Page No.# 1/12 GAHC010276382024 2025:GAU-AS:3326 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/4998/2023 MAMTAZ BEGUM BARBHUYAN W/O- LATE MAKRAM ALI BARBHUYAN R/O- VILL.- JAYANTIA BASTI P.O. NILBAGAN P.S. HOJAI DIST.- HOJAI (NOW NAGAON) ASSAM PIN- 782445 VERSUS THE STATE OF ASSAM AND 8 ORS REPRESENTED BY THE SECRETARY TO THE GOVT. OF ASSAM EDUCATION DEPARTMENT (ELEMENTARY) DISPUR GUWAHATI-06 ASSAM 2:THE ACCOUNTANT GENERAL (A AND G) MAIDAMGAON BELTOLA GUWAHATI-29 ASSAM 3:THE DIRECTOR OF PENSION ASSAM HOUSEFED COMPLEX DISPUR GUWAHATI-06 ASSAM 4:THE DIRECTOR OF ELEMENTARY EDUCATION Page No.# 2/12 ASSAM KAHILIPARA GUWAHATI-19 ASSAM 5:THE DISTRICT ELEMENTARY EDUCATION OFFICER SHANKARDEV NAGAR HOJAI ASSAM 6:THE BLOCK ELEMENTARY EDUCATION OFFICER HOJAI ASSAM 7:THE TREASURY OFFICER HOJAI TREASURY BISHNU PALLY HOJAI DIST.- HOJAI ASSAM PIN- 782435 8:THE BRANCH MANAGER STATE BANK OF INDIA HOJAI BRANCH HOJAI DIST.- HOJAI ASSAM PIN- 782435 9:HASNARA BEGUM W/O- LATE MAKRAM ALI BARBHUYAN R/O- VILL- KAPASHBARI P.O. KAPASHBARI P.S. MURAJHAR DIST.- HOJAI (NOW NAGAON) ASSAM PIN- 782445 ------------ Advocate for : MR. M U MAHMUD Advocate for : SC ELEM. EDU appearing for THE STATE OF ASSAM AND 8 ORS Page No.# 3/12 BEFORE HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA ORDER Date : 25-03-2025 Heard Mr. MU Mahmud, learned counsel for the petitioner. Also heard Mr. HR Choudhury, learned counsel for the respondent No. 9; Ms. S Chutia, learned counsel for the respondent Nos. 1, 4, 5 & 6; Mr. P Saikia, learned counsel for the respondent No. 3 and Ms. RM Barooah, learned counsel for the respondent No. 7. 2. No one appears for the respondent No. 8. 3. The petitioner claims to be the 1st wife of Makram Ali Barbhuyan, who served as an Assistant Teacher of No. 1138 Uttar Dimrupar Prathamik Vidyalaya, District Hojai, who retired from service on 31.01.2016 on attaining the age of superannuation. The petitioner’s husband, Makram Ali Barbhuyan expired on 20.04.2023. 4. The petitioner’s grievance is that though she is the 1st wife, the family pension has been paid to the 2nd wife, who is the respondent No. 9, inasmuch as, the respondent No. 9 had been nominated by the petitioner’s husband for receipt of family pension. 5. The petitioner’s counsel submits that as the petitioner is the 1st wife of the Late Makram Ali Barbhuyan, she could not be deprived of family pension in terms of the provisions of Rule 143 (iii) of the Assam Services (Pension) Rules, 1969 (hereinafter referred to as the “1969 Rules”). The petitioner’s case is also to the effect that there was no divorce between the petitioner and her husband Page No.# 4/12 during his lifetime. He further submits that a proposal had been made to the respondent No. 9 by the petitioner, for giving her 50% of the family pension, which the respondent No. 9 did not respond to. 6. The case of the respondent No. 9 is to the effect that the petitioner (1st wife) had been divorced by her husband Makram Ali Barbhuyan by way of pronouncement Talak, as has been reflected in the declaration dated 14.12.2020, which was executed by the Late Mokrom Ali, son of Late Motosin Ali. Further, the Late Makram Ali Barbhuyan had nominated the respondent No. 9 to be the recipient of family pension in the declaration made by him, while in service. 7. The counsel for the respondent No. 9 submits that there was no infirmity with the grant of family pension to the respondent No. 9, due to the above reasons. He also submits that the respondent No. 9 accepts the proposal made by the petitioner’s counsel for being given 50% of the family pension payable to the writ petitioner. 8. Ms. S Chutia, learned counsel for the Elementary Education Department submits that the family pension has been given to the respondent No. 9, in view of the fact that Makram Ali Barbhuyan had nominated the respondent No. 9 to be the recipient of family pension, in the declaration made by him during his service period. 9. I have heard the learned counsels for the parties. 10. The first issue that has to be decided is as to whether there was any divorce between the writ petitioner and her late husband Makram Ali Page No.# 5/12 Barbhuyan. The declaration allegedly made by the late Makram Ali Barbhuyan has been annexed by the respondent No. 9 in her application, i.e., I.A.(C) 69/2025, wherein it is stated as follows:- “DECLARATION I, Mokrom Ali son of Late Motosin Ali, by profession Retired Teacher aged about 64 years a resident of Vill. Jayantia Basti, P.O. Nilbagan, P.S. Hojai, Dist. Hojai, Assam do hereby solemnly affirm and declare as under. - 1. That, I am an Indian citizen by birth residing in the above noted address permanently. 2. That, I married Momtaj Begum daughter of Late Abdul Hoque, by profession Govt. Employee a resident of Vill. Jatrapur, P.S. Borkhola, Dist. Cachar, Assam. This is true. 3. That, my aforesaid wife harrassed me both mentally and physically during conjugal life. 4. That, I tried my best to live with her but she totally denied living further. 5. That, all the relations between husband and wife has been broken and there is no chance to re-union with my said wife. 6. That, under the above circumstances I have pronounced "TALAK" infront of her and divorced her i.e. my wife Momtaj Begum from the liabilities & responsibilities of our Marriage Tie and from today onwards I am no longer her husband. This is true. 7. That, the said wife does not claim, demand any right over me and 1 traced myself from the banadages of the said marriage and as such she is free from all the bindings, liabilities and responsibilities of the said marriage tie. This is true. Page No.# 6/12 11. That, no force or undue influence has been made by anybody in making this declaration. I have made this declaration as per my own free will and choice. This is true. 12. That, I fully understand that in the event of any false declaration if made hereinbefore I shall be liable for prosecution. 13. That, I am swearing this affidavit in order to declare the dissolution of my marriage and the same shall be treated as an authentic document of divorce. Hence this affidavit will stand as a piece of documentary evidence in regards to its contents mentioned hereinbefore as and when required. This is true. VERIFICATION I, the declarant, do hereby verify that the contents made above are true to the best of my knowledge, belief and information and I put my signature on this declaration on this 14th day of December, 2020 at Hojai, Sankardev Nagar.” 11. A perusal of the above declaration dated 14.12.2020 clearly shows that the divorce of the petitioner had apparently taken place on the pronouncement of Talak by the petitioner’s late husband. 12. In the case of Shayara Bano vs. Union of India, reported in (2017) 9 SCC 1, the Supreme Court injuncted muslim husbands from pronouncing 'talaq- e-biddat' (triple talaq) as a means for severing their matrimonial relationship, as the practice was found to be arbitrary and gender discriminatory. It also held that the Supreme Court could not nullify and declare as unacceptable in law, the beliefs and religious traditions while the Constitution endeavoured, not only to Page No.# 7/12 protect, but also to enforce all faiths in terms of Article 25 of the Constitution. Subsequent to the decision of the Supreme Court in Shayara Bano (supra), the Muslim Women (Protection of Rights on Marriage) Act, 2019 was published, which criminalised the practice of 'talaq-e-biddat' (triple talaq). 13. In view of the Muslim Women (Protection of Rights on Marriage) Act, 2019 and keeping in view the contents of the declaration dated 14.12.2020, it is clear that the alleged divorce of the petitioner by her late husband, by way of triple talaq, could not be said to be a valid divorce. 14. The next question that has to be decided is as to whether the rights of a 1st wife could have been defeated by way of a nomination made by the husband, for grant of family pension to the 2nd wife. In the case of Mustt. Junufa Bibi vs. Mustt Padma Begum @ Padma Bibi & 4 Ors. in WA 160/2018, which was disposed of vide judgment and order dated 22.12.2022, the Full Bench of this Court had held that family pension in terms of Rule 143 of the 1969 Rules was payable to the eldest surviving widow or wife, who shall hold the same as a trustee for all the other persons, who are entitled to the benefits of family pension. The Full Bench further held that the family pension payable to the eldest surviving widow or wife would not mean that the entire family pension so payable would be the personal property of the eldest of the surviving widow or wife and it would be the responsibility of the eldest surviving widow or wife to maintain the other persons, who are entitled to the benefits of family pension, which in this case would be the 2nd wife also. 15. Paragraphs 19 to 23 of the Full Bench judgment and order dated 22.12.2022 passed in WA 160/2018 is reproduced herein below as follows:- Page No.# 8/12 “19. A conjoint reading of Note 1 to Rule 143 (ii) and Rule 143 (iii) of the Pension Rules of 1969 makes it explicit and unambiguous that the family pension would be payable to the eldest of the surviving widow in the event of there being two or more widows and further that even if there are minor children who may also be entitled to the benefits of the family pension, the pension would be paid to only one member of the family at the same time, where at first instance it would be paid to the eldest of the surviving widow and thereafter, on her death to the next surviving widow, if any and in its absence to the minor children. 20. As a corollary to the provisions of the Rule 143 (iii) of the Pension Rules of 1969, Note 1 to Rule 143 (ii) would have to be read to mean that the family pension would be payable to the eldest of the surviving widows in the event there are two or more widows, and thereafter, on her death it would be payable to the next surviving widow, if any and thereafter, to the minor children if the occasion arises. 21. In the circumstance, the concept of a validity and acceptability of a second marriage where the parties are governed by the Mohammedan Law and the consequential entitlement to the benefits of a family pension and the concept to whom the family pension would be payable under the Pension Rules of 1969 are held to be two separate and unrelated concepts and the implication of the concept of a validity and acceptability of a second marriage or further marriages where the parties are governed by the Mohammedan Law would have no bearing on the concept to whom the family pension is payable under the Pension Rules of 1969. It is held that irrespective of the validity and acceptability of a second marriage or further marriages where the parties are governed by the Mohammedan Law, the family pension under Rule 143 of the Pension Page No.# 9/12 Rules of 1969 would be payable to the eldest of the surviving widow, which would also be applicable for a family pension where the parties are governed by the principles of Mohammedan Law, and where there may be a validity and acceptability of the second wife or further wives in respect of a deceased Mohammedan employee. 22. We further hold that the family pension being payable to the eldest of the surviving widow or wife would not mean that the entire family pension so payable would be the personal property of the eldest of the surviving widow or wife and the family pension so payable would be held by the eldest of the surviving widow or wife as a trustee for all such other persons who are entitled to the benefits of the family pension in terms of Rule 143 of the Pension Rules of 1969. 23. We also provide that in the event any such other persons who are entitled to the benefits of the family pension in terms of Rule 143 of the Pension Rules of 1969, including the second or further wives, in a case where the parties are governed by the Mohammedan Law, are not appropriately maintained by the eldest of the surviving widow or wife to whom the pension would be paid, the remedy thereof would be to make a claim for maintenance in the appropriate forum under the law and not a claim for a payment of the family pension by the State authorities directly to such persons. But however, if in a given case the State authorities on their own volition are of the view that under an acceptable circumstance the authorities are agreeable or required to pay the pension separately to any such member of a family of a deceased employee, this judgment may not be construed to be an absolute bar on such separate payment” 16. In view of the judgment and order of the Full Bench of this Court in Page No.# 10/12 Mustt. Junufa Bibi (supra), the family pension which is payable to the eldest surviving widow or wife, would be held as a trust by the said eldest surviving widow or wife and she would have to ensure that the respondent No. 9 is also maintained from the family pension given to her, by giving a certain share of the family pension. 17. With regard to whether the nomination made by the Government servant in favour of the respondent No. 9 for grant of family pension, would be in consonance with Rule 143 of the 1969 Rules, it would be profitable to refer to the decision of the Supreme Court in the case of G.L. Bhatia vs. Union of India & Anr., reported in (1999) 5 SCC 237, wherein the Supreme Court held that where rights of the parties are governed by statutory provisions, the individual nomination contrary to the statute would not operate, meaning thereby that it would not be valid. 18. Keeping in view the above decisions of the Supreme Court and this Court, this Court is of the view that the grant of family pension to the respondent No. 9, in violation of Rule 143 of the 1969 Rules, is not sustainable. There being no valid divorce between the petitioner and her husband, the benefits of family pension would have to be granted to the writ petitioner. However, the writ petitioner would have to be give a share of the family pension to the respondent No. 9, keeping in view the decision of the Full Bench of this Court in Mustt. Junufa Bibi (supra), which states that the eldest surviving widow or wife would be a trustee of the family pension and would have to maintain the other persons who are also entitled to family pension. The question as to the share of the family pension payable to the respondent No. 9 would have to be seen from the respondent No. 9’s application, i.e., I.A.(Civil) 69/2025, where she has Page No.# 11/12 stated at paragraph 6 that the writ petitioner was a retired Government employee, who retired from the post of Head Teacher of an LP School and thus getting pension. The writ petitioner’s four children are all major. On the other hand, the respondent No. 9 has two minor children, who are of 12 years and 8 years respectively. 19. On considering the fact that there is no denial to the above averments made by the counsel for the respondent No. 9, this Court is of the view that 50% of the family pension which is to be paid to the writ petitioner, should be provided to the respondent No. 9 for their maintenance. Accordingly, the State respondents are directed to give the family pension to the writ petitioner and not the respondent No. 9, who shall in turn deposit 50% of the same in the bank account of the respondent No. 9. 20. In view of the consent of the parties and keeping in mind the reasons stated above, the petitioner shall, on receipt of the monthly family pension, deposit 50% of the family pension in the Bank Account of the respondent No. 9, which is the State Bank of India, Hojai Branch having Account No. 41841126169, IFSC: SBIN0002065, in the name of Mrs. Hasnara Begum. The petitioner shall ensure that the 50% of the family pension is deposited in the account of the respondent No. 9 within one week from the date of receipt of the family pension in her own account. The State respondents are directed to immediately make the necessary correction to the pension payment order (PPO) and pay the family pension to the writ petitioner, within a period of 6 (six) weeks from the date of receipt of a certified copy of this order. 21. The writ petition is disposed of with the above observations and Page No.# 12/12 directions. JUDGE Comparing Assistant