JUDGMENT : Suneet Kumar, J. 1. Heard Sri Vinod Kumar Upadhyay, learned counsel for the petitioner, learned standing counsel for the State-respondents, Sri V.S. Chauhan, learned counsel appearing for the sixth, seventh and eighth respondent. 2. The husband of the petitioner, Sri Baijnath Gupta was appointed Assistant Teacher in an Intermediate Institution in 1972, he retired on 30 June 2015 on attaining the age of superannuation. He, however, died on 26 November 2015, leaving behind his sole legal heir i.e. petitioner. It appears that a dispute arose between the petitioner and other claimants i.e. sixth, seventh and eighth respondent claiming right and title to the movable and immovable property of the petitioner, including, family pension. The sixth and seventh respondent claim to be the nephew, sons of the elder brother of the deceased/employee, whereas, eighth respondent Smt. Gayatri Devi claims to be the second wife of Baijnath Gupta. 3. Family pension of the petitioner was not released due to the dispute, inter se, parties. Aggrieved, petitioner approached this Court by filing a petition bearing Writ-A No. 46447 of 2016 (Chandra Kali v. State of U.P. and 4 others) which was disposed of directing the fifth respondent Senior Treasury Officer, Banda, to consider and decide the representation of the petitioner with regard to her entitlement of family pension. Pursuant thereof, by the impugned order dated 5 December 2016, the fifth respondent declined to release the family pension in favour of the petitioner due to the pending litigations, inter se, contesting parties in various forums including this Court and the Civil Court. 4. Learned counsel for the petitioner submits that it is not in dispute between the contesting parties that petitioner is the legally wedded wife of the deceased/employee, the dispute has been raised by the nephews and a stranger (eighth respondent) to deny the petitioner of her right to family pension. It is, further, urged that the eighth respondent claiming to be the second wife is not entitled to family pension. The marriage solemnized after 1956 by a Hindu having a living spouse is void marriage and would not confer any right upon the eighth respondent. The sixth and seventh respondent being nephew do not fall within the definition of 'family' under the Pension Rules, therefore, are not entitled to family pension. The marriage solemnized after 1956 by a Hindu having a living spouse is void marriage and would not confer any right upon the eighth respondent. The sixth and seventh respondent being nephew do not fall within the definition of 'family' under the Pension Rules, therefore, are not entitled to family pension. It is, further, urged that the sixth and eighth respondent had filed a petition bearing Writ-A No. 32931 of 2016 (Ajay Kumar and another v. State of U.P. and others) claiming pension and other retiral dues of the deceased/employee, however, the writ petition came be dismissed as not pressed (Withdrawal Application No. 275502 of 2016). The sixth and seventh respondent have instituted a civil suit being Suit No. 231 of 2016 before the Court of Civil Judge (Junior Division), Banda, seeking mandatory prohibitory/injunction and declaration in respect of the right and title of movable and immovable property of Baijnath Gupta, the deceased/employee. The pension and other post retiral dues admissible to Baijnath Gupta has also been claimed. 5. In this backdrop, it is urged by the learned counsel for the petitioner that the pending suit instituted by sixth and seventh respondent would have no bearing on the entitlement of the petitioner to family pension as the contesting private respondents do not fall within the definition of 'family', and the second wife of the employee is not entitled to family pension under the Rules, further, she has withdrawn her writ petition and no suit has been instituted by her. 6. Learned counsel for the State-respondent submits that due to pendency of the litigations between the parties in various forums, the fifth respondent by way of caution denied the family pension to the petitioner, and has made the impugned order subject to the outcome of the pending litigations. 7. Learned counsel appearing for the private respondents does not dispute the fact that the petitioner is the legally wedded wife of Baijnath Gupta but submits that there was no relationship between the petitioner and Baijnath as man and woman after marriage, the petitioner left the matrimonial home and was residing with her parents, thereafter, as per the custom prevalent amongst members of the community of the caste to which Baijnath Gupta belonged, he contracted second marriage with the eighth respondent as the petitioner failed to fulfill her obligation as a wife towards him. The contesting respondents, therefore, are entitled to the family pension and other retiral dues of the deceased/employee. 8. On specific query, learned counsel for the private respondents admits that the marriage of Baijnath and the petitioner was solemnized as per Hindu custom; the alleged marriage with the eighth respondent came to be solemnized after the promulgation of the Hindu Marriage Act, 1956, as is evident from the document filed by the eighth respondent in the writ petition filed by her earlier, the date of birth of the eighth respondent is recorded 1965. It is, further, not being disputed that in the service record of the employee, petitioner is recorded nominee and wife. The sixth and seventh respondents are sons of the brother of the deceased employee. 9. In the backdrop of admitted facts, the question for determination is as to whether the sixth, seventh and eighth respondents, being nephew and second wife of the deceased/employee, are entitled to family pension, including, gratuity under the Rules. 10. The facts, inter se, parties are not in dispute. The family pension is governed by the provisions of the Civil Service Regulations and the U.P. Retirement Benefit Rules, 1961 (Rules, 1961). 'Family' is defined under Sub-Rule (3) of Rule 3, which reads thus: "(3) "Family" means the following relatives of an officer: (i) wife, in the case of any male officer; (ii) husband, in the case of a female officer; (iii) sons (including step-children and adopted children) (iv) unmarried and widowed daughters. (Including step-children and adopted children) (v) brothers below the age of 18 years and unmarried and widowed sisters (including step-brothers and step-sisters); (vi) father; (vii) mother; (viii) married daughters (including step-daughters), and (iv) children of a pre-deceased son" 11. Rule 6 provides for nomination of one or more persons the right to receive any gratuity that may be sanctioned. The proviso clarifies that at the time of making nomination if the officer has a family, the nomination shall not be in favour of any person other than one or more members of the family. Rule 6 is extracted: "6. Rule 6 provides for nomination of one or more persons the right to receive any gratuity that may be sanctioned. The proviso clarifies that at the time of making nomination if the officer has a family, the nomination shall not be in favour of any person other than one or more members of the family. Rule 6 is extracted: "6. Nomination.--(1) A Government Servant shall, as soon as he acquires or if he already holds a lien on a permanent pensionable right to receive any gratuity that may be sanctioned under sub-rule (2) or sub-rule (3) of rule 5 and gratuity which after becoming admissible to him under sub-rule (1) of that rule is not paid to him before death: Provided that if at the time of marking the Nomination the officer has a family, the nomination shall not be in favour of any person other than one or more of the members of the family." 12. Rule 7 of Part-III of the Rules provides that family pension may be granted to the family of the officer who dies, whether after retirement or while still in service after completion of not less than twenty years' qualifying service. Sub-Rule (4) of Rule 7 provides who shall be entitled to receive pension in the event the deceased employee had two wives. Sub-rule (4) is extracted: (4) "Except as may be provided by a nomination under sub-rule (5) below: (a) a pension sanctioned under this Part shall be granted (i) to the eldest surviving widow, if the deceased was a male officer or to the husband, if the deceased was a female officer; (ii) failing the widow or husband, as the case may be, to the eldest surviving son; (iii) failing (i) and (ii) above, to the eldest surviving unmarried daughter; (iv) these failing, to the eldest widowed daughter; and (b) in the event of the pension not becoming payable under clause (a) the pension may be granted (i) to the father; (ii) failing the father, to the mother; (iii) failing the father and mother both, to the eldest surviving brother below the age of 18; (iv) these failing, to the eldest surviving unmarried sister; (v) these failing (i) to (iv) above, to the children of a predeceased son in the order it is payable to the children of the deceased officer under clause (a) (ii), (iii) and (iv), above. Note.--The expression "eldest surviving widow" occurring in clause (a)(i) above, should be construed with reference to the seniority according to the date of marriage with the officer and not with reference to the age of surviving widows." 13. It is noted in the impugned order that the competent Revenue Authority issued succession certificate to the petitioner being the legally wedded wife of Baijnath; her name is recorded in the Family Register, whereas, name of the eighth respondent is not recorded in the Family Register. It is further noted that the documents pertaining to pension & gratuity, including, the service record of the employee does not record the name of the eighth respondent. From the extract of the service book placed on record it reflects that the employee in Column-23 recorded the name of the sixth and seventh respondents along with the petitioner as heirs to provident fund & salary, but that would also not help the contesting private respondents insofar it pertains to family pension/gratuity. The pending suit would have no bearing on the entitlement of family pension and other retiral dues to the petitioner. Claim of the sixth, seventh and eighth respondent towards family pension/gratuity can be considered provided they fall within the scope and ambit of the definition 'family' as defined in Rules, 1961. Petitioner is the eldest surviving widow, even if it is taken that the eighth respondent is the second wife of the employee. 14. A bare perusal of the Rules, 1961, is indicative that the definition of 'family' does not include the second wife, it only refers to 'wife', and family pension, as per Rule 7(1), is granted to the member of the 'family' of an officer, sub-rule 3(e) of Rule 7 provides that pension is not payable to a person who is not a member of the deceased/officer's family, sub-rule 4(a)(i) provides that pension shall be sanctioned under Part III to the eldest surviving widow and the note appended to the rule clarifies the expression "eldest surviving widow" should be construed with reference to the seniority according to the date of marriage with the officer and not with reference to the age of surviving widows. 15. 15. Sub-rule (5) requires the Government Servant to make nomination indicating the order in which pension sanctioned would be payable to the members of his 'family', provided the nominee is not ineligible, on the date on which the pension may become payable to him or her to receive the pension under the provisions of sub-rule (3) of rule 7. Thus, the scheme of the Rules provide that in case the Government Servant leaves behind two wives, the second wife, not being a member of the family, is not eligible to family pension, as long as, the first wife survives. Further, there could not have been any nomination in favour of the second wife as she was ineligible to have been nominated under sub-rule (5), being not a member of the family of the employee, thus, ineligible to receive pension under sub-rule (3) of Rule 7. 16. Taking a case that there was nomination in favour of the second wife, the pension would have been payable in accordance to such nomination provided the nominee is not ineligible, on the date on which the pension became payable to her under sub-rule (3) of Rule 7. In the facts of the present case, since the first wife is alive on the date on which the family pension became due, the second wife cannot set up a claim for family pension even on the consent of the first wife, further, nomination in favour of second wife would be invalid as she being not a member of the Government servants family [sub-rule (3)(e) of Rule 7]. 17. The Hindu Marriage Act, 1956 (Act) came into force on 18 May 1955, the Act amended and codified the law relating to marriage among Hindus. Section 4 provides that the Act has an overriding effect. Section 4 is extracted: "4. Overriding effect of Act.-Save as otherwise expressly provided in this Act.-- (a) any text rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act; (b) any other law in force immediately before the commencement of this Act shall cease to have effect in so far as it is inconsistent with any of the provisions contained in this Act." 18. Section 5 provides the conditions for Hindu marriage between two Hindus and one of the condition provides that neither party should have a spouse living at the time of marriage. Section 5(i) is reproduced: "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 marriage;" Section 11 provides for void marriages. Section 11 reads thus: "11. Void Marriages.--Any marriage solemnized after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto [against the other party], be so declared by a decree of nullity if it contravenes any one of the conditions specified in clauses (i), (iv) and (v) of Section 5." 19. Section 29 of the Hindu Marriage Act saves the marriages performed between Hindus before the commencement of the Act. Section 29(1) is reproduced: "29. Savings.--(1) A marriage solemnized between Hindus before the commencement of this Act, which is otherwise valid, shall not be deemed to be invalid or ever to have been invalid by reason only of the fact that the parties thereto belonged to the same gotra or pravara or belonged to different religions, castes or sub-divisions of the same caste." 20. Thus as per the scheme of the Hindu Marriage Act, marriage between two Hindus solemnized before the commencement of the Hindu Marriage Act, which was otherwise legal and valid, would be saved under Section 29 of the Act and would not be void under Section 11. The marriage between the deceased Government servant and the petitioner came to be solemnized after the enactment of the Hindu Marriage Act. The Government Servant contracted the second marriage with the eighth respondent after the commencement of the Hindu Marriage Act, the marriage, therefore, is void and a nullity in the eye of law, second wife would have no right of being a legally wedded wife. 21. The Government Servant contracted the second marriage with the eighth respondent after the commencement of the Hindu Marriage Act, the marriage, therefore, is void and a nullity in the eye of law, second wife would have no right of being a legally wedded wife. 21. In a Full Bench decision of this Court in the case of Nutan Kumar v. IInd Additional District Judge, Banda and others, AIR 1994 All 298 ; in paragraph 8 of the majority judgment, the Court has observed as under: "The appellation 'void' in relation to a juristic act, means without legal force, effect or consequence; not binding; invalid; null; worthless; cipher; useless; and ineffectual etc." (Refer: Shubham Shukla and others v. State of U.P., 2018 (8) ADJ 709 ) 22. This Court in Shahmtala Devi (Smt.) v. Executive Engineer, Electricity Transmission 1st U.P. Electricity Board, Allahabad and another, (2001) 1 UPLBEC 8691, while dealing with two wifes wherein the nomination was in favour of the second wife it was held that it cannot defeat the claim of the legally wedded wife, only legally wedded wife is entitled to retiral benefits, provident fund and appointment under Dying-in-Harness Rules. 23. In Rameshwari Devi v. State of Bihar and others, 2000(1) ESC 577 (SC), where the Government servant being a Hindu having two wives died while in service, Supreme Court held that the second marriage was void under the Hindu law, hence, the second wife having no status of widow is not entitled to anything, however, children from the second wife would equally share the benefits of gratuity and family pension as per law. (Refer: Manno Singh v. State of U.P. and others, 2014 (9) ADJ 701 ) 24. Further, the U.P. Government Servant Conduct Rules, 1956, which came into force on 28th July, 1956, Rule 29 prohibits a Government Servant from bigamous marriage. Rule 29 reads thus: "29. Bigamous marriages--(1) No Government servant who has a wife living shall contract another marriage without first obtaining the permission of the Government, notwithstanding that such subsequent marriage is permissible under the personal law for the time being applicable to him." 25. Rule 29 reads thus: "29. Bigamous marriages--(1) No Government servant who has a wife living shall contract another marriage without first obtaining the permission of the Government, notwithstanding that such subsequent marriage is permissible under the personal law for the time being applicable to him." 25. Thus, Hindus cannot contract marriage after the enforcement of the Hindu Marriage Act, if any of them is having a living spouse, the marriage would be a nullity and would also not be protected under the Conduct Rules, as well as, the pension rules, therefore, it follows that the "second wife" as referred to under the Rules, 1961 would only include second wife whose marriage was otherwise permissible under the personal law or law prevalent at the time of marriage, but in the case of Hindus the second wife will have no right, whatsoever, as the law prohibits second marriage, as long as, the Government servant has a spouse who is alive. Thus for harmonious construction of the Rules governing pension, wherever, the rule provides for wives, it has to be interpreted as per the law governing marriage as applicable to the Government servant and in cases where the second marriage is void under the law, second wife will have no status of a widow of the Government servant. In the facts of the case in hand admittedly the second marriage was contracted after enforcement of the Hindu Marriage Act, therefore, the marriage is void. The second wife would have no right in law to claim family pension. 26. As regards, eligibility to family pension, the pension is to be disbursed as per the provisions of the Rules, 1961. The Rules clearly state that only eligible person is entitled to receive family pension but where pension awarded ceases to be payable on the death or marriage of the recipient or for any other reason, it will be regranted to the persons next lower in the order mentioned in sub-rule (4) of Rule 7. The Hindu second wife would not be eligible for family pension as long as the first wife is alive and has not remarried. There is no provision in the Rules for relinquishment of family pension in favour of another person. The eighth respondent would not fall within the definition of 'family' of the employee. The Hindu second wife would not be eligible for family pension as long as the first wife is alive and has not remarried. There is no provision in the Rules for relinquishment of family pension in favour of another person. The eighth respondent would not fall within the definition of 'family' of the employee. The sixth and seventh respondent being sons of the deceased employees brother are also not family of the employee within the definition of 'family' under the Rules, 1961. 27. In the circumstances, the writ petition is allowed by passing the following orders: (i) the impugned order dated 5 December 2016 passed by the fifth respondent-Senior Treasury Officer, District Banda, is set aside and quashed; (ii) the respondents are directed to release the family pension/gratuity to the petitioner within two months from date of filing of certified copy of this order, failing which, petitioner shall be entitled to interest @ 7% per annum on the entire sum from the due date. It is clarified that the observations made herein above would have no bearing in the pending suit instituted by the sixth and seventh respondent in respect to the other relief’s claimed therein. No cost.