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Km. Asma Nayyar v. State Of U.P. And Others - WRIT - A No. 3270 of 2005 [2007] RD-AH 8270 (2 May 2007)


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Court No. 39

Civil Misc. Writ Petition No. 3270 of 2005

Km. Asma Nayyar


The State of U.P. and others

Hon'ble V.K. Shukla, J.

Father of petitioner late Jamshed Khan had been performing and discharging duties as  Registration Clerk in the office of Sub-Registrar, Saharanpur. It has been stated by petitioner that her father moved an application on 19.11.1974 before the District Registration Officer, seeking permission for second marriage  as per Muslim Law. With the consent of his first wife, father of petitioner remarried Smt. Rashida Begaum as per Mohammedan Law. It has been contended that due information was given to the authorities concerned on 26.12.1974. Petitioner has stated that with the passage of time, her father suffered from cancer and ultimately died on 09.10.1998. Petitioner has contended that she is physically handicapped child  suffering from Polio; after death of her father she applied for grant of compassionate appointment, and thereafter her claim has been rejected by Additional Inspector General of Registration (Department) U.P. Allahabad. At this juncture present writ petition has been filed.  

Counter affidavit has been filed, wherein stand has been taken that during life time of first wife, second marriage amounts to misconduct under Rule 29 of Conduct Rules, 1956, as such second marriage was illegal. It has been accepted that on account of order dated 28.08.1998 passed by Civil Judge, post death benefits have been distributed in between both the wives. It has further been contended that petitioner does not fall within the purview of dependent  under the provisions of U.P. Dying in Harness Rules, 1974, as such claim of petitioner has been rejected.

To the said counter affidavit rejoinder affidavit has been filed and therein the averments made in counter affidavit have been disputed and that of writ petition have been reiterated.

After pleadings mentioned above have been exchanged, present writ petition has been taken up for final hearing and disposal with the consent of the parties.

Learned counsel for the petitioner, contended with vehemence that in the present case totally  unsustainable view has been taken by the Additional Inspector General of Registration, U.P. ignoring this important aspect of the matter that under Mohammedan Law second marriage was not prohibited and the child in question was legitimate one, and in this view of the matter  incorrect view has been taken and the object of providing compassionate appointment has been sought to be frustrated, as such impugned order  is unsustainable and is liable to be quashed.

Learned Standing Counsel, on the other hand, contended that admittedly there was misconduct on the part of the father of the petitioner, as such no relief can be granted to the petitioner.

After respective arguments have been advanced, factual position which has emerged in the present case is to the effect that there is no dispute that  father of petitioner late Jamshed Khan as per Mohammedan law had consummated 2nd marriage and petitioner was born out of second marriage. Under Mohammedan Law second marriage is not prohibited. In the present case authorities have totally misdirected themselves by mentioning that during life time of first wife, Jamshed Khan could not have solemnised second marriage, as no permission was taken, and the petitioner being born out of second marriage was not entitled to the benefits claimed by her. Once there is no prohibition under Mohammedan Law to contract the second marriage, the view which has been taken by the authority concerned  is illegal and deserves to be quashed. By not taking permission, for contracting second marriage Late Jamshed Khan, could have been put up for departmental action, at the best, but by no stretch of imagination, marriage could have been treated as void, and children could have been accepted as illegitimate.

Under Hindu Marriage Act, 1956, second marriage is void in terms of clause (i) of Section 5 of the said Act, second wife cannot be described as widow, but children born from second marriage have been given legitimacy, in terms of Section 16 of  Hindu Marriage Act. Qua the children from second wife, Hon'ble Apex Court in the case Rameshwari Devi v. State of Bihar, 2000(85)  F.L.R.= 2000 (1) J.T. SC 328, took the view that they are entitled for benefit of pension and death-cum-retirement gratuity.  

This Court in the case of Km. Priti v. State of U.P. 2005 (2)E.S.C. 896, has taken the view, qua the petitioner, who was the daughter of second wife, with whom deceased government servant had entered into marriage, while first wife was alive, was entitled for compassionate appointment, and she would be treated to be legitimate daughter under Section 16 (1) of Hindu Marriage Act, 1956.

Claim of petitioner is on much  higher footing, as here in the present case, contracting of second marriage was not at all prohibited or restrained under personal law of Muslims, rather same was permissible, and there was full legitimacy to the said child, born out of second marriage. Dying in Harness Rules of 1974, is welfare provision, to save the family, defined under Rule 2 (2), and she being suffering from polio, was dependent on her deceased father, her claim ought not to have been rejected, as has been done in the present case.  

Consequently, writ petition succeeds and is allowed. The order dated 24.09.2004 is hereby quashed and set aside. Respondent No. 2 is directed to consider the claim of petitioner for grant of compassionate appointment, within a period of two months from the date of receipt of a certified copy of this order.

No order as to costs.




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