[Cites 3, Cited by 0]
Bombay High Court
Rashida Begum Amir Khan vs The State Of Maharashtra And Others on 19 January, 2026
2026:BHC-AUG:1964-DB
471.2021WP
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 471 OF 2021
Rashida Begum d/o Amir Khan
Age : 63 years, Occ : Household,
R/o House No.597, Gaddigudam,
Chavni, Aurangabad.
... PETITIONER
...VERSUS...
1. The State of Maharashtra
Through its Principal Secretary,
Ministry of Public Health &
Family Welfare Department,
Mantralaya, Mumbai - 32.
2. The Government Medical College and
Hospital (Ghati), through its Dean,
Aurangabad.
3. The Accounts Officer,
Treasury Office, Aurangabad.
4. Zarina Mahamood Khan
Age : Major, Occ : Household,
R/o Galli No.20, Misarwadi,
Aurangabad.
5. Accountant General
Office of A.G. Nagpur,
Nagpur, Civil Lines, Nagpur.
. ... RESPONDENTS
_______________________________________________________________
•
Ms. Fatema S. Kazi, Advocate for the petitioner.
•
Mr. S.R. Wakale, A.G.P. for respondent nos.1 to 3 and 5.
•
Mr. S.N. Dudhate h/f Mr.J.V. Deshpande, Advocate for respondent
no.4
_______________________________________________________________
...
sga 1/7
471.2021WP
CORAM : ARUN R. PEDNEKAR AND
VAISHALI PATIL - JADHAV, JJ.
DATED : JANUARY 19, 2026
ORDER [Per Vaishali Patil - Jadhav, J.] :
1. Heard both sides finally at the admission stage.
2. By this petition filed under Article 226 of the Constitution
of India, the petitioner seeks directions to respondent nos.1 to 3 to give
50% family pension to the petitioner and remaining 50% to respondent
no.4.
3. It is the case of the Petitioner that she got married with one
Mahamood Khan S/o Shahnoor Khan on 13.01.1974. The marriage was
solemnized at Aurangabad as per Muslim rites and customs. The
marriage certificate issued by Maharashtra State Board of Wakfs dated
13.01.1974 is annexed with the petition. Out of the said wedlock,
petitioner was blessed with one son namely Feroz Khan, who died in
November, 2016 and one daughter namely Farida Begum, who is
married and is residing at her matrimonial house. The husband of the
petitioner namely Mahamood Khan S/o Shahnoor Khan was an
employee in GHATI Hospital as driver at Aurangabad. The husband of
the petitioner namely Mahamood Khan S/o Shahnoor Khan also got
471.2021WP
married with one Zarina W/o Mahammod Khan, who happens to be the
second wife and is respondent no.4 in this petition. The husband of the
petitioner retired on superannuation on 31.08.2010 and he was getting
pension regularly. He died on 05.05.2020 and from that time, the
petitioner is residing with her brothers.
After the death of the husband, by letter dated 08.06.2020,
the petitioner requested respondent nos.2 and 3 to grant family pension
in her favour. Respondent nos.2 and 3 did not respond to the letter. The
petitioner by letter dated 14.07.2020 filed application under Right to
Information Act with GHATI hospital seeking information as to the
nomination form of family pension filled by her late husband. After
receiving the papers under Right to Information Act, the petitioner
came to know that her late husband had given name of respondent no.4
as nominee in the nomination form for death cum-retirement gratuity.
The husband of the petitioner ought to have mentioned name of the
petitioner as nominee being the first wife of the deceased husband as
per the Service Rules. It is claimed that respondent no.4 is not solely
entitled for retiral benefits as well as family pension of the deceased. By
filing the present petition, the petitioner is claiming half of the monthly
pension to be granted in her favour and half to respondent no.4.
471.2021WP
4. On behalf of respondent no.4, learned Advocate Mr. J.V.
Deshpande appeared and opposed the petition on the ground that
respondent no.4 being nominated by deceased husband is entitled to
receive the full pension.
5. Learned A.G.P. appeared for Respondent nos.2, 3 and 5.
6. The case of the petitioner is squarely covered by the
judgment of Full Bench of this Court in the case of Kamalbai w/o
Venkatrao Nipanikar vs. State of Maharashtra and others, 2019(3)
Mh.L.J. 921. It will be apposite to refer to paragraph no.17 of the said
judgment, which reads as under :-
"17. The definition of the phrase "family" as appearing in Rule
116(16)(b) will have to be interpreted considering Rule
116(16)(a)(i) of the Pension Rules. Rule 116(16)(b)(a)(i) of the
Pension Rules will have to be interpreted referring to the
context, "where the family pension is payable to more widows
than one, the family pension shall be paid to the widows in
equal share." This sub rule will have to be interpreted as that
"where" two or more widows are entitled for the family pension.
For a lady to be widow at the first instance she has to be legally
married woman. The concept and institution of marriage is
governed by personal law. There may be instances where the
second marriage may be legal and valid in that case two widows
may be entitled for pension. While interpreting Rule 116(6)(a)
(i) of the Pension Rules, we need not import personal law,
471.2021WP
however, while considering the word "widow", it will be
necessary that for a woman to be a "widow", she has to be at
the first instance a legally married woman as per the law
applicable to the parties. Rule 26 of the Maharashtra Civil
Services (Conduct) Rules prohibits a Government servant from
entering into or contracting a marriage with any person during
the subsistence of his marriage. Proviso to Rule 26(2) of the M.
C. S. (Conduct) Rules enables the Government to permit a
Government servant to enter into or contract any such marriage
as is referred in Clause (i) or Clause (ii), if it is satisfied that
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 or if according to
personal law, if second marriage is permissible, then the second
wife would come within the definition of widow on death of a
Government Servant. The second wife in general parlance
would not be entitled for family pension, unless she is a legally
wedded wife. A second wife, who is not a legally wedded wife
would not be entitled for family pension under Rule 116 of the
Pension Rules. However a second wife if is a legally wedded
wife would be entitled for the family pension. It is in this
context Rule 116(6)(a)(i) of the Pension Rules, "where the
family pension payable to more widows, than one" shall have to
be read and interpreted Rule 116(6)(a(i) of the Pension Rules
cannot be read dehors the concept of legally wedded wife. The
same also can be found credence in the definition of family as
appearing in Rule 111(5)(i) of the Pension Rules."
471.2021WP
. It is held that where there are two widows, who are legally
wedded wives of the deceased, as per Rule 116(6)(a)(i) of the
Maharashtra Civil Services (Pension) Rules, 1982 (hereinafter referred
to as "the Pension Rules"), the pension is payable equally to both.
7. The claim of Petitioner about having married with deceased
Mahamood Khan S/o Shahnoor Khan is duly supported by the Marriage
Certificate issued by Maharashtra State Board of Wakfs, Aurangabad
indicating the performance of marriage between deceased and
Petitioner on 13.01.1974. Neither of the respondents have denied the
genuineness of this document. Thus on the basis of available evidence
on record, there is no dispute about the fact that the petitioner is widow
of deceased Mahamood Khan S/o Shahnoor Khan. The petitioner has
also not denied the second marriage with respondent no.4 and that she
is legally wedded wife of deceased. As per Muslim personal law, the
performance of second marriage is legal and valid. In the light of these
facts, the judgment of Full Bench of this Court in Kamalbai (supra)
squarely applies to the present case and that two legally wedded wives
are entitled for family pension equally is no more res integra. In the
result, this writ petition is allowed in terms of prayer clauses "B" and
"C", which read as under :-
471.2021WP
"B. The respondents Nos.1 to 3 be directed to give 50%
family pension to the petitioner and give remaining 50% to
respondent No.4.
C. By issuing writ of mandamus or any other writ or
direction in like nature, the respondent Nos.1 to 3 be directed
to start giving 50% of family pension after the death of
Mahammod Khan s/o Shahnoor Khan dated 05/05/2020 in
favour of petitioner and remaining 50% be disbursed to
respondent no.4."
[VAISHALI PATIL - JADHAV, J.] [ARUN R. PEDNEKAR, J.]
