Xxxxxxx Vs the State of Assam and 9 Ors. — Matrimonial and Divorce | Gauhati HC (2022)

Xxxxxxx Vs the State of Assam and 9 Ors. — Matrimonial and Divorce | Gauhati HC (2022)

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GAHC010099432021

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

Case No. : WP(C)/3776/2021

XXXXXXX PETITIONER NO. 1 HAS BEEN STRUCK OUT AS PER HONBLE COURTS ORDER.

2: DULU MONI BONIA (MINOR) D/O- LT. DULAL BANIA @ DULAL CHANDRA BANIA VILL.- RANTHOLI P.O.- RANTHOLI P.S.- NAGAON DIST.- NAGAON ASSAM PIN- 782101. THE PETITIONER NO. 2 IS A MINOR WHO IS REPRESENTED BY HER MOTHER SRI NAMITA SARKAR BANIA W/O- LT. DULAL BANIA @ DULAL CHANDRA BANI

VERSUS

THE STATE OF ASSAM AND 9 ORS. REPRESENTED BY THE COMMISSIONER AND SECY. TO THE GOVT. OF ASSAM, HOME DEPTT., DISPUR, GUWAHATI 6

2:THE DIRECTOR GENERAL OF POLICE ASSAM ULUBARI GUWAHATI 05

3:THE SUPERINTENDENT OF POLICE

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MORIGAON DIST. MORIGAON ASSAM PIN 782105

4:THE DEPUTY COMMISSIONER MORIGAON ASSAM P.O. AND P.S. AND DIST. MORIGAON PIN 782105

5:THE COMMANDANT 1ST ASSAM POLICE BATTALION SIBSAGAR P.S. P.O. AND DIST. SIBSAGAR ASSAM.

6:THE COMMANDANT 16TH ASSAM POLICE (IR) BATTALION BOMMONIPUR MORIGAON ASSAM.

7:THE DIRECTOR OF PENSION ASSAM HOUSEFED COMPLEX DISPUR GHY 6

8:THE ACCOUNTANT GENERAL OF ASSAM MAIDAMGAON BELTOLA GUWAHATI 29

9:THE TREASURY OFFICER MORIGAON TRESSURY OFFICE MORIGAON ASSAM.

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10:BHABANI BANIA W/O LT. DULAL BANIA @ DULAL CHANDRA BANIA R/O VILL. RANTHOLI P.O. RANTHOLI P.S. NAGAON DIST. NAGAON ASSAM PIN 78200

Advocate for the Petitioner : MR. M U MONDAL

Advocate for the Respondent : GA, ASSAM

BEFORE HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA

ORDER

Date : 02-08-2022

1. Heard Mr. MU Mondal, learned counsel for the petitioner. Also heard Mr. D Borah, learned counsel for the respondent Nos. 1 to 7, Mr. RK Talukdar, learned counsel for the respondent No. 8 as well as Mr. R Borpuzari, learned counsel for the respondent No. 9 and Mr. S Ali, learned counsel for the respondent No. 10.

2. The petitioner herein is the minor daughter of the Late Dulal Bania @ Dulal Chandra Bania and is represented by her mother, Namita Sarkar Bania (2^nd wife). The respondent Nos. 1 to 9 are the respondent State, while the respondent No. 10 is the 1^st wife of the Late Dulal Bania @ Dulal Chandra Bania.

3. The petitioner herein has prayed for grant of 50% of the family pension, on account of death of her father Dulal Bania @ Dulal Chandra Bania, who was

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a Constable in the Assam Police, under the 16^th A.P. (IR) Battalion, Bommonipur, Morigaon.

4. The petitioner’s counsel submits that the Late Dulal Bania @ Dulal Chandra Bania had two wives and after the death of the petitioner’s father, the family pension had to be shared between the respondent No. 10, who is the 1^st wife and the petitioner, who is the minor daughter of the Late Dulal Bania @ Dulal Chandra Bania and his second wife.

5. Mr. S Ali, learned counsel for the respondent No. 10 does not deny that the petitioner is the minor daughter of the Late Dulal Bania @ Dulal Chandra Bania.

6. Mr. RK Talukdar, learned counsel for the respondent No. 8 submits that the pension papers will have to be made in the name of the 1^st wife and the pension will be distributed equally by the concerned Treasury/Bank between the petitioner and the respondent No. 10.

7. Mr. D Borah, learned counsel for the respondent Nos. 1 to 7 submits that he has no comments to make in this case.

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

9. In the case of Rameshwari Devi vs. State of Bihar , reported in (2000) 2 SCC 431 , the Apex Court has upheld the decision of the Patna High Court, wherein it has held that children born out of the 2^nd marriage, according to the Hindu Marriage Act, 1955 were legitimate, though the marriage itself was void. The Apex Court thereafter upheld the decision of the Patna High Court, wherein it held that the minor children of the 2^nd marriage were entitled to family pension, but not the 2^nd wife.

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10. In view of the law laid down by the Apex Court, the family pension of the Late Dulal Bania @ Dulal Chandra Bania should be shared equally between the petitioner and the respondent No. 10. The said respondents are directed to finalise the family pension proposal after due verification, to be shared equally between the petitioner and the respondent No. 10, within a period of 2 (two) months from the date of receipt of a certified copy of this order.

11. The writ petition is accordingly disposed of.

JUDGE

Comparing Assistant