Allahabad High Court

Mohsina Rizwan vs State Of U.P. And 2 Others on 8 May, 2025

Author: Saurabh Shyam Shamshery

Bench: Saurabh Shyam Shamshery





HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


Neutral Citation No. - 2025:AHC:74205
 
Reserved on 06.05.2025
 
Delivered on 08.05.2025
 
Court No. - 6
 

 
Case :- WRIT - A No. - 4418 of 2025
 

 
Petitioner :- Mohsina Rizwan
 
Respondent :- State Of U.P. And 2 Others
 
Counsel for Petitioner :- Peeyush Kumar Pathak,Prateeyush Kumar Pathak
 
Counsel for Respondent :- Bhupesh Pratap Singh,C.S.C.
 

 
Hon'ble Saurabh Shyam Shamshery,J.

1. The Court proceed to decide present writ petition on a premise that a widow daughter, if dependent on her deceased parent (pensioner), she may be entitled for family pension, subject to other conditions, if any.

2. Petitioner has declared that her mother was retired while working as Assistant Teacher on 30.06.2012 and thereafter she was staying with her, i.e., her daughter. Unfortunately, her mother died on 08.05.2022. Petitioner further claims that she was divorced according to Muslim rituals on 08.08.2014 by way of Mubara'at (mutual agreement). However, her claim for compassionate appointment was rejected without assigning any reasons vide order dated 17.10.2024 purportedly on basis of an opinion given by D.G.C. (Civil), Bijnor.

3. Aforesaid order was challenged by petitioner by way of filing Writ-A No. 18892 of 2024, which was allowed vide order dated 06.12.2024 whereby impugned order was set aside and matter was remitted back to pass a reasoned order. Thereafter, impugned order dated 01.03.2025 was passed and for reference relevant part thereof is reproduced hereinafter:

"निष्कर्ष

श्रीमती मोहसिना रिजवान की माता स्वःश्रीमती शहनाज बेगम सेवा निवृत्त सहायक अध्यापिका उच्च प्राथमिक विद्यालय पतियापाडा नगर क्षेत्र चान्दपुर से दिनांक 30.06.2012 को सेवा निवृत्ति के उपरान्त पेंशन प्राप्त करते हुए दिनांक 08.05.2022 को मृत्यु हो गयी थी। श्रीमती मोहसिना रिजवान द्वारा अपनी माता जी के स्थान पर पारिवारिक पेंशन की मांग कर रही है। श्रीमती मोहसिना रिजवान द्वारा जनपदीय न्यायालय बिजनौर में मूलवाद संख्या 530/22 में अपने पति से तलाक हेतु वाद दायर किया गया था। तलाक विच्छेदन आपसी रजामन्दी से होना बताया गया है जो न्याय संगत नही है। प्रधान न्यायधीश परिवार न्यायालय बिजनौर द्वारा उक्त वाद मे अपने आदेश दिनांक 09.09.2023 के द्वारा वाद वापिस ले लिया गया। ऐसी स्थिति मे श्रीमती मोहसिना रिजवान का तलाक विधि सम्मत नहीं है।

निर्णय

श्रीमती मोहसिना रिजवान द्वारा माननीय उच्च न्यायालय इलाहाबाद मे योजित याचिका संख्या 18892/2024 मे पारित आदेश दिनांक 06.12.2024 के क्रम मे वादिनी श्रीमती मोहसिना रिजवान पुत्र स्वःश्रीमती शहनाज बेगम सेवानिवृत्त सहायक अध्यापिका की विधिवत तलाकशुदा पुत्री न होने के कारण इनको पारिवारिक पेंशन देय नही है। अतः श्रीमती मोहसिना रिजवान द्वारा दिया गया प्रत्यावेदन दिनांक 18.12.2024 बलहीन होने के कारण निरस्त करते हुऐ निस्तारित किया जाता है।"

4. Sri Peeyush Kumar Pathak, learned counsel for petitioner submitted that in a case of divorce on basis of Mubara'at, no formal declaration is required and it is different from a divorce by Teen Talak, therefore, it would not hit by provisions of Muslim Women (Protection of Rights on Marriage) Act, 2019 (hereinafter referred to as "Act, 2019"). In support of submissions learned counsel for petitioner placed reliance on a judgment passed by Supreme Court in Mst. Zohara Khatoon vs. Mohd. Ibrahim, (1981)2 SCC 509 which was followed by this Court in Arshad Husain vs. Shahneela Nishat, 2024:AHC-LKO:81486-DB.

5. Per contra, Sri Brijendra Mani, learned Standing Counsel for State-Respondent and Sri B.P. Singh, Advocate for Respondents-2 and 3, submitted that in the alleged mutual agreement, divorce was based on pronouncement of Talak by three times, i.e., triple talak, as well as it was remained disputed till petitioner approached Civil Court for declaration of divorce by filing a Civil Suit, which was withdrawn since her husband has accepted divorce, no copy of written statement is annexed and accordingly suit was dismissed as withdrawn vide order dated 09.09.2023.

6. Heard learned counsel for parties and perused the material on record.

7. Petitioner's case is based on a mutual agreement dated 08.08.2014 executed between her and her husband. On basis of averments, after death of her mother on 08.05.2022, petitioner for the first time filed a representation on 01.02.2024 seeking compassionate appointment, wherein she has declared that she is a divorcee and her divorce was by way of an order passed by Court. It was not declared that divorce was based on Mubara'at and as referred above the mutual agreement remained in dispute atleast till 2022, when petitioner filed a suit for declaration which was dismissed as withdrawn vide order dated 09.09.2023 since petitioner's husband has accepted divorce. No declaration of divorce was passed. Therefore, declaration that divorce was through Court was contrary to record and the same was reiterated in affidavit dated 01.02.2024. However, in a subsequent affidavit dated 04.07.2024 she has mentioned that divorce took place on 08.08.2014, without declaring the manner of it. Petitioner has also not disclosed, whether she was dependent on her mother or not.

8. I have also perused the agreement dated 08.08.2014 which specifically states that husband of petitioner has divorced her by stating Talak three times and the said mutual agreement remained disputed atleast till 2022 as well as there is no declaration either in this writ petition or in the application filed before concerned respondent that conditions of said mutual agreement were fulfilled or not. Therefore, at this stage, to state that nature of divorce would not be barred by the provisions of Act, 2019 would not be a correct approach.

9. I have also perused the impugned order dated 01.03.2025 wherein the nature of divorce as mentioned in mutual agreement was taken note of and since the divorce does not appear to be on basis of mutual consent, claim of petitioner was rejected by means of impugned order.

10. Learned counsel for petitioner has placed reliance on Mst. Zohara Khatoon (supra) and Arshad Husain (supra), which describe that divorce by way of Mubara'at is a valid divorce under Muslim Law, however, in case of any dispute the Court can scrutinize the recital of agreement and only upon satisfaction a decree of divorce can be passed and if necessary an inquiry can be conducted.

11. In aforesaid circumstances, since divorce by way of Mubara'at remained disputed for a very long period of about 10 years and even presently there is no declaration of divorce by a Court, the concerned authorities have rightly taken a view that divorce was not based on mutual consent, as well as, as referred above, since recital of mutual agreement also notes that divorce was by way of stating Talak by three times, therefore, it would be hit by Act, 2019.

12. Accordingly, I do not find any reason to interfere with impugned order. However, the writ petition is disposed of with observation that petitioner has still liberty to get a declaration of divorce from competent Court.

Order Date :- 08.05.2025