The validity of talak communicated through the written statement, entitlement of the first wife to family pension, and the right of a divorced Muslim woman to claim maintenance under sec. 125 CrPC.

JUDGMENT :

KALYAN RAI SURANA, J.

1. Heard Mr. A. Mannaf, learned counsel for the petitioner. Also heard Mr. R. Dhar, learned standing counsel for the PWD, respondent nos.1 and 5, Mr. D. Borah, learned Govt. Advocate appearing for respondent no. 2, Mr. A. Hussan, learned standing counsel for the respondent no. 3, Mr. R. Borpujari, learned standing counsel for the respondent no. 4, Mr. V.K. Barooah, learned counsel for the respondent no. 6 and Ms. S. Kanungoe, learned counsel for the respondent no. 7.

2. The case projected by the petitioner is that she is the first wife of Late Rafiquddin Ahmed, who, while serving as Head Assistant in PWD in the establishment of Executive Engineer, Tezpur Electrical Sub-Division, had died on 29/1/2016. It is projected that the petitioner was his legally married first wife and that her husband had deserted her along with five children, and had allegedly contracted marriage with the respondent no. 7 during the subsistence of the first marriage. It is further projected by the petitioner that as she is suffering from penury, she had approached the Court of learned Principal Judge, Family Court, Guwahati by filing an application under sec. 125 Cr.P.C for maintenance, which was registered as FC (Crl.) 305/1995. In the said proceedings, by order dated 23/8/1996, the Court had awarded maintenance of Rs.1600.00 (Rupees one thousand six hundred only) per month to the petitioner, payable by her husband. In connection with the said proceeding, the petitioner had once again approached the said learned Court for enhancement of maintenance allowance under sec. 127 Cr.P.C. for herself and her child and the said learned Court by order dt. 9/2/2011, directed the husband of the petitioner to pay a sum of Rs.3500.00 (Rupees three thousand five hundred only) per month, out of which, Rs.2500.00 (Rupees two thousand five hundred only) was apportioned for the petitioner and a sum of Rs.1000.00 (Rupees one thousand only) was apportioned to her child w.e.f. the date of the application. In the meanwhile, after death of the husband of the petitioner, on 29/1/2016, the petitioner had submitted several representations to the respondent authorities for payment of monthly pension to her, which did not yield any result. Therefore, the petitioner has approached this Court by filing this writ petition under Article 226 of the Constitution of India, seeking the following reliefs, viz. (a) direction to the respondent authorities to forthwith stop the payment of monthly family pension to the respondent no. 7 under PPO No. 93334203298; (b) directing the respondent authorities to forthwith start the payment of monthly family pension in favour of the petitioner; and (c) directing the respondent authorities to recover the amount of death-cum-retirement gratuity and monthly pension already paid to the respondent no. 7.

3. The learned counsel for the petitioner has submitted that as her husband had married the respondent no. 7 during the subsistence of the first marriage with the petitioner, the marriage between her husband and the respondent no. 7 was void ab initio. Accordingly, it is submitted that a mere entry in the service book of her husband, wherein declaration was made in favour of the respondent no. 7 to be the nominee, was of no consequence. In support of the said contention, the learned counsel for the petitioner has placed reliance on the decision of this Court in the case of Nandita Shil and Another vs. State of Tripura and Others, 2009 (3) GLT 153, to bring home the point that the family pension of a deceased employee is not guided on the basis of nomination, but on the basis of the provisions of rules. Accordingly, it is submitted that the member of the family, who is the nominee is merely a trustee for receiving the pension and that other family members are also entitled to their respective share of the pensionable amount.

4. The learned counsel for the petitioner has further submitted by referring to the order dated 9/2/2011,