Gauhati High Court
Shainur Begum @ Shainur Bewa vs The State Of Assam And 6 Ors on 3 August, 2022
Page No.# 1/6
GAHC010304002019
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/9392/2019
SHAINUR BEGUM @ SHAINUR BEWA
W/O- LT. MUKTAR HUSSAIN, R/O- VILL- LAKHIGANJ (CHAHAPARA), P.O.
LAKHIGANJ, P.S. BILASIPARA, PIN- 783351, DIST.- DHUBRI, ASSAM
VERSUS
THE STATE OF ASSAM AND 6 ORS.
REP. BY THE SECY. TO THE GOVT. OF ASSAM, WATER RESOURCE (E AND
D) DEPTT., ASSAM SECRETARIAT, DISPUR, GHY-6
2:THE SECY. TO THE GOVT. OF ASSAM
PENSION AND PUBLIC GRIEVANCES DEPTT.
DISPUR
GHY-6
3:THE CHIEF ENGINEER
WATER RESOURCE DEPTT.
CHANDMARI
GHY-3
4:THE EXECUTIVE ENGINEER
WATER RESOURCE DIVISION (E AND D) DEPTT.
KOKRAJHAR
ASSAM
Page No.# 2/6
5:MUSTT. MUMTAZ BEGUM BEWA
W/O- LT. MUKTAR HUSSAIN
R/O- VILL- KARAITARI
P.O. AND P.S. FAKIRAGRAM
DIST.- KOKRAJHAR
ASSAM
PIN- 783345
6:MUKTA BEGUM
D/O- LT. MUKTAR HUSSAIN
BEING MINOR REP. BY MOTHER MUSTT. MUMTAZ BEGUM BEWA
R/O- VILL- KARAITARI
P.O. AND P.S. FAKIRAGRAM
DIST.- KOKRAJHAR
ASSAM
PIN- 783345
7:ABDUL MOMIN
S/O- LT. MUKTAR HUSSAIN
BEING MINOR REP. BY MOTHER MUSTT. MUMTAZ BEGUM BEWA
R/O- VILL- KARAITARI
P.O. AND P.S. FAKIRAGRAM
DIST.- KOKRAJHAR
ASSAM
PIN- 78334
Advocate for the Petitioner : MR. D C C PHUKAN
Advocate for the Respondent : SC, WATER RESOURCE
BEFORE
HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA
ORDER
Date : 03-08-2022
1. Heard Mr. DCC Phukan, learned counsel for the petitioner. Also heard
Mr. B Goswami, learned Additional Advocate General, Assam appearing for
respondent Nos. 1 to 4 as well as Mr. AM Ahmed, learned counsel for the
Page No.# 3/6
respondent No. 5.
2. The petitioner's case is that she is the first wife of the Late Muktar
Hussain, who was a Section Assistant in the office of the Executive Engineer,
Water Resource (E&D) Department, Kokrajhar. Muktar Hussain died on
28.05.2011. The respondent No. 5 is the second wife of Late Muktar Hussain.
3. The petitioner's counsel submits that on the death of her husband, the
family pension is being paid only to the respondent No. 5 and not to the
petitioner. The petitioner's counsel submits that the petitioner should also be
given a proportionate share of the family pension and other pensionery benefits.
4. Mr. AM Ahmed, learned counsel for the respondent No. 5 submits that
though the petitioner is the 1st wife of the Late Muktar Hussain, the petitioner
and the Late Muktar Hussain were divorced. He, accordingly, submits that the
petitioner is not entitled to any proportion of the family pension.
5. Mr. B Goswami, learned Additional Advocate General, Assam submits that
the petitioner had initially filed WP(C) No. 8767/2018 praying for grant of
pensionery benefits. This Court disposed of WP(C) No. 8767/2018, vide order
dated 20.12.2018, by directing the authorities to verify the claim of the
petitioner and after making necessary verification of the claim, release the
pensionery benefits in favour of the petitioner, if found to be entitled. He
submits that in consequence to the order dated 20.12.2018, passed in WP(C)
No. 8767/2018 notices were issued to the petitioner and the respondent No. 5
with regard to payment of pensionery benefits and family pension. While the
respondent No. 5 appeared/attended the office with her children and submitted
marriage certificate, photo copy of nominee papers, etc, the petitioner did not
co-operate in the verification of records and neither did she appear before the
Page No.# 4/6
concerned authority. However, she appeared at a later stage.
6. Mr. B Goswami, learned Additional Advocate General, Assam submits that
in the family declaration submitted by the Late Muktar Hussain, the name of the
petitioner does not find mention with regard to payment of pensionery benefits,
though the name of the respondent No. 5 finds mention.
7. The petitioner's claim for payment of family pension is on the ground
that the office of the Deputy Commissioner, Kokrajhar has issued next of kin
certificate dated 30.07.2011, showing the petitioner to be the first wife and the
respondent No. 5 to be the second wife. Secondly, in the judgment dated
15.09.2012 passed by the Court of the District Judge, Kokrajhar in Misc.(S/C)
Case No.43/2011, the Court has held that the petitioner was entitled to
Succession Certificate to the share of 15/16 of the debts and securities left
behind by Late Muktar Hussain. Further, the petitioner was entitled to 1/16
share of the amount of Rs.2,66,557/- lying in the office of the Executive
Engineer, E&D, Kokrajhar Division, Kokrajhar.
8. The District Judge, Kokrajhar, vide judgment dated 15.09.2012 passed in
Misc. (S/C) Case No. 43/2011, has decided Issue No. 2 by holding that the
petitioner was the 1st wife of the deceased, Late Muktar Hussain and her
marriage with the deceased was in subsistence at the time of death of the
deceased. Issue No. 2 framed by the court of the District Judge, Kokrajhar in
Misc. (S/C) Case No. 43/2011 is as follows:-
"Whether the opposite party Musstt. Sainur Begum is the divorced wife of
the deceased Muktar Hussain?".
The operative portion of the findings of the court of the District Judge,
Kokrajhar in the judgment dated 15.09.2012, with regard to Issue No. 2, is
Page No.# 5/6
reproduced below:
"From the above discussions, it can be easily said that the opposite party
Musstt. Sainur Begum is the 1st wife of the deceased and her marriage with the
deceased was in subsistence at the time of death of the deceased.
9. In view of the judgment dated 15.09.2012 passed by the District Judge,
Kokrajhar in Misc. (S/C) Case No. 43/2011, the issue with regard to whether the
petitioner's marriage was in subsistence at the time of death of her husband
Muktar Hussain has been given a finality as on date. As the petitioner is the 1 st
wife who has never divorced the Late Muktar Hussain, the petitioner would be
entitled to a share of the family pension.
10. In the case of Mustt. Khadija Begum vs. Mustt. Rejina Begum and 5
Or.s (WA No.244/2017), the Division Bench of this Court had held that the first
and second wife of a person who professes the Mohamedum faith are entitled
to family pension. This judgment was based on another judgment of the
Division Bench of this Court in the case of Sirazun Nessa vs. State of Assam
and Others reported in 2011 (4) GLT 751.
11. In view of the reasons stated above, the respondents are directed to
grant family pension to the petitioner and the respondent No. 5 in terms of
Chapter 8 of the Assam Services (Pension) Rules, 1969.
12. In the case of GL Bhatia vs. Union of India & Anr., reported in
(1999) 5 SCC 237, the Apex Court has held that right to family pension
cannot be defeated by making nomination contrary to Rules and the same
would be inoperative. In that view of the matter, the respondents would have to
give proportionate family pension and other pensionery benefits to the
petitioner and the respondent No. 5 in terms of the Division Bench judgment of
Page No.# 6/6
this Court in Musstt. Khadija Begum (supra).
13. The entire exercise for grant of family pension and other pensionery
benefits should be concluded within a period of 3 (three) months from the date
of receipt of a certified copy of this order.
14. The writ petition is accordingly disposed of.
15. Interim order passed earlier stands vacated.
JUDGE
Comparing Assistant
