Allowed

Musstt. Keyarun Nessa Barbhuiya v. the State of Assam and 5 Ors.

Gauhati HC4 Mar 2021WP(C)/7340/2015

Case brief

AI extract

What is this about?

The Gauhati High Court held that a second wife of a government servant is entitled to family pension even if the second marriage was contracted without prior government consent, provided the marriage is legally valid under personal law. The court relied on a Division Bench judgment overruling the requirement of consent.

What did the court decide?

Respondents directed to send pension proposal to Accountant General for final payment to petitioner within two months.

Musstt. Keyarun Nessa Barbhuiya Vs the State… — Pension and Retirement Benefits | Gauhati HC (2021)

¶1

Page No.# 1/5

¶2

GAHC010124512015

¶3

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

¶4

Case No. : WP(C)/7340/2015

¶5

MUSSTT. KEYARUN NESSA BARBHUIYA W/O LT. HAZI MAFUR ALI BARBHUIYA VILL- NIJ FULBARI-III,P.O. FULBARI P.S. KATIGORAH,DIST. CACHAR, ASSAM.

¶6

VERSUS

¶7

THE STATE OF ASSAM AND 5 ORS REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM, HEALTH AND FAMILY WELFARE DEPARTMENT, DISPUR, GUWAHATI-6.

¶8

2:THE DIRECTOR OF HEALTH SERVICE

¶9

ASSAM HENGRABARI GUWAHATI- 36.

¶10

3:THE ACCOUNTANT GENERAL A and E

¶11

ASSAM MAIDAMGAON BELTOLA GUWAHATI-29.

¶12

4:THE JOINT DIRECTOR OF HEALTH SERVICES

¶13

M CUM- STATE PROGRAMME OFFICER NVBDCP ASSAM HENGRABARI GUWAHATI-36.

¶14

5:THE JOINT DIRECTOR OF HEALTH SERVICES

¶15

Page No.# 2/5

¶16

CACHAR P.O. and P.S. SILCHAR DIST. CACHAR ASSAM

¶17

Advocate for the Petitioner : MR.A M S MAZUMDER

¶18

Advocate for the Respondent : SC, AG

¶19

BEFORE HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA

¶20

ORDER

¶21

Date : 04-03-2021

¶22

Heard Dr. B. Ahmed, learned counsel for the petitioner. Also heard Ms. B. Bora, learned Standing Counsel for the Health Department and Mr. R. Dhar, learned counsel appearing for the office of the Accountant General (A&E), Assam.

¶23

2. The case of the petitioner in brief is that she is the second wife of the late Hazi Mafur Ali Barbhuiya, who is serving as a Surveillance Inspector under the District Malaria Office, Cachar. The deceased husband of the petitioner superannuated from service on 31.10.1993 and upon his superannuation, he had received necessary pension as admissible under the Rules. On 16.12.1996, the husband of the petitioner died leaving behind two wives, being Fayzun Nessa Barbhuiya, the first wife and the petitioner, being the second wife. After his death, pension was paid to Fayzun Nessa Barbhuiya, the first wife till her death on 08.07.2002. The petitioner’s application for being granted family pension being denied, the writ petition has been filed.

¶24

3. Dr. B. Ahmed, learned counsel for the petitioner refers to the provision of Rule 143 (ii) (Note-1) of the Assam Services (Pension) Rules, 1969, wherein it is provided that where there

¶25

Page No.# 3/5

¶26

are two or more widows, pension would be payable to the eldest surviving widow and on her death, it would be payable to the next surviving widow, if any.

¶27

4. By referring to the said provision, the petitioner makes a claim that on the death of the first wife Fayzun Nessa Barbhuiya, the petitioner being the second wife, is entitled to the family pension payable to late Hazi Mafur Ali Barbhuiya.

¶28

5. The stand of the Health Department is that the family pension proposal of the petitioner was processed by the Health Department and sent to the office of the Accountant General (A&E) for finalization. However, the family pension proposal was rejected by the office of the Accountant General (Assam), on the ground that family pension to the second wife can be granted only in cases where the second marriage is done with the consent of the Department, as per the judgment of the Single Bench of the Gauhati High Court in WP(C) No. 153/2007, which is Fazila Begum @ Fazliya Begum Vs. State of Assam and Others, reported in 2008 (Suppl) GLT 507 .

¶29

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

¶30

7. The bone of contention is as to whether family pension is to be given only if the second marriage has been made with the consent of the Department concerned, in which the Government servant was serving.

¶31

8. The Division Bench of this Court was seized of a similar matter in the case of Sirazun Nessa Vs. State of Assam and Others, reported in 2011 (4) GLT 751 , wherein it held that though Rule 26 of the Assam Civil Services (Conduct) Rules, 1965, (in short Conduct Rules) prohibits Government servants from contracting a second marriage without first obtaining permission from the Government, violation of the Conduct Rules may entail

¶32

Page No.# 4/5

¶33

disciplinary proceeding during the service tenure of a Government employee, but any such violation does not amount to declaring the second marriage between two Muslims spouses as void, provided it is otherwise legal and valid. Hence, the Division Bench held that the rejection of a claim for grant of family pension to a second Mohammedan wife on account of Rule 26 of the Conduct Rules was unsustainable in law.

¶34

9. Though the office of the Accountant General, Assam has denied payment of family pension to the petitioner on account of the judgment of a Single Bench of this Court in Fazila Begum @ Fazliya Begum (Supra) , wherein the Single Judge has held that the second wife cannot have a claim for payment of family pension if the second marriage was held without obtaining the permission of the Government, the said law cannot be said to be good law, in view of the judgment of the Division Bench of this Court in the case of Sirazun Nessa (Supra). Thus, this Court holds that for grant of family pension to the second wife involving persons of the Mohammedan faith, the permission of the Department/Government is not necessary for conducting the second marriage, so long as the marriage is legal and valid.

¶35

10. Further, the Division Bench of this Court in the case of WA No. 244/2017, “ Mustt. Khadija Begum Vs. Mustt. Rejina Begum has concurred with the judgment of the Division Bench in Sirazun Nessa (Supra) and held that the second wife was entitled to proportionate family pension along with the first wife, if there was a valid marriage.

¶36

11. The above being said, Rule 143 (ii)(Note-1) of the Assam Service (Pension) Rules, 1969 provides that where there are two or more widows, pension would be payable to the eldest surviving widow and on her death, it would be payable to the next surviving widow. In

¶37

Page No.# 5/5

¶38

the present case, the first wife having expired on 08.07.2002, the petitioner would have to be given family pension in terms of Rule 143 (ii)(Note-1) and the judgment of the Division Bench of this Court in Sirazun Nessa (Supra) and Mustt. Khadija Begum Vs. Mustt. Rejina Begum (Supra) .

¶39

12. The respondents in the Health Department are accordingly directed to send the family pension proposal of the petitioner to the office of the Accountant General (A&E), Assam, who shall thereafter process the same for final payment of the family pension to the petitioner. The exercise shall be concluded within a period of 2 (two) months from the date of receipt of a certified copy of this order.

¶40

The writ petition is accordingly disposed of.

¶41

JUDGE

¶42

Comparing Assistant

Musstt. Keyarun Nessa Barbhuiya v. the State of Assam and 5 Ors.

Case brief

What is this about?

What did the court decide?

Musstt. Keyarun Nessa Barbhuiya v. the State of Assam and 5 Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Rajesh Paul Vs Hemen Das, IAS

Pranab Kalita Vs the State of Assam and 3 Ors.

Md. Jamal Uddin Sikdar Vs the State of Assam and 4 Ors.

Anita Sinha Vs the State of Assam and 3 Ors.

Rajib Bura Gohain Vs the Honourable Gauhati High Court and 2 Ors.

Dinesh Barman Vs the State of Assam and 10 Ors.