Research › Search › Judgment

Gauhati High Court · body

2017 DIGILAW 987 (GAU)

Rejina Begum v. State of Assam

2017-07-26

MICHAEL ZOTHANKHUMA

body2017
JUDGMENT & ORDER : Michael Zothankhuma, J. Heard Mr. M. Sarania, learned counsel for the petitioner. Also heard Mr. K. Sharma, learned counsel for the respondent No. 6, Dr. B. Ahmed, learned counsel for the Irrigation Department, Mr. P Nayak, learned counsel appears for the Finance Department. 2. The brief facts of the case is that the petitioner's late husband, Bulmajan Ali died in harness on 27.10.2010, while working as a Tractor Driver in the Irrigation Department. The petitioner applied for family pension. However, the State respondents did not process the family pension papers in favour of the petitioner on the ground that the respondent No. 6 was also claiming the family pension. 3. The petitioner's counsel submits that the petitioner is the first wife of the late Bulmajan Ali while the respondent No. 6 is the second wife of the late Bulmajan Ali. The petitioner has one child with late Bulmajan Ali, while the respondent No. 6 does not have any children with the petitioner's husband. 4. The petitioner's counsel submits that as per the certificate of the Next of kith and Kin, dated 26.08.2015, issued by the S.D.O. (C), Tamulpur, the petitioner and the respondent No. 6 are listed as the first and second wife respectively of the late Bulmajan Ali. 5. The petitioner's counsel also submits that as per the Judgment dated 20.01.2012, passed by the Court of the Munshiff, Rangia in Title Suit No. 16/2011, the Court has held that both the petitioner and the respondent No. 6 are the legal wives of the late Bulmajan Ali. 6. Mr. K. Sharma, learned counsel for the respondent No. 6 admits to the fact that the petitioner and the respondent No. 6 are the first and second wife of the late Bulmajan Alil. 7. Rule 143 of the Assam Services (Pension) Rules, 1969 states as follows: "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. 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 re-marriage 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 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. 8. Rule 24 of the Assam Civil Services Conduct Rules, 1965 states as follows: "24. Bigamous marriage- (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. (2) No female Government Servant shall marry any person who has a wife living without first obtaining the permission of the Government." 9. (2) No female Government Servant shall marry any person who has a wife living without first obtaining the permission of the Government." 9. In the case of Sirazun Nessa v. State of Assam & Ors, reported in 2011 (4) GLT 751, the Division Bench of this Court has held that though the Conduct Rules has put certain pre-conditions for contracting a 2nd marriage, admittedly the Conduct Rules do 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. The Division Bench thus held that any violation of the Conduct Rules may entail disciplinary proceedings during the service tenure of a Government employee, but any such violation does not amount to declaring the 2nd marriage between two Muslim spouses void, provided it is otherwise legal and valid. The Division Bench thus held that rejection of the claim of a second Mohammedan wife with the aid of Conduct Rules is unsustainable in law. 10. In the case of Khursheed Ahmad Khan v. State of U.P & Others, reported in (2015) 8 SCC 439 , the Apex Court had to decide a case wherein, the appellant had challenged his removal order from service as he had married a 2nd wife during the subsistence of his earlier marriage. The appellant in the said case questioned the validity of the Conduct Rules as it was permissible for Muslims to enter into bigamous marriages as per their personal law. The Apex Court in Khursheed Ahmad Khan (Supra) considered various judgments passed by different High Courts and accordingly held that the Conduct Rules prohibiting bigamy did not violate Article 25 of the Constitution. The Apex Court while coming to the aforesaid finding and conclusion has held at para 14 & 15 as follows: "14. In Javed v. State of Haryana, this Court dealt with the issue in question and held that what was protected under Article 25 was the religious faith and not a practice which may run counter to public order, health or morality. Polygamy was not integral part of religion and monogamy was a reform within the power of the State under Article 25. This Court upheld the views of the Bombay, Gujarat and Allahabad High Courts to this effect. Polygamy was not integral part of religion and monogamy was a reform within the power of the State under Article 25. This Court upheld the views of the Bombay, Gujarat and Allahabad High Courts to this effect. This Court also upheld the view of the Allahabad High Court upholding such a conduct rule. It was observed that a practice did not acquire sanction of religion simply because it was permitted. Such a practice could be regulated by law without violating Article 25. This Court observed : "49. In State of Bombay v. Narasu Appa Mali [AIR (1952) Bom 84] the constitutional validity of the Bombay Prevention of Hindu Bigamous Marriages Act (25 of 1946) was challenged on the ground of violation of Articles 14, 15 and 25 of the Constitution. A Division Bench, consisting of Chief Justice Chagla and Justice Gajendragadkar (as His Lordship then was), held: (AIR p. 86, para 5) "[A] sharp distinction must be drawn between religious faith and belief and religious practices. What the State protects is religious faith and belief. If religious practices run counter to public order, morality or health or a policy of social welfare upon which the State has embarked, then the religious practices must give way before the good of the people of the State as a whole." 50. Their Lordships quoted from American decisions that the laws are made for the governance of actions, and while they cannot interfere with mere religious beliefs and opinions, they may with practices. Their Lordships found it difficult to accept the proposition that polygamy is an integral part of Hindu religion though Hindu religion recognizes the necessity of a son for religious efficacy and spiritual salvation. However, proceeding on an assumption that polygamy is a recognized institution according to Hindu religious practice, Their Lordships stated in no uncertain terms: (AIR p. 86, para 7) "[The right of the State to legislate on questions relating to marriage cannot be disputed. Marriage is undoubtedly a social institution an institution in which the State is vitally interested. Although there may not be universal recognition of the fact, still a very large volume of opinion in the world today admits that monogamy is a very desirable and praiseworthy institution. Marriage is undoubtedly a social institution an institution in which the State is vitally interested. Although there may not be universal recognition of the fact, still a very large volume of opinion in the world today admits that monogamy is a very desirable and praiseworthy institution. If, therefore, the State of Bombay compels Hindus to become monogamists, it is a measure of social reform, and if it is a measure of social reform then the State is empowered to legislate with regard to social reform under Article 25(2)(b) notwithstanding the fact that it may interfere with the right of a citizen freely to profess, practise and propagate religion." 51. What constitutes social reform? Is it for the legislature to decide the same? Their Lordships held in Narasu Appa Mali case that the will expressed by the legislature, constituted by the chosen representatives of the people in a democracy, who are supposed to be responsible for the welfare of the State, is the will of the people and if they lay down the policy which a State should pursue such as when the legislature in its wisdom has come to the conclusion that monogamy tends to the welfare of the State, then it is not for the courts of law to sit in judgment upon that decision. Such legislation does not contravene Article 25(1) of the Constitution. 52. We find ourselves in entire agreement with the view so taken by the learned Judges whose eminence as jurists concerned with social welfare and social justice is recognized without any demur. Divorce, unknown to ancient Hindu law, rather considered abominable to Hindu religious belief, has been statutorily provided for Hindus and the Hindu marriage which was considered indissoluble is now capable of being dissolved or annulled by a decree of divorce or annulment. The reasoning adopted by the High Court of Bombay, in our opinion, applies fully to repel the contention of the petitioners even when we are examining the case from the point of view of Muslim personal law. 53. The Division Bench of the Bombay High Court in Narasu Appa Mali also had an occasion to examine the validity of the legislation when it was sought to be implemented not in one go, but gradually. Their Lordships held: (AIR p. 87, para 10) "... 53. The Division Bench of the Bombay High Court in Narasu Appa Mali also had an occasion to examine the validity of the legislation when it was sought to be implemented not in one go, but gradually. Their Lordships held: (AIR p. 87, para 10) "... Article 14 does not lay down that any legislation that the State may embark upon must necessarily be of an all-embracing character. The State may rightly decide to bring about social reform by stages and the stages may be territorial or they may be community-wise." 54. Rule 21 of the Central Civil Services (Conduct) Rules, 1964 restrains any government servant having a living spouse from entering into or contracting a marriage with any person. A similar provision is to be found in several service rules framed by the States governing the conduct of their civil servants. No decided case of this Court has been brought to our notice wherein the constitutional validity of such provisions may have been put in issue on the ground of violating the freedom of religion under Article 25 or the freedom of personal life and liberty under Article 21. Such a challenge was never laid before this Court apparently because of its futility. However, a few decisions by the High Courts may be noticed. 55. In Badruddin v. Aisha Begum [(1957) All LJ 300] the Allahabad High Court ruled that though the personal law of Muslims permitted having as many as four wives but it could not be said that having more than one wife is a part of religion. Neither is it made obligatory by religion nor is it a matter of freedom of conscience. Any law in favour of monogamy does not interfere with the right to profess, practise and propagate religion and does not involve any violation of Article 25 of the Constitution. 56. In R.A. Pathan v. Director of Technical Education [(1981) 22 Guj LR 289] having analysed in depth the tenets of Muslim personal law and their base in religion, a Division Bench of the Gujarat High Court held that a religious practice ordinarily connotes a mandate which a faithful must carry out. What is permissive under the scripture cannot be equated with a mandate which may amount to a religious practice. What is permissive under the scripture cannot be equated with a mandate which may amount to a religious practice. Therefore, there is nothing in the extract of the Quaranic text (cited before the Court) that contracting plural marriages is a matter of religious practice amongst Muslims. A bigamous marriage amongst Muslims is neither a religious practice nor a religious belief and certainly not a religious injunction or mandate. The question of attracting Articles 15(1), 25(1) or 26(b) to protect a bigamous marriage and in the name of religion does not arise. 57. In Ram Prasad Seth v. State of U.P. [AIR (1957) All 411] a learned Single Judge held that the act of performing a second marriage during the lifetime of one's wife cannot be regarded as an integral part of Hindu religion nor could it be regarded as practising or professing or propagating Hindu religion. Even if bigamy be regarded as an integral part of Hindu religion, Rule 27 of the U.P. Government Servants' Conduct Rules requiring permission of the Government before contracting such marriage must be held to come under the protection of Article 25(2)(b) of the Constitution. 58. The law has been correctly stated by the High Courts of Allahabad, Bombay and Gujarat, in the cases cited hereinabove and we record our respectful approval thereof. The principles stated therein are applicable to all religions practised by whichever religious groups and sects in India. 59. In our view, a statutory provision casting disqualification on contesting for, or holding, an elective office is not violative of Article 25 of the Constitution. 60. ..........It may be permissible for Muslims to enter into four marriages with four women and for anyone whether a Muslim or belonging to any other community or religion to procreate as many children as he likes but no religion in India dictates or mandates as an obligation to enter into bigamy or polygamy or to have children more than one. What is permitted or not prohibited by a religion does not become a religious practice or a positive tenet of a religion. A practice does not acquire the sanction of religion simply because it is permitted. What is permitted or not prohibited by a religion does not become a religious practice or a positive tenet of a religion. A practice does not acquire the sanction of religion simply because it is permitted. Assuming the practice of having more wives than one or procreating more children than one is a practice followed by any community or group of people, the same can be regulated or prohibited by legislation in the interest of public order, morality and health or by any law providing for social welfare and reform which the impugned legislation clearly does." 15. In view of the above, we are unable to hold that the Conduct Rule in any manner violates Article 25 of the Constitution" 11. A reading of the Judgment of the Division Bench of this Court in Sirazun Neesa (Supra) juxtaposed with the judgment of the Apex Court in Khursheed Ahmad Khan (Supra), would got to show that the reason for the Division Bench of this Court declaring that the rejection of a claim of Family Pension by a 2nd Mohammedan wife on the basis of the Conduct Rules was unsustainable, has been contradicted by the Apex Court, when it says that Conduct Rules do not violate Article 25 of the Constitution. The Apex Court in Javed v. State of Haryana, reported in 2003 8 SCC 369 had upheld the decision of the Gujarat High Court, which had held that: "a bigamous marriage amongst Muslims is neither a religious practice nor a religious belief and certainly not a religious injunction or mandate. The question of attracting Articles 15(1), 25(1) or 26(b) to protect a bigamous marriage and in the name of religion does not arise." The Apex Court has thus held that a bigamous marriage, which is in violation of the Conduct Rules cannot be protected under Article 25 of the Constitution. As such, if a bigamous marriage cannot be protected under Article 25 of the Constitution, if it is against the Conduct Rules, no advantage or right can flow from the said prohibited marriage. Accordingly, this Court is of the view that the respondent No. 6, who is the 2nd wife of the deceased Bulmajan Ali cannot be made the recipient of the Family Pension viz-a-viz the petitioner. Accordingly, this Court is of the view that the respondent No. 6, who is the 2nd wife of the deceased Bulmajan Ali cannot be made the recipient of the Family Pension viz-a-viz the petitioner. Also in the present case, there is no submission made by the counsels for the parties that permission of the Government had been obtained by Bulmajan Ali, prior to his marriage with the respondent No. 6. 12. Though the division bench of this Court in Sirajul Nessa v. State of Assam reported in (2011) 4 GLT 751, has held that second wife is entitled to the proportionate family pension, this Court is bound by the law laid down by the Hon'ble Apex Court and in that view of the matter, family pension would have to be granted to the first wife. Thus, in view of the law laid down by the Apex Court in Khursheed Ahmad Khan (Supra) and in view of Note 1 of Rule 143 (II) of the Assam Services (Pension) Rules, 1969, this Court is of the view that the petitioner has to be granted family Pension and not the respondent No. 6. Further, this Court has passed judgment and order dated 26.7.2017 in WP(C) No. 2182 of 2016, "Mustt. Padma Begum @ Padma Bibi v. The State of Assam and Ors" to the effect that the first wife has to be given family pension vis-a-vis the third wife. 13. In view of the above, the State respondents are directed to process the family pension papers in favour of the petitioner and pay the same to her as per law within a period of three (3) months from the date of receipt of the certified copy of the order. Writ petition is accordingly allowed.