JUDGMENT 1. - The petitioner has challenged in this petition the order of the State Govt. dated 21.5.1994 whereby the State Govt. has decided to grant family pension under the purported exercise of powers u/Art. 268-F of the Rajasthan Service Rules to the petitioner as well as respondent No. 5 Smt. Shakuntala the other wife of the deceased husband of the petitioner. By this order, the State Govt. has also directed that the amount of gratuity and the amount of welfare shall be paid to respondent No. 4 Smt. Ajab Kanwar, the mother of the deceased husband of the petitioner. It is admitted fact that the petitioner was married to deceased Ganpat Singh in the year 1985, he took respondent No. 5 as a second wife during subsistence of the first marriage with the petitioner in the year 1988. It is contended by the petitioner that the second marriage would be void under the provision of Section 11 of the Hindu Marriage Act, 1955, having been performed in violation of Cl. (1) of Section 5 of the Hindu Marriage Act which prohibits a second marriage during the life of a spouse. On this basis, it is contended that the State Govt. could not have presumed for the purposes of R. 268-F of the Rajasthan Service Rules that there were two widows amongst whom the amount of pension had to be apportioned. So far as the mother's claim on the basis of nomination, it is submitted that under the rules, such nominations made before the marriage come to an end after the marriage. 2. On behalf of the respondents, it was submitted that second marriage was solemnised with the full consent of the petitioner and according to the custom prevalent in the community, there was no bar to a second marriage with the consent of the first wife. It is also contended that R. 268-F does not make any distinction between a legally married wife and a wife through a second marriage which may be void. Lastly it is also contended that the respondent No. 5 is only 22 years of the age and having no parents would be unable to fend for herself in case she is deprived of the share in the family pension. Lastly it is also contended that the respondent No. 5 is only 22 years of the age and having no parents would be unable to fend for herself in case she is deprived of the share in the family pension. On behalf of the respondent No. 4 it is contended that her nomination was made vide exhibit R-1 & R-2 after the marriage of the deceased Ganpat Singh with the petitioner and therefore, it was clear that the deceased Ganpat Singh nominated her with the intention of depriving his widows of the amount. In any case, the rules providing for lapse of nomination in favour of parents after the marriage would not apply in the case, as the nomination has taken place after the marriage itself. It is also contended on behalf of the respondents including the respondent State that the petition raised disputed questions of facts which cannot be decided in a petition u/Art. 226 of the Constitution of India. It is also contended that deciding the question of validity of second marriage would amount to grant of decree of nullity of the marriage which cannot be done in a writ petition u/Art. 226 of the Constitution of India and if this Court decides even incidentally the question of validity of marriage the parties will be precluded from raising the issue in Civil Court or in a criminal Court. 3. Having heard the learned counsel and having perused the record, in the admitted facts of the case, it has to be decided whether in view of the provisions of Section 11 of the Hindu Marriage Act, the marriage of the deceased with respondent No. 5 was void, since the marriage already stands dissolved by death of the husband, the question is not whether a decree of nullity has to be granted or not. The question only is whether respondent No. 5 is a widow of deceased Ganpat Singh in the eye of law and whether she could be taken as a widow for the purposes of R. 268- F of the Rajasthan Service Rules. An argument has been raised that R. 268-F does not make a distinction between a widow from a legal marriage and a widow from a marriage which was void or illegal. The argument is ex facie, unacceptable. An argument has been raised that R. 268-F does not make a distinction between a widow from a legal marriage and a widow from a marriage which was void or illegal. The argument is ex facie, unacceptable. The plain meaning of the word widow used in the provision would be a widow in accordance with law and a lady who was not a legally wedded wife of the deceased could not be said to be his legal widow. There could be no presumption that a person has died living behind more than one widow. If the law prohibits a second marriage during the subsistence of the first marriage, the second wife would not claim to be a widow under the law even for the purpose of R. 268-F. 4. So far as the question of custom in the community or the consent for the second marriage given by the petitioner suffice to say that consent or custom of the community would not save second marriage from being void, under the provisions of Section 11 of the Hindu Marriage Act. The first part of the section clearly declares any marriage solemnised after the commencement of the Act in contravention of Cl.. (1) of Section 5 of the Act to be null and void. The second part leaves it to the parties whether to get it declared by decree of nullity as a void marriage or not. Declaration by decree. of nullity that the marriage is void is not a sine-qua-non for the marriage being void. If a marriage is solemnised in contravention of Cl. (1) of Section 5 which provides as a condition to a valid marriage that neither party has spouse leaving at the time of marriage, the marriage is clearly void under section 11 of the Act. Since it is necessary for the purpose of deciding this case to decide the question whether on the admitted facts of the case the marriage between the deceased and the respondent No. 5 was void or not, of necessity, this Court has to go into the question and to decide it. There is no bar on such a decision being taken in the proceedings u/Art. 226 of the Constitution of India. 5. There is no bar on such a decision being taken in the proceedings u/Art. 226 of the Constitution of India. 5. So far as the mother's claim is concerned, as the nomination has been made in her favour, after the marriage of the deceased with the petitioner, it cannot be said that the respondents erred in directing any amount to be paid to her on the strength of nomination. If the petitioner is aggrieved by that he has to approach a Civil Court, prove his right and get a decree for enforcing whatever right she may think she has. The question of validity of that nomination or whether it was made earlier or later cannot be decided in this case because it would be a disputed question of fact. 6. For the aforesaid reasons, this petition is partly allowed. The decision of Govt. to grant an equal share in the family pension in respect of deceased Ganpat Singh to respondent No. 5 Shakuntala is quashed. The amount of family pension will now be given to the claimant ignoring the claim of respondent no. 5 as a widow. Similarly the question of payment of State Insurance will be decided by the respondent Nos. 1 to 3 ignoring the claim of Respondent No. 5 as a widow. The amount payable of Rajasthan Police Development Fund and other claims shall also be decided ignoring the claim of respondent No. 5 as a widow. So far as the gratuity and welfare amount is concerned it shall be payable to respondent No. 4 subject to a challenge in the Civil Court on behalf of the petitioner. With these directions, this petition is disposed of.Petition dismissed. *******