Disposed

Sahida Aktar Barbhuiya v. the State of Assam and 3 Ors.

Gauhati HC12 Sept 2022WP(C)/344/2022

Case brief

AI extract

What is this about?

This Writ Petition involved a petitioner alleging domestic violence and dishonour due to her husband's alleged second marriage, violating police service rules. The High Court held that matters of conditions of service and potential disciplinary action lie within the domain of the Appointing Authority and ordered a fact-finding enquiry within two months.

What did the court decide?

Direction to the Appointing Authority/Disciplinary Authority to consider the matter, conduct a fact-finding enquiry if necessary, and take action within two months as per service rules.

Sahida Aktar Barbhuiya Vs the State of Assam and 3 Ors. — Service and Employment | Gauhati HC (2022)

¶1

Page No.# 1/4

¶2

GAHC010007382022

¶3

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

¶4

Case No. : WP(C)/344/2022

¶5

SAHIDA AKTAR BARBHUIYA W/O- SABBIR AHMED LASKAR, D/O- ALHAJ MOIN UDDIN BARBHUIYA, PRESENYTLY RESIDING AT , VILLAGE- DUDPUR PART-III, P.O- DUDPUR, P.S-KARIGORAH, DIST- CACHAR, ASSAM, PIN-788025

¶6

VERSUS

¶7

THE STATE OF ASSAM AND 3 ORS REP. BY THE SECRETARY HOME DEPARTMENT, GUWAHATI, ASSAM, PIN- 781005

¶8

2:THE DIRECTOR GENERAL OF POLICE DR. B.K KAKATI ROAD ULUBARI GUWAHATI ASSAM PIN-781007

¶9

3:THE SUPERINTENDENT OF RAILWAY POLICE PANDU PORT NEW COLONY MALIGAON GUWAHATI ASSAM PIN-781012

¶10

4:SABBIR AHMED LASKAR S/O- LATE MOHIBUR RAHMAN LASKAR

¶11

Page No.# 2/4

¶12

R/O-VILLAGE NISCHINTAPUR P.O- RAJNAGAR P.S- SILCHAR DIST- SILCHAR ASSAM PIN-78802

¶13

Advocate for the Petitioner : MD I H LASKAR Advocate for the Respondent : GA, ASSAM

¶14

BEFORE HONOURABLE MR. JUSTICE MANISH CHOUDHURY ORDER

¶15

12.09.2022

¶16

Heard Mr. R.A. Mazumder, learned counsel for the petitioner; Mr. C.S. Hazarika, learned Junior Government Advocate, Assam for the respondent no. 1 – 3; and Mr. M.J. Quadir, learned counsel for the respondent no. 4.

¶17

The projected case of the petitioner in this writ petition under Article 226 of the Constitution of India, in brief, is that she is the legally married wife of the respondent no. 4. The marriage between the petitioner and the respondent no. 4 was solemnized on 05.04.2013 as per Islamic Shariyat Law with fixation of Meher [Dower] @ Rs. 1,50,000/- and a Kabilnama was executed to that effect, which was, later on, registered on 30.04.2013 before the Muslim Marriage Registrar & Qazi, Borkhola, Cachar. Though after the marriage, the petitioner was taken to her matrimonial house by the respondent no. 4, she had allegedly been ill-treated by the respondent no. 4 and his other family members. It is mentioned that on two occasions, the petitioner had given birth to stillborn babies. Thereafter in the year 2018, the petitioner became pregnant again but on that occasion also, she gave birth to a baby without life. The petitioner was humiliated by the respondent no. 4 and was threatened by the respondent no. 4 not to return to her matrimonial house.

¶18

2.1. The petitioner has asserted that after being discharged from the hospital on 17.03.2018, she was taken to her paternal house by her parents and since then, she has been residing in her parental house without any support from the end of the petitioner. It is the further contention of the petitioner that the respondent no. 4 has, in the meantime, solemnized another marriage with

¶19

Page No.# 3/4

¶20

a lady named Nasrinara Begum Laskar when the marriage between the petitioner and the respondent no. 4 is in subsistence. It is contended on behalf of the petitioner that the solemnization of a second marriage during the subsistence of a valid marriage is in contravention of Rule 13[2] of the Assam Police Service Rules, 1966 as the petitioner is a UB Constable in Assam Police.

¶21

It is noticed that the petitioner alleging that she had been subjected to domestic violence at the hands of the respondent no. 4 and his other family members, has instituted a proceeding under Sections 12/13 of the Protection of Women from Domestic Violence Act, 2005 being D.V. Case no. 15/2019. The proceeding is presently pending before the court of learned Sub-Divisional Judicial Magistrate [Sadar], Cachar at Silchar and the learned Court has already ordered by an order dated 04.02.222, the respondent no. 4 to pay a sum of Rs. 5,000/- per month to the petitioner, as an interim maintenance w.e.f. the date of the said order i.e. 04.02.2022.

¶22

The Assam Police Service Rules, 1966 is a set of rules framed in exercise of the power conferred by the proviso to Article 309 of the Constitution of India for regulating recruitment and the conditions of service of a person appointed to the Assam Police Service. Rule 13[2] has provided that no person who have more than one living wife shall be eligible for appointment to the service, provided that the Governor may, if he is satisfied that special grounds exists in any particular case, exempt any person from the operation of Rule 13[2]. Rule 22 [Other provisions relating to conditions of service] of the Assam Police Service Rules, 1966 has provided that except as provided in the said Rules, all matters relating to pay, allowances, leave, pension, discipline and other conditions of service shall be regulated by the general rules framed by the Government from time to time.

¶23

The respondent no. 2 in his affidavit-in-opposition has averred that the respondent no. 4 had initially nominated his father and mother in the service records but later on, the name of one Nasrinara Begum Laskar has been included as wife in the service records of the respondent no. 4. The respondent no. 2 has further averred that there is no record like application etc. in the service record of the respondent no. 4 to explain the reasons for doing so.

¶24

The respondent no. 4 in his affidavit-in-opposition has admitted that he had solemnized

¶25

Page No.# 4/4

¶26

marriage with Nasrinara Begum Laskar.

¶27

Having regard to the respective contentions of the parties and the fact situation obtaining in the case in hand, this Court is of the considered view that it is for the Appointing Authority/Disciplinary Authority to consider the entire aspects of the matter as to whether there is violation of the conditions of service on the part of the respondent no. 4 or not and if necessary, by initiating a fact finding enquiry.

¶28

Accordingly, this writ petition is disposed of with a direction to the Appointing Authority/Disciplinary Authority to take a decision with regard to the matters of solemnization of another marriage during the subsistence of an earlier valid marriage qua the governing service rules, and if necessary, by initiating a fact finding enquiry. If the Appointing Authority/Disciplinary Authority, after the fact finding enquiry, if any, finds that there is violation of the conditions of service on the part of the respondent no. 4 who is governed by the service rules, it is open for the Appointing Authority/Disciplinary Authority shall take a reasoned decision about initiation of disciplinary action as permitted under the law or otherwise. It is observed that the respondent Appointing Authority/Disciplinary Authority shall complete such exercise within a period of 2 [two] months from today. Further consequential action is to be taken by the respondent Appointing Authority/Disciplinary Authority by taking into consideration the decision so arrived at. Whatever be the decision of the respondent Appointing Authority/Disciplinary Authority, the same shall be communicated to the petitioner immediately thereafter. It is, however, made clear that this Court has not made any observation on the merits of the respective claims of the parties and the respondent Appointing Authority/Disciplinary Authority is at liberty to proceed in accordance with law and as per the extant service rules, on the basis of the reasoned decision arrived at by it.

¶29

This order disposes of the writ petition.

¶30

Comparing Assistant

Sahida Aktar Barbhuiya v. the State of Assam and 3 Ors.

Case brief

What is this about?

What did the court decide?

Sahida Aktar Barbhuiya v. the State of Assam and 3 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

Md. Majnur Ali and 3 Ors. Vs the State of Assam and Anr.

Ratul Lahkar Vs Mrinal Ch. Das

Ratul Lahkar Vs Mrinal Ch. Das

Ajit Ch Dutta Vs the State Bank of India and 3 Ors.

Dilip Kalita and 1 Ors. Vs the State of Assam and 2 Ors.

Pankaj Kumar Sarma Vs the State of Assam and 4 Ors.