Patna High Court
Gajala PraveenversusThe State of Bihar
- Decided
- Disposal
- DISPOSED
- Bench
- AJIT KUMAR
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
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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
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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
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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
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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
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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
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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
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