Calcutta High Court (Appellete Side)
M Amlun Nesha Alias M Amlun Nisha ... vs The State Of W Est Bengal & Ors on 14 September, 2023
1
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
Present:
THE HON'BLE JUSTICE HARISH TANDON
&
THE HON'BLE JUSTICE PRASENJIT BISW AS
WPST 5 of 2021
M amlun Nesha alias M amlun Nisha alias M amlun Nessa
Vs.
The State of W est Bengal & Ors.
Appearance:
For the Petitioner : M r. Partha Sarathi Bhattacharyya, Adv.
M r. Debasish Banerjee, Adv.
M r. Raju Bhattacharyya, Adv.
M r. Rakesh Jana, Adv.
For the State : M s. Chaitali Bhattacharya, Adv.
M r. Subhendu Roy Choudhury, Adv.
For the Respondent no. 7 : M r. Sardar Amjad Ali, Adv.
M r. M alay Kumar Das, Adv.
M r. M . A. Sardar, Adv.
M r. S. Haque, Adv.
M s. Rubina Akthar, Adv.
Judgment On : 14.09.2023
Harish Tandon, J.:
A digration from an issue involved in the instant writ petition becomes
inevitable on the stand of both the parties raising an issue striking at the root
of the rights of the parties in relation to their matrimonial status consequently
impacting the entitlement to share the retiral benefits including family pension
under the DCRB Rules, 1971. Though the stand of the party in a proceeding
initiated before the State Administrative Tribunal which becomes necessary
because of the disbursement of such retiral benefits but the shifting of the core
issue is manifest on the stand of the parities on a point being raised on the
marital status of the private respondent claiming to be the legally wedded wife
of the deceased government employee.
The facts emanates from the record, as unfurled, are that one Manirul
Islam was holding the post of Sub-Inspector of Police at Uttar Dinajpur and
died at the age of 48 while in service. Both the petitioners and the private
respondent claimed as legally wedded wife of the said deceased Government
employee and approached the State Authorities for disbursement of the retiral
benefit as well as entitlement to a family pension under the aforesaid Rules.
The litigation reached to the Tribunal as the writ representations of the
respective alleged wives were not attained to by the competent authority and a
direction was passed upon the Superintendent of Police, Uttar Dinajpur to
dispose of the said representations by recording proper reasons in accordance
with law. The Superintended of Police, Uttar Dinajpur passed a reasoned order
on the premise that both the petitioner and the private respondents being the
wife of the deceased Government employee are entitled to get equal share of
family pension in terms of the Rule 104 of DCRB Rules, 1971 read with
Notification no. 54-F (PEN) dated 13.1.1997 issued by the West Bengal
Finance Department, Audit Branch, Pension Cell. The said authority further
held that the leave salary of the deceased Government employee will be
received by both the wives in equal share in terms of the Rule 168 B read with
Finance Department Order no. 4625-F dated 26.5.1999. The said authority
further came to conclusion that since the nomination for death gratuity before
the demise of the Government employee stands in the name of the petitioner
being the first wife, she is entitled to receive the same in terms of the Rule 98
and 100 of the said Rules. So far as the payment of the Provident Fund is
concerned, the authority held that in terms of the Rule 7 (ii) of the General
Provident Fund (West Bengal Services) Rules all the family members of the
deceased employee are entitled to receive the same in equal share but it shall
not be paid to the son who has attained the age of maturity and the married
daughter whose husband is alive. The amount pertaining to the group
insurance was directed to be given to the heirs of the deceased Government
employee in equal share in terms of Rule 11 (iii) of West Bengal State
Government Employees Group Insurance-cum-Savings Scheme, 1987, upon
obtaining an indemnity bond for claims as no nomination was done by the said
Government employee.
The said order is assailed by the private respondent before the Tribunal
which gave rise to registration of Case no. OA 350 of 2020. By the impugned
order dated 12th October, 2020, the Tribunal passed an interim order staying
the operation of the reasoned order passed by the Superintended of Police,
Uttar Dinajpur until further order. The petitioner of the Tribunal Application
filed the instant writ petition assailing the said interim order on various
grounds including that the Tribunal ought not have stayed the operation of the
order solely on the ground that the suit filed by the petitioner for declaration
that the private respondent is not legally wedded wife of the deceased
Government employee but proceeded to stay aside the order of the
Superintendent of Police, Uttar Dinajpur who directed the disbursement of the
entire retiral benefit including the family pension to the petitioner.
At the time when the matter is listed before us, initially we decided to
dispose of the writ petition on the doctrine of person aggrieved but it appears
that the earlier Division Bench admitted the writ petition and invited the
parties to argue on merit with an intent to decide the main issue involved in
the said Tribunal Application. Since the earlier Division Bench directed the
matter to be decided on merit and even granted liberty to party to file
supplementary affidavit, the point was raised before us on 10th February, 2023
as to whether a muslim woman is entitled to divorce her husband under
"Khula" recognised under the Shariat Act vis-a-vis the provision contained
under dissolution of Muslim Marriage Act, 1939. Precisely for such reason the
first paragraph hereinabove is recorded by us and the Counsel for the
respective parties addressed the issue thereupon.
Mr. Bhattacharyya, learned Advocate appearing for the petitioner
submits that the Private Respondent no. 7 was already married to Misrul
Haque in the year 2008 and in absence of any document concerning divorce
before contracting marriage with the deceased Government employee, she
cannot be regarded as a legally wedded wife. It is further submitted in view of
an embargo created in West Bengal Services (Duties, Rights and Obligations of
Government Employees) Rules, 1980, no second marriage can be contracted
during the service and, therefore, the claim of the private respondent no. 7 is
not tenable. It is further submitted that the said private respondent no. 7 did
not produce any document that she was divorced before the alleged marriage
with the deceased Government employee was contracted and, therefore, the
authority cannot presume that the Private respondent no. 7 is a legally second
wedded wife of the deceased employee. It is further submitted that though the
Personal Muslim Law is recognised and applicable because of the Shariat Act,
1937 but the Dissolution of Muslim Marriages Act, 1939, which is a later
legislation, supersedes Section 2 of the Shariat Act, 1937 and, therefore, the
dissolution of marriage at the behest of the muslim women can only be valid
on a decree passed by the Civil Court. It is further submitted that no decree for
dissolution of marriage at the instance of the Private respondent no. 7 is
produced before the authority nor before the Court, she cannot be regarded as
a second wife for the purpose of the retiral benefits and the family pension
under DCRB Rules, 1971. It is ardently submitted that the grounds for seeking
dissolution of marriage by a muslim woman has been elaborately incorporated
in the Act of 1939 and, therefore, it is imperative that the decree of dissolution
is required to be passed by the Civil Court before a muslim woman claimed a
valid divorce under the Muslim Law.
On the other hand, Mr. Amzad Ali, learned Senior Advocate appearing
for the Private Respondent no. 7 submits that by virtue of the Act of 1937 the
personal law relating to the certain aspects indicated in Section 2 thereof has a
statutory recognition and its applicability which includes Talaq (Dissolution of
Marriage) without making any distinction between a muslim man and muslim
woman. It is vociferously submitted that one of the forms of Talaq under the
Personal Law is Talaq-ul-Tafweez available to a muslim woman and, therefore,
the moment the muslim woman has exercised the right conferred by the
husband to seek dissolution of marriage, Act of 1939 has no manner of
application. It is further submitted that the provisions contained in Act of
1939 is the additional right conferred upon the muslim woman to seek
dissolution of marriage (Talaq) and cannot be regarded as a overriding effect on
the personal law. Mr. Ali, the learned Senior Advocate arduously submits that
Section 5 of the Act of 1937 was repealed on promulgation of dissolution of
Muslim Marriage Act of 1939 which indicates that the aforesaid Act is
supplemental to the personal law and does not put any impunity on the
muslim woman to take recourse under the Act of 1939 for dissolution of
marriage having a overriding effect on the Act of 1937.
Both the parties have relied upon certain judgments which we will deal
hereinafter touching upon the aforesaid issue. The State took a neutral stand
and concededly submitted that they have all intention to the disbursement of
the retiral benefit of the deceased Government employee and any direction or
order passed by this Court would be implemented without any demur.
The Muslim Personal Law (Shariat) Application Act, 1937 was enacted to
make provision for application of Muslim Personal Law (Shariat) to the
muslim. Section 2 of the Act of 1937 starting with the non-obstante Clause
imbibed within itself several incidences of the rights recognised under the
Personal Law in the following:
"2. Application of Personal Law to Muslims. - Notwithstanding any customs or
usage to the contrary, in all questions (save questions r elating to agricultural
land) regarding intestate succession, special property of females, including
personal properly inherited or obtained under contract or gift or any other
provision of Personal Law. Marriage, dissolution of marriage, including talaq, ila,
zihar, lian, khula and mubaraat, maintenance, dower, guardianship, gifts, trusts
and trust properties and wakfs (other than charities and charitable institutions
and charitable and religious endowments) the rule of decision in cases where the
parties are Muslims shall be the Muslim Personal Law (Shariat)."
It is manifest from the aforesaid Section that the rights relating to the
agricultural land is excluded from the purview of aforesaid Act but its
applicability to the incidence recorded therein has been recognised. It admits
no ambiguity that the provisions of Personal Law relating to the dissolution of
marriage including Talaq, Ila, Zihar, Khula, Mubarat and Lian shall be
governed by the Muslim Personal Law. The Act of 1937 does not create any
distinction on its applicability to the muslim man and muslim woman so far as
it relates to a marriage or a dissolution of marriage indicated therein. However,
Section 5 of the Act of 1937 as it stood before it is repealed by an Act of 1939
contained the provision relating to the dissolution of marriage by Court in
certain circumstances in relation to a muslim married woman in the following:
"Dissolution of Marriage by Court in certain circumstances - The District
Judge may, on petition made by a muslim married woman, dissolved a marriage
on any ground recognised by Muslim Personal Law (Shariat)."
It is thus manifest that prior to promulgation of Act of 1939 the right of
the Muslim married woman to seek divorce through Court was conferred
provided such dissolution of marriage is sought for on the grounds recognised
under the Personal Law. The said Section was subsequently repealed on
promulgation of Act of 1939 with an aim to consolidate and clarify the
provision of Muslim Law relating to suits for dissolution of marriage by woman
married under Muslim Law and to remove doubts as to the effect of
renunciation of Islam by a married muslim woman on her marriage tie. Section
2 of Act of 1939 enumerated the grounds on which the muslim married
woman can obtain a decree for dissolution of marriage in the following:
"2. Grounds for decree for dissolution of marriage. - A woman married
under Muslim law shall be entitle to obtain a decree for the dissolution of her
marriage on any one or more of the following grounds, namely; -
(i) That the whereabouts of the husband have not been known for a period of
four years.
(ii) That the husband has neglected or has failed to provide for her
maintenance for a p eriod of two years;
(iii) That the husband has been sentenced to imprisonment for a period of seven
years or up wards;
(iv) That the husband has failed to perform, without reasonable cause, his
marital obligations for a period of three years;
(v) That the husband was impotent at the time of the marriage and continues
to be so;
(vi) That the husband has been insane for a period of two years or is suffering
from *** a virulent vener eal disease;
(vii) That she, having been given in marriage by her father or other guardian
before she attained the age of fifteen years, repudiated the marriage before
attaining the age of eighteen years:
Provided that the marriage has not been consummated;
(viii) That the husband treats her with cruelty, that is to say, -
(a) Habitually assaults her or makes her life miserable by cruelty of conduct
even if such conduct does not amount to physical ill-treatment, or
(b) Associates with women of evil repute or leads an infamous life, or
(c) Attempts to force her to lead an immoral life, or
(d) Disposes of her property of prevents her exercising her legal rights over it,
or
(e) Obstructs her in the observance of her religious profession or practice, or
(f) If he has more wives than one, does not treat her equitably in accordance
with the injunctions of the Qoran;
(ix) On any other ground which is recognised as valid for the dissolution of
marriages under muslim law :
Provided that -
(a) No decree shall be passed on ground (iii) until the sentence has become
final;
(b) A decree passed on ground (f) shall not take effect for a period of six months
from the date of such decree, and if the husband appears either in person or
through an authorised agent within that period and satisfies the Court that he
is prepared to perform his conjugal duties, the Court shall set aside the said
decree; and
(c) Before passing a decree on ground (v) the Court shall, on application by the
husband, make an order requiring the husband to satisfy the Court within a
period of one year from the date of such order that he has ceased to be
impotent, and if the husband so satisfies the Court within such period, no
decree shall be passed on the said ground."
It is apparent from the aforesaid provisions that muslim married woman
can seek a decree for dissolution for marriage on any of the grounds
mentioned in Section 2 of the Act of 1939 from the competent authority.
A point arose before the Lahore High Court in case of Muhammad
Baksh vs. The Crown through Khuda Baksh & Ors., reported in AIR 1950
Lah 133 as to whether a decree passed by a Judge in relation to a proceeding
initiated by the muslim married woman seeking decree for dissolution of
marriage under Clause 7 of Section 2 of the Act of 1939 is essential or not. The
view was expressed by the Civil Judge in the said case that mere exercise of
option of puberty does not operate as dissolution of marriage unless such
repudiation is confirmed by the order of the Court. In the said case one Mt.
Amiran was married to Md. Baksh, the petitioner therein when she was minor
by an authority of her father as guardian. Faced with such question, it is held
that the Act of 1939 is merely a consolidating Act and does not profess to add
to the provisions of Muslim Law. It is further held that the Section 2 of the Act
of 1937 merely recognised the existing view of the Mahomedan Law and the
Act of 1939 cannot be construed to create a new right or remedy into a muslim
woman and, therefore, it is not essential that the exercise of right under the
Personal Law seeking dissolution on an option of puberty is subject to the
confirmation by the Court in the following:
"8. On Principle, I can see no valid r eason why the option of puberty, if once
exercised under the conditions laid down by Muslim law, should be subject to
confir mation by an order of the Court. It is after all the right of an individual,
dependant entirely on personal choice and is not conditioned by any consideration
as to whether the guardian for the marriage acted wisely or not, in selecting the
spouse. I have been unable to find any authority to the effect that a Court can
refuse to confirm the valid exer cise of such option. There is nothing in the Holy
Quran or in any authentic collection of Ahadis to support the view adopted by
some jurisconsults of Islam that an order of a Qazi is necessary to confirm an
exercise of the option of puberty."
Ultimately the Court held:
"22. On a review of the original authorities therefore, and having regard to the
opinion of the well-known savant, the late Sayyed Ameer Ali, I have reached the
conclusion that a Court‟s order is not essential for conferring validity on the
exercise of the option of puberty. The Qazi must be replaced in the modern context
by the civil Court. The Court‟s order would seem to be only necessary to invest it
with the judicial imprimatur in order to avoid any possible disputes, as Mr. Ameer
Ali has explained."
In case of Pirmohammad Kukaji vs. The State of Madhya Pradesh,
reported in AIR 1960 MP 24 though related to a criminal offence allegedly
committed by appellant therein under Sections 366 and 542 of the Indian
Penal Code and having sentenced by the Additional Session Judge of Indore,
certain observations may be relevant in the present context. An argument was
advanced that since Mst. Fatma appellant therein given in marriage during her
minority, she had an option to repudiate the marriage on attaining puberty
and her marriage to an another person would imply the exercise of such
option. The Bench did not accept the aforesaid contention and held that mere
exercise of an option of repudiation does not automatically operate as a
dissolution of marriage as the same is required to be confirmed by the Court in
the following:
"12. I am unable to accept the contention. Before the Dissolution of Muslim
Marriage Act, 1939 was enacted the option of repudiating a marriage on attaining
puberty was available to a girl only when the marriage had been contracted for
her during her minority by any guardian other than the father or the grand -father.
Here, Mst. Fatma‟s marriage with the appellant was contracted by her father and
not by any guardian other than the father. That being so, she had no right of
repudiating the marriage on attaining puberty. Again the mere exercise or the
option of repudiation does not operate as a dissolution of the marriage. The
repudiation is required to be confirmed by the court."
It was ultimately held that in the absence of any decree of the Court
dissolving the marriage it cannot be presumed that the marriage was dissolved
on mere exercise of an option of repudiation in the following:
"13. In AIR 1934 All 589 , Young J. no doubt observed that the fact of second
marriage was itself an evidence of repudiation of the first marriage by the girl on
attaining puberty. Those observations seem to be biter as the learned Judge had
held earlier that the first marriage of the girl in that case was invalid. The
observation does not seem to be in consonance with the principles of Mohammaden
Law. The Dissolution of Muslim Marriage Act in no way helps the prosecutions as
even if that Act was in force in the territory of the former Madhya Bharat on 17 th
February, 1957 there was no decree of the court dissolving the marriage of Mst.
Fatma with the appellant."
A judgment of the Calcutta High Court delivered prior to coming in force
of the Act of 1937 or an Act of 1939 may also throw light on the right of a
muslim woman on an exercise of repudiation on attaining puberty in case of
Badal Aurat & Ors. vs. Queen-Empress, reported in (1891) ILR 19 CAL 79
wherein the girl was given in marriage at the age of 5 by her mother with the
complainant but before she attained the puberty the complainant was
sentenced to imprisonment for a term of 4 years and 6 months and while in
jail the girl attained puberty and married another man. In such perspective the
point arose whether any judicial order is necessary to effectuate the
cancellation of the marriage, it is held:
"6. In the present case the man to whom the girl is said to have been
married was in jail when she attained puberty . It was not necessary for her,
therefore, to signify her assent or dissent. After attaining puberty she enter ed into
a contract of marriage with the second accused. This is sufficient indication in my
opinion that she never ratified the unauthorised marriage, which was never
consummated.
7. The only question that remains to be considered is whether a judicial
order was necessary to effectuate the cancellation. The Fatawa -i- Alamgiri says
such an order is necessary, but the Raddul - muhtar (Vol. II, p. 502) explains it by
saying that a judicial declaration is not needed for imparting validity to an act
which the parties have the power to do, but to provide judicial evidence in order to
prevent disputes. No time, however, is limited for seeking the assistanc e of the
Kazi - - Fatawa-i- Alamhiri, I, p. 267 (Egypt edition). Besides it has been held by
Mahomedan lawyers that in a claim for restitution of conjugal rights the
defendant may plead the exercise of "the right of option", and if it is established
the Kazi may grant the declaration in that proceeding. It seems to me that this
principle would apply equally to a proceeding like the present, where a conviction
can take place only if it is found conclusively that the former marriage was still
binding and effective."
It takes us to the recent judgment of the Supreme Court in Juverua
Abdul Majid Patni vs. Atif Iqbal Mansoori & Anr., reported in (2014) 10
SCC 736, the said case relates to the provisions contained under the
Protection of Woman from Domestic Violence Act, 2005 and the plea was taken
whether a divorced muslim woman can seek for relief against her husband
under Section 18 to 23 of the said Act. Incidentally another question that felt
for consideration as to whether the divorce took place between the muslim
woman and her husband on 09.05.2008. A plea was taken by the appellant
therein that a muslim married woman obtained an ex parte khula from Mufti
under the Muslim Personal Law and the said order was challenged before the
Family Court along with an application for restitution of conjugal rights. The
Apex Court find that the Khula being one of the modes of dissolution of
marriage when the muslim married woman does not intend to continue with
the marital tie which cannot be refused by her husband except on some
reasonable grounds relatable to the offer of the wife in return in the following:
"13. From the discussion afor esaid, what we find is that „khula‟ is a mode
of dissolution of marriage when the wife does not want to continue with the
marital tie. To settle the matter privately, the wife need only to consult a Mufti
(juris consult) of her school. The Mufti gives his fatwa or advisory decision based
on the Shariat of his school. Further, if the wife does not want to continue with
marital tie and takes mode of „khula‟ for dissolution of marriage, she is required
to propose her husband for dissolution of marriage. This may or may not
accompany her offer to give something in return. The wife may offer to give up her
claim to Mahr (dower). The „khula‟ is a mode of divorce which proceeds from the
wife, the husband cannot refuse subject only to reasonable negotiation with regard
to what the wife has offered to give him in return. The Mufti gives his fatwa of
advisory decision based on the Shariat of his school. However, if the matter is
carried to the point of litigation and cannot be settled privately then the Qazy
(Judge) is r equired to deliver a qaza (judgment) based upon the Shariat."
What emerged from the aforesaid decision that a muslim married woman
can seek divorce on any of the grounds recognised under the Personal Law
provided it comes within the purview of "Talaq". There are different forms and
modes of "Talaq" and one of the recognised forms is Talaq-ul-Tafweez to be
exercised by the mahomedan wife. The Islamic scholars have explained the
said mode of Talaq by the muslim married woman to her husband provided
such authority is given or in other words, the power to give Talaq reserved to
the husband is delegated to the wife. It is propounded by the scholars that a
muslim married woman can divorce her husband exercising the authority
delegated by him pursuant to the agreement entered into between the parties
either before or even after the marriage and the said power is not revocable,
subject to the two conditions that the condition relating to delegation of power
is of reasonable nature and is not opposed to the policy of Mahomedan Law.
It evolves an another question on the construction of Section 2 of the Act
of 1939 engulfing within itself various grounds when the muslim married
woman can seek a decree for dissolution of marriage. Clause (ix) of Section 2 of
the Act of 1939 postulates that muslim married woman can seek a decree for
dissolution of marriage on any other ground which is recognised as valid for
dissolution of marriage under Muslim Law. It propels a notion that the decree
of the dissolution of marriage is imperative and/or essential even the muslim
married woman exercises her right to divorce recognised under the Personal
Law as we do not find any reason for incorporating such ground within the
aforesaid Section. The Court while interpreting the provision of statute shall go
firstly on a literal interpretation thereof and in case of any difficulty in
adopting the aforesaid approach may take aid of a purposive construction in
juxtaposition with the aim and object for which the Act is enacted. The
possible reason which we find from the insertion of the aforesaid ground
within Section 2 of the act of 1939 is that in the event there is a dissent by the
husband in not accepting the mode of dissolution of marriage (Talaq) by the
wife, such exercise of right under the personal law has to be confirmed and/or
ratified by a decree of dissolution of marriage by the Court.
We cannot overlook the fact that by virtue of Act of 1937 the Personal
Law is applicable to the various forms of dissolution of marriage and,
therefore, Talaq-ul-Tafweez being one of the modes of dissolution of marriage
cannot be taken out of the ambit thereof. Even if Section 5 of the Act of 1937
was repealed by an Act of 1939 it can at best be regarded as an additional
right conferred upon the muslim married woman to seek dissolution and,
therefore, the latter Act cannot override or supplant the Act of 1937. The Act of
1939 is mere a consolidating and clarificatory Act relating to the provision of
Muslim Law in relation to suits for dissolution of marriage by woman married
under the Muslim Law and, therefore, has to be interpreted in such manner.
The matter can be viewed from another angle. A muslim man has a
right to dissolve the marriage under any of the forms or mode of the
dissolution of marriage as recognised by law whereas the muslim woman shall
be dragged to the Court seeking a decree for dissolution despite exercising the
right under the Personal Law, more particularly, when the husband has
accepted the decision of the wife. The disparity has to be avoided and the
parity in relation to the exercise of right in relation to a dissolution of marriage
is required to be upheld.
In the instant case, the Private Respondent no. 7 produced the marriage
certificate wherefrom it appears that at the time of solemnisation of the
marriage the husband has delegated his power to divorce to the wife and,
therefore, if the wife exercises such power delegated upon her by her husband
and there is no dissent from the husband in this regard, we do not find that it
is imperative for the said respondent to approach the Court seeking decree for
dissolution of marriage on such ground.
The instant writ petition confined to interim order staying the operation
of the reasoned order passed by the Superintendent of Police, Uttar Dinajpur
is a subject matter of challenge in the instant writ petition. The matter is
pending before the Tribunal for final adjudication and the point whether the
prohibition contained under the West Bengal Services (Duties, Rights and
Obligations of the Government Employees) Rules, 1980 has an overriding effect
of the DCRB Rules, 1971 or in other words both the Acts are complementary
to each other and operate are involved in a respective sphere are involved
therein and as such we do not intend to make any observations thereupon at
the Tribunal Application is at the nebulous stage.
We are of the opinion that pending adjudication by the Tribunal, the
interim order granted by the Tribunal does not require interference at this
stage.
We, however, express our concern that the Tribunal would decide the
said application on the above point and it is expected that the said application
is disposed of within two months from the date of the communication of this
order after affording an opportunity of hearing to the respective parties in
accordance with law.
The writ petition is thus disposed of.
No order as to costs.
Urgent Photostat certified copies of this judgment, if applied for, be made
available to the parties subject to compliance with requisite formalities.
I agree.
(Prasenjit Biswas, J.) (Harish Tandon, J.)
