Whether the second wife of an Mohammedan employee is entitled to family pension of her husband- An Analysis of Conflicting Judicial Opinion.
The Hon’ble Gauhati High Court recently vide its Judgment and Order dated 02.06.2020 in W.P.(C) No. 9140/2019 (Narji Begum Vs State of Assam & Others) decided on the issue of non-disbursal of family pension and other pensionery benefits to the petitioner i.e., second wife of the deceased and her children on the death of her husband, a government employee, where all of them belong to the Muslim faith. The Hon’ble Gauhati High Court held that the petitioner, being the second Mohammedan wife of the deceased Government employee, Taiyab Ali, is not legally entitled to any proportionate pension on his death during the life time of the respondent No.6, first wife of the said deceased under the said 1969 Pension Rules. On the contrary a Division Bench of this Court in Sirazun Nessa vs. State of Assam, on 09.02.2011, reported in 2011 (4) GLT 751, after examining Rule 143 (i), has already answered this question in affirmative. The said decision of the Hon’ble Division Bench was subsequently affirmed by another Division Bench of the same Hon’ble Court in W.A No.244 of 2017 vide its Judgment and Order dated 15.12.2017. It is to state that two different Benches of this Court earlier in the cases Somela Khatun –Vs- State of Assam and Others, reported in 2016 (4) GLT 867 and Rejina Begum (Musstt.) -Vs- State of Assam and Others, reported in 2017 (3) GLT 675, rejected the prayer to grant pension to a second Mohammedan wife of a deceased Government employee under the said 1969 Pension Rules.
The Hon’ble Gauhati High Court in its recent Judgment and Order dated 02.06.2020 tried to distinguish the Division Bench of this Court in Sirazun Nessa vs. State of Assam, on 09.02.2011, reported in 2011 (4) GLT 751. The Hon’ble High Court heled that, in the case of Khursheed Ahmad Khan -Vs- State of Uttar Pradesh and Another, reported in (2015) 8 SCC 439, the Hon’ble Supreme Court upheld the removal of the appellant from service, who was serving as Irrigation Supervisor, Tubewell Division, Irrigation Department, Government of Uttar Pradesh for proved misconduct of contracting another marriage during the existence of the first marriage without permission of the Government in violation of the relevant Conduct Rules, namely, Rule 29(1) of the U.P. Government Servants’ Conduct Rules, 1956. In that case too, the appellant belonged to the Muslim faith. Hence, the Hon’ble Gauhati High Court came to conclusion that the second marriage of said Taiyab Ali with the petitioner is a misconduct under the Rule 26 (1) of the Assam Civil Services (Conduct) Rules, 1965. The Hon’ble Gauhati High Court further held that, “It is to be noted herein that Rule 26 (1) of 1965 Conduct Rules stipulates that no Government servant, who has a wife living, shall contract marriage without first obtaining the permission from the Government, notwithstanding that subsequent marriage is permissible under the personal law for time being applicable to him. Said Rule 26 (1) of the Conduct Rules 1965 though does not make any distinction among the Government employees on the basis of the personal law governing them, but it prohibits polygamy. As the second marriage was in contravention of the Rule 26 (1) of the Assam Civil Services (Conduct) Rules, 1965 because no prior permission was the second wife of an government employee would not be entitled to the family pension.
It is stated that at Para 16 of Sirazun Nessa (supra), the Division Bench observed as follows:-
“(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 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.”
Therefore, the recent decision of the Hon’ble Gauhati High Court has caused some confusion on the question, “Whether the second wife of an Mohammedan employee is entitled to family pension of her husband”.
