Lailiya Begum Vs the State of Assam and Ors.

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GAHC010148042025

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2025:GAU-AS:14847

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

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Case No. : WP(C)/4201/2025

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LAILIYA BEGUM W/O- LATE SHARAFAT ALI, R/O- VILLAGE- BALITIKA, P.S- LAKHIMPUR, DIST- LAKHIMPUR, ASSAM, PIN-787031

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VERSUS THE STATE OF ASSAM AND ORS REP BY THE SECRETARY TO THE GOVT OF ASSAM ELEMENTARY EDUCATION DEPTT. SECRETARIAT BUILDING, DISPUR GUWAHATI-06 2:THE DIRECTOR OF ELEMENTARY EDUCATION GOVT OF ASSAM KAHILIPARA GUWAHATI-19 3:THE DIRECTOR OF PENSION

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ASSAM HOUSEFED COMPLEX DISPUR GUWAHATI-6 4:THE ACCOUNTANT GENERAL (A AND E) MAIDAMGAON GUWAHATI-28 ASSAM 5:THE TREASURY OFFICER LAKHIMPUR ASSAM

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PIN-787031

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6:BLOCK ELEMENTARY EDUCATION OFFICER NOWBOICHA NORTH LAKHIMPUR DIST- LAKHIMPUR ASSAM PIN-787031 7:THE INSPECTOR OF SCHOOLS LAKHIMPUR DISTRICT LAKHIMPUR ASSAM PIN-787031 8:KHAIRUN NESSA (IST WIFE ) OF LATE SHARAFAT ALI VILLAGE- BALITIKA

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P.S AND DIST- LAKHIMPUR ASSAM PIN-78703

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Advocate for the Petitioner : MR M RAHMAN, MR. A Y CHOUDHURY,MS. P K DEVI,MS M BEGUM,MR A HUSSAIN

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Advocate for the Respondent : GA, ASSAM, I AMIN (R-8),R ALI (R-8),MR M H AHMED (R8),SC, ELEM. EDU,SC, AG (A AND E)

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BEFORE HONOURABLE MR. JUSTICE KAUSHIK GOSWAMI

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ORDER

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Date : 03.11.2025

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Heard Mr. A. Hussain, learned counsel appearing for the writ petitioner/second wife. Also heard Mr. I. Amin, learned counsel appearing for the respondent No. 8/first wife, Mr. B. Talukdar, learned counsel appearing for the respondent Nos. 1 & 2, and Ms. S. Baruah, learned counsel appearing for the respondent No. 3.

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2. The core issue involved in the writ petition is the non-

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disbursement of the pensionary benefits to the writ petitioner, who is the second wife of the deceased Sharafat Ali, who expired on 26.02.2025 while he was working as headmaster of Azad L.P. School, Lakhimpur.

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3. Rule 143 of the Assam Services (Pension) Rules, 1969, reads as under: -

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“ 143. (i) Family for the purpose of rules in this Section will include the following relatives of the officer –

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(a) wife, in the case of a male officer;

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(b) husband, in the case of a female officer;

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(c) minor sons; and

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(d) unmarried minor daughters.

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Note 1. (c) and (d) will include children adopted legality before retirement.

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Note 2 . Marriage after retirement will not be recognized for purposes of rules in this Section.

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(ii) The pension will be admissible –

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(a) in the case of widow/widower up to the date of her/his death or re-marriage whichever is earlier.

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(b) In the case of minor son, until he attains the age of 18 years.

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(c) In the case of an unmarried daughter, until he attains the age of 21 years or marriage whichever is earlier.

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Note. - In cases where there are two or more widows, pension will be payable to the next surviving widow, if any. The term 'eldest' would mean seniority with reference to the date of marriage.

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(iii) Pension awarded under the rules in this Section will not be payable to more than one member of an officer's family at the same time. It will first be admissible to the widow/widower and thereafter to the minor children.

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(iv) In the event of re-marriage or death of the widow/widower, the pension will be granted to the minor children through their natural

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guardian. In disputed cases, however, payments will be made through a legal guardian.

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(v) The temporary increases granted on pension will not be admissible on the Family Pension granted under the Scheme in this Section.”

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4. Reading the aforesaid provision, it is apparent that a spouse of a retired official is entitled for pensionary benefits. The Division Bench of this Court in the case of Sirazun Nessa v. State of Assam and Or s ., reported in 2011 (4) GLT 751, while considering as to whether the second wife of a Muslim employee is entitled to any share in the family pension of her late husband and after examining Rule 143 (1), has answered in the affirmative. In that case the Division Bench held that the Rule has not ruled out taking into consideration the valid marriage of two or more wives of a Muslim employee and directed that the second wife would be entitled to family pension. Relevant paragraphs of the aforesaid judgment are reproduced hereunder for ready reference: -

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“ (15) It is true that under Rule 143 (1) there is no indication of entitlement of family pension by more than one wife. However, In the Note appended to Rule 143 (II) definitely points out consideration of the claim for family pension by two or more widows. The aforesaid rule, as a whole, Indicates that the eldest surviving widow would be entitled to the family pension. At the same time, the Rule has not ruled out taking into consideration the valid marriage of two or more wives by a Mohammedan employee.

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(16) At this stage, we would like to address the effect of 'conduct Rules', while determining the claim of the family pension. As noted earlier, the learned Single Judge has referred to Rule 26 of the 'conduct Rules'; which has put certain pre-conditions for contracting a second marriage. Admittedly the 'conduct Rules' do not totally prohibit a 2nd marriage, provided it is permitted under the personal law and custom of the concerned Government employee. The only

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rider is to obtain permission from the Government. In our considered opinion, any violation of the Conduct Rules may entail disciplinary proceeding during the service tenure of a Government employee but any such violation does not amount to declaring 2nd marriage between the two Muslim spouses void, provided it is otherwise legal and valid. Hence, the rejection of the claim of a second Mohammedan wife with the aid of 'conduct Rules' is unsustainable in law.

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(17) In the case of Deokinandan Prasad (supra), their Lordships have held that 'pension is a property of a Government servant and withholding of the same for no valid reason offends Article 19 (1) (f) of the Constitution of India. In our view also a "property" is an actionable claim and the rights and liabilities over such properties have to be determined in accordance with the personal laws of the parties. In other words, we are of the opinion that the view taken in the case of Amina Khatun (supra) appears to be more rational than the judgment rendered in the case of Suraiya Sultana (supra ).

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(18) For the foregoing reasons, we are in agreement with ?the view taken in the case of Amina Khatun (supra) in preference to the decision taken in Suraiya Sultana (supra) as well as the impugned judgment. As a corollary, the impugned judgment is hereby set aside. It is held that the appellant/writ petitioner is entitled to the proportionate Family Pension, which would be determined by the office of the Accountant General, Assam, and for this purpose the said authority may ask both the surviving widows of the deceased to clarify the ratio of their claim in accordance with the Mohammedan law. In the event of any dispute about the ratio, the parties may be asked to bring appropriate decree from a competent Civil Court.”

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5. In the present case the marriage of the two wives to the deceased Sharafat Ali was solemnized as per the Mohammedan law. Therefore, both the two wives are entitled to proportionate family pension.

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6. Mr. I. Amin, learned counsel appearing for the respondent No. 8/first wife, submits that he has received instructions to the effect that the respondent No. 8/first wife has no objection if 50 % of the

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pensionary benefits are released to the writ petitioner/second wife in accordance with law. Mr. A. Hussain, learned counsel appearing for the writ petitioner/second wife similarly submits that the second wife too has no objection regarding receiving of 50 % of the pensionary benefits.

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7. Considering that the writ petitioner/second wife and the respondent No. 8/first wife have come to a consensus as regards the 50 % entitlement to the subject family pension between the two in terms of the aforesaid Rule 143 of the Assam Services (Pension) Rules, 1969, this court deems it appropriate to dispose of this writ petition by directing the respondent authorities to disburse the 50 % of the family pension and other retirement benefits as admissible in law to both the spouses of the deceased Sharafat Ali, i.e., Lailiya Begum and Khairun Nessa, in accordance with Rule 143 of the Assam Services (Pension) Rules, 1969, within a period of 30 days from the date of receipt of a certified copy of this order.

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8. Ordered accordingly.

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9. The writ petition is accordingly disposed of.

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JUDGE

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Lailiya Begum v. the State of Assam and Ors.

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