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2016 DIGILAW 801 (GAU)

Somela Khatun v. State of Assam

2016-08-23

MANOJIT BHUYAN

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JUDGMENT AND ORDER : Manojit Bhuyan, J. Heard Mr. K.R. Patgiri, learned counsel for the petitioner as well as Ms. M. Bhattacharjee, learned counsel representing respondent nos. 1, 3, 4 and 6. Also heard Mr. U.K. Nair, learned counsel representing respondent nos. 2 and 5 whereas respondent no. 7 is represented by Mr. A. Hussain, Advocate. 2. The petitioner is the second wife of Late Abul Kashem Miah. Her husband, who served as Tax Collector of Ruposhi Anchalik Panchayat and Uttar Titapani Gaon Panchayat, retired from service on 31.01.2002 and eventually suffered demise on 22.11.2009. Grant of family pension was claimed by the first wife but in view of certain errors, the same was returned back to the Office of the Chief Executive Officer, Barpeta Zila Parishad, Barpeta. In the year 2015 and by Representation dated 13.05.2015, the petitioner claimed pensionary benefits as well as monthly family pension in equal share with that of the first wife of the deceased Abul Kashem Miah. The Representation made to the Chief Executive Officer, Barpeta Zila Parishad on 13.05.2015 did not reach any conclusion. Constrained thus, the petitioner instituted the present proceedings. 3. Claim for proportionate share of the pensionary benefits as well as monthly family pension is made on the basis of the Division Bench judgment of this Court in the case of Surajan Nessa v. State of Assam and Others, reported in 2011 (4) GLT 751. Mr. Patgiri submits that in the said case the second wife was made entitled to proportionate family pension. Strong reliance is placed in paragraph 18 of the judgment in support of the petitioner's case. 4. Per contra, Mr. U.K. Nair submits that the basis on which the directions at paragraph 18 of the judgment was made was primarily on the findings of the Division Bench holding that any violation of the Assam Civil Services (Conduct) Rules, 1965 does not amount to declaring the second marriage between two Muslim spouses as void. Rule 24 of the aforesaid Conduct Rules prohibits a Government servant having a wife living to contract another marriage without first obtaining the permission of the Government, notwithstanding that such subsequent marriage is permissible under the personal law. Mr. Nair submits that, firstly, during the service tenure of the petitioner's husband, no permission was obtained from the Government for contracting such marriage with the petitioner. The most vital aspect urged by Mr. Mr. Nair submits that, firstly, during the service tenure of the petitioner's husband, no permission was obtained from the Government for contracting such marriage with the petitioner. The most vital aspect urged by Mr. Nair is that although the Division Bench in Surajan Nessa case (supra) have held that violation of the Conduct Rules would not amount to declaring the second marriage between two Muslim spouses as void, the said view has been answered in an altogether different manner by the Apex Court in the case of Khurshid Ahmed Khan v. State of Uttar Pradesh and Others, reported in (2015) 8SCC 439. 5. In Khurshid Ahmed Khan (supra), the Apex Court was seized with the issue as to whether the Conduct Rules could be held to be violative of Article 25 of the Constitution of India. While answering the said issue, the Apex Court discussed various judgments and views of the Bombay, Gujarat and Allahabad High Court. The final judgment rendered is that the Conduct Rules do not in any manner violate Article 25 of the Constitution of India. 6. To reiterate, in the present case, Rule 24 of the aforesaid Rules of 1965 clearly lays down that no Government servant who has a wife living can contract another marriage without first obtaining the permission of the Government, notwithstanding the fact that such subsequent marriage may be permissible under the personal law. Another submission of Mr. Nair in respect of Rule 143 of the Assam Services (Pension) Rules, 1969, more particularly to the Note under Clause (ii) of Rule 143 is also taken on board. The said provision prescribes that in case where there are two or more widows, pension will be payable to the next surviving widow, if any. The said Note also explains the term 'eldest' to mean seniority with reference to the date of marriage. Apparently, the petitioner is the second wife. 7. The directions at paragraph 18 of Surajan Nessa (supra) case has its basis on the observations made by the Division Bench at paragraph 16 thereof. The finding and decisions with regard the applicability of the Conduct Rules, as in the present case, have received a different interpretation of the Apex Court in the case of Khurshid Ahmed Khan (supra). Having regard to the same, I hold that the petitioner is not entitled to relief so claimed. The finding and decisions with regard the applicability of the Conduct Rules, as in the present case, have received a different interpretation of the Apex Court in the case of Khurshid Ahmed Khan (supra). Having regard to the same, I hold that the petitioner is not entitled to relief so claimed. As a necessary corollary, this writ petition must fail and, accordingly, the same stands dismissed. No costs. Interim order passed earlier stands recalled.