JUDGMENT : 1. Heard Mr. R.C. Saikia, learned counsel for the petitioner. Also heard Ms. B. Bora, learned counsel for the respondent Nos. 1, 3 and 4, Mr. R.K Talukdar, learned counsel for the respondent No. 2 and Mr. Y.S Mannan, learned counsel for the respondent Nos. 5 and 6. 2. The question that has to be decided in the writ petition is whether the petitioner, who is the 1st wife or the respondent No. 6, who is the 3rd wife of the deceased Md. Tarif Uddin Ahmed would be the recipient of the Family Pension, after the death of their husband on 13.8.2015. 3. It is not disputed by the counsels for the petitioner and the respondent Nos. 5 and 6 that the petitioner is the 1st wife and the respondent No. 6 is the 3rd wife of the deceased Md. Tarif Uddin Ahmed. It is also not disputed by the counsels for the petitioner and the respondent Nos. 5 and 6 that the petitioner and the respondent No. 6 were legally married wives of Md. Tarif Uddin Ahmed till the time of their husband's death. 4. Mr. R.K Talukdar, learned counsel for the Accountant General's Office submits that acting upon the information furnished by the Government, the Accountant General's Office had issued PPO No. 901111204447 and GPO No. 11220444713, vide authority dated 30.9.2013, naming the respondent No. 6 (3rd wife) herein, to be the beneficiary of the Family Pension. He also submits that the above has been done on the basis of the nomination made by the deceased Government Servant. 5. I have heard the learned counsels for the parties. 6. The facts of the case shows that the deceased Government Servant, namely, Md. Tarif Uddin Ahmed had not given the name of the petitioner in his nomination form for payment of Family Pension. It was due to the above that the State respondents had processed the Family Pension papers in favour of the respondent No. 6 and not in favour of the petitioner. 7. It is not disputed between the counsels for the petitioner and the respondent Nos. 5 and 6 that there was a maintenance case filed by the petitioner under section 125, Cr.PC against the deceased Government Servant, i.e., Md. Tarif Uddin Ahmed. 8. 7. It is not disputed between the counsels for the petitioner and the respondent Nos. 5 and 6 that there was a maintenance case filed by the petitioner under section 125, Cr.PC against the deceased Government Servant, i.e., Md. Tarif Uddin Ahmed. 8. A perusal of the order dated 28.7.1993, issued by the court of the Principal Judge, Family Court, Guwahati in FC(Crl) No. 86/1993 is to the effect that there was a marriage between the petitioner and Md. Tarif Uddin Ahmed and that the petitioner was living separately. The court had also directed Md. Tarif Uddin Ahmed to make payment of maintenance to the petitioner. 9. A perusal of the documents on record and the submissions made by the counsels for the petitioner and the respondent Nos. 5 and 6 goes to show that the petitioner was the 1st wife, the respondent No. 5 was the 2nd wife and the respondent No. 6 was the 3rd wife of the deceased Md. Tarif Uddin Ahmed. 10. In the case of H. Dawngi (Smt.) v. Union of India, 2001 (3) GLT 349, this court had held that the right to Family Pension is a statutory right and the same cannot be defeated by making a nomination to the contrary. If any nomination is made contrary to the statute, the said nomination would not be operative. This court in making the above observation relied upon the Judgment of the Apex Court in G.L. Bhatia v. Union of India, (1999) 5 SCC 237 . Further, the Apex Court in G.L. Bhatia (supra) has also held that even if a married couple were staying separately, the surviving separately living spouse would be entitled to the family pension. 11. 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. (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 bom 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 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. 12. 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.” 13. (2) No female Government Servant shall marry any person who has a wife living without first obtaining the permission of the Government.” 13. In the case of Sirazun Nessa v. State of Assam, 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 Bencb, thus, held that rejection of the claim of a second Mohammedan wife with the aid of Conduct Rules is unsustainable in law. 14. In the case of Khursheed Ahmad Khan v. State of U.P., (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 paras 14 and 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. This Court also upheld the view of the Allahabad High Court upholding such a conduct rule. 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 (supra) also had an occasion to examine the validity of the legislation when it was sought to be implemented not in one go, but gradually. 53. The Division Bench of the Bombay High Court in Narasu Appa Mali (supra) 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. 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. 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 article 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 practiced 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.” 15. A reading of the judgment of the Division Bench of this court in Sirazul 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 negatived by the Apex Court, when it held that Conduct Rules do not violate article 25 of the Constitution. The Apex Court in Javed v. State of Haryana, (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 article 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 3rd wife of the deceased Md. Tarif Uddin Ahmed 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 3rd wife of the deceased Md. Tarif Uddin Ahmed 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 Md. Tarif Uddin Ahmed, prior to his marriage with the respondent No. 6. 16. Though the Division Bench of this court in Sirajul Nessa (supra), 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(11) of the Assam Services (Pension) Rules, 1969, this court finds that the non-inclusion of the petitioner by her deceased husband in the nomination form cannot deprive the petitioner from receiving what she should rightfully receive, when she has not been divorced by him. 17. The vested right of the petitioner to be given Family Pension cannot be taken away in the manner that it has been done, when there is no dispute to the fact that the petitioner is the 1st wife, of the deceased Government Servant and this has also not been observed otherwise by the court Of the Principal Judge, Family Court, Guwahati in FC(Crl) No. 86/1993. 18. In view of the above, the PPO No. 901111204447 and GPO No. 11220444713, issued vide authority dated 30.9.2013 made in favour of the respondent No. 6 is hereby set aside and quashed. 19. The respondent Nos. 1, 3 and 4 are directed to process the Family Pension papers in favour of the petitioner and submit the same to the Office of the Accountant General within a period of 3 months from the date of receipt of a copy of this Order. The Office of the Accountant General shall thereafter issue the necessary authority to enable the petitioner to receive Family Pension as per law. 20. Writ petition is accordingly allowed.