Md. Nishar Ahmad Khan vs State of Bihar and Others

Navaniti Prasad Singh, J.—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 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.

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 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 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.