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GAHC010068742017
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WA/160/2018
MUSTT JUNUFA BIBI
W/O LATE TARIF UDDIN AHMED, R/O VILL. CHENGA MUSLIMPARA, P.O.
CHENGA, P.S. BAHARI, DIST. BARPETA, ASSAM, PIN 781305
VERSUS
MUSTT PADMA BEGUM @ PADMA BIBI AND 4 ORS
W/O TARIF UDDIN AHMED, R/O VILL. KETEKIBARI, P.O. BORAMBOI,
P.S.HAJO, DIST. KAMRUP, ASSAM, PIN 781104
2:THE STATE OF ASSAM
REPRESENTED BY THE COMMISSIONER AND SECY. TO THE GOVT. OF
ASSAM
HEALTH DEPTT.
DISPUR
GUWAHATI-6
3:THE ACCOUNTANT GENERAL
MAIDAMGAON
BELTOLA
GUWAHATI 21
4:THE DIRECTOR OF HEALTH SERVICES
ASSAM
HENGRABARI
GUWAHATI 36
5:THE JOINT DIRECTOR OF HEALTH SERVICES
BARPETA
ASSAM
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PIN 78130
Advocate for the Petitioner : MR. Y S MANNAN
Advocate for the Respondent : SC, HEALTH
BEFORE
HONOURABLE THE CHIEF JUSTICE
HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA
HONOURABLE MR. JUSTICE SOUMITRA SAIKIA
JUDGMENT & ORDER (ORAL)
Date : 22-12-2022
(A.M. Bujor Barua, J)
Heard Mr. YS Mannan, learned counsel for the appellant Mustt Junufa Bibi.
Also heard Mr. RC Saikia, learned counsel for the respondent No. 1 Mustt Padma
Begum @ Padma Bibi, Ms. D Borah, learned counsel for the respondents in the
Health Department of the Government of Assam, Mr. A Hassan, learned counsel
for Accountant General, Assam, Ms. N Sarma, learned counsel for the
respondents in the Education Department as well as Mr. J.K Goswami, learned
additional senior Government Advocate for the respondents in the Pension
Department. Further heard Mr. RKD Choudhury, learned Dy.SGI for the
authorities under the Union of India inasmuch as, in some of the matters where
also the question referred is to be answered that the Union of India are
respondents.
2. Junufa Bibi has instituted WA 160/2018 being aggrieved by the judgment
and order dated 26.07.2017 in WP(C) No. 2182/2016. WP(C) No. 2182/2016
had been instituted by the respondent No. 1 Padma Begum @ Padma Bibi
(hereinafter referred as Padma Begum) being aggrieved by the PPO No.
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9011112044447 and GPO No. 11220444713 dated 30.09.2013 by which the
appellant Junufa Bibi had been provided to be the beneficiary of the family
pension in respect of the deceased Tarif Uddin Ahmed. The deceased Tarif
Uddin Ahmed was an employee in the Health Department of the Government of
Assam and was receiving the pension upon retirement from service on attaining
the age of superannuation till he died on 13.08.2015.
3. Admittedly, the respondent No. 1 Padma Begum was the first wife and the
appellant Junufa Bibi was the third wife of the deceased Tarif Uddin Ahmed,
although the respondent No. 1 Padma Begum is stated to have been living
separately and there was also an order dated 28.07.1993 of the learned
Principal Judge, Family Court Guwahati in FC.Crl.No.86/1993 for payment of
maintenance to the respondent No. 1 Padma Begum.
4. The issue that arose before the learned Single Judge in WP(C) No.
2182/2016 was also on the question as to if the parties are governed by the
Mohammedan Law, whether the pension would be entitled to the first wife or to
the second or other wives. By referring to a Division Bench judgment rendered
in Sirazun Nessa – vs- State of Assam and others, of this Court, reported in
2011 (4) GLT 751 and the judgment of the Hon’ble Supreme Court in Khurshid
Ahmed Khan – vs- State of Uttar Pradesh and Others, reported in (2015) 8 SCC
439, a conclusion was arrived in paragraph 16 of the judgment dated
26.07.2017 in WP(C) No. 2182/2016 that although in Sirazun Nessa (supra), it
was held that the second wife is entitled to the proportionate family pension,
but by following the ratio laid down by the Hon’ble Supreme Court in Khurshid
Ahmed Khan (supra) as well as in view of Note.1 to Rule 143 (ii) of the Assam
Services (Pension) Rules, 1969 (in short the Pension Rules of 1969), the non-
inclusion of the respondent No.1 Padma Begum as a nominee in the pension
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papers submitted by the deceased Tarif Uddin Ahmed cannot deprive her from
what she should rightfully receive, in a situation where she was not divorced
and continued to the first wife of the deceased employee.
5. In WA 160/2018 by Junufa Bibi, reliance had been placed by the appellant
in Sirazun Nessa (supra), wherein it was also provided that the pension of a
deceased employee can be divided proportionately between his widows. It had
also been submitted on behalf of the appellant Junufa Bibi that the judgment
rendered in Sirazun Nessa (supra) had also been followed by the Division Bench
in Mustt. Khadija Begum –vs- Mustt Rejina Begum and five others in WA
244/2017 and Khudeja Khatun –vs- State of Assam and six others in WA
178/2020.
6. When the WA 160/2018 was heard by the Division Bench on 21.12.2021,
the appellant Junufa Bibi relied on paragraphs 15 and 16 of Sirazun Nessa
(supra) to raise the contention that even the second or subsequent wives of a
deceased Mohammedan employee would be entitled to the family pension.
Paragraphs 15 and 16 of Sirazun Nessa (supra) are extracted below:-
“15. It is true that under Rule 143 (i) there is no indication of entitlement of
family pension by more than one wife. However, in the Note appended to Rule
143(ii) definitely points out consideration of the claim for family pension by two
or more widows. The aforesaid rule, as a whole, indicates that the eldest
surviving widow would be entitled to the family pension. At the same time, the
Rule has not ruled out taking into consideration the valid marriage of two or
more wives by a Mohammedan employee.
16. At this stage, we would like to address the effect of ‘Conduct Rules’, while
determining the claim of the family pension. As noted earlier, the learned Single
Judge has referred to Rule 26 of the ‘conduct Rules’; which has put certain pre-
conditions for contracting a second marriage. Admittedly the ‘conduct Rules’ do
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not totally prohibit a 2nd marriage, provided it is permitted under the personal
law and custom of the concerned Government employee. The only rider is to
obtain permission from the Government. In our considered opinion, any
violation of the Conduct Rules may entail disciplinary proceeding during the
service tenure of a Government employee but any such violation does not
amount to declaring 2nd marriage between the two Muslim spouses void,
provided it is otherwise legal and valid. Hence, the rejection of the claim of a
second Mohammedan wife with the aid of ‘conduct Rules’ is unsustainable in
law.”
7. It is noticed that in paragraph 15 of the judgment in Sirazun Nessa
(supra), the provision of Rule 143(1) of the Pension Rules of 1969 was taken
note of to arrive at a conclusion that the Note appended thereto refers to the
claim for family pension by two or more widows and although it provides that
the eldest of the surviving widow would be entitled to the family pension, but at
the same time, the Rule had not ruled out the possibility of a valid marriage of
two or more wives by a Mohammedan employee. In paragraph 16 of the said
judgment in Sirazun Nessa (supra), Rule 26 of the Assam Civil Services
(Conduct) Rules, 1965 (in short Conduct Rules of 1965) was referred for arriving
at a conclusion that although contracting a second marriage may be a
misconduct for a disciplinary proceeding, but it does not amount to declaring
the second marriage between two persons governed by the Mohammedan Law
to be a void or illegal marriage.
8. The Division Bench in Sirazun Nessa (supra) was concerned with two
conflicting judgments in Amina Khatun –vs- Jahura Khatun reported in 2004
Suppl GLT 67 and Suraiya Sultana –vs- State of Assam, reported in 2006 Suppl
GLT 533, where the decision rendered in Amina Khatun(supra) was that Rule
143 of the Pension Rules of 1969 does not rule out the possibility of entertaining
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a claim for family pension by more than one spouse of a deceased Government
employee, whereas in Suraiya Sultana (supra), the view taken was that the
second or subsequent wives would not be entitled to the family pension.
Accordingly, the Division Bench in Sirazun Nessa (supra) was in agreement with
the view taken in Amina Khatun (supra) in preference over the decision in
Suraiya Sultana (supra) by further requiring the departmental authorities to ask
the surviving widows of the deceased employee to clarify the ratio of their claim
for the family pension in accordance with the Mohammedan Law.
9. But while hearing the matter in WA 160/2018, as reflected in the order
dated 21.12.2021, the Division Bench took note of the provisions of Rule 143 of
the Pension Rules of 1969 and arrived at a view that Note.1 to Rule 143 (ii)
clearly provides that where there are two or more widows, pension will be
payable to the eldest surviving widow and on her death, it would be payable to
the next surviving widow, if any. Accordingly, in the order dated 21.12.2021, the
view taken by the Division Bench in Sirazun Nessa (supra) was differed.
10. In view of the difference of the view, formed by the Division Bench in the
order dated 21.12.2021 in WA 160/2018, and that of in Sirazun Nessa (supra),
the matter has been referred to the Larger Bench for its decision.
11. In the facts and circumstances, as well as in view of the propositions of
law referred hereinabove, the question for determination would be:
(1) Whether the second or further wives of a deceased employee where both
are governed by the Mohammedan Law would be entitled to the benefits of
a family pension of such deceased employee?
(2) If yes, to whom the family pension is payable under the Assam Services
(Pension) Rules, 1969?
12. At the very outset we take note that in all such judgments referred for the
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purpose i.e. Sirazun Nessa (supra), Khadija Begum (supra), Khudeja Khatun
(supra), Suraiya Sultana (supra) and Amina Khatun (supra), the question for
determination was on the validity and acceptability of the marriage in respect of
the second or further wives of a deceased employee where both were governed
by the Mohammedan Law and consequent upon such validity and acceptability
of marriage, the entitlement of such second or further wives for the benefits of
a family pension.
13. As regards the validity and acceptability of a marriage of a second wife or
further wives where the parties are governed by the Mohammedan Law, would
definitely be governed by the principles of the personal law to which the parties
are subjected. Neither the law regarding payment of pension or family pension,
as the case may be, nor the law relating to any service condition of an
employee who is also governed by Mohammedan Law can determine the validity
and acceptability of a marriage of a second wife or further wives where all the
parties are governed by Mohammedan Law. Although in Khurshid Ahmed Khan
(supra) it had been held by the Hon’ble Supreme Court that contracting a
second marriage during the sustenance of their first marriage would be a matter
of religious practice rather than a religious faith and belief and therefore, such
religious practice cannot be the basis to invoke the provisions of Article 25 of
the Constitution of India so as to render the U.P. Government Servants’
(Conduct) Rules, 1956 to be unconstitutional which provides the contracting of a
second marriage to be a misconduct for the purpose of a disciplinary
proceeding, but the said decision also do not lead to any conclusion that the
marriage of the second or further wives where the parties are governed by the
Mohammedan Law would be invalid or unacceptable in law.
14. Rule 143 of the Pension Rules, 1969 is extracted as below:
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“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.
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 remarriage 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 until 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, the pension 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.”
15. As reading of Rule 143(1) goes to show that for the purpose of family
pension a family would comprise of the relatives of the officer, which also
includes the wife in case of a male officer. If the second or further wives of a
male officer are acceptable and valid under the personal law governing the
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parties, we see no reason as to why such second or further wives would not be
construed to be a wife of the male officer.
16. If the validity and acceptability of the marriage of a second wife or further
wives where parties are governed by Mohammedan Law would be determined
by the personal laws of the parties, and the personal laws provide for the
validity and acceptability of such marriage, the second wife or the further wives
where parties are governed by Mohammedan Law, would have to be construed
to be also the family members of the deceased employee and therefore, under
Rule 143(1) of the Pension Rules of 1969 be entitled to the benefits of a family
pension.
17. But a further question remains as to whether being entitled to the benefits
of a family pension would also necessarily mean that the State Authorities
providing for a family pension would have to pay or apportion and pay the
family pension to the second and further wives of a deceased employee
separately where the parties are governed by the Mohammedan Law.
18. For the purpose, we look into the provisions of Note 1 to Rule 143(ii) of
the Pension Rules of 1969. A reading of Rule 143 (i) of the Pension Rules of
1969 makes it discernable that the wife in case of a male officer would be
included as a family for the purpose of the Rules and a marriage for the purpose
of pensionery benefits to the spouse of a retired official shall mean a marriage
before or after retirement. Note 1 to Rule 143 (ii) provides that in cases where
there are two or more widows pension will be payable to the eldest surviving
widow and on her death, it will be payable to the next surviving widow and the
term eldest would mean seniority with reference to the date of marriage. Rule
143 (iii) further provides that the pension so awarded under Rule 143 will not be
payable to more than one member of the officer’s family at the same time.
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19. A conjoint reading of Note 1 to Rule 143 (ii) and Rule 143 (iii) of the
Pension Rules of 1969 makes it explicit and unambiguous that the family
pension would be payable to the eldest of the surviving widow in the event of
there being two or more widows and further that even if there are minor
children who may also be entitled to the benefits of the family pension, the
pension would be paid to only one member of the family at the same time,
where at first instance it would be paid to the eldest of the surviving widow and
thereafter, on her death to the next surviving widow, if any and in its absence to
the minor children.
20. As a corollary to the provisions of the Rule 143 (iii) of the Pension Rules of
1969, Note 1 to Rule 143 (ii) would have to be read to mean that the family
pension would be payable to the eldest of the surviving widows in the event
there are two or more widows, and thereafter, on her death it would be payable
to the next surviving widow, if any and thereafter, to the minor children if the
occasion arises.
21. In the circumstance, the concept of a validity and acceptability of a
second marriage where the parties are governed by the Mohammedan Law and
the consequential entitlement to the benefits of a family pension and the
concept to whom the family pension would be payable under the Pension Rules
of 1969 are held to be two separate and unrelated concepts and the implication
of the concept of a validity and acceptability of a second marriage or further
marriages where the parties are governed by the Mohammedan Law would have
no bearing on the concept to whom the family pension is payable under the
Pension Rules of 1969. It is held that irrespective of the validity and
acceptability of a second marriage or further marriages where the parties are
governed by the Mohammedan Law, the family pension under Rule 143 of the
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Pension Rules of 1969 would be payable to the eldest of the surviving widow,
which would also be applicable for a family pension where the parties are
governed by the principles of Mohammedan Law, and where there may be a
validity and acceptability of the second wife or further wives in respect of a
deceased Mohammedan employee.
22. We further hold that the family pension being payable to the eldest of the
surviving widow or wife would not mean that the entire family pension so
payable would be the personal property of the eldest of the surviving widow or
wife and the family pension so payable would be held by the eldest of the
surviving widow or wife as a trustee for all such other persons who are entitled
to the benefits of the family pension in terms of Rule 143 of the Pension Rules
of 1969.
23. We also provide that in the event any such other persons who are entitled
to the benefits of the family pension in terms of Rule 143 of the Pension Rules
of 1969, including the second or further wives, in a case where the parties are
governed by the Mohammedan Law, are not appropriately maintained by the
eldest of the surviving widow or wife to whom the pension would be paid, the
remedy thereof would be to make a claim for maintenance in the appropriate
forum under the law and not a claim for a payment of the family pension by the
State authorities directly to such persons. But however, if in a given case the
State authorities on their own volition are of the view that under an acceptable
circumstance the authorities are agreeable or required to pay the pension
separately to any such member of a family of a deceased employee, this
judgment may not be construed to be an absolute bar on such separate
payment.
24. The reference made by the order dated 21.12.2021 is answered
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accordingly.
Writ Appeal No. 160/2018 accordingly stands closed.
JUDGE JUDGE CHIEF JUSTICE
Comparing Assistant
