, Silchar,
Pin- 788001.
5. The Principal Secretary to the
Government of Assam, Finance Department
Janata Bhawan, Dispur,
Guwahati- 781006.
6. Smti, Gayatri Roy Barman
2nd Link Road, Lane No. 7, P.O. Link
Road, Silchar, Cachar, Assam,
Pin- 788006.
....... Respondents
-BEFORE-
HON'BLE MR. JUSTICE KAUSHIK GOSWAMI
For the Petitioner(s) :Mr. S. Nath, Advocate.
For the Respondent(s) :Mr. C. K. S. Baruah, learned Government
Advocate for the respondent Nos. 1 and
2.
:Mr. S.K. Medhi, learned counsel for the
respondent No. 3
:Ms. S. Sharma, learned counsel for the
respondent No. 4.
Date on which judgment
is reserved : N/A
Date of pronouncement
of judgment : 23.07.2026
Whether the pronouncement
is of the operative part
of the judgment ? : No.
Page 2 of 16
Whether the full judgment
has been pronounced : Yes.
JUDGMENT & ORDER (ORAL)
Heard Mr. S. Nath, learned counsel appearing for
the petitioner. Also heard Mr. C.K.S. Baruah, learned Govt.
Advocate, Assam appearing for the respondent Nos.1 & 2, Mr.
S.K. Medhi, learned counsel appearing for the respondent
No.3 and Ms. S. Sharma, learned counsel appearing for the
respondent No.4. None appears for the respondent No.6,
though service in respect of the respondent No.6 stands
completed in terms of the office note dated 02.02.2026.
2. By way of the present writ petition under Article
226 of the Constitution of India, the petitioner seeks issuance
of an appropriate writ directing the respondents to release in
her favour the family pension together with the arrears
thereof, as well as the Death-cum-Retirement Gratuity
(DCRG) payable consequent upon the death of her husband,
late Sankar Dutta, who expired on 04.01.2021. The petitioner
has also prayed for payment of interest at the rate of 20%
per annum on the delayed release of the said retiral benefits.
3. The facts, in brief, are that the petitioner was
married to late Sankar Dutta in accordance with Hindu rites
and customs at Karimganj in the month of June, 1970. Out of
the said wedlock, two daughters, namely, Anindita Dutta and
Madhumita Dutta, were born. Late Sankar Dutta retired from
Page 3 of 16
service on attaining the age of superannuation on 28.02.2002
while serving as the Deputy Director of Economics and
Statistics, Haflong, under the Department of Development,
Government of Assam. Upon his retirement, he received all
admissible retiral benefits except the Death-cum-Retirement
Gratuity (DCRG) and continued to draw monthly pension till
his demise on 04.01.2021.
4. It is the specific case of the petitioner that while
the deceased employee was in service, he had nominated the
petitioner, describing her as his wife, for receiving his terminal
benefits in the event of his death while in service or in respect
of such retiral benefits as remained unpaid after his
retirement. According to the petitioner, notwithstanding the
said nomination and the subsistence of their lawful marriage,
the respondents have illegally withheld the family pension and
other consequential retiral benefits after the death of her
husband.
5. It is further pleaded that after his retirement, late
Sankar Dutta instituted F.C. (Civil) Case No. 10/2007 before
the Principal Judge, Family Court, Cachar at Silchar seeking
dissolution of his marriage with the petitioner by a decree of
divorce. However, both parties remained absent in the said
proceeding, whereupon the Family Court, by order dated
02.06.2010, dismissed the divorce petition for default and
non-prosecution. Consequently, no decree of divorce was ever
passed dissolving the marriage between the petitioner and
the deceased employee. The petitioner, therefore, contends
Page 4 of 16
that she continued to remain the legally wedded wife of late
Sankar Dutta till his death on 04.01.2021. Since neither the
family pension nor the DCRG has been released in her favour
despite repeated representations, she has approached this
Court by filing the present writ petition.
6. The respondents have contested the writ petition
by filing their affidavit-in-opposition. Their specific stand is
that while submitting his pension papers, the deceased
employee had nominated one Smt. Gayatri Dutta, describing
her as his wife, for the purpose of family pension and
gratuity. It is their contention that on the strength of such
nomination, the Pension Payment Order (PPO) and the
Gratuity Payment Order (GPO) were issued showing the name
of Smt. Gayatri Dutta as the family pensioner and, therefore,
the claim of the petitioner could not be processed.
7. Mr. Nath, learned counsel appearing for the
petitioner, submits that the petitioner is admittedly the only
legally wedded wife of the deceased employee. He submits
that the matrimonial proceeding instituted by the deceased
employee having been dismissed for non-prosecution, the
marriage between the petitioner and the deceased employee
continued to subsist till his death. It is argued that mere
nomination of another person, who is not the legally wedded
wife of the deceased employee, cannot defeat the statutory
entitlement of the petitioner to receive family pension under
the provisions of the Assam Services (Pension) Rules, 1969
(hereinafter referred to as “the Pension Rules”). According to
Page 5 of 16
the learned counsel, family pension is a statutory right and
not a benefit governed merely by nomination. It is further
submitted that the deceased employee, being governed by
Hindu law, could not have validly conferred the status of a
wife upon another woman during the subsistence of his first
marriage.
8. In support of the aforesaid submissions, Mr. Nath
has placed reliance upon the judgment of this Court in Tinku
Das and 2 Others vs. State of Assam and 9 Others ,
passed in WP(C) No. 6073/2019, wherein this Court held
that a woman claiming to be the second wife of a Hindu
employee, during the subsistence of the first marriage, is not
entitled to family pension merely on the basis of nomination
or otherwise, and that such statutory benefit can accrue only
to the legally wedded spouse recognized under the Pension
Rules.
9. Per contra, Mr. Baruah, learned Government
Advocate, Assam, appearing for the respondent Nos. 1 and 2,
submits that the competent authorities acted strictly in
accordance with the pension records maintained in the office.
It is submitted that the deceased employee himself had
declared Smt. Gayatri Dutta as his wife in the pension papers
and had nominated her to receive the family pension and
gratuity. Consequently, the Accountant General issued the
PPO and GPO reflecting her name as the family pensioner.
According to the learned Government Advocate, the
Page 6 of 16
respondents merely acted upon the records available with
them and no arbitrariness can be attributed to their action.
10. I have heard the learned counsel appearing for
the parties and have carefully perused the pleadings and the
materials available on record. The controversy lies in a narrow
compass. The marriage between the petitioner and late
Sankar Dutta is not disputed. It is also not disputed that two
daughters were born out of the said wedlock. Although the
deceased employee had instituted a matrimonial proceeding
seeking dissolution of the marriage, the said proceeding
admittedly stood dismissed for non-prosecution by order
dated 02.06.2010. Consequently, no decree of divorce was
ever passed by a competent court dissolving the marriage
between the petitioner and the deceased employee.
Therefore, in the eye of law, the marriage between them
continued to subsist till the death of late Sankar Dutta on
04.01.2021.
11. It is equally undisputed that the deceased
employee professed the Hindu religion. Under the provisions
of the Hindu Marriage Act, 1955, a marriage solemnized
during the subsistence of an earlier valid marriage is void.
Therefore, unless the earlier marriage stood dissolved by a
decree of divorce passed by a competent court, any
subsequent marriage contracted by the deceased employee
would have no legal sanctity. The legal consequences flowing
from such position cannot be altered merely because the
deceased employee described another woman as his wife in
Page 7 of 16
the pension papers or nominated her for receiving pensionary
benefits.
12. The principal question that arises for
determination in the present writ petition is whether a person
merely nominated by a deceased Government employee for
the purpose of family pension can claim such benefit despite
not answering the description of a “family member” within the
meaning of the Pension Rules and whether such nomination
can override the statutory entitlement of the legally wedded
spouse.
13. For answering the aforesaid question, it would be
apposite to refer to Rule 143 of the Pension Rules, which
governs the grant of family pension. Rule 143 defines the
expression “family” for the purpose of family pension and, in
the case of a male Government servant, specifically includes
his wife, minor sons and unmarried minor daughters. The
Rule further provides that family pension shall first be payable
to the widow and thereafter, in the event of her death or
remarriage, to the eligible children in the manner prescribed
therein. Rule 143 of the Pension Rules reads as under:
“143. (i) Family for the purpose of rules in this Section will
include the following relatives of the officer-
(a) Wife, in the case of a male officer;
(b) husband, in the case of a female officer;
(c) minor sons; and
(d) unmarried minor daughters.
Page 8 of 16
Note 1: (c) and (d) will include children adopted legally
before retirement.
[Note 2: (a) Marriage for the purpose of admissibility of
pensionary benefits to the spouse of a retired official shall
mean marriage before or after retirement.
(b) Child/Children for the purpose of pensionary benefits of
a retired official shall mean child/children born before or
after retirement.]
(ii) The pension will be admissible-
(a) In the case of a widow/widower upto the date of
her/his death or re-marriage whichever is earlier.
(b) In the case of a minor son, until he attains the age of 18
years.
(c) In the case of an unmarried daughter untill she attains
the age of 21 years or marriage, whichever is earlier.
Note 1: In cases where there are two or more widows,
pension will be payable to the eldest surviving widow. On
her death it will be payable to the next surviving widow, if
any. The term ‘eldest’ would mean seniority with reference
to the date of marriage.
(iii) Pension awarded under the rules in this Section will not
be payable to more than one member of an officer’s family
at the same time. It will first be admissible to the
widow/widower and thereafter to the minor children.
(iv) In the event of re-marriage or death of the
widow/widower, the pension will be granted to the minor
children through their natural guardian. In disputed cases,
however, payments will be made through a legal guardian.
(v) The temporary increases granted on pension will not be
admissible on the Family Pension granted under the
Scheme in this Section.”
14. A plain reading of Rule 143 leaves no manner of
doubt that the entitlement to family pension does not arise on
the basis of nomination but flows directly from the statutory
provisions governing pension. The Rule identifies the class of
persons who are entitled to receive family pension. Therefore,
Page 9 of 16
unless a person falls within the definition of “family” as
contemplated under the Pension Rules, such person cannot
claim family pension merely because his or her name has
been incorporated in the nomination form submitted by the
deceased employee.
15. In the present case, the marriage between the
petitioner and the deceased employee has never been
dissolved by a decree of a competent court. The divorce
proceeding instituted by the deceased employee admittedly
stood dismissed for non-prosecution on 02.06.2010.
Consequently, the marital relationship between the petitioner
and the deceased employee continued uninterrupted till his
demise on 04.01.2021.
16. It further appears from the materials brought on
record that while the deceased employee was in service, he
had originally nominated the petitioner, describing her as his
wife, in respect of his service benefits. The records further
disclose that under Form VII dated 13.06.1994 submitted
under the State Government Employees Group Insurance
Scheme, 1982, the petitioner was shown as the wife of the
deceased employee and was nominated to receive the
benefits thereunder, with the two daughters being shown as
the alternate beneficiaries. These documents unmistakably
demonstrate that the petitioner was throughout recognized as
the legally wedded wife of the deceased employee.
17. The only circumstance relied upon by the
respondents for denying family pension to the petitioner is
Page 10 of 16
that subsequently, while processing his pension papers, the
deceased employee nominated one Smt. Gayatri Dutta,
describing her as his wife, for the purpose of family pension
and gratuity. On the strength of such nomination, the Pension
Payment Order (PPO) and the Gratuity Payment Order (GPO)
came to be issued showing her name as the family pensioner.
18. However, this Court is unable to accept the
contention that such nomination can confer any legal right
upon Smt. Gayatri Dutta in derogation of the statutory
provisions contained in Rule 143 of the Pension Rules.
Nomination does not determine succession nor does it confer
title to the amount payable unless the governing statute
specifically provides otherwise. The purpose of nomination is
merely to facilitate payment by the employer. A nominee does
not acquire a better or superior right than that conferred by
the statute.
19. The Apex Court has consistently held that a
nomination does not have the effect of displacing the lawful
beneficiary entitled under the governing statute or the
applicable law of succession. A nominee merely receives the
amount for and on behalf of the person legally entitled
thereto unless the statute expressly provides that the
nominee shall become the beneficial owner of the amount.
[Refer: Smt. Sarbati Devi and Anr. Vs. Smt. Usha Devi,
reported in (1984) 1 SCC 424 and Shipra Sengupta Vs.
Mridul Sengupta and Ors., reported in (2009) 10 SCC
680]. Therefore, where the governing Pension Rules
Page 11 of 16
specifically identify the person entitled to receive family
pension, such statutory entitlement cannot be defeated by a
unilateral nomination made by the deceased employee.
20. Family pension stands on a different footing from
other retiral dues. It is neither a bounty nor a matter of grace.
It is a statutory benefit intended to provide financial security
to the surviving members of the family of the deceased
Government servant. The eligibility to receive family pension
is determined exclusively by the Pension Rules and not by the
personal wishes of the employee expressed through a
nomination. Consequently, where the Rules recognize only
the legally wedded wife as the primary beneficiary, such
statutory right cannot be divested by describing another
person as wife in the pension records.
21. This Court also finds considerable force in the
submission advanced on behalf of the petitioner that under
the Hindu Marriage Act, 1955, a second marriage contracted
during the subsistence of a valid first marriage is void.
Therefore, assuming that Smt. Gayatri Dutta had been living
with the deceased employee, such circumstance by itself
would not clothe her with the legal status of a wife so as to
claim family pension under Rule 143 of the Pension Rules,
particularly when the petitioner’s marriage with the deceased
employee admittedly subsisted till his death.
22. The issue is no longer res integra. A Coordinate
Bench of this Court in Tinku Das (supra), while considering
an identical issue, held that where the first marriage of a
Page 12 of 16
Hindu employee subsists, the woman claiming to be the
second wife is not entitled to family pension notwithstanding
any nomination made in her favour. Relevant paragraph of
the aforesaid judgment reads as under:
“10. Though an issue had arisen regarding the
subsistence of the marriage of the deceased employee
with the respondent no. 10, such issue has been
dispelled by the orders placed on record whereby the
divorce proceeding instituted by the deceased employee
was dismissed and further appeals have also been
rejected including the SLP by the Hon’ble Supreme
Court, as mentioned above. Therefore, the status of the
respondent no. 10 as the wife / widow of the deceased
cannot be disputed. The personal laws governing the
parties, who are Hindus do not permit a second
marriage as there is no concept of bigamy and rather
the same is an offence under the Indian Penal Code.
Since there is no concept of any second marriage, the
petitioner no. 1, who claims to be the wife, will not have
any rights upon the estate of the deceased
employee……..”
23. It is apparent from the above quoted extracts
from the aforesaid judgment that the Coordinate Bench
hadclearly observed therein that the legally wedded wife
alone is entitled to the benefit of family pension under the
Pension Rules. This Court respectfully agrees with and follows
the aforesaid view.
24. Applying the aforesaid principles to the facts of
the present case, this Court is of the considered opinion that
the nomination of Smt. Gayatri Dutta by the deceased
employee describing her as his wife cannot override the
statutory entitlement of the petitioner, who admittedly
Page 13 of 16
continued to be the legally wedded wife of late Sankar Dutta
till his death. The mere issuance of the PPO and GPO showing
the name of Smt. Gayatri Dutta does not confer upon her any
legal entitlement if such issuance is contrary to the provisions
of the Pension Rules.
25. In view of the foregoing discussion, this Court has
no hesitation in holding that the petitioner continued to be the
legally wedded wife of late Sankar Dutta till his death, there
being no decree of divorce dissolving their marriage.
Consequently, she squarely falls within the definition of
“family” as contemplated under Rule 143 of thePension Rules
and is, therefore, entitled to have her claim for family pension
considered in accordance with the said Rules.
26. The nomination made by the deceased employee
in favour of Smt. Gayatri Dutta, describing her as his wife,
cannot override or defeat the statutory entitlement flowing
from Rule 143 of the Pension Rules. A nomination is only an
administrative arrangement facilitating payment and cannot
enlarge or create substantive rights in favour of a person who
is otherwise not entitled under the governing statutory
provisions. Therefore, the mere fact that the Pension Payment
Order (PPO) and the Gratuity Payment Order (GPO) were
issued reflecting the name of Smt. Gayatri Dutta cannot be a
valid ground for denying the petitioner’s lawful claim.
27. At this stage, however, this Court deems it
appropriate to clarify that the respondents have declined the
petitioner’s claim solely on account of the nomination made
Page 14 of 16
by the deceased employee and not on the basis of any
independent determination regarding her legal status or
entitlement under the Pension Rules. Consequently, while this
Court has held that such nomination cannot by itself defeat
the petitioner’s statutory claim, the actual release of
pensionary benefits must necessarily follow due verification by
the competent authority in accordance with the applicable
Rules and records.
28. Accordingly, the present writ petition stands
disposed of by directing the respondent authorities,
particularly the Commissioner and Secretary to the
Government of Assam, Department concerned, together with
the Director of Economics and Statistics and the Accountant
General (A&E), Assam, to examine the petitioner’s claim
afresh in the light of the observations made hereinabove.
29. If, upon such verification, the petitioner is found
to be the legally wedded wife of late Sankar Dutta and
otherwise eligible under the Pension Rules, the respondents
shall:
(i) recognize the petitioner as the lawful beneficiary for the
purpose of family pension;
(ii) take immediate steps for correction of the Pension
Payment Order (PPO) and the Gratuity Payment Order (GPO),
wherever such correction is found necessary;
(iii) release the family pension together with all consequential
arrears payable from the date the same became due;
Page 15 of 16
(iv) release the admissible Death-cum-Retirement Gratuity
(DCRG), if not already paid to any person legally entitled
thereto, along with any other retiral benefits lawfully payable
to the petitioner.
30. The entire exercise, including verification, issuance
of revised PPO/GPO, and release of the admissible benefits,
shall be completed within a period of two months from the
date of receipt of a certified copy of this order.
31. With the aforesaid observations and directions,
the writ petition stands disposed of. No order as to costs.
JUDGE
Comparing Assistant
Page 16 of 16
