ORDER In this writ petition, the petitioner, who claims to be the legally wedded wife of Late Bhagwan Prasad alias Bhagwan Singh who retired from the service of the Bihar State Electricity Board and ultimately died, is aggrieved on account of non-release of family pension in her favour. 2. It seems that earlier family pension was allowed by the Board in favour of Sushila Devi (respondent no.5). From the counter affidavit filed on behalf of the respondent Board it appears that the family pension was granted to Sushila Devi as being nominee of the deceased employee. 3. Learned counsel for the petitioner contended that in the maintenance case filed by the petitioner against the deceased employee, the learned Magistrate has held that the petitioners is the legally wedded wife of the deceased and thus allowed maintenance in her favour. It is true that the above finding recorded in the maintenance case is rebuttable but so long proper declaration is not given in favour of anyone else either in a declaratory suit or in a succession case filed under the Indian Succession Act, the petitioner is the legally wedded wife of the deceased employee and thus she is only entitled for family pension. 4. Learned counsel for respondent no. 5, however, contended that the respondent-Board on consideration issued Pension Payment Order during the lifetime of the deceased and in that family pension has been sanctioned in favour of respondent no. 5 which she has been receiving from the Board. 5. Mr. Dutta, learned counsel appearing for the respondent-Board has submitted that it is true that earlier family pension was sanctioned in favour of respondent no. 5 but it was done keeping in view the nomination in her favour by the deceased employee. He, however, fairly submitted that the family as defined under the Pension Rules is entitled to receive family pension and does not depend upon the nomination made by the employee. Undisputedly, the only legally wedded wife and dependents are entitled for family pension under the Rules. 6. In view of the finding recorded by the Judicial Magistrate in the maintenance case which was contested by the deceased employee that the petitioner is the legally wedded wife, this Court finds no justification to allow the Board to continue for grant of family pension to respondent no.5. 6. In view of the finding recorded by the Judicial Magistrate in the maintenance case which was contested by the deceased employee that the petitioner is the legally wedded wife, this Court finds no justification to allow the Board to continue for grant of family pension to respondent no.5. In my opinion, in the facts and circumstances aforementioned, the petitioner is entitled for family pension subject to only one condition that if respondent no. 5 gets a declaration in her favour either in a declaratory suit or by filing a succession case under the Indian Succession Act. 7. This writ petition is, thus, allowed. The respondent-Board is directed to issue fresh payment order for grant of family pension in favour of the petitioner after withdrawing the order in favour of respondent no. 5, which shall be subject to production of a proper declaration by respondent no. 5 in her favour, if any. 8. It is contended that as per the order passed in the maintenance case, the respondent-Board has withheld the amount awarded in the maintenance case from the family pension paid to respondent no. 5. 9. Under such circumstances, this Court directs that the said amount must be paid to the petitioner but, in the peculiar facts and circumstances, this Court directs that the payment already made to respondent no. 5 shall not be realised/recovered and the petitioner shall not claim for it either from the Board or• from respondent no. 5.