Dibya Lata Hazarika v. The State of Assam and 8 Ors

ORDER

16.11.2023

¶1Heard Mr. A.F.N.U. Mollah, learned counsel for the petitioner as well as Mr. P.N. Sarma, learned counsel for the respondent nos.1, 4 & 6; Mr. S.K. Medhi, Page No.# 3/4 learned counsel for the respondent no.3 and Mr. S.R. Barua, learned counsel for the respondent nos.2 and 5. No one appears for the respondent no.9, though this Court in it's order dated 07.06.2023 has held that the petitioner has taken steps for service of notice upon the respondent no.9 by way of dasti.

¶2The petitioner's case is that she is the first wife of Late Bhaba Kanta Dutta and as such she should be given the family pension. On the other hand, it is the case of the State respondents that the deceased Government servant had nominated the respondent no.9 as his wife, which implies that the petitioner was not the wife of the deceased Government servant.

¶3The law with regard to family pension is quite clear keeping in view the Hindu Marriage Act, 1955 and the provisions of Rule 143 of the Assam Services (Pension) Rules, 1969. As per the Hindu Marriage Act, 1955 and Rule 143 of the Assam Services (Pension) Rules, 1969, it is the first wife who would be entitled to the payment of family pension as there cannot be any valid marriage during subsistence of the first marriage, for persons professing the Hindu faith. However, there is a disputed question of fact as to whether the petitioner is the first wife of the deceased Government servant, even though a Next of Kin Certificate has been annexed to the writ petition.

¶4It has been agreed to by the counsels for the parties that the issue with regard to whether the petitioner or the respondent no.9 is the first wife of the deceased Government servant should be decided by the respondent no.4. Accordingly, the respondent no.4 is directed to cause an enquiry and give personal hearing to the petitioner and the respondent no.9, prior to taking a Page No.# 4/4 decision as to whether the petitioner or the respondent no.9 is the first wife/existing legal wife of the deceased Government servant at the time of his death. The respondent no.4 may also require the parties herein to submit their Aadhar Cards for verification. In the event, the parties are aggrieved with the decision of the respondent no.4, they can always take recourse to the Civil Court to prove whether the petitioner or the respondent no.9 is the first wife/existing legal wife of the deceased Government servant. The respondent no.4 should take a decision on the same expeditiously as possible and preferably within a period of 2 (two) months from the date of receipt of a certified copy of this order. Interim order passed earlier shall continue till a decision is taken by the respondent no.4.

¶5The writ petition is accordingly disposed of.

JUDGE Comparing Assistant

PageoNo.#o1/4 GAHC010099262022 ooooooo ooooooooooooooo ooooooooooooooooTHEoGAUHATIoHIGHoCOURTo (HIGHoCOURToOFoASSAM,oNAGALAND,oMIZORAMoANDoARUNACHALoPRADESH)o CaseoNo.o:oWP(C)/3469/2022o DIBYAoLATAoHAZARIKAo W/O-oLATEoBHABAoKANTAoDUTTA,oVILL-oUJANIoBHARALUAoGAON,oP.O.-o BHARALUAoTINIALI,oP.S.-oGAURISAGAR,oDISTRICT-oSIVSAGAR,oASSAM.o PIN-o785664. VERSUSo THEoSTATEoOFoASSAMoANDo8oORSo REPRESENTEDoBYoTHEoCOMMISSIONERoANDoSECRETARYoTOoTHEo GOVERNMENToOFoASSAM,oEDUCATIONo(ELEMENTARY)oDEPARTMENT,o DISPUR,oGUWAHATI-06. 2:THEoDIRECTORoOFoPENSION oASSAM oHOUSEFEDoCOMPLEX oDISPUR oGUWAHATI-06. 3:THEoACCOUNTANToGENERALo(oAoANDoEo) oASSAM oMAIDAMGAON oBELTOLA oGUWAHATI-o29. 4:THEoDIRECTORoOFoELEMENTARYoEDUCATION oASSAM oKAHILIPARA oGUWAHATI-19. 5:THEoDEPUTYoCOMMISSIONER oSIVSAGAR oASSAM Page No.# 2/4 PIN- 785664. 6:THE DEPUTY INSPECTOR OF SCHOOLS SIVSAGAR P.O. P.S. AND DIST.- SIVSAGAR (ASSAM) PIN- 785664. 7:THE TREASURY OFFICER SIVSAGAR P.O. P.S.- SIVSAGAR DISTRICT- SIVSAGAR ASSAM. PIN- 785664. 8:THE BRANCH MANAGER S.B.I. GAURISAGAR BRANCH P.O. AND P.S. GAURISAGAR DIST.- SIVSAGAR ASSAM. PIN- 785664. 9:SMT. JYOTI DUTTA W/O- LATE BHABA KANTA DUTTA VILL.- UJANI BHARALUA GAON P.O.- BHARALUA TINIALI P.S.- GAURISAGAR DISTRICT- SIVSAGAR ASSAM. PIN- 785664 Advocate for the Petitioner : MR. A F N U MOLLAH Advocate for the Respondent : SC, ELEM. EDU BEFORE HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA