Gujarat High Court
Saiyad Jafarunnisha Husenmiya vs State Of Gujarat on 3 April, 2025
Author: Nirzar S. Desai
Bench: Nirzar S. Desai
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 6748 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE NIRZAR S. DESAI
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Approved for Reporting Yes No
Yes
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SAIYAD JAFARUNNISHA HUSENMIYA
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR DEVDIP BRAHMBHATT(3490) for the Petitioner(s) No.
1
MR ARJUN RATHOD for MR AADITYA D BHATT(8580) for the
Respondent(s) No. 3
CHANDNI S JOSHI(9490) for the Respondent(s) No. 3
MR ADITYA DAVDA ASSISTANT GOVERNMENT PLEADER for the
Respondent(s) No. 1,2,4
REFUSED SERVED (N)(10) for the Respondent(s) No. 5
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CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI
Date : 03/04/2025
ORAL JUDGMENT
1. Heard learned advocate Mr. Devdip Brahmbhatt
appearing for the petitioner, learned Assistant
Government Pleader Mr. Aditya Davda appearing
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for the respondent - State and learned advocate
Mr. Arjun Rathod for learned advocate Mr.
Aaditya Bhatt for respondent No.3.
2. By way of this petition, the petitioner has
prayed for a direction, directing the respondent
No.2 to 4 to grant and pay one half of the
Family Pension of the deceased Saiyad Shalesha
Hussainmiya to the petitioner till her death.
The petitioner has further prayed for a
direction, directing the respondent No.2 to 4 to
recover 50% of the Family Pension amount from
the second wife - Saiyad Jebunisha from
21.04.2021 and to pay the same to the present
petitioner.
3. With the consent of learned advocates appearing
for the respective parties, the matter was taken
up finally. Hence, RULE. Learned Assistant
Government Pleader Mr. Aditya Davda waives the
service of rule on behalf of the respondent
No.1, 2 and 4. Learned advocate Mr. Arjun Rathod
waives the service of rule on behalf of the
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respondent No.3. The cause list indicates that
despite service of notice, respondent No.5 has
refused to accept the service of notice and even
an affidavit to that effect in the form of
affidavit of service is filed by the petitioner
herself stating that the respondent No.5 has
refused to take notice of this Court in presence
of persons named in the affidavit. Hence, the
matter is now being heard in absence of
respondent No.5.
4. The brief facts giving rise to the present
petition is stated as under :-
4.1 Though the present petitioner happens
to be the first wife of late Saiyad Shalesh
Hussainmiya who was working as Work Assistant in
the office of the respondent No.3 and she
married to him and a Nikahnama was also
prepared. However, later on, there where
disputes between them and therefore, the
petitioner had to file an application under
Section 125 of Criminal Procedure Code against
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her husband seeking maintenance. In the
aforesaid proceedings vide order dated
26.03.1993, learned Second JMFC, Kadi passed an
order directing the husband of the petitioner to
pay an amount of Rs. 400/- (Rupees Four Hundred)
per month as maintenance. Thereafter, the
petitioner preferred an application for
enhancement being Criminal Misc. Application No.
395 of 2003 before the Court of learned JMFC at
Kalol under Section 127 of Criminal Procedure
Code for enhancement of the amount of interim
maintenance.
4.2 Vide order dated 07.09.2009 passed by
the Court of learned JMFC, Kalol, the amount of
interim maintenance was enhanced to Rs. 3000/-
(Rupees Three Thousand). It is the case of the
petitioner that she has never divorced her
husband and was living on the amount of
maintenance provided by her husband as per the
order passed by the Court.
4.3 It is the case of the petitioner that
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as per Muslim Shariyat Law, a man can marry up
to four wives and husband of the present
petitioner married for the second time to
respondent No.5 viz. Saiyed Jebunisha Shalesha
and she was also made a nominee in the
nomination papers filed by the husband of the
petitioner and the name of the petitioner was
not shown as nominee of the husband of the
present petitioner. The husband of the
petitioner Saiyed Salesh Hussainmiya retired on
30.06.2019 and was receiving pension of Rs.
24,800/- (Rupees Twenty Four Thousand Eight
Hundred) and an amount of Rs. 8,92,056/- (Rupees
Eight Lac Ninety Two Thousand Fifty Six) towards
the amount of gratuity and one third amount of
the commuted pension Rs. 9,96,484/- (Rupees Nine
Lac Ninety Six Thousand Four Hundred Eighty
Four) were received by the husband of the
petitioner upon retirement and upon death of
husband of the petitioner viz. Saiyed Shalesh
Hussainmiya, the second wife of the petitioner
is getting Family Pension of Rs. 14,880/-
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(Rupees Fourteen Thousand Eight Hundred Eighty)
which has been increased from time to time.
4.4 The husband of the petitioner died on
21.04.2021 and upon death of husband of the
petitioner, no amount of family pension is paid
to her and the entire amount of family pension
is now being paid to respondent No.5 and that is
how the present petition is preferred.
5. Learned advocate Mr. Devdip Brahmbhatt appearing
for the petitioner made only one submission. He
submitted that as per Gujarat Civil Services
(Pension) Rules, 2002 which is applicable in
this case, in Chapter X, Family Pension Scheme,
1972, is described and in Rule 88, the term
Family is defined. Rule 88(a)(i) and (ii) reads
as under:-
"88. Terms used in this chapter : For the
purposes of this chapter :-
(a) "family", in relation to a Government
employee means -
(i) wife in the case of a male Government
employee or husband in the case of a
female Government employee, even if the
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marriage took place before or after
retirement of the Government employee;
(ii) a judicially separated wife or
husband, provided that the marriage took
place before the retirement of the
Government employee."
5.1 Similarly, learned advocate Mr. Devdip
Brahmbhatt drew attention of this Court to Rule
91 which is with regard to Family Pension to
whom payable and by relying upon 91(2)(i),
learned advocate Mr. Devdip Brahmbhatt submitted
that as per Rule 91(i) both wives are entitled
to 50% of the pension and therefore, the
petitioner has claimed only 50% of the Family
Pension as per the entitlement of herself in
view of Rule 88 and 91 of the Gujarat Civil
Services (Pension) Rules, 2002. He, therefore,
submitted that the respondents may be directed
to pay the amount of Family Pension to the
extent of 50% (one half of the Family Pension
payable to the widow of the late petitioner).
6. Learned advocate Mr. Arjun Rathod for learned
advocate Mr. Aaditya Bhatt appearing for the
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respondent No.3 drew attention at the affidavit
in reply filed by respondent No.3 in this
petition and submitted that the respondents are
paying amount of Family Pension as per the
details filled in the nomination form and as the
petitioner's name is not there as nominee of her
late husband, the aforesaid amount is not being
paid to her even if, she may be the first wife
of the deceased husband. He, therefore,
submitted that the respondent No.3 is paying the
pension to respondent No.5 as per the nomination
form and as per the wish of late husband of the
present petitioner and therefore, the respondent
No.3 has not committed any illegality in paying
the pension to respondent No.5 instead of
present petitioner.
6.1 Learned advocate Mr. Arjun Rathod
submitted that in view of the fact that the
respondent No.5 has chosen not to appear before
this Court by refusing the service of notice and
as the respondent No.3 is only an executing
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authority which would have no interest in the
inter se dispute between two wives, this Court
may pass appropriate order about entertainment
of Family Pension qua present petitioner in the
interest of justice.
7. Learned Assistant Government Pleader Mr. Aditya
Davda appearing for the respondent - State
Government also submitted that State is only a
formal party and therefore, this Court may
consider the submission advanced by the
contesting respondents and pass appropriate
order. Learned Assistant Government Pleader Mr.
Aditya Davda submitted that respondent No.4
State Government is not a contesting party and
irrespective of outcome of the present petition,
the State is not going to face any additional
financial burden and therefore, the Court may
pass appropriate order.
8. I have heard learned advocates appearing for the
respective parties and perused the record. On
perusal of record, I found that it is true that
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at the time of filling up the nomination form,
in a nomination form, the name of respondent
No.5 is stated by deceased husband of the
present petitioner. However, the nomination form
alone would not be a factor which would
determine the eligibility and entitlement of the
present petitioner to claim Family Pension. As
regards the Family Pension, the State Government
has framed Gujarat Civil Services (Pension)
Rules, 2002 and the aspect of pension including
family pension is governed by the aforesaid
Rules.
8.1 Rule 88 of the said Rules would read as
under :-
"88. Terms used in this chapter : For the
purposes of this chapter -
(a) "family", in relation to a Government
employee means -
(i) wife in the case of a male Government
employee or husband in the case of a
female Government employee, even if the
marriage took place before or after
retirement of the Government employee;
(ii) a judicially separated wife or
husband, provided that the marriage took
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place before the retirement of the
Government employee.
(iii) son or daughter who has not attained
the age of twenty-five years including
such son and daughter adopted legally
before retirement and son or daughter born
after retirement from the marriage which
took place after retirement.
(iv) Parents who were wholly dependent on
the Government servant when he/she was
alive, provided the deceased employee had
left behind neither a widow nor a child at
the time of his / her death.
(b) "pay" means the basic pay drawn by the
Government employee at the time of
retirement or death while in service."
8.2 On perusal of Rule 88 and more
particularly Rule 88(i) and (ii), it would
indicate that wife comes in the definition of
family including a judicially separated wife or
husband provided that the marriage took place
before the retirement of the Government
employee. In the instant case, it is no one case
that either petitioner or respondent No.5 have
married to the late husband of the petitioner
post his retirement.
8.3 Rule 91 of the Gujarat Civil Services
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(Pension) Rules, 2002 deals with to whom the
family pension is payable. Rule 91 is reproduced
as under :-
"91. Family Pension to whom payable :
(1) The period for which family pension is
payable shall be as follows :-
(i) In the case of a widow or widower,
until the date of death or remarriage,
whichever is earlier;
(ii) in the case of son, until he attains
the age of twenty-five years or until he
gets married, whichever is earlier; and
(iii) in the case of an unmarried
daughter, until she attains the age of
twenty-five years or until she gets
married, whichever is earlier;
(2) (i) where the Family Pension is
payable to more than one widows then, the
Family Pension shall be paid to the widows
in equal shares;
(ii) on the death of a widow, her share of
the Family Pension shall become payable to
her eligible child. In case of such child
becoming ineligible to get the share of
Family Pension, the same shall be payable
to the surviving widow/widow or/ and their
children in equal shares. Provided that if
the widow is not survived by any child her
share of the Family Pension shall be
payable to other widows in equal shares.
If there is one such widow full amount of
family pension shall be payable to her.
(3) Where the deceased Government employee
or pensioner is survived by a widow but
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has left behind eligible child or children
from another wife who is not alive, the
eligible child or children shall be
entitled to the share of Family Pension
which the mother would have received if
she had been alive at the time of the
death of the Government employee or
pensioner.
(4) Where a deceased Government employee
or pensioner leaves behind more than one
child, the eldest eligible child shall be
entitled to the family pension for the
period mentioned in clause (ii) or clause
(iii) of sub-rule (1), as the case may be
and after the expiry of that period the
next child shall become eligible for the
grant of Family Pension.
(5) Where a deceased Government employee
or pensioner leaves behind him/her no
eligible child, the family pension shall
be paid to his/her parents. The income
criterion and certain other eligibility
conditions for the grant of family pension
to the dependent parents of the deceased
Government employee shall be as under :-
(i) Parents who were wholly dependent on
the deceased Government servant when
he/she was alive will only be entitled to
family pension.
(ii) The deceased employee had left behind
him/her neither widow/widower or a child
at the time of his/her death.
(iii) The family pension wherever
admissible to parents, the mother will
receive the pension first and after her
death the father will receive the family
pension.
(iv) The income criteria will be that
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their earning is not more than Rs. 2550
per month.
(v) They will have to produce an annual
certificate to the effect that their
earning is not more than Rs. 2550 per
month.
(vi) It will be the responsibility of the
pension sanctioning authorities concerned
to satisfy themselves, based on a scrutiny
of the service records and other relevant
documents, that the parents were, in fact,
wholly dependent on the deceased
Government servant when he/she was alive
and that he/she has not left behind any of
the other specified beneficiaries who have
a prior claim to the family pension.
(vii) The parents will get Family Pension
at the rate of 30% of the basic pay of the
deceased employee, subject to a minimum of
Rs. 1275 per month.
(6) In case both wife and husband are
Government employees and are governed by
the provisions of this rule and one of
them dies while in service or after
retirement, the family pension in respect
of the deceased shall become payable to
the surviving husband or wife and in the
event of death of the husband or wife, the
surviving child or children shall be
granted two family pensions in respect of
the deceased parents.
(7) Except as provided in sub-rule (2),
the Family Pension shall not be payable to
more than one member of the family at the
same time;
(8) If deceased Government employee or
pensioner leaves behind a widow or
widower, the Family Pension shall become
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payable to the widow or widower, failing
which to the eligible child;
(9) If sons and unmarried daughters are
alive, unmarried daughters shall not be
eligible for Family Pension unless the
youngest son attains the age of twenty
five years and thereby becomes ineligible
for the grant of Family Pension."
8.4 On perusal of Rule 91(2)(i), it would
indicate that when the family pension is payable
to more than one widows, then the family pension
shall be paid to the widows in equal shares,
meaning thereby, the Rules does not restrict the
payment of family pension or disbursement of
family pension only to one wife. The Rules does
not say anything about whether first wife is
entitled to family pension or second wife is
entitled to family pension. On the contrary, the
Rule provides for equal share among widows for
the purpose of payment of family pension.
8.5 In the instant case, no one has
disputed the fact that the petitioner is the
legally wedded wife of the late husband of the
petitioner who subsequently married to
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respondent No.5 and therefore, at the time when
the husband of the petitioner died, he had two
wives.
8.6 Despite the fact that notice was issued
to respondent No.5, the respondent No.5 had
chosen not to appear before this Court and as
stated in foregoing paragraphs, the petitioner
has filed an affidavit of notice indicating that
the respondent No.5 has refused to accept the
notice of the Court and respondent No.5 could
not be heard while passing this order.
8.7 However, the fact remains that Rule 91
is about Family Pension to whom it is payable
and the same is absolutely silent about any
nomination form and to what extent such
nomination form would play a role in determining
the share of the family pension. In fact, Rule 7
makes it clear that except as provided in sub
rule (2), the Family Pension shall not be
payable to more than one member of the family.
At the same time, it would indicate that the
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Rule provides that irrespective of nomination
form, when there are more than one widow, it
should be paid to the widows in equal shares
and therefore, there cannot be any hesitation in
holding that the present petitioner is entitled
to one half of the Family Pension, which is
payable to the widow of deceased husband of the
petitioner.
9. Accordingly, the Respondent Authorities are
directed to start paying one half of the Family
Pension as per the entitlement of the
petitioner's deceased husband to be paid to the
petitioner within a period of three months from
the date of service of this order to the
respondents.
10. The petitioner has prayed for recovery of
50% of pension as per her share from respondent
No.5. However, the recovery which is sought for
by the petitioner is from a private person who
cannot be termed as State as respondent No.5 is
an individual and therefore, no such order of
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recovery can be passed by this Court in a writ
petition against respondent No.5. However,
petitioner would be at liberty to initiate
appropriate proceedings if she so deems fit for
recovery of aforesaid amount of family pension
as the aspect of recovery of pension from
respondent No.5 has not been considered by this
Court on its own merit.
11. Accordingly, the present petition is
allowed. Rule made absolute to the aforesaid
extent. No order as to costs. Direct service is
permitted.
(NIRZAR S. DESAI,J)
Pallavi
