Offspring Of An Illegitimate Marriage Of The Deceased Are Entitled To Get Family Pension Benefit: Gauhati High Court

The Gauhati High Court held that  if a deceased has offspring from an illegitimate marriage, that offspring also be entitled to get the family pension benefit of such deceased.

The Single Bench of Justice Achintya Malla Bujor Barua held that even the illegitimate offspring of deceased wife would also be entitled to the family pension benefit, which pertains to such deceased.

Nikita Sutar, illegitimate wife of the deceased, filed a Writ Petition[1] to add her daughter to entitle her father’s pension.  The daughter is minor. Nikita Sutar married the deceased after his first wife left him. The Bench noted the above mentioned issue  and said that this issue is  no longer res integra and it had been discussed already by the Supreme Court in the case Rameshwari Devi v. State of Bihar & Ors., (2000) 2 SCC 431.

In this case[2], there was a dispute between two wives namely Rameshwari Devi, first wife and Yogmaya Devi, second wife.  Deceased husband Narain Lal’s  pension benefits  were given to the  first wife, Rameshwari Devi. Therefore, Yogmaya Devi, his second wife and her children instituted a writ petition before the High Court of Patna. The Single Judge allowed the Writ Petition by directing that the minor children of Second wife, Yogmaya Devi would also be entitled to get a share of the family pension benefit. The second appeal was filed before the Supreme Court, it observed, the marriage between Narain Lal and Yogmaya Devi is void as per Section 5 (i)[3] of the Hindu Marriage Act and so she cannot be described as deceased’s widow.  However, the offspring born between them is legitimate; he can entitle the share of deceased family pension. Under Section 16[4] of Hindu Marriage Act, children of void marriage are legitimate. The Hindu Succession Act, 1956, explains that property of any male Hindu dying intestate devolve firstly to First clause heirs, since son comes under first class heir, second wife’s son is entitled to get share on deceased father’s Pension.

It has clearly discussed in the case Rameshwari Devi v. State of Bihar & Ors., (2000) 2 SCC 431

that since the  second wife’s offspring with the deceased husband are legitimate, so they are entitled to get share on deceased. The High Court  of Gauhati quoted this judgment and held that the Petitioner’s[5] offspring would be entitled to get the deceased’s pension benefits and further directed the concerned authority to decide the proportionate share to  the petitioner’s offspring[6].


[1] Nikita Sutar Minor v. State of Assam & Ors

[2] Rameshwari Devi v. State of Bihar & Ors., (2000) 2 SCC 431

[3] 5 Conditions for a Hindu marriage. —A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely:—

(i) neither party has a spouse living at the time of the marriage;

[4] 16 Legitimacy of children of void and voidable marriages.

[5] Nikita Sutar Minor v. State of Assam & Ors

[6] Offspring From An Illegitimate Marriage Of Deceased Also Entitled To Family Pensionary Benefit: Gauhati High Court, https://www.livelaw.in/news-updates/offspring-from-an-illegitimate-marriage-of-deceased-also-entitled-to-family-pensionary-benefit-gauhati-high-court-read-order-165244,

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