Despite absent prior permission, a second wife may receive family pension after the first wife’s death.

The petitioner claimed to be the second wife of Late Jay Lal Sah, a Grade-III Clerk in the Water Resources Department, who died in harness on 17 April 2009.

His first wife, Kusum Devi-I, died subsequently in December 2009; the judgment records that the first wife was issueless and had not objected to the petitioner’s marriage with the deceased employee.

The petitioner asserted that she and the deceased had six children and that the deceased had applied for permission to contract a second marriage on 28 February 1982, which was produced as Annexure-P/5.

Her claim for family pension was rejected by the Chief Engineer through Memo No. 327 dated 5 February 2019, principally on the ground that the deceased employee had neither obtained prior permission nor informed the department about the second marriage.

The petitioner challenged the rejection and relied upon the Supreme Court’s decision in Radha Devi v. Chief General Manager.

1. Whether the rejection of the petitioner’s claim for family pension solely on the ground that the deceased employee had not obtained prior permission for his second marriage was legally sustainable, despite the alleged application for permission and the surrounding family circumstances?

2. Whether the relief granted by the Supreme Court in Radha Devi under Article 142 of the Constitution could be considered while determining the petitioner’s entitlement to family pension?

3. Whether the petitioner, claiming to be the second wife, could be recognised as a ‘spouse’ entitled to family pension after the death of the deceased employee’s first wife?

The Court applied Rule 23(2) and its proviso of the Bihar Government Service Conduct Rules, 1976, which restrict a Government servant from contracting a second marriage during the lifetime of an existing spouse but permit the Government to authorise such marriage where it is permissible under the applicable personal law and other grounds exist.

It also considered Finance Department Resolution No. 10059 dated 6 September 1996, under which a second wife of a deceased Government employee is generally not entitled to family pension, although children born from the second marriage may receive pension in accordance with the applicable rules.

The Court relied on Rameshwari Devi v. State of Bihar, AIR 2000 SC 735, for the principle that the validity or status of a second marriage may be examined by departmental authorities for limited service-law purposes.

It further relied on Indian Bank v. ABS Marine Products (P) Ltd., (2006) 5 SCC 72, for the distinction between binding declarations of law under Article 141 and fact-specific directions issued under Article 142.

The Court treated Radha Devi as a fact-specific exercise of Article 142 power, but considered its reasoning relevant to doing complete justice in the present circumstances.

The Court held that Rule 23(2) did not impose an absolute prohibition on a second marriage but contemplated Government permission in appropriate circumstances.

The impugned order failed to consider the material fact that the deceased employee had allegedly applied for permission to contract the second marriage on 28 February 1982.

It also failed to examine the petitioner’s long-standing relationship with the deceased, the existence of six children from the union, the first wife’s subsequent death, and the petitioner’s continued status and life with the deceased after that death.

Although the Court acknowledged that Radha Devi was not a general binding rule under Article 141 because it was decided under Article 142 on peculiar facts, it found the factual and humanitarian considerations in that case relevant.

In particular, denying the petitioner recognition as a spouse at an advanced age, after she had lived with and cared for the deceased and had to support their children, would defeat the object of substantial justice and financial dignity.

Accordingly, the rejection based solely on absence of prior permission was held unsustainable for non-consideration of relevant material.

The Court observed that the petitioner was entitled to family pension from the date of her husband’s death, 17 April 2009, until her death.

The authority was directed to pass a reasoned order and ensure payment of family pension in accordance with law.

The writ petition was accordingly disposed of.