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2022 DIGILAW 540 (GAU)

Gulbahar Begum v. State of Assam

2022-05-25

KALYAN RAI SURANA

body2022
JUDGMENT : KALYAN RAI SURANA, J. 1. Heard Mr. A. Mannaf, learned counsel for the petitioner. Also heard Mr. R. Dhar, learned standing counsel for the PWD, respondent nos.1 and 5, Mr. D. Borah, learned Govt. Advocate appearing for respondent no. 2, Mr. A. Hussan, learned standing counsel for the respondent no. 3, Mr. R. Borpujari, learned standing counsel for the respondent no. 4, Mr. V.K. Barooah, learned counsel for the respondent no. 6 and Ms. S. Kanungoe, learned counsel for the respondent no. 7. 2. The case projected by the petitioner is that she is the first wife of Late Rafiquddin Ahmed, who, while serving as Head Assistant in PWD in the establishment of Executive Engineer, Tezpur Electrical Sub-Division, had died on 29/1/2016. It is projected that the petitioner was his legally married first wife and that her husband had deserted her along with five children, and had allegedly contracted marriage with the respondent no. 7 during the subsistence of the first marriage. It is further projected by the petitioner that as she is suffering from penury, she had approached the Court of learned Principal Judge, Family Court, Guwahati by filing an application under sec. 125 Cr.P.C for maintenance, which was registered as FC (Crl.) 305/1995. In the said proceedings, by order dated 23/8/1996, the Court had awarded maintenance of Rs.1600.00 (Rupees one thousand six hundred only) per month to the petitioner, payable by her husband. In connection with the said proceeding, the petitioner had once again approached the said learned Court for enhancement of maintenance allowance under sec. 127 Cr.P.C. for herself and her child and the said learned Court by order dt. 9/2/2011, directed the husband of the petitioner to pay a sum of Rs.3500.00 (Rupees three thousand five hundred only) per month, out of which, Rs.2500.00 (Rupees two thousand five hundred only) was apportioned for the petitioner and a sum of Rs.1000.00 (Rupees one thousand only) was apportioned to her child w.e.f. the date of the application. In the meanwhile, after death of the husband of the petitioner, on 29/1/2016, the petitioner had submitted several representations to the respondent authorities for payment of monthly pension to her, which did not yield any result. Therefore, the petitioner has approached this Court by filing this writ petition under Article 226 of the Constitution of India, seeking the following reliefs, viz. Therefore, the petitioner has approached this Court by filing this writ petition under Article 226 of the Constitution of India, seeking the following reliefs, viz. (a) direction to the respondent authorities to forthwith stop the payment of monthly family pension to the respondent no. 7 under PPO No. 93334203298; (b) directing the respondent authorities to forthwith start the payment of monthly family pension in favour of the petitioner; and (c) directing the respondent authorities to recover the amount of death-cum-retirement gratuity and monthly pension already paid to the respondent no. 7. 3. The learned counsel for the petitioner has submitted that as her husband had married the respondent no. 7 during the subsistence of the first marriage with the petitioner, the marriage between her husband and the respondent no. 7 was void ab initio. Accordingly, it is submitted that a mere entry in the service book of her husband, wherein declaration was made in favour of the respondent no. 7 to be the nominee, was of no consequence. In support of the said contention, the learned counsel for the petitioner has placed reliance on the decision of this Court in the case of Nandita Shil and Another vs. State of Tripura and Others, 2009 (3) GLT 153, to bring home the point that the family pension of a deceased employee is not guided on the basis of nomination, but on the basis of the provisions of rules. Accordingly, it is submitted that the member of the family, who is the nominee is merely a trustee for receiving the pension and that other family members are also entitled to their respective share of the pensionable amount. 4. The learned counsel for the petitioner has further submitted by referring to the order dated 9/2/2011, passed by the learned trial Court in Misc. Case 635/2009 in FC (Crl.) 305/1995, that in response to the petition filed by the petitioner for the enhancement of maintenance allowance, the husband of the petitioner had taken the plea of divorce, but the plea of divorce was not entertained by holding that it was not maintainable and therefore, was rejected. 5. Case 635/2009 in FC (Crl.) 305/1995, that in response to the petition filed by the petitioner for the enhancement of maintenance allowance, the husband of the petitioner had taken the plea of divorce, but the plea of divorce was not entertained by holding that it was not maintainable and therefore, was rejected. 5. The said observation had been reiterated in the final order dated 9/2/2011, passed by the learned Principal Judge, Family Court, Guwahati in Misc Case 635/2009, wherein it was observed that the matter of divorce, as raised by her husband cannot be entertained at this stage as the same matter has already been dealt with in the misc case and that the husband of the petitioner had not challenged the said judgment and rather he was continuing his payment, which was subsequently enhanced, and it was reiterated that the plea of divorce, being not maintainable was rejected. It is also submitted that the plea of divorce was raised by the husband of the petitioner for the first time in the written statement filed in the maintenance proceeding, for which, such plea was oughtrightly liable to be rejected. In support of the said submission, the learned counsel for the petitioner has relied on the case of Shamim Ara vs. State of Uttar Pradesh and Another, (2002) 7 SCC 518 as well as Nur Ali (Md.) vs. Thambal Sana Bibi, 2007 (1) GLT 508. Accordingly, it is submitted that the status of the petitioner as first wife would prevail. 6. Per contra, learned standing counsel for the PWD as well as the respondent no. 7 have both separately opposed the writ petition and had submitted that the husband of the petitioner, during his life time, had registered the divorce in form of a Talaknama before the Muslim Marriage Registrar, Sonitpur, Tezpur and in this regard, reliance has been place on the copy of Talaknama dated 19/11/1996 and Fatowa dated 25/4/2001 by the Muslim Marriage Registrar, Sonitpur, Tezpur. It is also submitted that at the instance of the husband of the petitioner, the name of the respondent no. 7 was entered in the service book, showing her as a nominee for the said retiral/pension dues, and that the husband of the petitioner had also submitted a copy of the bank passbook of his account, which contained a joint photograph of the husband of the petitioner as well as the respondent no. 7 was entered in the service book, showing her as a nominee for the said retiral/pension dues, and that the husband of the petitioner had also submitted a copy of the bank passbook of his account, which contained a joint photograph of the husband of the petitioner as well as the respondent no. 7. Accordingly, it is submitted that the husband of the petitioner, during his lifetime, had produced a copy of the Talaknama before the PWD authorities, which had resulted in the nomination for pension being registered in the name of the respondent no. 7, which entitled the respondent no. 7 to draw family pension. 7. It has further been submitted that in the absence of any challenge to the Talaknama dated 19/11/1996 and Fatowa dt. 25/4/2001 issued by the Muslim Marriage Registrar, Sonitpur, Tezpur, the petitioner was not entitled to any relief in this writ petition. 8. Considered the rival submissions made at the bar, also perused the writ petition, affidavit-in-opposition filed by the respondent no. 7, affidavit-inreply thereto as well as the affidavit-in-opposition filed by the respondent no. 5. 9. The learned counsel for the respondent no. 5 in his affidavit-inopposition filed on 4/4/2022 has annexed the descriptive roll as well as copy of affidavit, purportedly signed by the petitioner, which was sworn before the Notary Public on 26/2/2016, at Rangia. In the said affidavit, the petitioner has stated in paragraph 2 as follows: “That, I am the legally married wife of deceased Rafiquddin Ahmed who served under the Deptt. of PWD Electrical Division at Tezpur, in the Office of The Executive Engineer, PWD, Electrical Division, Tezpur, as Head Asstt. and retired therefrom on 30/11/2012, during the course of investigation rendering his service, he without consent of mine and the department concerned got 2nd married and permanently settled at Tezpur. Not only he lived and co-habitted with the 2nd wife, but also he placed the 2nd wife as nominee in his pension paper by depriving of my legitimate right, for which I have approached to the Court of Law seeking legal remedy. Even when I am alive, I have not been shown in the pension papers. At different time, I made several representations seeking adequate legal remedy but I am yet be considered. Even when I am alive, I have not been shown in the pension papers. At different time, I made several representations seeking adequate legal remedy but I am yet be considered. In the mean time, my husband, expired on 29/1/2016 at Dispur Hospital, Guwahati by leaving behind him the following legal heirs of him including me.” 10. It is observed from the hereinbefore referred order dated 9/2/2011 passed by the learned Principal Judge, Family Court, Guwahati in Misc Case 635/2009 in FC (Crl.) 305/1995, that the said learned Court in connection with the issue of divorce raised by the deceased husband of the petitioner, had observed that: “The matter of divorce as raised by the opposite party cannot be entertained at the stage as the same matter has already been dealt with in the main case and the opposite party has not challenged the said judgment rather he is continuing his payment and which was subsequently enhanced after hearing both parties by order dated 3/4/2007 and the said order also not challenged by the opposite party and he is paying maintenance allowance to the petitioner regularly. Apparently his plea of divorce is not maintainable hence rejected.” 11. In the present case in hand, while the submissions of the learned counsel for the petitioner is that Talaknama by the Muslim Marriage Registrar, Sonitpur, Tezpur was not served on her, and that she had come to know of it for the first time through plea taken in the objection submitted in the maintenance proceeding. 12. As per the provisions of the Assam Moslem Marriages and Divorces Registration Act, 1935, there is no requirement of service of Talaknama on the wife. It would be relevant to extract the provisions of sec. 310 of the Principles of Mahomedan Law, authored by Sir Dineshaw Fardunji Mulla, 20th Edition: “310. Talak may be oral or in writing a talak may be effected (1) orally (by spoken words) or (2) by a written document called a talaknama. (1) Oral Talak. - No particular form of words is prescribed for effecting a talak. If the words are express (saheeh) or well understood as implying divorce no proof of intention is required. If the words are ambiguous (kinayat), the intention must be proved. It is not necessary that the talak should be pronounced in the presence of the wife or even addressed to her. If the words are express (saheeh) or well understood as implying divorce no proof of intention is required. If the words are ambiguous (kinayat), the intention must be proved. It is not necessary that the talak should be pronounced in the presence of the wife or even addressed to her. In a Calcutta case, the husband merely pronounced the word “talak” before a family council and this was held to be invalid as the wife was not named. This case was cited with approval by the Judicial Committee in a case where the talak was valid though pronounced in the wife's absence, as the wife was named. The Madras High Court has also held that the words should refer to the wife. The talak pronounced in the absence of the wife takes effect though not communicated to her, but for purpose of dower it is not necessary that it should come to her knowledge, and her alimony may continue till she is informed of the divorce. As the divorce becomes effective for purposes of dower only when communicated to the wife, limitation under Art. 104 for the wife's suit for deferred dower runs from the time when the divorce comes to her notice, under the Act of 1908. (2) Talak in writing. - A talaknama may only be the record of the fact of an oral talak, or it may be the deed by which the divorce is effected. The deed may be executed in the presence of the kazi or of the wife's father or of the witnesses. The deed is said to be in the customary form if it is properly superscribed and addressed so as to show the name of the writer and the person addressed. If it is not so superscribed and addressed it is said to be in unusual form. If it is in customary form it is called “manifest” provided that it can be easily read and comprehended. If the deed is in customary form and manifest the intention to divorce is presumed. Otherwise the intention to divorce must be proved. In the undernoted case the talaknamas were held to be customary and manifest and so operative without proof of intention. If the deed is in customary form and manifest the intention to divorce is presumed. Otherwise the intention to divorce must be proved. In the undernoted case the talaknamas were held to be customary and manifest and so operative without proof of intention. On the other hand, if the deed is in the form of a declaration not addressed to the wife or any other person, it is not in customary form and is not effective if there was no intention to divorce. If the talaknama is customary and manifest it takes effect immediately even though it has not been brought to the knowledge of the wife. In a Bombay case, the talaknama was communicated to the wife within a reasonable time and the Court observed that this was sufficient. This, however, was not a finding that communication within a reasonable time is necessary and the talaknama operated from the date of execution. But as in the case of an oral talak, communication may be necessary for certain purposes connected with dower, maintenance and her right to pledge her husband's credit for means of subsistence. If an acknowledgment of divorce is made by the husband, the divorce will be held to take effect at least from the date upon which the acknowledgement is made.” 13. In the said context, the Supreme Court of India in the case of Shamim Ara (supra) had observed as follows: “15. The plea taken by the Respondent No. 2 husband in his written statement may be re-noticed. Respondent No. 2 vaguely makes certain generalized accusations against the appellant wife and states that ever since the marriage he found his wife to be sharp, shrewd and mischievous. Accusing the wife of having brought disgrace to the family, Respondent No. 2 proceeds to state, vide Para 12 (translated into English)-”The answering respondent, feeling fed up with all such activities unbecoming of the petitioner wife, has divorced her on 11/7/1987.” The particulars of the alleged talaq are not pleaded nor the circumstances under which and the persons, if any, in whose presence talaq was pronounced have been stated. Such deficiency continued to prevail even during the trial and Respondent No. 2, except examining himself, adduced no evidence in proof of talaq said to have been given by him on 11/7/1987. Such deficiency continued to prevail even during the trial and Respondent No. 2, except examining himself, adduced no evidence in proof of talaq said to have been given by him on 11/7/1987. There are no reasons substantiated in justification of talaq and no plea or proof that any effort at reconciliation preceded the talaq. 16. We are also of the opinion that the talaq to be effective has to be pronounced. The term “pronounce” means to proclaim, to utter formally, to utter rhetorically, to declare, to utter, to articulate (See Chambers 20th Century Dictionary, New Edition, p. 1030). There is no proof of talaq having taken place on 11/7/1987. What the High Court has upheld as talaq is the plea taken in the written statement and its communication to the wife by delivering a copy of the written statement on 5/12/1990. We are very clear in our mind that a mere plea taken in the written statement of a divorce having been pronounced sometime in the past cannot by itself be treated as effectuating talaq on the date of delivery of the copy of the written statement to the wife. Respondent No. 2 ought to have adduced evidence and proved the pronouncement of talaq on 11/7/1987 and if he failed in proving the plea raised in the written statement, the plea ought to have been treated as failed. We do not agree with the view propounded in the decided cases referred to by Mulla and Dr. Tahir Mahmood in their respective commentaries, wherein a mere plea of previous talaq taken in the written statement, though unsubstantiated, has been accepted as proof of talaq bringing to an end the marital relationship with effect from the date of filing of the written statement. A plea of previous divorce taken in the written statement cannot at all be treated as pronouncement of talaq by the husband on wife on the date of filing of the written statement in the Court followed by delivery of a copy thereof to the wife. So also the affidavit dated 31/8/1988, filed in some previous judicial proceedings not inter partes, containing a self-serving statement of Respondent No. 2, could not have been read in evidence as relevant and of any value.” 14. So also the affidavit dated 31/8/1988, filed in some previous judicial proceedings not inter partes, containing a self-serving statement of Respondent No. 2, could not have been read in evidence as relevant and of any value.” 14. Therefore, from the aforesaid observations, it is apparent that on factual matrix, in the case of Shamim Ara (supra), it was observed that the particulars of the alleged talak was not pleaded nor the circumstances under which the persons appearing, in whose presence talak was pronounced had been stated. Therefore, in the absence of any proof of talak, the Supreme Court of India had deprecated the plea of talak taken in the written statement to be communicated to the wife by delivering a copy of the written statement on 05/12/1990. In the present case in hand, the present case is distinguishable in facts because in the present case in hand, the Talaknama was registered before the Muslim Marriage Registrar. 15. On a reading of the provisions of sec. 310 of the aforementioned Mahomedan Law, read with the case of Supreme Court of India in the case of Shamim Ara (supra), the Court finds force in the submission made by the learned counsel for the petitioner that the talak, being communicated only by way of the written statement in the maintenance case was not a valid talak. Moreso, on a perusal of the provision of Sec. 311 of the Principles of Mahomedan Law, the Court finds that the time-lag between the first talak and the third talak is about 5 (five) years. 16. Be that as it may, in the present writ petition, the Court is not called upon to decide whether the talak, given by the husband of the petitioner to the petitioner was valid or not. Therefore, the hereinbefore referred observations of this Court is not to be treated as a conclusive finding of the Court, as to the marital status of the petitioner. The said disputed question of fact is best left to be decided by a Court of competent jurisdiction. 17. It may also be mentioned that in the case of Shamim Ara (supra) and Nandita Shil (Supra) , the Supreme Court of India as well as this Court had decided the matter in the presence of both sides, i.e. the husband and the wife. However, in the present case in hand, the husband is no longer alive. 17. It may also be mentioned that in the case of Shamim Ara (supra) and Nandita Shil (Supra) , the Supreme Court of India as well as this Court had decided the matter in the presence of both sides, i.e. the husband and the wife. However, in the present case in hand, the husband is no longer alive. In the case of Danial Latifi and Another vs. Union of India, (2001) 7 SCC 740 , the Supreme Court of India had held that that reasonable and fair provision and maintenance under sec. 3(1)(a) of the Muslim Women (Protection of Rights on Divorce) Act, 1986 is not limited for the iddat period in case, extends for the entire life for the divorced muslim wife unless she gets married for the second time. Therefore, it is apparent that notwithstanding that a muslim person has divorced his wife or not, the right to have maintenance under the provisions of sec. 125 CrPC would be extended for the entire life of the divorced muslim woman. Therefore, the observations made by the learned Principal Judge, Family Court, Guwahati in a proceeding under sec. 125 CrPC would not stand as a conclusive proof that status of the petitioner was of a divorced wife. 18. Therefore, as indicated above, this disputed question of fact is to be decided by a competent Court of having jurisdiction. 19. Therefore, in view of the ratio laid down in the case of Danial Latifi (supra), the petitioner would have a right to claim maintenance. 20. In the present case in hand, the learned counsel for the respondent no. 7, as well as the learned counsel for the respondent no. 5, have been able to demonstrate that the husband of the petitioner, in his lifetime, had nominated respondent no. 7 as the nominee and therefore, the respondent no. 7 is entitled to draw the family pension. However, the right of the petitioner to have her maintenance out of the said amount would not stand extinguished. Therefore, the Court is inclined to hold that the petitioner in this case is not entitled for relief (a) and (c) of the writ petition, which relates to prayer for directing the respondent authorities to forthwith stop the payment of monthly family pension to the respondent no. Therefore, the Court is inclined to hold that the petitioner in this case is not entitled for relief (a) and (c) of the writ petition, which relates to prayer for directing the respondent authorities to forthwith stop the payment of monthly family pension to the respondent no. 7 and for directing the respondent authorities to recover the amount of death-cum-retirement gratuity and monthly pension already paid to the respondent no. 7. However, in respect of the prayer no. (b), the Court, being a Court of equity, is inclined to modify the relief by providing that the petitioner i.e. Gulbahar Begum will have a right to recover the monthly maintenance from the pension payable by the respondent authorities to the respondent no. 7 to the extent of Rs.2,500.00 (Rupees two thousand five hundred only) per month as per final order dated 9/2/2011 passed by the learned Principal Judge, Family Court in Misc Case 635/2009. 21. In so far as the monthly maintenance to the child as per order dated 9/2/2011 is concerned, it is seen from the affidavit sworn on 26/2/2016 by the petitioner referred to above that the children of the petitioner are all major. Therefore, the maintenance of Rs.1,000.00 (Rupees one thousand), as ordered for the child, in the opinion of the Court would not be enforceable. 22. It is also clarified that this order shall not be construed as if the Court had declared the respective rights of either the petitioner or the respondent no. 7. Therefore, it would be open for both sides to approach the appropriate Court having jurisdiction for having their respective rights declared. 23. The direction contained herein for the payment of maintenance, would not preclude the competent Court having jurisdiction to revisit the claim of the petitioner for maintenance and/ or for entitlement of pensionary benefit. 24. The point raised by the learned counsel for the petitioner that the first talak was never served on the petitioner can also be raised by the petitioner in the appropriate proceeding, as the opinion of the Court has not been rendered thereon. 25. It is open to the petitioner to enforce the order through the learned Family Court in terms of the order dated 9/2/2011 passed in Misc Case 635/2009 in connection with F.C. (Crl.) 305/1995. 26. 25. It is open to the petitioner to enforce the order through the learned Family Court in terms of the order dated 9/2/2011 passed in Misc Case 635/2009 in connection with F.C. (Crl.) 305/1995. 26. The writ petition stands partly allowed to the extent as indicated above, leaving the parties to bear their own cost.