Harjit Kaur vs State of Punjab and Others

Rajiv Narain Raina, J.—The short but interesting question that calls for determination in this case is whether a widow of a Sepoy in the Sikh Regiment of the Indian Army dying in harness in a field area in a road accident while posted in Poonch in Jammu & Kashmir and being declared a battle casualty would be entitled to a grant of Rs. 2 lacs under the ex-gratia scheme of the Punjab Government and in addition thereto to an amount of Rs. 5 lacs from the Punjab War Heroes Relief Fund on contracting a Kareva marriage with the younger brother of her deceased husband Sukhwinder Singh. The brief facts necessary to decide the issue are that Kulwinder Singh died on 19.07.2005. In 2006 the young widow was married to the younger brother of her late husband in accordance with ancient Punjab custom.

On the death of her husband and after her second marriage, the petitioner claimed monetary benefits under Government policies through representations and lastly by a legal notice served upon the respondents.

On notice of motion being issued, the respondent-State has put in appearance and has contested the case by filing a reply. The facts have not been disputed. The defence has been taken that as per extant policy of the Punjab Government and instructions issued vide Directorate of Sainik Welfare Punjab, Chandigarh vide memo. No. 2/26/2008-5/1644 dated 05.08.2008 the payment of such Financial Assistance can be paid to a widow only if she has not re-married after the death of her husband. In view of these instructions, it is urged that the petitioner is not entitled to any relief of financial assistance as claimed by her and her case was, therefore, rightly rejected by the 3rd respondent vide impugned memo. dated 16.11.2010 photocopy of which has been placed by the Government in its reply at Annexure R-III. Their are other benefits also admissible to only such widows including allotment of plots, appointment to public service on compassionate grounds and payments of ex-gratia concessions etc. as are not re-married.

It is also not disputed that in case, she was not remarried she would have been entitled to financial assistance under Government policies which existed prior to the death of Sepoy Kulwinder Singh. The claim of the petitioner was processed by the Sikh Regiment in writing to the District Sainik Welfare Officer, Gurdaspur vide letter dated 13.07.2006 referring to earlier Army letter dated 01.02.2006 enquiring whether ex-gratia grant of Rs. 2 lacs and Rs. 5 lacs from the Punjab War Heroes Relief Fund and Employment assistance to NOK/One Member of family had been made available or not to enable the Pension Group Wing of the Army to apprise Army Headquarters of the beneficiaries concerned accordingly. A copy of the letter was endorsed to the petitioner. The Senior Record Officer in the rank of Major issued many reminders but little was done till the District Sainik Welfare Officer/Board verified the fact that the petitioner had solemnized a Kareva marriage.

The question is whether the widow of a battle casualty would be entitled to financial assistance on the death of her husband duly declared a battle casualty by the competent authority. In the opinion of this Court, the right to financial assistance accrues to a widow on the event of death of the husband. The rights stood crystallized in this case on 19.07.2005. Thereafter, the procedure of processing the claim became a ministerial act and therefore, the subsequent marriage and specially a Kareva marriage in accordance with traditional Punjab custom which has the sanctity of customary law cannot take away the right or extinguish it. It would be against public policy to expect a young war widow or widow of a battle casualty or for that matter any woman to remain unmarried forever only to reap financial assistance. In the course of human affairs such events can legitimately happen and may be for good reason. After all, the concession is a payment towards a debt of gratitude that not only Punjab but the nation owes to those who die defending our borders so that we may live.

There is another important reason that the benefits deserve to percolate to the petitioner is that the policy guidelines dated 05.08.2008 relied upon by the State can have no retrospective effect as they are in the nature of executive instructions issued after the death of Kulwinder Singh. The right to receive money matured definitely on 19.07.2005 the moment Kulwinder Singh died. The time taken to process the claim lies in the realm of ministerial acts which cannot be used against the petitioner till fate destined re-marriage. The re-marriage protects the widow socially, emotionally and physically being a kareva marriage which keeps her guarded under the protection of her first matrimonial home. I may hasten to add that I may not be taken to make a judicial comment on such marriages in this day and age of gender empowerment by which women become able to organize themselves to increase their own independent right to make choices and to control resources which could help in challenging their own insubordination. This falls in the lot of law makers, not the Court.

To examine the case slightly differently and in order to test the argument I ask if the money was disbursed to the petitioner before her remarriage could she have been compelled to regurgitate the monetary benefits to the State on her re-marriage by coercive police and Court action. I think not. The promise of financial assistance and its legitimate expectation matures on the event of death in case a policy is in operation covering such grants and therefore, if in operation should be given full effect to forthwith without creating a vacuum artificially. Subsequent marriage would not in my considered view nullify the right to the grant. This grant, I dare say, is not meant for the second husband or the family she may raise through him but is meant for rehabilitating the widow whose husband died sacrificing his life for the nation. Moreover, I find that there is nothing in the ex-gratia schemes under consideration which prescribe the mode and manner of spending the money. That is left entirely to the wisdom of the recipient.

I have therefore little hesitation in quashing the impugned memo. No. 88/PC/2010-3000 dated 16.11.2010. In the result, this writ petition is allowed. The impugned order stands quashed by issuing a writ of certiorari. A mandamus is issued to the respondents to hand over to the petitioner the financial assistance in terms of the monetary policies within three months from the date of receipt of a certified copy of this order. Since the monetary benefit was withheld for the wrong reason the petitioner would be entitled to 6% interest till payment on the amounts due from the date the request was made and the claim was lodged. This is the minimum price the Government must pay for passing a bad order against rights of women, the crucible of civilization. Let the Government of Punjab not forget the existence of the Hindu Widows'' Remarriage Act, 1856 which protected a widow who would not by reason of her re-marriage forfeit her property or any right to property which she would otherwise be entitled, and every widow who has re-married shall have the same rights of inheritance as she would have had, had such marriage been her first marriage. Right to money is a right to property constitutionally protected.