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2014 DIGILAW 681 (PAT)

Najda Khatoon @ Najdar Khatoon v. State Of Bihar

2014-06-18

AJAY KUMAR TRIPATHI

body2014
ORDER 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. 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 does not help the present dispute and facts in any manner. The decision referred and relied was rendered in the given facts where interpretation for claim based on the 1996 notification was the issue. 8. With due respect to learned counsel for the private respondent, this judgment does not help the present dispute and facts in any manner. The decision referred and relied was rendered in the given facts where interpretation for claim based on the 1996 notification was the issue. There is no reflection in the said order with regard to the 2011 notification and unfortunately, even though the order was rendered on 9.10.2012, neither of the parties or even the State brought the said notification to the attention of the learned single Judge of the said decision of the State Government. If that is the position then this judgment does not help the private respondent in any fashion. 9. The facts have been what they are coupled with the relatively recent notification dated 27.6.2011 the claim of the petitioner for sharing the pension of the late husband is made out and a direction would be required to be given upon the respondents to divide the pension half and half between the two contesting parties i.e. petitioner and private respondent no.6. 10. This Court also expresses its serious reservation on the stand taken by the official respondents in their counter affidavit by saying that the law does not permit them to divide the family pension half and half. The Court is constrained to record that the deponent is obviously not well informed about even the government notifications even though he may not be well informed about the law. In view of the same, the stand of the State is also misplaced and not in conformity with the developments in this regard. 11. The writ application is allowed with a direction upon the Accountant General, who is permitted to be added as a party, to issue a fresh PPO dividing the family pension between the petitioner and the private respondent within a period of eight weeks from the date of production of a copy of this order.