Telangana High Court
Smt. Mariyam Khatoon vs Smt. Anees Fatima on 17 February, 2025
*THE HON'BLE JUSTICE MOUSHUMI BATTACHARYA
AND
THE HON'BLE JUSTICE B.R.MADHUSUDHAN RAO
+ FAMILY COURT APPEAL No.207 OF 2024
% 10--02--2025
# Smt. Mariyam Khatoon
... Appellant
vs.
$ 1. Smt. Anees Fatima
2. The Assistant Pension Payment Officer,
Pension Payment Office,
Malakpet, Hyderabad.
... Respondents
!Counsel for the Appellant: Mr.Syed Ahmed Ali
^Counsel for Respondent No.1: Mr.Khaja Inaya Thula
<Gist :
>Head Note :
? Cases referred:
2010 Law Suits (Cal) 930
2
FCA_207_2024
IN THE HIGH COURT FOR THE STATE OF TELANGANA
HYDERABAD
****
FAMILY COURT APPEAL No.207 OF 2024
Between:
Smt. Mariyam Khatoon
... Appellant
And
1. Smt. Anees Fatima
2. The Assistant Pension Payment Officer,
Pension Payment Office,
Malakpet, Hyderabad.
... Respondents
JUDGMENT PRONOUNCED ON: 17.02.2025
THE HON'BLE JUSTICE MOUSHUMI BATTACHARYA
AND
THE HON'BLE JUSTICE B.R.MADHUSUDHAN RAO
1. Whether Reporters of Local newspapers
may be allowed to see the Judgments? : No
2. Whether the copies of judgment may be
Marked to Law Reporters/Journals? : Yes
3. Whether His Lordship wishes to
see the fair copy of the Judgment? : Yes
_______________________
MOUSHUMI BATTACHARYA,J
_____________________
B.R.MADHUSUDHAN RAO,J
3
FCA_207_2024
THE HON'BLE JUSTICE MOUSHUMI BHATTACHARYA
AND
THE HON'BLE JUSTICE B.R.MADHUSUDHAN RAO
F.C.A.NO.207 OF 2024
J U D G M E N T:
(per Justice B.R.Madhusudhan Rao)
1. The Appeal arises of an order dated 10.08.2024 passed by
Principal Family Court Cum XIII Additional Metropolitan Sessions
Judge, Hyderabad, in O.P.No.11 of 2021 filed by the
petitioner/appellant under Section 7(i)(d) of Family Court Act r/w
Telangana Revised Pension Rules, 1980 for partition of the pension and
pensionary benefits among the wives is dismissed.
2. The contentions of the appellant-petitioner and the respondent
No.1-wife before the Family Court are as follows:
2.1. The appellant-petitioner is the legally wedded second wife and
respondent No.1 is the first wife of Late Mohd. Abdul Jabbar Khan, and
that Mohd. Abdul Jabbar Khan is a pensioner retired from Government
of Andhra Pradesh, Department of Animal Husbandry, drawing Pension
vide PPO No.AHD RR SP 000420 through State Bank of Hyderabad,
Vanasthalipuram. During the life time of Mohd. Abdul Jabbar, all his
service benefits were utilized for his personal use and requirements.
Respondent No.2 has issued a letter No.19781/APPO/MKPT, dated
08.06.2020 to State Bank of Hyderabad, Vanasthalipuram to refund
FCA_207_2024
the monthly pension deposited in the account of Late Mohd. Abdul
Jabbar for the period of April, 2020 and May, 2020 @ Rs.16,811/-.
2.2. It is further contended in the petition that Late M.A.Jabbar
expired on 01.04.2020. The name of the appellant-petitioner is not
recorded in the Service record as there is a bar, she is survived by five
major sons and one married daughter and entire family of the
appellant-petitioner was maintained by the deceased M.A.Jabbar and
he used to reside and maintain the family.
2.3. The appellant-petitioner has approached the Pension Payment
Office, Malakpet, Hyderabad and they directed her to approach the
concerned Court of Law and obtain necessary orders to partition the
pension amount among herself and respondent No.1 as per the Family
Pension/Retirement Gratuity/Service Gratuity/Communication vide
G.O.Ms.No.263, dated 23.11.1998.
3. Respondent No.1 stated that she is the legally wedded first wife
of deceased Mohd. Jabbar Khan and her name is shown in all the
records of Department of Animal Husbandry, due to the filing of O.P.,
no pension has been paid to her. The appellant-petitioner is no way
concerned, she is neither the wife nor have any relation with the
deceased during his life time. Due to stoppage of pension, the
respondent is suffering with severe financial crises and she has no
source of income, being old aged suffering with health issues.
FCA_207_2024
4. The appellant/petitioner is examined as PW.1, also examined
PW.2 (Mahmooda Begum) and got marked Exs.A1 to A8. Respondent
No.1 is examined as RW.1 and got marked Exs.B1 to B9. The trial
Court after analyzing the evidence of the parties has dismissed the
O.P. filed by the appellant-petitioner.
5.1. Learned counsel for the appellant during the course of
arguments contended that the trial Court failed to appreciate the
pleadings of the parties and the evidence of PW.1, PW.2 and Exs.A1 to
A8, and came to a wrong conclusion that the marriage of the
appellant/petitioner is not valid and that the deceased had not taken
permission from the Government for the performance of second
marriage. The trial Court failed to consider the fact that the
appellant/petitioner is an illiterate lady unaware of the Departmental
procedure. During the entire life of the deceased, respondent No.1
never disputed the marriage of the appellant/petitioner which was
performed as per Mohammedan Law. The marriage of the appellant-
petitioner with the deceased Mohd. Abdul Jabbar Khan is performed as
per the customs in the presence of witnesses (Ex.A1/marriage
booklet).
5.2. Learned counsel further contended that the first marriage of the
appellant/petitioner was performed with an Arab by name Ali Bin, who
lived in Gulf Country when she was 11 or 12 years old and her
husband sent her back about 27 years back, she is blessed with a
FCA_207_2024
daughter and she is in Kingdom of Soudi Arabia. The trial Court failed
to consider the fact that the appellant/petitioner being a legally
wedded second wife, she is entitled for pensionary benefits as per Rule
50(6)(a)(i) of Telangana Revised Pension Rules, 1980 and the findings
of the learned Family Court is liable to be set aside.
6. Per contra, learned counsel for the respondent No.1 contended
that the order passed by the learned Family Court is perfect and valid,
there is no illegality or infirmity in the order warranting interference by
the appellate Court. The trial Court after hearing the parties on record
came to a conclusion that the appellant/petitioner is not entitled for
half of the pension of late Mohd Abdul Jabbar Khan. Appellant only to
protract the proceedings and to prevent her from receiving monetary
benefits including the pension has filed the present appeal, placed
reliance on Fiayaz Ali vs. Secretary (Law) and Others 1.
7. We have considered the impugned order passed by the trial
Court as well as the evidence adduced by the parties.
8. It is apt to refer Rule 50(6)(a)(i) of the Telangana Revised
Pension Rules, 1980, which is set out below:
Rule 50. Family pension :
xxx
(6)(a)(i) Where the family pension is payable to more widows than
one, the family pension shall be paid to the widows in equal
shares.
2010 Law Suits (Cal) 930
FCA_207_2024
9. The appellant-petitioner did not state anything about her first
marriage and the original petition is silent with regard to the said
aspect. It is brought on record in the form of cross-examination of
PW1 that appellant's/petitioner's first marriage was performed with
Ali Bin, who lives in Gulf Country, she was just 11 to 12 years old at
the time of her first marriage and she is blessed with a daughter by
name Fathima, living with her husband. It is an admitted fact that
respondent No.1 is the legally wedded wife of late Mohd. Abdul Jabbar
Khan. Ex.A1 is the marriage book let dated 16.08.1986, the
appellant/petitioner failed to examine any of the witnesses of Ex.A1 to
prove her contention that she has married Mohd. Abdul Jabbar Khan
on 16.08.1986. Except the self style testimony of PW.1, there is no
other evidence on record to show that Ex.A1 is proved. There is no
explanation from the appellant/petitioner for not examining the
witnesses to Ex.A1, who performed the marriage.
10. On close scrutiny of Ex.A2, which is a Household card, it does
not show the name of the Card Holder but it only shows the Card
Holder's father's name as Late Mohd. Riza Khan. Ex.A3 is the Aadhar
card of the appellant/petitioner, wherein, the name of Mohd. Abdul
Jabbar Khan is shown. Ex.A4 is the death certificate of Jabbar
Mohammed Khan, Ex.A5 is the ID card of M.A.Jabbar, Ex.A6 is the
letter dated 08.06.2020 addressed by Assistant Pension Payment
Officer, Malakpet, Hyderabad to the Manager, SBI, Vanasthalipuram
FCA_207_2024
for refund of pension in respect of Late M.A.Jabbar, who expired on
01.04.2020, Ex.A7 is the photograph and Ex.A8 is the Health Card.
11. The evidence of PW.2 is not helpful to the case of the
appellant/petitioner since she admitted that she do not know in which
place the marriage of the appellant/petitioner is performed as she was
12 years old at that time.
12. Respondent No.1 is the legally wedded wife of Mohd. Abdul
Jabbar Khan. Ex.B1 is the death certificate of Mohd. Abdul Jabbar Khan
issued by Greater Hyderabad Municipal Corporation, Hyderabad, dated
22.10.2021, Ex.B2 is the Aadhar Card of RW1. Ex.B3 is the attested
copy of Descriptive Rolls Annexure-I, wherein the name of respondent
No.1 is shown as wife of Late M.A.Jabbar. Ex.B4 is the letter addressed
to the Treasury Officer by Veterinary Assistant Surgeon, dated
28.08.2008. Ex.B5 is the letter, dated 24.04.2008, about the
submission of pension papers of M.A.Jabbar, attender, who retired on
superannuation on 31.01.2008. Ex.B6 is the Part-II (B) sanction of
Pension, which shows the name of respondent No.1 as nominee. Ex.B7
is the Pension forwarding letter of M.A.Jabbar, dated February, 2008
but does not mention the day in February. Ex.B8 is the application for
the payment of the life time arrears/death relief, the applicant is Anees
Fathima (RW.1), which is given to the Assistant Pension Payment
Officer, Malakpet, Sub-Branch, Vanasthalipuram (four sheets). Ex.B9 is
the copy of application for service pension/family pension/retirement
FCA_207_2024
gratuity which is submitted by M.A.Jabbar, wherein respondent No.1 is
shown as wife.
13. In Fiayaz Ali vs. Secretary (Law) and Others1 , it is held that the
petitioner is a Muslim; his personal law permits him to contract more
than one marriage. He decided to marry a destitute and vagrant
Muslim female with a view to provide her social status; and that the
petitioner being a Government servant, his service is governed by the
Central Civil Service (Conduct) Rules, 1964 (hereafter the Rules). Rule
21 of the Rules provides restriction regarding marriage. In terms
thereof, a Government servant may enter into or contract a second
marriage if he is permitted to do so by the Government on fulfillment
of two conditions, viz.
(a) Such marriage is permissible under the personal law
applicable to the Government servant and the other
party to the marriage; and
(b) there are other grounds for so doing.
14. As stated supra appellant-petitioner failed to prove Ex.A1 that
she married Mohd. Abdul Jabbar Khan on 16.08.1998.
15. The trial Court specifically records that without prior permission
from the Government, the deceased contacted second marriage with
the appellant-petitioner and the marriage is not legal and valid, When
the marriage itself is not valid, the question of entitlement of the
FCA_207_2024
appellant-petitioner for half pension does not arise, We do not find any
error in the findings of the Family Court.
16. In view of the reasons above, we, therefore, find no reason to
take a different view from the one taken by the trial Court. The trial
Court correctly dismissed the appellant's petition on a correct
appreciation of the facts and evidence.
17. FCA.No.207 of 2024 is accordingly dismissed. All connected
applications are disposed of. There shall be no order as to cost.
____________________________
MOUSHUMI BHATTACHARYA, J
_________________________
B.R.MADHUSUDHAN RAO, J
17th February, 2025.
PLV
