MOIDU Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioner is a Mohammedan. He had two wives. One wife is still alive. The other wife was a teacher in an aided school. She died on 19.5.1996 after retirement on 30.4.1995. Pursuant to her death, family pension was being paid to the petitioner as the husband of the deceased employee. Now the petitioner is aggrieved by Ext.P9 order whereby it has been decided that payment of family pension of the petitioner was wrong in view of R.90(7)(a) of Part III of the Kerala Service Rules and the petitioner is liable to refund the pension already received. The petitioner is challenging Ext.P9 order primarily on the ground that R. 90(7)(a) of Part III of KSR, to the extent to which family pension is made inadmissible to a Muslim widower in respect of his deceased wife when another wife is living, is unconstitutional. The petitioner further seeks a declaration that he has a right to continue to receive family pension as the husband of late Smt.Susheela and also challenges the recovery of the amounts already paid to him as family pension.

(2.) The 1st respondent has filed a counter affidavit refuting the contentions in the Writ Petition. On the strength of the counter affidavit, the respondents seek to sustain Ext.P9 order as well as R.90(7)(a) of the KSR.

(3.) I have considered the rival contentions in detail.