Back
2014 Supreme(Pat) 545
IN THE HIGH COURT OF JUDICATURE AT PATNA
Ajay Kumar Tripathi, J.
Najda Khatoon @ Najdar Khatoon – Petitioner
Versus
The State Of Bihar, - Respondent
Civil Writ Jurisdiction Case No.5420 of 2013
Decided on : 18-06-2014
Advocate Appeared
For the Petitioner: Mr. Siya Ram Shahi Mr Sunil Kumar Sharma Mrs Kumari Avnita Mandilwar
For the State: Mr. Rajesh Ranjan, AC to GA 8
For Pvt. Respondent: Mr Pramod Manbansh
The validity of the second marriage and the impact of relevant notifications and personal law on the entitlement to claim a share of the deceased's pension.
Headnote:
Pension - Family Dispute - Legal Right to Pension Sharing
Fact of the Case:
The petitioner, as the second wife of the deceased, claimed a share of the late husband's pension, which was contested by the first wife. The court considered the relevant notifications and personal law governing the deceased's marriage.
Finding of the Court:
The court found that the second marriage was valid and not in violation of service rules, and a 2011 notification modified the 1996 notification, allowing for pension sharing in the case of a Muslim employee. The court also criticized the reliance on a previous judgment that did not consider the 2011 notification.
Issues: The main issue was the legal entitlement of the petitioner, as the second wife, to claim a share of the late husband's pension, considering the relevant notifications and personal law.
Ratio Decidendi: The court held that the second marriage was valid and not governed by the service rules, and the 2011 notification modified the 1996 notification, allowing for pension sharing in the case of a Muslim employee. The court also criticized the reliance on a previous judgment that did not consider the 2011 notification.
Final Decision: The court allowed the writ application and directed the Accountant General to issue a fresh PPO dividing the family pension between the petitioner and the private respondent within eight weeks.
Based on the provided legal document, the key points are as follows:
-
The petitioner, who is the second wife of the deceased, claimed a share of the late husband's pension, which was challenged by the first wife (respondent no.6). The court examined the validity of the second marriage and relevant notifications affecting pension sharing rights (!) .
-
The court found that the second marriage was valid and not in violation of service rules. A 2011 notification modified earlier rules, allowing pension sharing for Muslim employees, which impacted the entitlement of the petitioner (!) [8000393250005].
-
The court emphasized that the second marriage was performed prior to the husband's employment under the government, and thus, the service rules applicable at the time of marriage did not bar the petitioner's claim (!) [8000393250004].
-
A recent notification issued in 2011 under the government’s finance department clarified that the earlier 1996 notification, which restricted pension sharing, was modified to permit Muslim employees to claim pension benefits based on personal law (!) [8000393250005].
-
The court rejected the relevance of a prior judgment that did not consider the 2011 notification, stating that the notification changes the legal landscape and supports the petitioner’s claim (!) [8000393250007].
-
The court directed the authorities to divide the family pension equally between the petitioner and respondent no.6, and instructed the Accountant General to issue a fresh pension order reflecting this division within eight weeks (!) [8000393250010].
-
The court expressed reservations about the official respondents' stance that law does not permit pension division, criticizing their lack of awareness regarding recent government notifications (!) [8000393250009].
These points collectively highlight the court's recognition of the validity of the second marriage, the impact of recent notifications on pension sharing rights for Muslim employees, and the court's directive for the pension to be equally divided between the two wives.
Some facts are not in dispute at least between the petitioner and the respondent no.6. They both happen to be legally married wives of late Md. Mustakim Khan. Petitioner is the second wife and respondent no.6, the first wife. The second marriage was performed sometime in the year 1988 about a year before the petitioner’s husband got employment under the Sate as a Constable Dafadar.
2. Over a period of time both the wives have progenies. Respondent no.6 had a son and the petitioner, a daughter. Since survival in the difficult economic situation is an issue for one and all, some dispute arose between the family and the late husband tried to work out some arrangement with regard to distribution of the salary and other allowances between the two wives. Unfortunately, he passed away on 21.10.2011 in harness. The challenge at domestic front and the conflicts between family members may have taken its toll.
3. On a claim being made by the petitioner for sharing the pension of the late husband, serious challenge is thrown up by private respondent no.6 denying any kind of right of the petitioner to beget anything from the Court or the respondent authorities.
4. Counsel for the petitioner has brought on record that due to intervention of the well wishers, an arrangement was worked out even amongst the wives that the son of respondent no.6 will beget the benefit of compassionate appointment and she will have somebody to take care of her whereas for the petitioner she would get the pension. Obviously, those affidavits, which are on record, have been dubbed as fake and fraudulent. But such dispute is of no relevance to the actual issue whether the petitioner can claim 50% of the pension of the late husband.
5. Submission of the counsel for the petitioner is that no doubt at a point of time on the basis of 1996 notification, the State Government did decide to take away the benefit of dividing the pension between two wives, modifying the earlier 1964 notification. But thereafter there has been some development in this regard, especially with regard to a Mohammedan employee, who is governed by his personal law. What is of significant is that the second marriage is not a void or illegal marriage. It is permissible and the second marriage was not solemnized after the husband of the petitioner became a government servant. These are incidences prior to getting into government service in the year 1989. If that is so then the serious challenge put up by the counsel representing the respondent no.6 that the service rules and the 1996 circular will operate against the claim and interest of the petitioner does not hold. The rules will apply only when a person becomes a government servant which the husband of the petitioner was not at the time of the performance of the second marriage.
6. Another development which has taken place is that a notification has been issued under the signature of Principal Secretary, Finance Department, Government of Bihar, which is notification dated 1549 dated 27.6.2011. This notification clearly indicates that keeping in mind the Mohammedan Personal Law as well as some order passed in CWJC No.9491 of 2010, the 1996 notification stands modified and will not come in the way of claim of an employee if he happens to be a Muslim. A copy of the notification has been produced by learned counsel for the petitioner, which is placed on record and also shared with counsel for respondent no.6 and the State.
7. Learned counsel for respondent no.6 makes a decision rendered in the case of Mehrun Nisha V. the State of Bihar & ors, reported in 2013 (1) PLJR 222 as the sheet anchor for opposing the claim of the petitioner. His stand is that the learned single Judge has clearly held while interpreting the 1996 notification as well as considering 1964 notification and came to a considered opinion that a second wife cannot claim any pension.
8. With due respect to learned counsel for the private respondent, this judgment
