Somela Khatun vs The State Of Assam And 6 Ors
2022 Latest Caselaw 4298 Gua

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GAHC010142892021




                      THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                          Case No. : WP(C)/4976/2021

         SOMELA KHATUN
         W/O LATE ABUL KASHEM MIAH, VILL-LANGLA, P.O.-LANGLA, P.S.-
         KALGACHIA, DIST-BARPETA, ASSAM, PIN-781319



         VERSUS

         THE STATE OF ASSAM AND 6 ORS.
         REPRESENTED BY THE PRINCIPAL SECRETARY TO THE GOVT. OF ASSAM,
         PANCHAYAT AND RURAL DEVELOPMENT DEPARTMENT, DISPUR,
         GUWAHATI-6

         2:THE SECRETARY TO THE GOVT. OF ASSAM
          PENSION AND PUBLIC GRIEVANCE DEPARTMENT
          DISPUR
          GUWAHATI-6

         3:THE COMMISSIONER
          PANCHAYAT AND RURAL DEVELOPMENT DEPARTMENT
          JURIPAR
          PANJABARI
          GUWAHATI-29

         4:THE DIRECTOR OF PENSION
         ASSAM
          HOUSEFED
          GUWAHATI-6

         5:THE CHIEF EXECUTIVE OFFICER
          BARPETA ZILLA PARISHAD
          BARPETA
          DIST-BARPETA (ASSAM)
          PIN-781301
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             6:THE TREASURY OFFICER
              BARPETA TREASURY
              BARPETA
              DIST-BARPETA (ASSAM)
              PIN-781301

             7:SAHERA KHATUN
             W/O LATE ABUL KASHEM MIAH
             VILL-LANGLA
              P.O.-LANGLA VIA KALGACHIA
              MOUZA-TITAPANI
              P.S.-KALGACHIA
              DIST-BARPETA
             ASSAM
              PIN-78131

Advocate for the Petitioner   : MR. K R PATGIRI

Advocate for the Respondent : SC, PNRD




                                  BEFORE
                HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA

                                          ORDER

04.11.2022

Heard Mr. K.R. Patgiri, learned counsel for the petitioner. Also heard Mr. A. Chakraborty, learned counsel for the respondent nos.2 & 4, Ms. N. Bora, learned counsel for the respondent nos.1, 3 & 5 and Mr. A. Chaliha, learned counsel for the respondent no.6.

2. Lawazima Court's order dated 20.07.2022 states that service of notice by way of dasti service is deemed to be complete in respect of respondent no.7. However, no one appears for the respondent no.7.

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3. The petitioner herein claims to be the second wife of Late Abul Kasem Mia and her prayer is that she should be given a share of the family pension, which is being received by the respondent no.7, who is the first wife of Late Abul Kashem Miah.

4. The petitioner's counsel submits that in terms of the Division Bench judgment of this Court in the case of Musstt. Khadija Begum vs. Musstt. Rejina Begum & 5 Others, WA 244/2017, which was disposed of vide order dated 15.12.2017, the Division Bench has held that a second wife was entitled to proportionate family pension, provided that the marriage was valid. The petitioner's counsel accordingly submits that the respondents should be directed to give a proportionate share of the family pension to the petitioner, instead of giving the entire family pension amount to the respondent no.7.

5. The learned counsels for the respondents submit that as per the law laid down by the Division Bench in WA 244/2017, a second wife who professes the Mohamedan faith is entitled to a proportionate share of the family pension. However, the issue whether the petitioner is the second wife would have to be decided by the authorities.

6. I have heard the learned counsels for the parties.

7. The petitioner has annexed a Next of Kin Certificate dated 06.04.2017 issued by the Sub-Divisional Officer, Barpeta, vide Memo No. BAMC-7/2013/87 dated 06.04.2013. The Next of Kin Certificate shows the petitioner to be the Page No.# 4/4

second wife of Late Abul Kashem Miah. In terms of the Division Bench judgement of this Court in WA 244/2017, a second wife is entitled to a proportionate share of the family pension. In that view of the matter, the respondent no.4 is directed to take a decision as to whether the petitioner is the second wife of Late Abul Kashem Miah and if it is found that the petitioner is the second wife of the Late Abul Kashem Miah, a proportionate share of the family pension should be given to the petitioner. The exercise to be conducted by the respondent no.4 should be concluded within a period of 3 (three) months, from the date of receipt of a certified copy of this order.

8. The interim order dated 22.07.2022 shall remain in force till a decision is taken by the respondent authorities, as to whether the petitioner is the validly married second wife of the Late Abul Kashem Miah.

9. The writ petition is accordingly disposed of.

JUDGE

Comparing Assistant