Mrs.R.B.Borah v. Ms.R.Deka

Heard Mrs.R.B.Borah, learned counsel for the petitioner and also Ms.R.Deka, SC PWD, appearing on behalf of respondent Nos.1, 2, 3 and 4. None ap pears for respondent No.6 in spite of service of notice of the present writ peti tion to her. [2] sent writ petition are briefly noted: The facts sufficient for deciding the matter in issue in the pre The petitioner’s husband, late Himandri Dutta, was working as As sistant Engineer in the PWD, Government of Assam. During his lifetime, petitione r’s husband i.e. late Himandri Dutta filed a suit, i.e. T.S(M) No.5 of 1996 agai nst respondent No.6, Smt Bandana Baruah for dissolution of marriage between late Himandri Dutta and respondent No.6 by decree of divorce in the court of Distric t Judge, Sibsagar. The said TS (M) No.5 of 1996 was proceeded exparte against re spondent No.6. The learned District Judge, Sibsagar passed judgment and decree d ated 10.10.1996 for dissolution of the marriage of late Himandri Dutta with resp ondent No.6 by decree of divorce. [3] It is stated that after expiry of the period of limitation for f iling appeal against the said judgment and decree dated 10.10.1996 passed by the learned District Judge, Sibsagar, TS (M) No.5 of 1996, late Himandri Dutta (pet itioner’s husband) married with the petitioner on 24.05.1997. Therefore, it is t he case of the petitioner that since the marriage between the petitioner and her husband late Himandri Dutta was performed while the said decree of divorce date d 10.10.1996 was in force, their marriage is valid. Against the ex-parte judgmen t and decree dated 10.10.1996, respondent No.6 preferred an appeal being MA(F) N o.111(A)/1997 before this court. This court vide judgment and decree dated 07.09 .1998 passed in MA(F) No.111(A)/1997 set aside the said judgment and decree date d 10.10.1996 passed by the learned District Judge, Sibsagar in TS (M) No.5 of 19 97 and remanded the TS (M) No.5 of 1997 to the court of District Judge, Sibsagar to dispose of the same in accordance with law. [4] In the judgment and order of this court dated 07.09.1999 passed in MA(F) No.111(A)/1997 this court directed late Himandri Dutta i.e. petitioner’ s husband to pay an amount of Rs.10,000/- (Rupees ten thousand) as cost of decre e and for further maintenance pendentelite in addition to that of Rs.1000/- in f avour of the respondent No.6. Before the TS (M) No.5 of 1996 was finally decided by the learned District Judge, Sibsagar on remand, Mr. Himandri Dutta (petition er’s husband) died on 08.11.1998. Respondent No.6 had already received an amount of Rs.62,712/- (Rupees sixty two thousand seven hundred twelve) as leave salary for 240 days of unutilized leave entitled to late Himandri Dutta. [5] The State respondents in spite of request from the side of the p etitioner, are not giving any pensionary benefits of late Himandri Dutta to the petitioner for the reason that petitioner is the second wife of late Himandri Du tta. As stated above, petitioner married with late Himandri Dutta on 24.05.1997 while the judgment and decree of learned District Judge, Sibsagar passed in TS ( M) No.5 of 1997 was very much in force. [6] Family Pension is governed by Rule 143 of the Assam Services (Pe nsion) Rules, 1969. Under Rule 143(iii) of the Pension Rules, pension awarded un der the Rules will not be payable to more than one member of an officer’s family at the same time. Under the ’Note’ to sub-Rule (ii) of Rule 143 of the Pension Rules, in cases where there are two or more widows, pension should be payabale t o the next surviving widow, if any. The term ’eldest’ would mean seniority with reference to the date of marriage. On careful reading of Rule 143 of the Assam S ervices (Pension) Rules, 1969, it appears that Family Pension Paper of the emplo yee should be prepared in the name of only one person. In the present case, in t he peculiar facts and circumstances mentioned above, it appears that there are t wo legally married wives of late Himandri Dutta, i.e. respondent No.6, Smt Banda na Baruah and the present petitioner. [7] Mrs.R.B.Borah, learned counsel for the petitioner, by relying on the decision of this Court in Sumitra Chetri (Smti) Vs Union of India & Ors : 1 999 (1) GLT 601 and also decision of the Apex Court in Vidhyadhari & Ors Vs Sukh rana Bai & Ors : (2008) 2 SCC 238 strenuously contended that petitioner and her minor son born by late Himandri Dutta would be entitled to receive their share o f family pension of late Himandri Dutta. This Court in Sumitra Chetri’s case (su pra) held that (cid:28)the second wife may or may not be the legal wife of the decease d. However, the second wife is also having a daughter from the deceased and und er general principles of law of Hindu Law, even the children of illegal marriage or illicit marriage are entitled to maintenance from the husband or the heirs a nd representatives of the husband. There is no dispute that the daughter is the daughter of the deceased. As such, there cannot be a bar to make payment of some amount towards the maintenance of the daughter of the second marriage. In this view of the matter, I hold that the second wife is also entitled to receive main tenance from the heirs and legal representatives of the deceased for and on beha lf of herself and her daughter. The same is permissible in law, particularly, in view of the fact that the first wife herself had written a letter to the respon dent to pay family pension to the petitioner for the benefit of the petitioner w hich also covers her daughter. I find no bar in making such payment of pensionar y benefit to the petitioner (cid:29). In the present case in the above peculiar facts and reasons stat [8] ed above, present petitioner is also legally married wife of late Himandri Dutta and also the minor son was born to the petitioner by late Himandri Dutta. For the foregoing reasons in the given case, the petitiner and h [9] er minor son would be entitled to receive half of the retirement benefits of lat e Himandri Dutta inasmuch as Himandri Dutta left behind the petitioner and her m inor son on one side and respondent No.6 and her minor son on the other side, i. e. four legal heirs. Accordingly, respondent Nos.1 to 5 are directed to prepare Pension Paper in the name of respondent No.6, Smt Bandana Baruah, who shall get half of the family pension and other retirement benefits of late Himandri Dutta. For releasing other half of the family pension and other retirement benefits of late Himandri Dutta by respondent No.1 to 5 to the petitioner, she should open an account in her name in one of the scheduled Banks and petitioner shall intima te the account number to the State respondent No.3. For convenience, respondent No.3 shall deduct half of the pensionary benefits of late Himandri Dutta and dep osit in the account of the petitioner directly whenever any pensionary benefit o f late Himandri Dutta, i.e. family pension and other retirement benefits are rel eased by the State respondents. llowed. With the above observation and direction, the writ petition is a