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Patna High Court

Gajala PraveenversusThe State of Bihar

Decided
Disposal
DISPOSED

Holding

The circular dated 06‑09‑1996 is not applicable to a Muslim second wife whose marriage is valid under personal law, and the petitioner is entitled to family pension.

Summary

The petitioner, Gajala Praveen, is the second wife of the late government employee Md. Abdul Hasnat, whose first wife had died earlier. She filed a writ petition seeking inclusion of her name in the family pension order after her husband’s death, contending that Muslim personal law permits a second marriage and that the 1996 government circular denying pension to second wives is inapplicable. The State argued that the circular barred the claim. The Court examined Rule 23 of the Bihar Government Service Conduct Rules, 1976 and relied on the precedent Md. Nishar Ahmad Khan v. State of Bihar, which held that for Muslims, personal law overrides the circular. It concluded that the circular does not apply to a valid second marriage under Muslim law and directed the Accountant General to record the petitioner’s name in the pension order. The petition was disposed in the petitioner’s favour, with a six‑week deadline for verification and issuance of the pension.

Issues considered

  • Whether a second wife under Muslim personal law is eligible for family pension of a deceased government employee despite a government circular prohibiting such entitlement.
  • Whether the 1996 Government of Bihar circular is applicable to cases governed by personal law permitting polygamy.

Subjects

  • family pension
  • second wife
  • Muslim personal law
  • government circular
  • service conduct rules
  • pension eligibility
  • writ petition
  • Bihar

Judgment

                      IN THE HIGH COURT OF JUDICATURE AT PATNA
                                Civil Writ Jurisdiction Case No.6268 of 2022
                 ======================================================
                 Gajala Praveen W/o Late Md. Abdul Hasnat R/o-Millat Colony, Sector-1,
                 P.S.-Phulwari, Dist-Patna.                              ... ... Petitioner/s
                                                    Versus
           1.     The State of Bihar through Principal Sec. Education Department, Bihar,
                  Patna.
           2.    The Dist. Magistrate Bhojpur at Ara.
           3.    The D.E.O. Bhojpur at Ara.
           4.    The Dist. Program Officer (Establishment), Bhojpur at Ara.
           5.    The Accountant General (A and E) Bihar, Patna.
           6.    The Treasury Officer, Patna.
                                                           ... ... Respondent/s
                 ======================================================
                 Appearance :
                 For the Petitioner/s   :       Mr.Manoj Kumar, Adv.
                 For the Respondent/s   :       Mr.Madhaw Prasad Yadaw ( GP 23 )
                 For the Accountant General :   Mrs. Ritika Rani, Adv.
                 ======================================================
                 CORAM: HONOURABLE MR. JUSTICE AJIT KUMAR
                                       ORAL ORDER

5   13-02-2026                   Heard the parties concerned.

                               2. The present writ petition has been filed for the

                   following relief(s):-

                                                     “That the present writ petition is
                                           being filed for issuance of appropriate
                                           writ/writs, order/orders, direction/directions
                                           to the Respondent to pass appropriate order
                                           according with law because the Petitioner is
                                           2nd wife of her husband who have died on
                                           10.04.2021 and the first wife had also died
                                           on 15.11.2016 so the petitioner is entitle for
                                           family pension her husband died living
                                           behind two kids namely, i. Rehana Alam ii.
                                           Ayasa and she legally 2nd wife of Late Md.
                                           Abdul Hasnat and after death of her
                                           husband the family pension has not been
Patna High Court CWJC No.6268 of 2022(5) dt.13-02-2026
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                                  paid to the petitioner so your lordship may
                                  pass appropriate order according to law.



                      3. Learned counsel for the petitioner submits that the

          deceased-employee, namely, Late Md. Abdul Hasnat had

          contracted marriage with this petitioner only after the death of

          the first wife, late Roohi Farzana, who is said to have died on

          15.11.2016, and out of the said marriage, the petitioner has got

          two children and late husband of this petitioner, is said to have

          died on 10.04.2021. The marriage certificate was also obtained

          from the office of the Muslim Marriage Registrar & Quazi,

          Patna under Registration No. 15/2016-844/2017, during his life

          time, which is appended as Annexure-3 of the petition and on

          the basis of such marriage, the petitioner is claiming family

          pension, which is said to have been denied by the authorities.

                      4. It has next been submitted that the Personal Law

          which governs the issue does not prohibit such marriages and,

          therefore, the issue, which has already been put at rest by the

          Co-ordinate Bench of this Court in the case of Md. Nishar

          Ahmad Khan v. The State of Bihar and Ors passed on

          16.01.2013 in CWJC No. 7946 of 2007, has not been taken note

          of by the authorities, who have filed counter affidavit opposing

          the relief being sought for by the petitioner. The said proposition
Patna High Court CWJC No.6268 of 2022(5) dt.13-02-2026
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          as set by the Co-ordinate Bench in the aforesaid case is quoted

          hereinbelow:-

                                                         “Strange are the ways in the
                                          State. Strangers are its officers and
                                          devoid of any common sense. By this
                                          writ petition the petitioner seeks a
                                          direction       to   the   State   and   the
                                          Accountant General, Bihar, to insert
                                          the name of his second wife in the
                                          pension        payment     order    of   the
                                          petitioner for the purpose of grant of
                                          family pension in that eventuality.
                                                         No    one    disputes     that
                                          petitioner is a Muslim who under
                                          Muslim Personal Law is entitled not
                                          only to two wives but to four wives
                                          and no law till date prohibits such a
                                          Muslim alliance or alliances.
                                                         The Accountant General has
                                          filed a counter affidavit stating that
                                          State Government has resolved by
                                          their circular dated 6.9.1996 that the
                                          second wife married in the life time of
                                          the first wife would not be recognized
                                          for the purpose of family pension
                                          though the children from the second
                                          wife would have a right to family
                                          pension of the deceased Government
                                          employee. The Accountant General
Patna High Court CWJC No.6268 of 2022(5) dt.13-02-2026
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                                          states that in view of the aforesaid,
                                          petitioner cannot be permitted to get
                                          the name of his second wife, namely,
                                          Akhtari Bibi inserted in the pension
                                          payment order. I have gone through
                                          the     aforesaid           circular    of   the
                                          Government.
                                                         Learned counsel for the
                                          petitioner draws my attention to Rule
                                          23 of the Bihar Government Service
                                          Conduct Rules, 1976 framed by the
                                          State in terms of the Article 309 of the
                                          Constitution           which       is    quoted
                                          hereunder.
                                                         "23. Restrictions regarding
                                          marriages.-           (1)    No    Government
                                          servant shall enter into, or contract, a
                                          marriage with a person having a
                                          spouse living; and
                                                               (2)    No     Government
                                          servant, having a spouse living shall
                                          enter into, or contract a marriage
                                          with any person:
                                                         Provided that Government
                                          may permit a Government servant to
                                          enter into or contract, any such
                                          marriage as is referred to in clause (1)
                                          or clause (2) if it is satisfied that :-
                                                         (a)     such       marriage    is
                                          permissible under the Personal law
Patna High Court CWJC No.6268 of 2022(5) dt.13-02-2026
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                                          applicable           to    such     Government
                                          servant and the other party to the
                                          marriage; and
                                                         (b) there are other grounds
                                          for so doing.
                                                         (3) A Government servant
                                          who has married or marriages a
                                          person         other       than     of      Indian
                                          Nationality shall forthwith intimate
                                          the fact to the Government."
                                                         A reference to the said Rule
                                          shows that the Government has no
                                          option but           to    permit      a    second
                                          marriage if the personal law permits
                                          such to the Government servant.
                                          Today there cannot be a dispute that
                                          the Muslim Personal Law permits
                                          second marriage during life time of
                                          the first wife. In such circumstance,
                                          there     is        no    discretion       on   the
                                          Government in the matter and there
                                          cannot be debarment of a Muslim
                                          person who does not have to seek
                                          permission of the Government for a
                                          second marriage from entering the
                                          second wife's name. The second
                                          marriage cannot be said to be void
                                          much less voidable.
                                                         In that view of the matter, it
                                          must           be         held      that        the
Patna High Court CWJC No.6268 of 2022(5) dt.13-02-2026
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                                          resolution/circular of the Government
                                          which restricts the right of the second
                                          wife may be applicable to other but
                                          certainly is not applicable to Muslims
                                          whose personal law permits second
                                          marriage during life time of the first
                                          wife. Thus, I have no hesitation in
                                          rejecting the stand of the Accountant
                                          General, Bihar. I accordingly direct
                                          the Accountant General, Bihar, and
                                          the State to ensure that name of the
                                          second wife of the Muslim employee,
                                          the petitioner, be recorded in the
                                          pension payment order and henceforth
                                          to avoid litigation necessary directives
                                          in this regard be issued by the State to
                                          the concerned authorities so that there
                                          is no confusion in this matter in future.
                                          The Accountant General, Bihar, shall
                                          take necessary steps in the matter
                                          within a period of fortnight from the
                                          date of receipt/production of a copy of
                                          this order.
                                                         With the observation and
                                          direction aforesaid the writ petition
                                          stands disposed of.”



                      5. On the other hand, learned counsel for the State

          submits that in view of the Government Circular appended as
Patna High Court CWJC No.6268 of 2022(5) dt.13-02-2026
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          ‘Annexure-A’ to the counter affidavit issued in this regard

          prohibits the grant of family pension to second wife. Therefore,

          the claim of this petitioner is not maintainable.

                      6. This Court has given an anxious consideration to

          the submission and finds that the stand which is taken by the

          State-Respondents in their counter, does not dispute the status of

          this petitioner being a second wife and the only hindrance in

          allowing the family pension to this petitioner is the Government

          Circular, which is said to have been issued prohibiting grant of

          the family pension to the second wife, may not be applicable in

          the case of this petitioner, whose cases are governed by the

          Personal Law and such issues have already been given a quietus

          by the Co-ordinate Bench of this Court in the case of Md.

          Nishar Ahmad Khan (supra), wherein the effect of Circular

          prohibiting family pension to the second wife has already been

          explained in the aforesaid case by holding that the Circular

          dated 06.09.1996 may be applicable in the case of others but not

          to the Muslim, whose Personal Law permits second marriage

          and the second marriage cannot be said to void much less

          voidable.

                      7.     Considering the fact that the petitioner had

          contracted marriage after the death of the first wife namely, late
             Patna High Court CWJC No.6268 of 2022(5) dt.13-02-2026
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                       Roohi Farzana, which she could have otherwise also validly

                       contracted the same and since the law which governs their

                       matrimonial status does not prohibit second marriage and the

                       issues with regard to prohibition of family pension to second

                       wife in cases of marriages taking place in the circumstances

                       having already been explained in the aforesaid case, therefore,

                       the authorities may not have any hindrance in granting the

                       family pension to this petitioner, who is having two children out

                       of the said wedlock.

                                   8. It is made clear that entire exercise for verifying

                       the bone fide of this petitioner for the purpose of granting family

                       pension shall be concluded within a period of six weeks from

                       the date of production/receipt of a copy of this order, and if

                       there is no other legal hindrance, then necessary order shall be

                       passed granting the family pension to this petitioner within the

                       same time as indicated.

                                   9.    The writ petition, in the above terms, stands

                       disposed of.


                                                                      (Ajit Kumar, J)
    perwez

U


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