JUDGMENT Sunil Ambwani, J.
1. Smt. Saiyada widow of late constable Iqbal Hussain has filed this writ petition for writ of mandamus directing the opposite parties to make necessary orders for the payment of arrears of pension with effect from 1.6.1977 to 30.12.1979 relating to constable Iqbal Hussain who retired from district Ghazipur, to pay her the entire balance of retirement dues of her late husband and further to issue a writ in the nature of mandamus directing the opposite parties to fix the family pension and to pay the arrears w.e.f. 1.1.1980. A counter-affidavit of Sri Ram Palat Yadav, Deputy Superintendent of Police, district Ghazipur, has been filed.
2. I have heard Sri G. C. Gahrana, learned counsel for the petitioner and learned standing counsel for the respondents.
3. Briefly stated the facts of the case are, that late Iqbal Hussain served as constable in U.P. Police. He was last posted at police station Dildarnagar, district Ghazipur, and retired on 30.5.1977. After his retirement, he made efforts to get his pension fixed. It is alleged that a pension payment order was issued by the office of Accountant General, U.P. to the Treasury Officer, Ghazipur. The original payment order was not traceable to the petitioner. The entire payment was not made due to illness of Iqbal Hussain who died on 30.12.1979 leaving petitioner and a daughter Shahjehan. After his death, the petitioner as a widow of late constable Iqbal Hussain made an application to the Treasury Officer, Ghazipur, for payment of arrears of pension, and also payment of family pension and other dues. After several reminders she received a letter dated 31.1.1982 in the name of her late husband Iqbal Hussain from the office of Treasury Officer, Ghazipur, requiring the sanction of the office of Accountant General, U.P. She received a copy of letter from the office of Accountant General, dated 22.5.1985 for production of certificate and other papers regarding the proof of succession. After detailed correspondence and reminders in which some doubts were raised about the option given by the pensioner for receiving the pension at Ghazipur whereas he was a permanent resident of Jaunpur, a letter dated 4.1.1985 was received by the petitioner from the office of Superintendent of Police, Ghazipur, informing petitioner, as per information received from the police headquarters, that late Iqbal Hussain had divorced his wife in his life time, and thus she is not entitled to family pension.
4. It is alleged in paragraph 29 of the writ petition that for some time the petitioner was living at Jaunpur and that since her husband was not properly providing for maintenance, the petitioner and her daughter Shahjahan initiated the proceedings under Section 125, Cr. P.C. for maintenance in the Court of Munsif, Jaunpur, numbered as Criminal Case No. 196 of 1977. In this maintenance petition she stated that she belongs to Shia tabka, and was married to Sri Iqbal Hussain, who failed to maintain her. Iqbal Hussain filed reply on 20.2.1977 in which in para 2, he admitted that applicant and Shahjahan are his wife and daughter. He agreed to pay Rs. 200 per month from pension and Rs. 8,000 as one time payment from his gratuity and general provident fund. On the said admission and offer, the Magistrate passed an order on 21.7.1977 stating that opposite party was summoned to the Court, on which he appeared and filed an application to the effect that he admitted the case of the applicant and that both the parties filed a compromise application and verified it. In the said compromise, the parties referred to G.P. Fund and gratuity, but the Court found that it has no right to pass any orders with regard to G.P. Fund and gratuity, and that only Rs. 200 can be given to the applicant. In the operative portion of the order the Magistrate ordered that the opposite party shall continue to give Rs. 200 per month as maintenance, w.e.f. 24.8.1977.
5. In counter-affidavit filed by Sri Ram Palat Yadav, Deputy Superintendent of Police, Ghazipur, it is stated that at the time of retirement, constable Iqbal Hussain, for the purposes of pension submitted that he has no wife or children. In paragraphs 14 and 20 of the counter-affidavit it has been stated that the petitioner was divorced by the constable Iqbal Hussain during his life time, and, therefore, the petitioner is not entitled for pension or any other benefits, and that as per Muslim Law and Customs, once divorce has taken place, then the lady is to marry another person and after divorce given by this another person, i.e., the second husband, then only if the first one wishes to accept her as a wife can be treated/accepted as the wife by the first husband.
6. The averments made in the counter-affidavit are contradictory and against the record. It is not specifically denied that on 21.7.1977, after his retirement the pensioner had accepted the petitioner as the wife, and Shahjahan as his daughter and had agreed to pay maintenance in proceedings under Section 125, Cr. P.C. It cannot, therefore, be accepted that he made any statement that he has no wife and children at the time of the retirement. It is not stated as to when the pensioner informed his employer that he had divorced his wife. Iqbal Hussain expired on 13.12.1979. There was a gap of only one year and four months between the order of Magistrate and death of Iqbal Hussain. There is no specific averments or any documentary evidence on record that during this period, Iqbal Hussain divorced petitioner.
7. In Muslim Personal Law applicable to Shia Muslims, talak may be oral or in writing. In Mulla's Principle of Mahomedan Law by M. Hidayatullah, in case of Shla Muslims a talak may be oral or in writing. In case of oral talak, it must be pronounced orally in the presence of competent witness. A talak communicated in writing is not valid unless the husband is Incapable of pronouncing it orally. The said author says at page 260, that under Shia Law divorce must be pronounced only in Arabic and that too in a specific form. It is not, however, necessary that the husband himself must be knowing Arabic. He can engage the services of an agent who knows Arabic to pronounce the same on his behalf. It is only if nobody knowing Arabic is available that in specific circumstances, it may be pronounced in any other language. In Dolshada Masood v. Gh. Mustaffa, AIR 1986 J & K 80, it was held that it is an established principle of Shia Law that pronouncement of talak must be uttered orally in the presence and hearing of two male witnesses who are Muslims and of approved probity. It is not however, necessary nor has it been provided anywhere in text of Shia Law that the divorce must be pronounced in the presence of 'Imam'. The only mandatory requirement for a valid divorce is that it must be orally pronounced in Arabic in the presence and hearing of two 'Aadil' witnesses.
8. In the case of talak in writing, the talaknama may only be the record of the fact of an oral talak or it may be the deed by which the divorce is effected. The deed may be executed in the presence of the kazi or of the wife's father or other witnesses. It is said to be in the customary form if it is properly superscribed and addressed so as to show the name of the writer and the person addressed. If it is in customary form, it is called "manifest" provided that it can be easily read and comprehended. If the deed is in customary form and manifest, the intention to divorce is presumed. Otherwise, the intention to divorce must be proved. If the deed is in the form of a declaration not addressed to the wife or any other person, it is not in customary form and is not effective if there was no intention to divorce.
9. The author further quotes, 'Shia Law'.--A talak under the Shia Law must be pronounced orally in the presence of two competent witnesses. Baillle, II. 117. A talak communicated in writing is not valid, unless the husband is physically incapable of pronouncing it orally, Baillie, II, 113-114.
10. In the present case, late Iqbal Hussain retired on 30.5.1977. In the maintenance proceedings, he filed a reply on 20.7.1977 admitting that the petitioner and Shahjahan are his wife and daughter. He expired on 13.12.1979. The date on which he is alleged to have divorced the petitioner has not been given. The contents of the letter written by him to Police Head Quarter have not been disclosed. It is not known whether the talak was given in Arabic and in the presence of two competent witnesses. The petitioner came to know of this alleged talak only after she received the letter dated 4.1.1985 from the office of Senior Superintendent of Police, Ghazipur. This communication cannot be treated to be a divorce, inasmuch as, on this date the petitioner had already died, and that if it is taken that the talak became effective on its knowledge, it cannot be made effective since by that date the petitioner had expired and that a dead person cannot divorce his wife.
11. Muslim Personal Law has undergone reforms in several Muslim countries. S.A. Kader, in 'Muslim Law of Marriage and Succession in India', writes at pages 40 to 42 as follows : in Algeria. Tunisia, Turkey, South Yemen, Malaysia and Indonesia, the practice of extra-judicial unilateral divorce has been abolished. Section 49 of the Algeria Family Code. 1984, lays down that divorce cannot be effected except by a judgment of the Qazi which must be preceded by an attempt at reconciliation. Turkish Civil Code of 1926 (Articles 129-139) abrogates all forms of extra-judicial divorce and provides that either parry can seek divorce through Court on stated ground. Article 30 of the Tunisian Code of Personal Status. 1956, categorically lays down that no divorce shall take place except through Court and the Court shall grant divorce only after thorough enquiry into the case of the rift between the husband and the wife and after failure to effect reconciliation. The decree of Court granting divorce shall provide for maintenance, residence of the spouse, custody of the children and compensation. Article 25 of the South Yemen Family Law, 1974, prohibits unilateral divorce. No divorce can be pronounced or registered except after obtaining the permission of the District Court and the Court shall not grant the necessary permission except after making a reference to a people's committee and exhausting all possibilities of reconciliation between the parties and only on coming to the conclusion that the continuance of married life is impossible. In Malaysia, Section 47 of the Islamic Family Law (Federal Territory) Act. 1984, provides for the filing of an application in the Court by either party desiring a divorce and the Court shall grant the divorce even if the other party consents only if it is satisfied after due enquiry and investigation that the marriage has irretrievably broken down. If the other party does not consent, a conciliatory committee shall be appointed and if no reconciliation is possible, the Court shall pass orders.
12. The author S.A. Kader has suggested at page 42 of the aforesaid work that the time is ripe for the Muslim community in India to realise the changes that are taking place in several Muslim Countries and frame progressive laws to keep pace with the true spirit of Islam and the need for social justice. The Muslim Personal Law is not codified. It, however, requires a fresh look to the needs of changing time to avoid such cases in which a plea of divorce may be taken by person stranger to the marriage and deprive legally wedded wife on her rights.
13. Learned counsel for the petitioner has placed reliance on a decision of the Supreme Court in the case of Smt. Poonamal etc. v. Union of India. AIR 1985 SC 1196 and Bhagwanti v. Union of India, AIR 1989 SC 2088. In which it has been held that family pension is a measure of socio-economic justice devised to help the widow and family to tide over the crisis and extend some succor to minor children till they become major. Paragraphs 3 and 7 of the aforesaid judgment are quoted as below :
"Family pension came to be conceptualized in the year 1950. When a Government servant dies in harness or soon after retirement, in the traditional Indian family on the death of the only earning member, the widow or the minor children were not only rendered orphans but faced more often destitution and starvation. Traditionally speaking, the widow was hardly in a position to obtain gainful employment. She suffered the most inasmuch as she was deprived of the companionship of the husband and also became economically orphaned. As a measure of socio-economic Justice, family pension scheme was devised to help the widows tide over the crisis and till the minor children attain majority to extend them some succor. This appeared to be the underlying motivation in devising the family pension scheme. It was liberalized from time to time. The liberalization was, however, subject to the condition that the Government servant had in his lifetime agreed that he shall make a contribution of an amount equal to two months' emoluments or Rs. 5,000 whichever is less out of the death-cum-retirement gratuity. Those Government servants who did not accept this condition were denied the benefit of family pension scheme.
14. It is not necessary to examine the concept of pension. As already held by this Court in numerous judgments that pension is a right not a bounty or gratuitous payment. The payment of pension does not depend upon the discretion of the Government but is governed by the relevant Rules and anyone entitled to the pension under the Rules can claim it as a matter of right. Deoki Nandan Prasad v. State of Bihar, 1971 (Suppl) SCR 634 : AIR 1971 SC 1409 : State of Punjab v. Iqbal Singh, (1976) 3 SCR 360 : AIR 1976 SC 667 and D. S. Nakara v. Union of India, AIR 1983 SC 130. Where the Government servant rendered service to compensate which a family pension scheme is devised the widow and the dependent minors would equally be entitled to family pension as a matter of right. In fact, we look upon pension not merely as a statutory right but as the fulfilment of a constitutional promise Inasmuch as it partakes the character of public assistance in cases of unemployment, old-age, disablement or similar other cases of undeserved want. Relevant Rules merely make effective the constitutional mandate.
15. Even if it is assumed that late Iqbal Hussain had validly given legal divorce to the petitioner, such divorce could not deprive the petitioner Smt. Salyada to claim maintenance. After the decision in the case of Mohd. Ahmad Khan v. Shah Bano Begum and Ors. 1985 AWC 557 ; AIR 1985 SC 945, Muslim Women (Protection of Rights of Divorce) Act, 1986, was enacted. A Constitution Bench of Supreme Court in the case of Dantal Latifie and others v. Union of India and Ors. JT 2000 (8) SC 218, has held that the 1986 Act is constitutionally valid but while interpreting the provisions of the Act, the Supreme Court found that the divorced wife is entitled to reasonable and fair provision for maintenance. Section 3 (1) (a) indicates that a divorced woman is entitled to a reasonable and fair provision for maintenance which is not confined to the period of iddat. Upholding of the Act, the Supreme Court interpreted Section 3 (1)(a) giving its conclusions as follows :
(1) Muslim husband is liable to make reasonable and fair provision for the future of the divorced wife which obviously Includes her maintenance as well. Such a reasonable and fair provision extending beyond the iddat period must be made by the terms of Section 3 (1) (a) of the Act.
(2) Liability of Muslim husband to his divorced wife arising under Section 3 (1) (a) of the Act to pay maintenance is not confined to iddat period.
(3) A divorced Muslim woman who has not remarried and who is not able to maintain herself after iddat period can proceed as provided under Section 4 of the Act against her relatives who are liable to maintain her in proportion to the properties which they inherit on her death according to Muslim law from such divorced woman including her children and parents. If any of the relatives being unable to pay maintenance, the Magistrate may direct the State Wakf Board established under the Act to pay such maintenance.
(4) The provisions of the Act do not offend Articles 14, 15 and 21 of the Constitution of India.
16. In the present case, the respondents have not proved that the petitioner was divorced by her husband late Iqbal Hussain. The order of Magistrate under Section 125. Cr. P.C. shows that it was passed as his agreement to maintain her. Even if it is assumed that he had divorced petitioner thereafter, he was under an obligation to maintain, his wife and daughter, and to make provision for her during the period of iddat. Such provision was agreed to be paid out of his pension. The petitioner is thus entitled to family pension, both as statutory right as well as an obligation as his part by her husband to maintain her.
17. The writ petition is accordingly allowed. The order of Superintendent of Police, Ghazipur, dated 4.1.1985 is quashed and a direction is issued to the respondents to pay to petitioner the entire arrears of pension and other retirement benefits and dues of late Iqbal Hussain, and to sanction the family pension to the petitioner w.e.f. 1.1.1980. The order for sanction of family pension shall be issued within the period of three months of serving certified copy of order upon respondents. The Court further finds that the petitioner has not been fairly dealt with and has been subjected to the great humiliation, suffering and undeserved want. She has suffered mental agony in old age on the plea of divorce in defence, and nonpayment of dues for which she is running from the pillar to post for the last 21 years, after the death of her husband. In the circumstances, the Court fixes a compensation of rupees one lac to be paid by the respondents to the petitioner within the aforesaid period.