Gauhati High Court
Musstt. Keyarun Nessa Barbhuiya vs The State Of Assam And 5 Ors on 4 March, 2021
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GAHC010124512015
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/7340/2015
MUSSTT. KEYARUN NESSA BARBHUIYA
W/O LT. HAZI MAFUR ALI BARBHUIYA VILL- NIJ FULBARI-III,P.O.
FULBARI P.S. KATIGORAH,DIST. CACHAR, ASSAM.
VERSUS
THE STATE OF ASSAM AND 5 ORS
REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM,
HEALTH AND FAMILY WELFARE DEPARTMENT, DISPUR, GUWAHATI-6.
2:THE DIRECTOR OF HEALTH SERVICE
ASSAM
HENGRABARI
GUWAHATI- 36.
3:THE ACCOUNTANT GENERAL A and E
ASSAM
MAIDAMGAON
BELTOLA
GUWAHATI-29.
4:THE JOINT DIRECTOR OF HEALTH SERVICES
M CUM- STATE PROGRAMME OFFICER
NVBDCP
ASSAM
HENGRABARI
GUWAHATI-36.
5:THE JOINT DIRECTOR OF HEALTH SERVICES
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CACHAR
P.O. and P.S. SILCHAR
DIST. CACHAR
ASSAM
Advocate for the Petitioner : MR.A M S MAZUMDER
Advocate for the Respondent : SC, AG
BEFORE
HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA
ORDER
Date : 04-03-2021
Heard Dr. B. Ahmed, learned counsel for the petitioner. Also heard Ms. B. Bora, learned
Standing Counsel for the Health Department and Mr. R. Dhar, learned counsel appearing for
the office of the Accountant General (A&E), Assam.
2. The case of the petitioner in brief is that she is the second wife of the late Hazi Mafur
Ali Barbhuiya, who is serving as a Surveillance Inspector under the District Malaria Office,
Cachar. The deceased husband of the petitioner superannuated from service on 31.10.1993
and upon his superannuation, he had received necessary pension as admissible under the
Rules. On 16.12.1996, the husband of the petitioner died leaving behind two wives, being
Fayzun Nessa Barbhuiya, the first wife and the petitioner, being the second wife. After his
death, pension was paid to Fayzun Nessa Barbhuiya, the first wife till her death on
08.07.2002. The petitioner's application for being granted family pension being denied, the
writ petition has been filed.
3. Dr. B. Ahmed, learned counsel for the petitioner refers to the provision of Rule 143 (ii)
(Note-1) of the Assam Services (Pension) Rules, 1969, wherein it is provided that where there
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are two or more widows, pension would be payable to the eldest surviving widow and on her
death, it would be payable to the next surviving widow, if any.
4. By referring to the said provision, the petitioner makes a claim that on the death of the
first wife Fayzun Nessa Barbhuiya, the petitioner being the second wife, is entitled to the
family pension payable to late Hazi Mafur Ali Barbhuiya.
5. The stand of the Health Department is that the family pension proposal of the
petitioner was processed by the Health Department and sent to the office of the Accountant
General (A&E) for finalization. However, the family pension proposal was rejected by the
office of the Accountant General (Assam), on the ground that family pension to the second
wife can be granted only in cases where the second marriage is done with the consent of the
Department, as per the judgment of the Single Bench of the Gauhati High Court in WP(C) No.
153/2007, which is Fazila Begum @ Fazliya Begum Vs. State of Assam and Others,
reported in 2008 (Suppl) GLT 507.
6. I have heard the learned counsels for the parties.
7. The bone of contention is as to whether family pension is to be given only if the
second marriage has been made with the consent of the Department concerned, in which the
Government servant was serving.
8. The Division Bench of this Court was seized of a similar matter in the case of Sirazun
Nessa Vs. State of Assam and Others, reported in 2011 (4) GLT 751, wherein it held
that though Rule 26 of the Assam Civil Services (Conduct) Rules, 1965, (in short Conduct
Rules) prohibits Government servants from contracting a second marriage without first
obtaining permission from the Government, violation of the Conduct Rules may entail
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disciplinary proceeding during the service tenure of a Government employee, but any such
violation does not amount to declaring the second marriage between two Muslims spouses as
void, provided it is otherwise legal and valid. Hence, the Division Bench held that the
rejection of a claim for grant of family pension to a second Mohammedan wife on account of
Rule 26 of the Conduct Rules was unsustainable in law.
9. Though the office of the Accountant General, Assam has denied payment of family
pension to the petitioner on account of the judgment of a Single Bench of this Court in
Fazila Begum @ Fazliya Begum (Supra), wherein the Single Judge has held that the
second wife cannot have a claim for payment of family pension if the second marriage was
held without obtaining the permission of the Government, the said law cannot be said to be
good law, in view of the judgment of the Division Bench of this Court in the case of Sirazun
Nessa (Supra). Thus, this Court holds that for grant of family pension to the second wife
involving persons of the Mohammedan faith, the permission of the Department/Government
is not necessary for conducting the second marriage, so long as the marriage is legal and
valid.
10. Further, the Division Bench of this Court in the case of WA No. 244/2017, " Mustt.
Khadija Begum Vs. Mustt. Rejina Begum has concurred with the judgment of the
Division Bench in Sirazun Nessa (Supra) and held that the second wife was entitled to
proportionate family pension along with the first wife, if there was a valid marriage.
11. The above being said, Rule 143 (ii)(Note-1) of the Assam Service (Pension) Rules,
1969 provides that where there are two or more widows, pension would be payable to the
eldest surviving widow and on her death, it would be payable to the next surviving widow. In
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the present case, the first wife having expired on 08.07.2002, the petitioner would have to be
given family pension in terms of Rule 143 (ii)(Note-1) and the judgment of the Division Bench
of this Court in Sirazun Nessa (Supra) and Mustt. Khadija Begum Vs. Mustt. Rejina
Begum (Supra).
12. The respondents in the Health Department are accordingly directed to send the family
pension proposal of the petitioner to the office of the Accountant General (A&E), Assam, who
shall thereafter process the same for final payment of the family pension to the petitioner.
The exercise shall be concluded within a period of 2 (two) months from the date of receipt of
a certified copy of this order.
The writ petition is accordingly disposed of.
JUDGE
Comparing Assistant
