Point of Law: Section 4 of the Special Marriage Act does not save a second marriage contracted by a Mohammedan male– Petitioner, who is a Hindu had married her deceased husband, who was a Mohammedan, under the Special Marriage Act, 1954, and at the time of such marriage, the condition precedent of Section 4(a) of the Special Marriage Act was conspicuously absent. Therefore, the marriage would be void

ORDER :

Heard Mr. M.K. Choudhury, learned senior counsel assisted by Mr. P. Bhardwaj, learned counsel for the petitioner. Also heard Mr. J. Handique, learned standing counsel for the respondent no.1, Mr. J.K. Goswami, learned Additional Senior Govt. Advocate appearing for the respondent nos.2, 3 and 4, Mr. R.K. Talukdar, learned standing counsel for the respondent no.5 and Mr. M.S. Ali, learned counsel for the respondent no.6.

2. The petitioner is the second wife of Late Sahabuddin Ahmed. Her husband had died in a road accident on 18.07.2017, leaving behind the petitioner with her 12 (twelve) years old son. At the time of his death, the husband of the petitioner was serving as Lat Mandal in the office of the Deputy Commissioner, Kamrup (Rural), Amingaon (respondent no.3). The petitioner is aggrieved by non-sanctioning of pension and other pensionary benefits on the death of her husband and accordingly, this writ petition has been filed under Article 226 of the Constitution of India.

3. The case projected by the petitioner is that her husband, during his lifetime, was married to the respondent no.6. Out of the said marriage, he had 2 (two) children, a son of 20 years of age and a daughter of 14 years of age. It is projected that the respondent no.6 had estranged relationship with her husband and they were separated before marriage of the petitioner and she was residing in her parental house at village Gog under Kamrup (Rural) district. It is also projected that at the time of separation in the year 2004, her husband had paid a lumpsum maintenance amount to the respondent no.6. The petitioner relies on the marriage certificate dated 30.06.2004 solemnized under the Special Marriage Act. It is further projected that the name of the petitioner was entered into the service records of her husband, namely, Md. Sahabuddin Ahmed and the name of petitioner and her son which was furnished by the deceased husband were also entered in the relevant column of the employee data sheet at Sl. No.1 and 2 wherein the petitioner was referred to be the spouse and her son was mentioned as his son. After the death of husband, the petitioner had approached the respondent no.3, seeking sanction of pension and other pensionary benefits and as the matter could not be settled by the respondent no.3, the petitioner has approached this Court.

4. The learned senior counsel for the petitioner has referred to Rule 143 of the Assam Services (Pension) Rules, 1969 and it is submitted that being the wife of her deceased husband, the petitioner was entitled to family pension and other pensionary benefits. It is also submitted that the husband of the petitioner, being a follower of Mohammedan law was entitled to have more than one wife. By referring to the decision of this Court rendered in the case of Sirazun Nessa Vs. State of Assam & Ors., 2011 (4) GLT 751 as well as the decision of this Court in the case of Musstt.Khadija Begum Vs. Musst. Rejina Begum & Ors., WA 244/2017 decided on 15.12.2017, it is submitted that the Division Bench of this Court had held that the second wife of Mohammedan employee is entitled to a share in the family pension of her late husband.

5. By making reference to the provisions of section 4(a) of the Special Marriage Act, 1954 which provides that one of the condition of marriage is that neither party should have a spouse living and in this context, by referring to section 24 of the Special Marriage Act, 1954, it is submitted that in order to declare the marriage between the petitioner and her husband to be void, the respondent no.6 had not filed any suit. It is submitted in her affidavit-in-opposition, the respondent no.6 had admitted the marriage of the petitioner with her husband. It is submitted that it was incumbent on the respondent no.6 to challenge the said marriage and to have it declared to be void. Accordingly, it is submitted that notwithstanding the provisions of section 24 of the Special Marriage Act, 1954, as the marriage has no