Mariyam Khatoon vs Anees Fatima

B.R.Madhusudhan Rao, J

The Appeal arises of an order dated 10.08.2024 passed by Principal Family Court Cum XIII Additional Metropolitan Sessions Judge, Hyderabad, in O.P.No.11 of 2021 filed by the petitioner/appellant under Section 7(i)(d) of Family Court Act r/w Telangana Revised Pension Rules, 1980 for partition of the pension and pensionary benefits among the wives is dismissed.

The contentions of the appellant-petitioner and the respondent No.1-wife before the Family Court are as follows:

2.1. The appellant-petitioner is the legally wedded second wife and respondent No.1 is the first wife of Late Mohd. Abdul Jabbar Khan, and that Mohd. Abdul Jabbar Khan is a pensioner retired from Government of Andhra Pradesh, Department of Animal Husbandry, drawing Pension vide PPO No.AHD RR SP 000420 through State Bank of Hyderabad, Vanasthalipuram. During the life time of Mohd. Abdul Jabbar, all his service benefits were utilized for his personal use and requirements. Respondent No.2 has issued a letter No.19781/APPO/MKPT, dated 08.06.2020 to State Bank of Hyderabad, Vanasthalipuram to refund the monthly pension deposited in the account of Late Mohd. Abdul Jabbar for the period of April, 2020 and May, 2020 @ Rs.16,811/-.

2.2. It is further contended in the petition that Late M.A.Jabbar expired on 01.04.2020. The name of the appellant-petitioner is not recorded in the Service record as there is a bar, she is survived by five major sons and one married daughter and entire family of the appellant-petitioner was maintained by the deceased M.A.Jabbar and he used to reside and maintain the family.

2.3. The appellant-petitioner has approached the Pension Payment Office, Malakpet, Hyderabad and they directed her to approach the concerned Court of Law and obtain necessary orders to partition the pension amount among herself and respondent No.1 as per the Family Pension/Retirement Gratuity/Service Gratuity/Communication vide G.O.Ms.No.263, dated 23.11.1998.

Respondent No.1 stated that she is the legally wedded first wife of deceased Mohd. Jabbar Khan and her name is shown in all the records of Department of Animal Husbandry, due to the filing of O.P., no pension has been paid to her. The appellant-petitioner is no way concerned, she is neither the wife nor have any relation with the deceased during his life time. Due to stoppage of pension, the respondent is suffering with severe financial crises and she has no source of income, being old aged suffering with health issues.

The appellant/petitioner is examined as PW.1, also examined PW.2 (Mahmooda Begum) and got marked Exs.A1 to A8. Respondent No.1 is examined as RW.1 and got marked Exs.B1 to B9. The trial Court after analyzing the evidence of the parties has dismissed the O.P. filed by the appellant-petitioner.

5.1. Learned counsel for the appellant during the course of arguments contended that the trial Court failed to appreciate the pleadings of the parties and the evidence of PW.1, PW.2 and Exs.A1 to A8, and came to a wrong conclusion that the marriage of the appellant/petitioner is not valid and that the deceased had not taken permission from the Government for the performance of second marriage. The trial Court failed to consider the fact that the appellant/petitioner is an illiterate lady unaware of the Departmental procedure. During the entire life of the deceased, respondent No.1 never disputed the marriage of the appellant/petitioner which was performed as per Mohammedan Law. The marriage of the appellant-petitioner with the deceased Mohd. Abdul Jabbar Khan is performed as per the customs in the presence of witnesses (Ex.A1/marriage booklet).

5.2. Learned counsel further contended that the first marriage of the appellant/petitioner was performed with an Arab by name Ali Bin, who lived in Gulf Country when she was 11 or 12 years old and her husband sent her back about 27 years back, she is blessed with a daughter and she is in Kingdom of Soudi Arabia. The trial Court failed to consider the fact that the appellant/petitioner being a legally wedded second wife, she is entitled for pensionary benefits as per Rule 50(6)(a)(i) of Telangana Revised Pension Rules, 1980 and the findings of the learned Family Court is liable to be set aside.

Per contra, learned counsel for the respondent No.1 contended that the order passed by the learned Family Court is perfect and valid, there is no illegality or infirmity in the order warranting interference by the appellate Court. The trial Court after hearing the parties on record came to a conclusion that the appellant/petitioner is not entitled for half of the pension of late Mohd Abdul Jabbar Khan. Appellant only to protract the proceedings and to prevent her from receiving monetary benefits including the pension has filed the present appeal, placed reliance on Fiayaz Ali vs. Secretary (Law) and Others 2010 Law Suits (Cal) 930.

We have considered the impugned order passed by the trial Court as well as the evidence adduced by the parties.

It is apt to refer Rule 50(6)(a)(i) of the Telangana Revised Pension Rules, 1980, which is set out below:

Rule 50. Family pension :

x x x

(6)(a)(i) Where the family pension is payable to more widows than one, the family pension shall be paid to the widows in equal shares.

The appellant-petitioner did not state anything about her first marriage and the original petition is silent with regard to the said aspect. It is brought on record in the form of cross-examination of PW1 that appellant’s/petitioner’s first marriage was performed with Ali Bin, who lives in Gulf Country, she was just 11 to 12 years old at the time of her first marriage and she is blessed with a daughter by name Fathima, living with her husband. It is an admitted fact that respondent No.1 is the legally wedded wife of late Mohd. Abdul Jabbar Khan. Ex.A1 is the marriage book let dated 16.08.1986, the appellant/petitioner failed to examine any of the witnesses of Ex.A1 to prove her contention that she has married Mohd. Abdul Jabbar Khan on 16.08.1986. Except the self style testimony of PW.1, there is no other evidence on record to show that Ex.A1 is proved. There is no explanation from the appellant/petitioner for not examining the witnesses to Ex.A1, who performed the marriage.

On close scrutiny of Ex.A2, which is a Household card, it does not show the name of the Card Holder but it only shows the Card Holder’s father’s name as Late Mohd. Riza Khan. Ex.A3 is the Aadhar card of the appellant/petitioner, wherein, the name of Mohd. Abdul Jabbar Khan is shown. Ex.A4 is the death certificate of Jabbar Mohammed Khan, Ex.A5 is the ID card of M.A.Jabbar, Ex.A6 is the letter dated 08.06.2020 addressed by Assistant Pension Payment Officer, Malakpet, Hyderabad to the Manager, SBI, Vanasthalipuram for refund of pension in respect of Late M.A.Jabbar, who expired on 01.04.2020, Ex.A7 is the photograph and Ex.A8 is the Health Card.

The evidence of PW.2 is not helpful to the case of the appellant/petitioner since she admitted that she do not know in which place the marriage of the appellant/petitioner is performed as she was 12 years old at that time.

Respondent No.1 is the legally wedded wife of Mohd. Abdul Jabbar Khan. Ex.B1 is the death certificate of Mohd. Abdul Jabbar Khan issued by Greater Hyderabad Municipal Corporation, Hyderabad, dated 22.10.2021, Ex.B2 is the Aadhar Card of RW1. Ex.B3 is the attested copy of Descriptive Rolls Annexure-I, wherein the name of respondent No.1 is shown as wife of Late M.A.Jabbar. Ex.B4 is the letter addressed to the Treasury Officer by Veterinary Assistant Surgeon, dated 28.08.2008. Ex.B5 is the letter, dated 24.04.2008, about the submission of pension papers of M.A.Jabbar, attender, who retired on superannuation on 31.01.2008. Ex.B6 is the Part-II (B) sanction of Pension, which shows the name of respondent No.1 as nominee. Ex.B7 is the Pension forwarding letter of M.A.Jabbar, dated February, 2008 but does not mention the day in February. Ex.B8 is the application for the payment of the life time arrears/death relief, the applicant is Anees Fathima (RW.1), which is given to the Assistant Pension Payment Officer, Malakpet, Sub-Branch, Vanasthalipuram (four sheets). Ex.B9 is the copy of application for service pension/family pension/retirement gratuity which is submitted by M.A.Jabbar, wherein respondent No.1 is shown as wife.

In Fiayaz Ali vs. Secretary (Law) and Others1 , it is held that the petitioner is a Muslim; his personal law permits him to contract more than one marriage. He decided to marry a destitute and vagrant Muslim female with a view to provide her social status; and that the petitioner being a Government servant, his service is governed by the Central Civil Service (Conduct) Rules, 1964 (hereafter the Rules). Rule 21 of the Rules provides restriction regarding marriage. In terms thereof, a Government servant may enter into or contract a second marriage if he is permitted to do so by the Government on fulfillment of two conditions, viz.

(a) Such marriage is permissible under the personal law applicable to the Government servant and the other party to the marriage; and

(b) there are other grounds for so doing.

As stated supra appellant-petitioner failed to prove Ex.A1 that she married Mohd. Abdul Jabbar Khan on 16.08.1998.

The trial Court specifically records that without prior permission from the Government, the deceased contacted second marriage with the appellant-petitioner and the marriage is not legal and valid, When the marriage itself is not valid, the question of entitlement of the appellant-petitioner for half pension does not arise, We do not find any error in the findings of the Family Court.

In view of the reasons above, we, therefore, find no reason to take a different view from the one taken by the trial Court. The trial Court correctly dismissed the appellant’s petition on a correct appreciation of the facts and evidence.

FCA.No.207 of 2024 is accordingly dismissed. All connected applications are disposed of. There shall be no order as to cost.