Gauhati High Court
Syeda Akimun Nessa vs The State Of Assam And 4 Ors on 4 March, 2021
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GAHC010146852019
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/4541/2019
SYEDA AKIMUN NESSA
W/O LATE ABDUL HAI, R/O VILLAGE 1, DHUHI, P.S. KAYAN, DIST.
KAMRUP, ASSAM
VERSUS
THE STATE OF ASSAM AND 4 ORS.
REPRESENTED BY COMMISSIONER AND SECRETARY, EDUCATION
ELEMENTARY DEPARTMENT, DISPUR, GUWAHATI, 781006
2:THE DIRECTOR
PENSION ASSAM
HOUSEFED COMPLEX
DISPUR
GUWAHATI
781006
3:THE DIRECTOR OF ELEMENTARY EDUCATION ASSAM
KAHILIPARA
GUWAHATI
781019
4:THE DISTRICT ELEMENTARY EDUCATION OFFICER
KAMRUP
AMINGAON
GUWAHATI
781031
5:SYEDA NUR AKHTAR BEGUM
W/O LATE ABDUL HAI
R/O VILLAGE 1 DHUHI
P.S. KAYAN
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DIST. KAMRUP
ASSA
Advocate for the Petitioner : MR R SHARMA
Advocate for the Respondent : SC, ELEM. EDU
BEFORE
HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA
ORDER
Date : 04-03-2021
Heard Mr. R. Sarma, learned counsel for the petitioner. Also heard Mr. B. Deuri, learned counsel for the
respondent No.2, Ms. S.E. Ahmed, learned counsel for the respondent No.5 and Mr. P.K. Bora, learned counsel for the
respondents No. 1, 3 and 4.
2. The petitioner and the respondent No. 5 are the two wives of the deceased Abdul Hai who was serving as an
Assistant Teacher in the Chamukha Anchalik Madrassa. The husband of the petitioner and the respondent No.5 died on
26.08.2012. On his death, the respondent No.5 being the first wife of the deceased is being paid the family pensionary
benefits under Rule 143 of the Assam Services Pension Rules, 1969.
3. This writ petition is instituted by the petitioner being the second wife for a direction to the respondent authorities not
release the family pension of the deceased only in the name of the respondent No.5 with a further prayer for a direction to
equally divide the family pension between the petitioner and the respondent No.5. Mr. R. Sarma, learned counsel refers to
WP(C) 4176/2014, wherein by the order dated 27.09.2019 a conclusion was arrived that in the event of a valid marriage
with two or more wives of an Mohammedan employee, the second wife was also entitled to a proportionate family pension
which could be determined by the Office of the Accountant General (A & E) Assam. In the said judgment, an earlier
decision of the Division Bench in Sirazun Nessa -vs- State of Assam reported in 2011 (4) GLT 751 was referred. In Sirazun
Nessa (supra), the Division Bench was required to give its view on two contrary judgments in Amina Khatun and Ors., -vs-
Jahura Khatun and Ors., reported in 2004 (Supp) GLT 67, wherein, it was held that the second wife of a deceased who is
subjected to Mohammedan law would be entitled to a proportionate family pension, whereas, in Suraiya Sultana vs. State of
Assam reported in 2006 (Suppl) GLT 533 a contrary view was taken. The Division Bench in paragraph-18 of its judgment
was in agreement with the view taken in Amina Khatun (supra) and accordingly held that the second wife of a deceased of
Mohammedan faith would be entitled to the proportionate family pension which would be determined by the Office of the
Accountant General. Paragraph-18 Sirazun Nessa (supra) is extracted below:-
18. For the foregoing reasons, we are in agreement with the view taken in the case of Amina
Khatun (supra) in preference to the decision taken in Suraiya Sultana (supra) as well as the impugned
judgment. As a corollary, the impugned judgment is hereby set aside. It is held that the appellant/writ
petitioner is entitled to the proportionate Family Pension, which would be determined by the office of the
Accountant General, Assam and for this purpose the said authority may ask both the surviving widows of
the deceased to clarify the ratio of their claim in accordance with the Mohammedan law. In the event of
any dispute about the ratio, the parties may be asked to bring appropriate decree from a competent Civil
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Court.
4. Again in Writ Appeal 244/2017 which was given a final consideration by the order dated 15.12.2017 it was provided
as under:-
"In that case, the Division Bench has held that Rule has not ruled out taking into consideration the valid marriage
of two or more wives of a Mohammedan employee and directed that second wife was entitled to the proportionate family
pension which could be determined by the office of the Accountant General, Assam. This being the settled legal position, we
find the impugned order of the learned Single Judge contrary to the Division Bench decision of this High Court. In
Khursheed Ahmad Khan vs. State of U.P. 2015 (8) SCC 439, the Supreme Courthas nowhere stated that second wife of an
Mohammedan employee is not entitled for family pension of her husband. The decision of the Supreme Court is thereforenot
applicable in the present case. 4.We accordingly set aside the impugned order and direct that appellant shall be entitled to
the proportionate family pension which could be determined by the office of the Accountant General, Assam and, for this
purpose, the said authority may ask the appellant and Respondent No.1 to clarify the ratio of their claim in accordance with
the Mohammedan Law."
5. A reading of both the judgments of the Division Bench goes to show that the law is settled that the second wife of a
deceased of Mohammedan faith would be entitled to the proportionate family pension and accordingly, the Accountant
General was directed to determine the proportion to which each of the two wives would be entitled under the Mohammedan
law.
6. In the circumstance, we require the Accountant General, A & E, Assam to be arrayed as respondent in this petition
and Mr. R. Dhar, learned counsel appears for the Accountant General A & E, Assam. Accordingly, this petition is disposed
of by directing the A & E, Assam to hear both the petitioner as well as the respondent No.5 on the issue of proportion of the
family pension that may be applicable to the parties under the Mohammedan law and upon such determination, the
proportionate pension be paid to the respective parties. The requirement be done by the Accountant General within a period
of one month from the date of receipt of the certified copy of the order.
JUDGE
Comparing Assistant
