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2015 DIGILAW 133 (GAU)

DURGABALA GHOSH v. STATE OF ASSAM

2015-02-05

MICHAEL ZOTHANKHUMA

body2015
JUDGMENT : MICHAEL ZOTHANKHUMA, J. 1. Heard Mr. S Sarma, learned counsel for the petitioner and Mr. A. Chetry, learned counsel for respondent Nos. 1 and 3. Also heard Mr. RK Malakar, learned counsel for the respondent no.2 and Mr. M Khataniar, learned counsel for the respondent No.4. 2. The petitioner's case is that her husband Promod Chandra Ghosh was working as a Grade IV staff in the office of the Deputy Commissioner, Goalpara and was residing with his legally married two wives, namely, Sumo Bala Ghosh (first wife) and the petitioner, namely, Smt. Durgabala Ghosh (second wife). 3. The petitioner's husband took voluntary retirement from service due to illness with effect from 14.10.84 and pension was paid to her husband by the respondents. After the death of the petitioner's husband on 25.12.92 the first wife, namely Sumo Bala Ghosh received family pension. On 16.10.2012, Sumo Bala Ghosh died leaving the petitioner and her daughter Dipali Ghosh Sarkar. 4. Petitioner's case is that on the death of the first wife, she submitted an application before the respondent No.4 on 1.1.2013 requesting that the family pension be paid to her. The Addl. Deputy Commissioner, Goalpara thereafter vide letter dated 3.1.2013 addressed to the Circle Officer, Balijana Revenue Circle requested him to conduct an enquiry to find out whether Late Promod Ch. Ghosh married the petitioner as his second wife and to submit a report in this regard. The Circle Officer, Balijana Revenue Circle conducted an enquiry and vide letter dated 11.4.2013 submitted his enquiry report to the Addl. Deputy Commissioner, Goalpara stating that the petitioner is the second wife of Late Promod Ch. Ghosh. Thereafter, the Deputy Commissioner, Goalpara wrote a letter dated 21.5.2013 to the respondent No.2 and submitted the proposal for giving family pension to the petitioner. As the respondents have not finalised the family pension of the petitioner, she has approached this Court with the prayer that the family pension may be given to her as she is the second wife of Late Promod Ch. Ghosh. 5. The counsel for the petitioner has submitted that late Promod Ch. Ghosh had married the petitioner as his second wife while he was in service by following all the necessary rituals and customs. According to the petitioner's counsel, the petitioner is the legally married second wife of Late Promod Ch. Ghosh. Ghosh. 5. The counsel for the petitioner has submitted that late Promod Ch. Ghosh had married the petitioner as his second wife while he was in service by following all the necessary rituals and customs. According to the petitioner's counsel, the petitioner is the legally married second wife of Late Promod Ch. Ghosh. There is no dispute that Sumo Bala Ghosh was the first wife of late Promod Ch. Ghosh and that the first wife was receiving family pension till her death on 16.10.2012. The counsel for the petitioner has taken me to Annexure-2 of the writ petition which is a Next of Kin Certificate issued by the office of the Deputy Commissioner, Goalpara in order to support of his case that the petitioner is the second wife of late Promod Ch. Ghosh. The Next of Kin Certificate dated 14.12.2012 shows the status of the petitioner as deceased's sister in law and not as his wife. The counsel for the petitioner has also stated that in view of the report submitted by the Asstt. Settlement Officer, Balijana Revenue Circle (Annexure-5) wherein it has been stated that the petitioner is the second wife of late Promod Ch. Ghosh, the petitioner is entitled to family pension. The counsel for the petitioner has taken me to Section 143 of the Assam Services (Pension) Rules, 1969 by contending that a second wife is also entitled to family pension. He specifically referred to the Note under Section 143(ii) which is to the following effect: "Note - In cases where there are two or more widows, pension will be payable to the next surviving widow, if any. The term 'eldest' would mean seniority with reference to the date of marriage." 6. The counsel for the petitioner has also relied upon the judgment dated 6.12.2014 passed by this Court in WP(C) 104/2014 (Arati Upadhay v. State of Assam & Ors.) whereby this Court had disposed of the writ petition by directing that the second wife was entitled to pension as per the provisions of Rule 143 of the Assam Services (Pension) Rules, 1969. 7. Mr. 7. Mr. RK Malakar, counsel for the respondent No.2 has referred to the judgment and order dated 9.11.2005 passed by this Court in WP(C) 6582/2004 (Suraiya Sultana v. State of Assam & Ors.) and contended that as per the said judgment and order a second marriage during the lifetime of the first wife and during the subsistence of the first marriage is not permissible as per the provisions of the Hindu Marriage Act, 1955. Section 5(1) of the Hindu Marriage Act lays down that neither of the parties must have a spouse living at the time of marriage. Thus, under the codified Hindu Law no husband can have more than one wife and no woman can have more than one husband. 8. Mr. M Khataniar, counsel for the respondent No.4 has taken me to the affidavit filed by the respondent No.4. In para 7 of the said affidavit, it has been stated that the information regarding marriage of late Promod Ch. Ghosh with the petitioner has been verified by the Circle Officer, Balijan Revenue Circle, Goalpara and it had been found that late Promod Ch. Ghosh was legally married with the petitioner before his retirement. 9. Counsel for the other respondents have, however, submitted that there cannot be a valid and legal marriage of the petitioner as per the Hindu Law during the subsistence of the earlier marriage. According to the counsel for the respondent Nos. 1 and 2, the petitioner would have been entitled to family pension only if the petitioner had married the deceased Govt. servant after the divorce or death of the first wife. The further contention of the counsel for the respondents is that as per Section 143 of the Assam Services (Pension) Rules, 1969, the petitioner is not entitled to any family pension as the marriage of the petitioner during the subsistence of the earlier marriage is void. 10. The crux of the matter is whether the second marriage of late Promod Ch. Ghosh with the petitioner is valid or not as he already had an existing wife. There is no dispute that the petitioner is a Hindu and that late Promod Ch. Ghosh and his first wife are also Hindu. 11. 10. The crux of the matter is whether the second marriage of late Promod Ch. Ghosh with the petitioner is valid or not as he already had an existing wife. There is no dispute that the petitioner is a Hindu and that late Promod Ch. Ghosh and his first wife are also Hindu. 11. In order to appreciate the contention of the petitioner that this Court vide its judgment passed in WP(C) 104/2014 had directed payment of family pension to a second wife, the records of the said case were called for and it was noticed that in para 9 of the said writ petition, the petitioner has averred as follows:- "The earlier wife, Malati Devi, has left the company of the petitioner's husband long back without having any contact for more than 35 years. It was also not ascertained during the lifetime of the petitioner's husband whether Malati Devi was legally married wife or nor, as because she had left the company of the petitioner's husband long back and she has also not claimed any maintenance from the petitioner's husband during his life time. Besides this, as per knowledge of the petitioner, Malati Devi had also expired and as such there is none to receive the family pension of Late Ramayan Upadhay except the petitioner.". The judgment passed in WP(C) 104/2014 is distinguishable from the decision rendered in Suraiya Sultana (supra). 12. Thus, the question of the petitioner being married to her husband in WP(C) 104/2014 was not in dispute. But the question whether the earlier wife who had expired had a legal marriage was a disputed question of fact. 13. This Court in Suraiya Sultana (supra), by referring to various provisions of the Hindu Marriage Act, 1955, has come to the conclusion that a second marriage during the subsistence of the earlier marriage under Hindu Law is void ab initio. It has also been held in the said case that as per Rule 26(1) of the Assam Civil Services (Conduct) Rules, 1965, no Government servant who has a wife living shall contact 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. The mandate for a Government servant is monogamy of marriage. 14. The mandate for a Government servant is monogamy of marriage. 14. In the present case, the petitioner has not been able to show that the permission of the Government has been taken for the second marriage. In any event, the personal law i.e. Hindu Law does not permit a second marriage while the first marriage is subsisting. 15. In view of the law laid down by this Court in Suraiya Sultana (supra), the marriage of the petitioner and Late Promod Ch. Ghosh while the first marriage was subsisting, is void ab initio and accordingly, the petitioner is not entitled to receive family pension. 16. In the facts and circumstances narrated above, I find no merit in this writ petition. 17. The writ petition fails and is accordingly dismissed. 18. No cost.