Valid marriages under Mohammedan Personal Law entitle surviving widows of Muslim employees to family pension.

The petitioner, Najma Khatoon, claimed family pension as the second wife of Late Md. Usman, a deceased Government employee who died on 14 October 2024.

The deceased’s first wife, Khurshid Jahan, who had been receiving family pension, died on 28 April 2021.

The deceased thereafter addressed a letter dated 14 September 2021 requesting that the petitioner’s name be incorporated as the family pensioner and that the name of his son, who had attained the age of 21 years, be removed from the pension records.

The Accountant General stated that it could authorise pension only on the basis of sanction by the competent Pension Sanctioning Authority.

It further stated that the concerned department had reported that no prior Government permission for the deceased’s second marriage had been produced, and therefore the 2011 Resolution was considered inapplicable.

Whether the petitioner, as the surviving second wife of a Muslim Government employee, was entitled to family pension under Finance Department Memo No. 1549 dated 27 June 2011, notwithstanding the absence of proof of prior departmental permission for the second marriage.

Whether Rule 23 of the Bihar Government Servants Conduct Rules, 1976 invalidated or otherwise disentitled the petitioner from claiming family pension on the basis of a marriage permissible under Mohammedan Personal Law.

Whether the Civil Surgeon and the Accountant General were required to take steps for sanction and authorisation of the petitioner’s family pension.

The Court applied Article 25 of the Constitution, subject to public order, morality, health and other Part III rights, and Article 44, which directs the State to endeavour to secure a Uniform Civil Code; neither provision, by itself, abrogates Muslim personal law.

Article 29(1) and Entry 5 of List III were also considered in relation to protection of minority practices and legislative competence over marriage and family law.

Rule 23 of the Bihar Government Servants Conduct Rules, 1976 restricts a Government servant from contracting a second marriage during the subsistence of the first, but recognises an exception where the marriage is permissible under the applicable personal law, subject to Government permission.

Finance Department Memo No. 1549 dated 27 June 2011 clarifies that Notification dated 6 September 1996 cannot be applied to deny family pension to surviving widows of a deceased Muslim Government employee where the marriage is valid under Mohammedan Personal Law.

Relying on Rameshwari Devi v. State of Bihar, AIR 2000 SC 735, the Court held that a Government servant may contract a second marriage where it is permissible under the personal law applicable to him, while departmental authorities may examine the issue for service-law purposes.

The Court treated the petitioner’s marriage as governed by Mohammedan Personal Law, under which a Muslim male may contract up to four marriages, subject to applicable statutory or service restrictions.

It held that Rule 23 regulated the conduct and service obligations of the deceased employee but did not, in the circumstances of the case, justify denial of family pension to the petitioner where the marriage was not shown to be void under personal law.

The Court also noted that the State had not clearly denied the petitioner’s claim or disputed the deceased’s letter dated 14 September 2021 requesting substitution of the petitioner’s name in the pension records.

Memo No. 1549 was considered clarificatory, continuing to operate because it had neither been withdrawn nor superseded, and was held to have retrospective effect.

Since the Civil Surgeon was the competent authority to facilitate sanction and the Accountant General’s role was limited to authorising pension upon receipt of the requisite sanction and documents, the Court directed both authorities to act accordingly.

The Court directed the Civil Surgeon, Lakhisarai, to take all necessary steps to facilitate sanction of family pension in favour of the petitioner in light of the Court’s findings.

Upon receipt of the required documents, the Accountant General was directed to issue the Pension Payment Order in accordance with law.

The Court further granted the petitioner liberty to take legal action if the Civil Surgeon delayed sanction beyond two weeks without lawful justification.