WP(C) 3042/2010 BEFORE HON’BLE MRS. JUSTICE ANIMA HAZARIKA JUDGMENT AND ORDER Heard Mr. S Rahman, learned counsel assisted by Mr. M Ahmed, learned cou nsel appearing for the petitioner. Also heard Mr. PN Goswami and Mr. A Lal, lear ned Standing Counsel, Education Department appearing for respondent Nos.1 and 2, Mr. K Das, learned Standing Counsel, BTC appearing for respondent Nos.3, 3 A an d 4, Mr. C Baruah, learned Standing Counsel, Accountant General for respondent N o.5 and Mr. UK Nair, learned counsel appearing for Director of Pension, Assam, r espondent No.6. None appeared for respondent Nos.7 and 8 despite service of noti ce. 2. The dispute in this case is in between the two wives of late Abdul Kuddu s Mia, who was working as Headmaster of Tokeyamari LP School against the permane nt post under the Deputy Inspector of Schools, Gosaigaon. The petitioner Aleya B ewa is the second wife of the deceased, whereas respondent No.8 is the first wif e. He married the second wife with the consent of the first wife as per Muslim Sariyat by executing a Kabinnama before the Kazi on 27.3.1981. The deceased have three children through the first wife and six children through second wife. The children of first wife are major. The eldest son of first wife got appointment on compassionate ground. Both sons of the first wife are earning and the daughte r has been given marriage. The eldest son of second wife is adult but unemploye d and the elder daughter is given in marriage, the rests are minors. The petitio ner’s husband died in harness on 29.6.2000 leaving behind the aforesaid two wive s and the children as his legal heirs. As the name of the first wife has been sh own as nominee in the service book of the petitioner’s husband, the family pensi on and other retiral benefits have been paid by the respondent authorities in th e name of first wife/respondent No.8 on the basis of succession certificate issu ed by the learned District Judge, Kokrajhar with the consent of the petitioner/s econd wife and on verbal agreement between the first wife and second wife to the effect that all the service benefit as well as the family pension would be dist ributed between the petitioner and respondent No.8 in proportion of 60/40, i.e. 60% share to the first wife and 40% to the second wife. Subsequently, the first wife swore an affidavit on 20.1.2009 stating therein on oath that she has obtain ed the succession certificate from the court of learned District Judge, Kokrajha r with mutual consent of the second wife of her deceased husband and till that d ate (20.1.2009) she used to distribute all the service benefit as well as pensio n in proportion of 60% - 40% but due to decrease in pension amount, both of them have mutually agreed to distribute the pension at the rate of 50% each. However , suddenly, with effect from August, 2009, the first wife stopped to pay the 50% of family pension to the petitioner thereby causing acute financial hardship fo r the petitioner to maintain herself and her children. The petitioner, thereafte r, finding no other alternative submitted a representation on 18.12.2009 before the Director of Elementary Education, Assam, i.e. respondent No.2 stating therei n all the facts, more particularly, that she having no source of income to maint ain herself and her children, it has become difficult to run the family and thus prayed to stop paying the family pension to the first wife alone, further prayi ng for distributing the family pension between herself and the first wife. It ha s also been stated that after the death of her husband, the first wife has been regularly paying 40% of the pension money to the second wife but the same has be en stopped from the month of August, 2009. After receipt of the representation s o submitted by the petitioner, the authority stopped paying family pension to th e first wife only for a period of two months and thereafter, the first wife has been allowed to draw the family pension but the share of the petitioner has not been give to her, thereby causing acute financial hardship to the petitioner. 3. The right to receive the family pension is not in dispute but the fact r emains that although the first wife may receive the pension amount, she cannot e njoy the entire family pension for herself as under the personal law, the second wife is also entitled to a share in the same. 4. This Court in Saleha Bewa -vs- State of Assam and another reported in 20 04 (3) GLT 109 has held that although the first wife may receive the pension amo unt she cannot enjoy the entire family pension for herself as under the personal law, the second wife is also entitled to a share in the same. Accordingly, in S aleha Bewa (supra) on an agreement reached by and between the parties, this Cour t directed the division of the family pension in the ratio of 60% - 40% in favou r of the first wife and second wife respectively. The decision in Saleha Bewa (s upra) largely proceeds on the basis of an agreement between the two wives but in the present case in hand, the first wife, i.e. respondent No.8 has not appeared despite service of notice, however, there was an agreement between the wives to distribute the pension amount on 50% - 50% basis as per the affidavit dated 20. 1.2009 sworn by the second wife, which is annexed with the petition as Annexure- 1. In the case of Saleha (supra) also there was an agreement between the wives. From the case of Saleha (Supra), it is deducible that the second wife would be entitled to some share of the family pension under the personal law in force and only the quantum of such share was determined in the aforesaid case on the basi s of the agreement between the parties which is squarely applicable in the prese nt case also. In my considered view such a principle recognizing a right in the second wife to receive a part of the family pension under the personal law is a wholesome principle which is embedded in reasons of fairness and equity. 5. In view of the above, I direct that the family pension in the present ca se be shared equally between the first and the second wife having regard to the number of minor children that the deceased Abdul Kuddus Miah had left through th e second wife (writ petitioner) as well as the affidavit sworn in by the first w ife namely Musstt. Jabeda Begum (Bewa) (Annexure-1 to the writ petition). The Di rector of Pension, the Accountant General and all other concerned authorities sh all act accordingly in the matter. 6. The writ petition stands allowed in terms of the above direction. No cos ts.