Page No.# 1/9 vs The State Of Assam And 7 Ors
2025 Latest Caselaw 3512 Gua

Gauhati High Court

Page No.# 1/9 vs The State Of Assam And 7 Ors on 27 February, 2025

Author: Michael Zothankhuma

Bench: Michael Zothankhuma

                                                             Page No.# 1/9

GAHC010108482023




                                                       2025:GAU-AS:2034

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

                          Case No. : WP(C)/2846/2023

         ANOWARA KHATUN
         W/O- LATE ABDUS SOBUR KHANDAKAR,
         R/O- ROWMARI, PT-I (CHAPAR, WARD NO. 7),
         P.O. AND P.S.- CHAPAR,
         DISTRICT- DHUBRI, ASSAM,
         PIN- 783371.



         VERSUS

         THE STATE OF ASSAM AND 7 ORS
         REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT.
         OF ASSAM,
         EDUCATION (SECONDARY) DEPARTMENT,
         JANATA BHAWAN ASSAM SECRETARIAT,
         DISPUR, GUWAHATI-06.

         2:THE ACCOUNTANT GENERAL (A AND E)
          MAIDAMGAON
          BELTOLA

         GUWAHATI-29
         ASSAM.

         3:THE DIRECTOR OF PENSION
         ASSAM
          HOUSEFED COMPLEX
          GUWAHATI-06

         ASSAM.

         4:THE DIRECTOR OF SECONDARY EDUCATION
         ASSAM
                                                                            Page No.# 2/9

             KAHILIPARA
             GUWAHATI-19

            ASSAM.

            5:THE DEPUTY COMMISSIONER
             BONGAIGAON
             DISTRICT- BONGAIGAON
            ASSAM

            PIN- 783380.

            6:THE INSPECTOR OF SCHOOLS
             BDC
             BONGAIGAON
             DISTRICT- BONGAIGAON

            ASSAM.

            7:THE TREASURY OFFICER
            ABHAYAPURI TREASURY
            ABHAYAPURI
             DISTRICT- BONGAIGAON

            ASSAM
            PIN- 783384.

            8:JOBEDA KHATUN
            WIFE OF LATE ABDUS SOBUR KHANDAKAR

            R/O- ROWMARI
            PT-I (CHAPAR
            WARD NO. 7)

            P.O. AND P.S.- CHAPAR

            DISTRICT- DHUBRI
            ASSAM

            PIN- 783371

Advocate for the Petitioner   : MR. S K ROY, S MEDHI,MRS. M M ROY

Advocate for the Respondent : SC, SEC. EDU., MR. M U MAHMUD (R 8),MR S AFRIDI (r-8),MR.
S. SUR(r-8),MR S ISLAM(r-8),MR S H MAHMUD(r-8),SC, FINANCE,SC, AG,GA, ASSAM
                                                                         Page No.# 3/9


                                  BEFORE
                HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA

                                       ORDER

27.02.2025

1. Heard Mr. S.K. Roy, learned counsel for the petitioner. Ms. P. Das, learned counsel appears for the respondent nos.1 & 6; Ms. S. Sharma, learned counsel appears on behalf of Mr. B. Sharma, learned Standing Counsel for the A.G's office; Mr. A. Chaliha, learned counsel appears for the respondent no.7 and Mr. M.U. Mahmud, learned counsel appears for the respondent no.8.

2. The matter pertains to the claim for family pension between the petitioner, who claims to be the first wife of the deceased Government servant, namely, Abdus Sobur Khandakar, while the respondent no.8 also claims to be the first wife.

3. The petitioner's counsel submits that the petitioner and her husband, the Late Abdus Sobur Khandakar, had married on 08.06.1978. They had three daughters, namely, (i) Samima Begum - born on 02.04.1980, (ii) Sahana Begum

- born on 18.07.1983 and (iii) Sachina Begum - born on 19.01.1985.

4. The petitioner's counsel submits that petitioner's husband, Abdus Sobur Khandakar, thereafter married the respondent no.8 on 03.04.1999 and had one son with the respondent no.8, namely Akinur Rahman Khandakar, who was born on 16.04.2003.

Page No.# 4/9

5. The petitioner's counsel submits that petitioner's husband Abdus Subur Khandakar expired on 23.03.2022. While the petitioner was expecting that the family pension would be paid to the petitioner, she came to learn that the State respondents had granted family pension to the respondent no.8, on the basis of a nomination made by the Late Abdus Sobur Khandakar in favour of the respondent no.8, for payment of family pension.

6. The petitioner's counsel submits that the petitioner, who is the first wife, cannot be denied family pension in terms of the judgment of the Full Bench decision of this Court in the case of Mustt Junufa Bibi vs. Mustt Padma Begum @ Padma Bibi & Others, WA 160/2018, which was disposed of, vide judgment and order dated 22.12.2022. He also submits that the nomination of the respondent no.8, for receiving family pension made by the Late Abdus Sobur Khandakar, cannot be said to be a valid nomination as the same is against the Assam Services (Pension) Rules 1969 (hereinafter referred to as the "1969 Rules") and the law laid down by the Full Bench in Mustt Junufa Bibi (supra).

7. The petitioner's counsel submits that the respondent no.8, as the plaintiff, had filed Title Suit No.37/2024 in the Court of the Civil Judge, Senior Division, Dhubri, wherein the respondent no.8 had admitted in paragraph-2 & 3 of the plaint that the writ petitioner herein was the first wife of the Late Abdus Sobur Khandakar and the respondent no.8 was the second wife. He accordingly submits that the family pension would have to be given to the petitioner and the maintenance of the second wife would be the responsibility of the first wife.

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8. Mr. M.U. Mahmud, learned counsel for the respondent no.8 submits that as the Full Bench decision in Mustt Junufa Bibi (supra) provides that the family pension would be paid to the eldest surviving widow, who would hold the same in trust for all other persons who are entitled to the benefits of family pension in terms of Rule 143 of the 1969 Rules, the petitioner would have to maintain the respondent no.8 from the said family pension.

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

10. The fact that the petitioner is the first wife of the Late Abdus Sobur Khandakar and that the respondent no.8 is the second wife is clear from paragraph-2 and 3 of the plaint submitted by the respondent no.8, in Title Suit No.37/2024, which states as follows :

"2. That, Abdus Sobur Prodhani had two wives i.e. defendant No. 1 (first wife), plaintiff No. 1 (second wife). From the side of first wife Abdus Sobur Prodhani got 3 daughters i.e. defendant No. 2 to 4 and from the side of second wife he got only son Akinur Rahman Khandakar - defendant No. 5.

3. That, Abdus Sobur Prodhani was a School Teacher. The defendant No. 1 - Anowara Khatun (1st wife) was also a teacher. There was dispute between the Abdus Sobur Khandakar and the defendant No. 1 i.e. Anowara Khatun regarding their conjugal life and defendant No. 1 being a service holder decided to reside separately and ultimately Abdus Sobur Khandakar was compelled to marry 2nd time and married plaintiff."

11. The Full Bench of this Court, in the case of Mustt Junufa Bibi (supra), has held that in terms of Rule 143 of the 1969 Rules, family pension is payable to the eldest surviving widow or wife, who shall hold the same as a trustee for all the other persons, who are entitled to the benefits of family pension. Paragraph Page No.# 6/9

nos.19, 20, 21, 22 & 23 of the judgment of the Full Bench in Mustt Junufa Bibi (supra) is reproduced hereinbelow, as follows :

"19. A conjoint reading of Note 1 to Rule 143 (ii) and Rule 143 (iii) of the Pension Rules of 1969 makes it explicit and unambiguous that the family pension would be payable to the eldest of the surviving widow in the event of there being two or more widows and further that even if there are minor children who may also be entitled to the benefits of the family pension, the pension would be paid to only one member of the family at the same time, where at first instance it would be paid to the eldest of the surviving widow and thereafter, on her death to the next surviving widow, if any and in its absence to the minor children.

20. As a corollary to the provisions of the Rule 143 (iii) of the Pension Rules of 1969, Note 1 to Rule 143 (ii) would have to be read to mean that the family pension would be payable to the eldest of the surviving widows in the event there are two or more widows, and thereafter, on her death it would be payable to the next surviving widow, if any and thereafter, to the minor children if the occasion arises.

21. In the circumstance, the concept of a validity and acceptability of a second marriage where the parties are governed by the Mohammedan Law and the consequential entitlement to the benefits of a family pension and the concept to whom the family pension would be payable under the Pension Rules of 1969 are held to be two separate and unrelated concepts and the implication of the concept of a validity and acceptability of a second marriage or further marriages where the parties are governed by the Mohammedan Law would have no bearing on the concept to whom the family pension is payable under the Pension Rules of 1969. It is held that irrespective of the validity and acceptability of a second marriage or further marriages where the parties are governed by the Mohammedan Law, the family pension under Rule 143 of the Pension Rules of 1969 would be payable to the eldest of the surviving widow, which would also be applicable for a family pension where the parties are governed by the principles of Mohammedan Law, and where there may be a validity and acceptability of the second wife or further wives in respect of a deceased Mohammedan employee.

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22. We further hold that the family pension being payable to the eldest of the surviving widow or wife would not mean that the entire family pension so payable would be the personal property of the eldest of the surviving widow or wife and the family pension so payable would be held by the eldest of the surviving widow or wife as a trustee for all such other persons who are entitled to the benefits of the family pension in terms of Rule 143 of the Pension Rules of 1969.

23. We also provide that in the event any such other persons who are entitled to the benefits of the family pension in terms of Rule 143 of the Pension Rules of 1969, including the second or further wives, in a case where the parties are governed by the Mohammedan Law, are not appropriately maintained by the eldest of the surviving widow or wife to whom the pension would be paid, the remedy thereof would be to make a claim for maintenance in the appropriate forum under the law and not a claim for a payment of the family pension by the State authorities directly to such persons. But however, if in a given case the State authorities on their own volition are of the view that under an acceptable circumstance the authorities are agreeable or required to pay the pension separately to any such member of a family of a deceased employee, this judgment may not be construed to be an absolute bar on such separate payment."

12. A reading of the above Full Bench judgment clearly shows that the 1969 Rules requires that the family pension has to be paid to the eldest surviving widow or wife, which in this case is the petitioner. Accordingly, the family pension would have to be paid to the writ petitioner, who is the first wife and the eldest surviving wife.

13. In the case of G.L. Bhatia, vs. Union of India & Another, reported in (1999) 5 SCC 237, the Supreme Court has held that where rights of the parties are governed by statutory provisions, the individual nomination contrary Page No.# 8/9

to the statute will not operate. In the case of Smt. Violet Issaac & Others vs. Union of India & Others, reported in (1991) 1 SCC 725, the Supreme Court has held that no other person except those designated under the Railway Family Pension Rules, 1964 are entitled to receive family pension. On account of the decisions of the Supreme Court and the Full Bench of this Court, wherein it has clearly provided that the family pension would have to be paid to the surviving wife, besides keeping in view the fact that the parties herein professes the Mohammedan faith, this Court directs the State respondents to grant family pension in relation to the Late Abdus Sobur Khandakar, to the writ petitioner. However, keeping in view the fact that the respondent no.8 is the second wife of the Late Abdus Sobur Khandakar, the respondent no.8 would have to be maintained by the writ petitioner.

14. In this regard, the counsel for the petitioner, Mr. S.K. Roy and the counsel for the respondent No.8, Mr. M.U. Mahmud had been instructed to obtain instructions from their clients, as to whether the parties could come to a compromise, as to the amount of the family pension that could be paid by the petitioner to the respondent No.8 for maintenance.

15. The counsel for the petitioner and the counsel for the respondent No.8, both submit that as per instructions received by them, the petitioner is willing to provide 50% of the family pension amount to the respondent No.8 as maintenance. The respondent No.8 is also willing to accept 50% of the family pension from the petitioner.

16. In view of the consent of the parties and keeping in view the law laid down by the Full Bench of this Court, the State respondents are directed to Page No.# 9/9

grant family pension to the petitioner in respect of PPO No.ADP/PPO/GPO/2019/060032. The petitioner shall thereafter deposit 50% of the family pension in the bank account of the respondent No.8, i.e., SBI A/c No.32866137115, IFSC No.SBIN0008462, Abhayapuri Branch in the name of Smt. Jobeda Khatun. The petitioner shall ensure that the 50% of the family pension payable to the respondent No.8, is deposited in the account of the respondent No.8, within 1(one) week from the date of receipt of the said family pension amount in her own account. The State respondents, more particularly the respondent No.3, are directed to immediately start paying the family pension to the petitioner.

17. The writ petition is accordingly disposed of.

JUDGE

Comparing Assistant