Denying access to pension and other benefits to the second wife of a deceased person, whose first marriage was not annulled, the Gauhati High Court held that,
"In the present case in hand, the petitioner, who is a Hindu had married her deceased husband, who was a Mohammedan, under the Special Marriage Act, 1954, and at the time of such marriage, the condition precedent of Section 4(a) of the Special Marriage Act was conspicuously absent. Therefore, the marriage would be void."
Brief Facts
The Petitioner married her deceased husband under the Special Marriage Act. During the solemnization of this marriage, the petitioner's husband has a spouse living (Respondent No. 6). The previous marriage of the petitioner’s husband was torn apart yet it was not legally annulled. Petitioner’s name was entered into the service record of her late husband. He was the Deputy Commissioner, Kamrup (Rural), Amingaon. He met with an accident and died as a result of it. The petitioner had a 12-year-old son with her husband. She made claims for getting pension and other benefits, however, she was refused the same. The petitioner is thus aggrieved by the non-sanctioning of pension and other pensionary benefits on the death of her husband and accordingly, this writ petition was filed under Article 226 of the Constitution of India.
Reasoning and Decision of the Court
The Court noted at the outset that it is not in dispute that on the date of marriage between the petitioner and Late Sahabuddin Ahmed was registered under the Special Marriage Act, 1954, he had a spouse living, being respondent no.6. There is no document showing that the prior marriage of the husband of the petitioner with respondent no.6 had been annulled. While making a reference to Rule 143 of the Assam Services (Pension) Rules, 1969, the Court opined that Note of the said rules provide that the pension would be payable to the eldest surviving widow. On her death, it would be payable to the next surviving widow, if any.
The Court further observed that Rule 26(1) of the said 1965 Rules does not make any distinction among the Govt. employees on the basis of personal law governing them. In other words, the said rule prohibits polygamy. Therefore, it appears that although under the Muslim personal law, the deceased husband of the petitioner being a Mohammedan was guided by the Muslim personal law to contract a second marriage, the provisions of Rule 26(1) of the 1965 Rules put a restriction that no Govt. servant, who has a wife living shall contract a second marriage without first obtaining the permission of the Govt. From the pleadings made in the writ petition, there is no statement to that effect that the second marriage was contracted by the deceased husband of the petitioner by obtaining prior permission from the competent authority of the Govt.
Under the principles of Mohammedan law, the marriage of a Muslim man with an idol worshiper is neither valid nor void marriage but is merely an irregular marriage. In the present case in hand, it is seen that the petitioner was not married as per customary Mohammedan law but she was married under the Special Marriage Act, 1954 and that the provisions of Section 4(a) of the said Act render the marriage as void. Moreover, the petitioner is still using her Hindu name and there is nothing on record to show that the petitioner had accepted the religion of Islam as her faith. Section 4 of the Special Marriage Act does not save a second marriage contracted by a Mohammedan male. From the words “and may, on a petition presented by either party thereto against the other party, being so declared” it is seen that the said words were substituted by the Marriage Laws (Amendment) Act, 1976 and the said part of the provisions of section 24 apparently makes it clear that it would only be available to a party to the marriage to have a petition presented for declaring the marriage to be a nullity. The fact that the marriage is void, is culled out from the provisions of section 4(a) of the said Act, which provides that neither party has a spouse living. In the present case in hand, the petitioner, who is a Hindu had married her deceased husband, who was a Mohammedan, under the Special Marriage Act, 1954, and at the time of such marriage, the condition precedent of Section 4(a) of the Special Marriage Act was conspicuously absent. Therefore, the marriage would be void.
In view of the provisions of Rules 143, 136, and 137 of the Assam Services (Pension) Rules, 1969 read with Rule 26(1) of the Assam Civil Services (Conduct) Rules, 1965, the claim of the petitioner for pension and other pensionary benefits is not found sustainable and the writ petition stands dismissed in so far as her claim is concerned. However, under the law, the minor son of the petitioner would still be entitled to his share of the pension and other pensionary benefits.
Held
Respondent no.5 is directed to pass appropriate orders so that the Treasury Officer concerned would be able to separately disburse the share of the pension to Priyanku Parash, son of the petitioner and Late Sahabuddin Ahmed. Accordingly, it would be open to the petitioner to open a bank account in the name of the minor son and the petitioner may record her name as mother and natural guardian of her son Priyanku Parash.
Case Details
Case Name: Dipamani Kalita v. The State Of Assam And 5 Ors.
Date of Decision: September 6, 2021
Bench: Hon’ble Mr. Justice Kalyan Rai Surana
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