Gujarat High Court
Saiyad Jafarunnisha Husenmiya vs State Of Gujarat on 3 April, 2025
Author: Nirzar S. Desai
Bench: Nirzar S. Desai
NEUTRAL CITATION
C/SCA/6748/2022 JUDGMENT DATED: 03/04/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 6748 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE NIRZAR S. DESAI
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Approved for Reporting Yes No
Yes
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SAIYAD JAFARUNNISHA HUSENMIYA
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR DEVDIP BRAHMBHATT(3490) for the Petitioner(s) No.
1
MR ARJUN RATHOD for MR AADITYA D BHATT(8580) for the
Respondent(s) No. 3
CHANDNI S JOSHI(9490) for the Respondent(s) No. 3
MR ADITYA DAVDA ASSISTANT GOVERNMENT PLEADER for the
Respondent(s) No. 1,2,4
REFUSED SERVED (N)(10) for the Respondent(s) No. 5
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CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI
Date : 03/04/2025
ORAL JUDGMENT
1. Heard learned advocate Mr. Devdip Brahmbhatt appearing for the petitioner, learned Assistant Government Pleader Mr. Aditya Davda appearing Page 1 of 18 Uploaded by PALLAVI PRABHUDAS PANCHAL(HC01403) on Fri Apr 04 2025 Downloaded on : Mon Apr 07 22:02:32 IST 2025 NEUTRAL CITATION C/SCA/6748/2022 JUDGMENT DATED: 03/04/2025 undefined for the respondent - State and learned advocate Mr. Arjun Rathod for learned advocate Mr. Aaditya Bhatt for respondent No.3.
2. By way of this petition, the petitioner has prayed for a direction, directing the respondent No.2 to 4 to grant and pay one half of the Family Pension of the deceased Saiyad Shalesha Hussainmiya to the petitioner till her death. The petitioner has further prayed for a direction, directing the respondent No.2 to 4 to recover 50% of the Family Pension amount from the second wife - Saiyad Jebunisha from 21.04.2021 and to pay the same to the present petitioner.
3. With the consent of learned advocates appearing for the respective parties, the matter was taken up finally. Hence, RULE. Learned Assistant Government Pleader Mr. Aditya Davda waives the service of rule on behalf of the respondent No.1, 2 and 4. Learned advocate Mr. Arjun Rathod waives the service of rule on behalf of the Page 2 of 18 Uploaded by PALLAVI PRABHUDAS PANCHAL(HC01403) on Fri Apr 04 2025 Downloaded on : Mon Apr 07 22:02:32 IST 2025 NEUTRAL CITATION C/SCA/6748/2022 JUDGMENT DATED: 03/04/2025 undefined respondent No.3. The cause list indicates that despite service of notice, respondent No.5 has refused to accept the service of notice and even an affidavit to that effect in the form of affidavit of service is filed by the petitioner herself stating that the respondent No.5 has refused to take notice of this Court in presence of persons named in the affidavit. Hence, the matter is now being heard in absence of respondent No.5.
4. The brief facts giving rise to the present petition is stated as under :-
4.1 Though the present petitioner happens to be the first wife of late Saiyad Shalesh Hussainmiya who was working as Work Assistant in the office of the respondent No.3 and she married to him and a Nikahnama was also prepared. However, later on, there where disputes between them and therefore, the petitioner had to file an application under Section 125 of Criminal Procedure Code against Page 3 of 18 Uploaded by PALLAVI PRABHUDAS PANCHAL(HC01403) on Fri Apr 04 2025 Downloaded on : Mon Apr 07 22:02:32 IST 2025 NEUTRAL CITATION C/SCA/6748/2022 JUDGMENT DATED: 03/04/2025 undefined her husband seeking maintenance. In the aforesaid proceedings vide order dated 26.03.1993, learned Second JMFC, Kadi passed an order directing the husband of the petitioner to pay an amount of Rs. 400/- (Rupees Four Hundred) per month as maintenance. Thereafter, the petitioner preferred an application for enhancement being Criminal Misc. Application No. 395 of 2003 before the Court of learned JMFC at Kalol under Section 127 of Criminal Procedure Code for enhancement of the amount of interim maintenance.
4.2 Vide order dated 07.09.2009 passed by the Court of learned JMFC, Kalol, the amount of interim maintenance was enhanced to Rs. 3000/-
(Rupees Three Thousand). It is the case of the petitioner that she has never divorced her husband and was living on the amount of maintenance provided by her husband as per the order passed by the Court.
4.3 It is the case of the petitioner that Page 4 of 18 Uploaded by PALLAVI PRABHUDAS PANCHAL(HC01403) on Fri Apr 04 2025 Downloaded on : Mon Apr 07 22:02:32 IST 2025 NEUTRAL CITATION C/SCA/6748/2022 JUDGMENT DATED: 03/04/2025 undefined as per Muslim Shariyat Law, a man can marry up to four wives and husband of the present petitioner married for the second time to respondent No.5 viz. Saiyed Jebunisha Shalesha and she was also made a nominee in the nomination papers filed by the husband of the petitioner and the name of the petitioner was not shown as nominee of the husband of the present petitioner. The husband of the petitioner Saiyed Salesh Hussainmiya retired on 30.06.2019 and was receiving pension of Rs. 24,800/- (Rupees Twenty Four Thousand Eight Hundred) and an amount of Rs. 8,92,056/- (Rupees Eight Lac Ninety Two Thousand Fifty Six) towards the amount of gratuity and one third amount of the commuted pension Rs. 9,96,484/- (Rupees Nine Lac Ninety Six Thousand Four Hundred Eighty Four) were received by the husband of the petitioner upon retirement and upon death of husband of the petitioner viz. Saiyed Shalesh Hussainmiya, the second wife of the petitioner is getting Family Pension of Rs. 14,880/- Page 5 of 18 Uploaded by PALLAVI PRABHUDAS PANCHAL(HC01403) on Fri Apr 04 2025 Downloaded on : Mon Apr 07 22:02:32 IST 2025
NEUTRAL CITATION C/SCA/6748/2022 JUDGMENT DATED: 03/04/2025 undefined (Rupees Fourteen Thousand Eight Hundred Eighty) which has been increased from time to time. 4.4 The husband of the petitioner died on 21.04.2021 and upon death of husband of the petitioner, no amount of family pension is paid to her and the entire amount of family pension is now being paid to respondent No.5 and that is how the present petition is preferred.
5. Learned advocate Mr. Devdip Brahmbhatt appearing for the petitioner made only one submission. He submitted that as per Gujarat Civil Services (Pension) Rules, 2002 which is applicable in this case, in Chapter X, Family Pension Scheme, 1972, is described and in Rule 88, the term Family is defined. Rule 88(a)(i) and (ii) reads as under:-
"88. Terms used in this chapter : For the purposes of this chapter :-
(a) "family", in relation to a Government employee means -
(i) wife in the case of a male Government employee or husband in the case of a female Government employee, even if the Page 6 of 18 Uploaded by PALLAVI PRABHUDAS PANCHAL(HC01403) on Fri Apr 04 2025 Downloaded on : Mon Apr 07 22:02:32 IST 2025 NEUTRAL CITATION C/SCA/6748/2022 JUDGMENT DATED: 03/04/2025 undefined marriage took place before or after retirement of the Government employee;
(ii) a judicially separated wife or husband, provided that the marriage took place before the retirement of the Government employee."
5.1 Similarly, learned advocate Mr. Devdip Brahmbhatt drew attention of this Court to Rule 91 which is with regard to Family Pension to whom payable and by relying upon 91(2)(i), learned advocate Mr. Devdip Brahmbhatt submitted that as per Rule 91(i) both wives are entitled to 50% of the pension and therefore, the petitioner has claimed only 50% of the Family Pension as per the entitlement of herself in view of Rule 88 and 91 of the Gujarat Civil Services (Pension) Rules, 2002. He, therefore, submitted that the respondents may be directed to pay the amount of Family Pension to the extent of 50% (one half of the Family Pension payable to the widow of the late petitioner).
6. Learned advocate Mr. Arjun Rathod for learned advocate Mr. Aaditya Bhatt appearing for the Page 7 of 18 Uploaded by PALLAVI PRABHUDAS PANCHAL(HC01403) on Fri Apr 04 2025 Downloaded on : Mon Apr 07 22:02:32 IST 2025 NEUTRAL CITATION C/SCA/6748/2022 JUDGMENT DATED: 03/04/2025 undefined respondent No.3 drew attention at the affidavit in reply filed by respondent No.3 in this petition and submitted that the respondents are paying amount of Family Pension as per the details filled in the nomination form and as the petitioner's name is not there as nominee of her late husband, the aforesaid amount is not being paid to her even if, she may be the first wife of the deceased husband. He, therefore, submitted that the respondent No.3 is paying the pension to respondent No.5 as per the nomination form and as per the wish of late husband of the present petitioner and therefore, the respondent No.3 has not committed any illegality in paying the pension to respondent No.5 instead of present petitioner.
6.1 Learned advocate Mr. Arjun Rathod submitted that in view of the fact that the respondent No.5 has chosen not to appear before this Court by refusing the service of notice and as the respondent No.3 is only an executing Page 8 of 18 Uploaded by PALLAVI PRABHUDAS PANCHAL(HC01403) on Fri Apr 04 2025 Downloaded on : Mon Apr 07 22:02:32 IST 2025 NEUTRAL CITATION C/SCA/6748/2022 JUDGMENT DATED: 03/04/2025 undefined authority which would have no interest in the inter se dispute between two wives, this Court may pass appropriate order about entertainment of Family Pension qua present petitioner in the interest of justice.
7. Learned Assistant Government Pleader Mr. Aditya Davda appearing for the respondent - State Government also submitted that State is only a formal party and therefore, this Court may consider the submission advanced by the contesting respondents and pass appropriate order. Learned Assistant Government Pleader Mr. Aditya Davda submitted that respondent No.4 State Government is not a contesting party and irrespective of outcome of the present petition, the State is not going to face any additional financial burden and therefore, the Court may pass appropriate order.
8. I have heard learned advocates appearing for the respective parties and perused the record. On perusal of record, I found that it is true that Page 9 of 18 Uploaded by PALLAVI PRABHUDAS PANCHAL(HC01403) on Fri Apr 04 2025 Downloaded on : Mon Apr 07 22:02:32 IST 2025 NEUTRAL CITATION C/SCA/6748/2022 JUDGMENT DATED: 03/04/2025 undefined at the time of filling up the nomination form, in a nomination form, the name of respondent No.5 is stated by deceased husband of the present petitioner. However, the nomination form alone would not be a factor which would determine the eligibility and entitlement of the present petitioner to claim Family Pension. As regards the Family Pension, the State Government has framed Gujarat Civil Services (Pension) Rules, 2002 and the aspect of pension including family pension is governed by the aforesaid Rules.
8.1 Rule 88 of the said Rules would read as under :-
"88. Terms used in this chapter : For the purposes of this chapter -
(a) "family", in relation to a Government employee means -
(i) wife in the case of a male Government employee or husband in the case of a female Government employee, even if the marriage took place before or after retirement of the Government employee;
(ii) a judicially separated wife or husband, provided that the marriage took Page 10 of 18 Uploaded by PALLAVI PRABHUDAS PANCHAL(HC01403) on Fri Apr 04 2025 Downloaded on : Mon Apr 07 22:02:32 IST 2025 NEUTRAL CITATION C/SCA/6748/2022 JUDGMENT DATED: 03/04/2025 undefined place before the retirement of the Government employee.
(iii) son or daughter who has not attained the age of twenty-five years including such son and daughter adopted legally before retirement and son or daughter born after retirement from the marriage which took place after retirement.
(iv) Parents who were wholly dependent on the Government servant when he/she was alive, provided the deceased employee had left behind neither a widow nor a child at the time of his / her death.
(b) "pay" means the basic pay drawn by the Government employee at the time of retirement or death while in service."
8.2 On perusal of Rule 88 and more particularly Rule 88(i) and (ii), it would indicate that wife comes in the definition of family including a judicially separated wife or husband provided that the marriage took place before the retirement of the Government employee. In the instant case, it is no one case that either petitioner or respondent No.5 have married to the late husband of the petitioner post his retirement.
8.3 Rule 91 of the Gujarat Civil Services Page 11 of 18 Uploaded by PALLAVI PRABHUDAS PANCHAL(HC01403) on Fri Apr 04 2025 Downloaded on : Mon Apr 07 22:02:32 IST 2025 NEUTRAL CITATION C/SCA/6748/2022 JUDGMENT DATED: 03/04/2025 undefined (Pension) Rules, 2002 deals with to whom the family pension is payable. Rule 91 is reproduced as under :-
"91. Family Pension to whom payable :
(1) The period for which family pension is payable shall be as follows :-
(i) In the case of a widow or widower, until the date of death or remarriage, whichever is earlier;
(ii) in the case of son, until he attains the age of twenty-five years or until he gets married, whichever is earlier; and
(iii) in the case of an unmarried daughter, until she attains the age of twenty-five years or until she gets married, whichever is earlier;
(2) (i) where the Family Pension is payable to more than one widows then, the Family Pension shall be paid to the widows in equal shares;
(ii) on the death of a widow, her share of the Family Pension shall become payable to her eligible child. In case of such child becoming ineligible to get the share of Family Pension, the same shall be payable to the surviving widow/widow or/ and their children in equal shares. Provided that if the widow is not survived by any child her share of the Family Pension shall be payable to other widows in equal shares.
If there is one such widow full amount of family pension shall be payable to her. (3) Where the deceased Government employee or pensioner is survived by a widow but Page 12 of 18 Uploaded by PALLAVI PRABHUDAS PANCHAL(HC01403) on Fri Apr 04 2025 Downloaded on : Mon Apr 07 22:02:32 IST 2025 NEUTRAL CITATION C/SCA/6748/2022 JUDGMENT DATED: 03/04/2025 undefined has left behind eligible child or children from another wife who is not alive, the eligible child or children shall be entitled to the share of Family Pension which the mother would have received if she had been alive at the time of the death of the Government employee or pensioner.
(4) Where a deceased Government employee or pensioner leaves behind more than one child, the eldest eligible child shall be entitled to the family pension for the period mentioned in clause (ii) or clause
(iii) of sub-rule (1), as the case may be and after the expiry of that period the next child shall become eligible for the grant of Family Pension.
(5) Where a deceased Government employee or pensioner leaves behind him/her no eligible child, the family pension shall be paid to his/her parents. The income criterion and certain other eligibility conditions for the grant of family pension to the dependent parents of the deceased Government employee shall be as under :-
(i) Parents who were wholly dependent on the deceased Government servant when he/she was alive will only be entitled to family pension.
(ii) The deceased employee had left behind him/her neither widow/widower or a child at the time of his/her death.
(iii) The family pension wherever admissible to parents, the mother will receive the pension first and after her death the father will receive the family pension.
(iv) The income criteria will be that Page 13 of 18 Uploaded by PALLAVI PRABHUDAS PANCHAL(HC01403) on Fri Apr 04 2025 Downloaded on : Mon Apr 07 22:02:32 IST 2025 NEUTRAL CITATION C/SCA/6748/2022 JUDGMENT DATED: 03/04/2025 undefined their earning is not more than Rs. 2550 per month.
(v) They will have to produce an annual certificate to the effect that their earning is not more than Rs. 2550 per month.
(vi) It will be the responsibility of the pension sanctioning authorities concerned to satisfy themselves, based on a scrutiny of the service records and other relevant documents, that the parents were, in fact, wholly dependent on the deceased Government servant when he/she was alive and that he/she has not left behind any of the other specified beneficiaries who have a prior claim to the family pension.
(vii) The parents will get Family Pension at the rate of 30% of the basic pay of the deceased employee, subject to a minimum of Rs. 1275 per month.
(6) In case both wife and husband are Government employees and are governed by the provisions of this rule and one of them dies while in service or after retirement, the family pension in respect of the deceased shall become payable to the surviving husband or wife and in the event of death of the husband or wife, the surviving child or children shall be granted two family pensions in respect of the deceased parents.
(7) Except as provided in sub-rule (2), the Family Pension shall not be payable to more than one member of the family at the same time;
(8) If deceased Government employee or pensioner leaves behind a widow or widower, the Family Pension shall become Page 14 of 18 Uploaded by PALLAVI PRABHUDAS PANCHAL(HC01403) on Fri Apr 04 2025 Downloaded on : Mon Apr 07 22:02:32 IST 2025 NEUTRAL CITATION C/SCA/6748/2022 JUDGMENT DATED: 03/04/2025 undefined payable to the widow or widower, failing which to the eligible child;
(9) If sons and unmarried daughters are alive, unmarried daughters shall not be eligible for Family Pension unless the youngest son attains the age of twenty five years and thereby becomes ineligible for the grant of Family Pension."
8.4 On perusal of Rule 91(2)(i), it would indicate that when the family pension is payable to more than one widows, then the family pension shall be paid to the widows in equal shares, meaning thereby, the Rules does not restrict the payment of family pension or disbursement of family pension only to one wife. The Rules does not say anything about whether first wife is entitled to family pension or second wife is entitled to family pension. On the contrary, the Rule provides for equal share among widows for the purpose of payment of family pension. 8.5 In the instant case, no one has disputed the fact that the petitioner is the legally wedded wife of the late husband of the petitioner who subsequently married to Page 15 of 18 Uploaded by PALLAVI PRABHUDAS PANCHAL(HC01403) on Fri Apr 04 2025 Downloaded on : Mon Apr 07 22:02:32 IST 2025 NEUTRAL CITATION C/SCA/6748/2022 JUDGMENT DATED: 03/04/2025 undefined respondent No.5 and therefore, at the time when the husband of the petitioner died, he had two wives.
8.6 Despite the fact that notice was issued to respondent No.5, the respondent No.5 had chosen not to appear before this Court and as stated in foregoing paragraphs, the petitioner has filed an affidavit of notice indicating that the respondent No.5 has refused to accept the notice of the Court and respondent No.5 could not be heard while passing this order. 8.7 However, the fact remains that Rule 91 is about Family Pension to whom it is payable and the same is absolutely silent about any nomination form and to what extent such nomination form would play a role in determining the share of the family pension. In fact, Rule 7 makes it clear that except as provided in sub rule (2), the Family Pension shall not be payable to more than one member of the family. At the same time, it would indicate that the Page 16 of 18 Uploaded by PALLAVI PRABHUDAS PANCHAL(HC01403) on Fri Apr 04 2025 Downloaded on : Mon Apr 07 22:02:32 IST 2025 NEUTRAL CITATION C/SCA/6748/2022 JUDGMENT DATED: 03/04/2025 undefined Rule provides that irrespective of nomination form, when there are more than one widow, it should be paid to the widows in equal shares and therefore, there cannot be any hesitation in holding that the present petitioner is entitled to one half of the Family Pension, which is payable to the widow of deceased husband of the petitioner.
9. Accordingly, the Respondent Authorities are directed to start paying one half of the Family Pension as per the entitlement of the petitioner's deceased husband to be paid to the petitioner within a period of three months from the date of service of this order to the respondents.
10. The petitioner has prayed for recovery of 50% of pension as per her share from respondent No.5. However, the recovery which is sought for by the petitioner is from a private person who cannot be termed as State as respondent No.5 is an individual and therefore, no such order of Page 17 of 18 Uploaded by PALLAVI PRABHUDAS PANCHAL(HC01403) on Fri Apr 04 2025 Downloaded on : Mon Apr 07 22:02:32 IST 2025 NEUTRAL CITATION C/SCA/6748/2022 JUDGMENT DATED: 03/04/2025 undefined recovery can be passed by this Court in a writ petition against respondent No.5. However, petitioner would be at liberty to initiate appropriate proceedings if she so deems fit for recovery of aforesaid amount of family pension as the aspect of recovery of pension from respondent No.5 has not been considered by this Court on its own merit.
11. Accordingly, the present petition is allowed. Rule made absolute to the aforesaid extent. No order as to costs. Direct service is permitted.
(NIRZAR S. DESAI,J) Pallavi Page 18 of 18 Uploaded by PALLAVI PRABHUDAS PANCHAL(HC01403) on Fri Apr 04 2025 Downloaded on : Mon Apr 07 22:02:32 IST 2025