Molly Vargheese vs Superintendent Of Post Office Mannarkad Sub Division, Mannarkad.-678582 & Ors

K. Haripal, Member J

Applicant is the daughter of C.I.Varghese, who retired from service as Sorting Postman at Ottappalam Post Office in 1979. He died on 02.05.1999 as a service pensioner. Thereafter, his wife C.I.Mary, mother of the applicant, was getting family pension, who died on 27.05.2014. Claiming that the applicant is the divorced daughter of Varghese and was depending on him, she moved an application for family pension. Initially, respondents sought certain documents like death certificate, divorce deed, date of birth certificate, income certificate, non-marriage and unemployment certificate, photographs etc. Thereafter, her claim was rejected by Annexure-A11 order of the 4th respondent. When she filed a representation against the same, that was not considered. That prompted the applicant to approach this Tribunal with O.A.252/2019. That O.A. was disposed of directing the respondents to consider the representation within a period of two months. By Annexure-A1 order dated 18.09.2019 her claim was rejected and thus the applicant has approached this Tribunal again, seeking to quash Annexure-A1 order and to direct the 4th respondent to grant her family pension from 2014 onwards.

According to the applicant, she is a dependent of her parents. Herself and her husband had entered in Annexure-A2 divorce agreement on 24.05.1984, when her mother passed away on 27.05.2014, she approached the respondents for granting family pension. Now her claim has been rejected with untenable contentions and therefore Annexure-A1 is sought to be quashed.

The respondents have justified Annexure-A1 order. According to them, family pension can be granted to a divorced daughter only if she satisfies all the conditions and if a decree of divorce had been obtained from the competent court during the life time of atleast one of the parents. Here, decree of divorce was obtained only on 26.03.2018, long after the death of the pensioner and the family pensioner mother and also after filing Annexure-A5 request seeking pension in 2014. According to them, Annexure-A2 agreement did not effect divorce between the applicant and her husband. That means, during the life time of Varghese and Mary the applicant was not a divorcee. Referring to Annexure-R2 they said that even if the proceedings for divorce was initiated during the life time of one of the parents, a decree obtained thereafter cannot be accepted for grant of pension. Here the applicant had moved the Family Court, Ottapalam, long after the death of the family pensioner mother, that such a document cannot be accepted for granting family pension.

The applicant filed a rejoinder reiterating the contentions in the O.A. According to her, the stand taken by the respondents in Annexure-A1 is illegal, Annexure-R2 is something militating against Rule 54 of the CCS(Pension) Rules, it is against the very spirit of the statute granting family pension to a deserving member of the family.

The respondents filed an additional reply to the rejoinder reiterating the stand in the reply.

Heard the learned counsel for the applicant as well as the learned Standing Counsel for the respondents.

It is not disputed that the applicant is the daughter of Varghese and Mary. Varghese was a Postmaster in the service of the respondents, retired in 1979 and later died on 02.05.1999. Thereafter, family pension was sanctioned to his widow Smt. Mary, who passed away on 27.05.2014. These aspects are not in dispute.

Later, contending that the applicant, as the dependent of the parents and being an unemployed divorcee remaining unmarried, moved the respondents seeking family pension. Earlier, additional documents were called for from the applicant. Annexure-A7 indicates that item No.7 in the communication is 'original and attested copy of divorce deed'. In Annexure-A10 also, the requisition was 'original and attested copy of divorce deed'. It seems that the respondents were also under the impression that a deed of divorce would be sufficient for grant of family pension to a dependent divorced daughter.

The specific case of the applicant is that even though she was married to one Issac, S/o.Paily on 03.06.1974 and a daughter was born in the relationship, the relationship did not subsist for more than 3½ years and thereafter they parted company, after executing a registered divorce agreement, Annexure-A2 dated 24.05.1984 of Mannarkad Sub Registry. Pursuant to Annexures-A7 and A10 communications, the applicant had produced this divorce agreement. Thereafter, they insisted that a divorce deed from a competent court is necessary. Then only she moved the Family Court, Ottapalam with O.P.123/2017. The respondent in the OP the said Issac did not contest and thus by Annexure-A9 order dated 26.03.2018 a decree of dissolution of marriage was granted on the ground of cruelty. Later, a copy of this decree was produced before the respondents and then by Annexure-A11 order dated 04.09.2018 her plea was rejected on the premise that divorce proceedings were initiated only after the demise of the parents. Then she moved a representation against it. By Annexure-A1 order dated 18.09.2019, that was also rejected.

It is the undisputed position that Rule 54 of the CCS(Pension) Rules enables a dependent divorced daughter as well, to claim family pension, till she is remarried. The case of the applicant is that she was the dependent of her parents, she remains divorced from 1984 onwards and that she has no other source of living. The respondents have not disputed the fact that the applicant is the daughter of Varghese and Mary. There is no contest regarding the claim that she was a dependent of her parents.

The application for family pension was rejected based on Annexure-R2 O.M. dated 19.07.2017. Paragraphs 4 to 6 of the O.M. is worth to be extracted as below:

It was clarified that a daughter if eligible, as explained in the preceding paragraph, may be granted family pension provided she fulfils all eligibility conditions at the time of death/ineligibility of her parents and still on the date her turn to receive family pension comes. Accordingly, divorced daughters who fulfil other conditions are eligible for family pension if a decree of divorce had been issued by the competent court during the life time of at least one of the parents.

This department has been receiving grievances from various quarters that the divorce proceedings are a long drawn procedure which take many years before attaining finality. There are many cases in which the divorce proceedings of a daughter of a Government employee/pensioner had been instituted in the competent court during the life time of one or both of them but none of them was alive by the time the decree of divorce was granted by the competent authority.

The matter has been examined in this department in consultation with Department of Expenditure and it has been decided to grant family pension to a divorced daughter in such cases where the divorce proceedings had been filed in a competent court during the life-time of the employee/pensioner or his/her spouse but divorce took place after their death - provided the claimant fulfils all other conditions for grant of family pension under rule 54 of the CCS (Pension) Rules, 1972. In such cases, the family pension will commence from the date of divorce.”

In other words, a divorced daughter who fulfills all conditions is eligible for family pension, if a decree of divorce had been obtained from a competent court. According to the respondents, such a decree should be obtained during the life time of atleast one of the parents. In the O.M., it has been clarified that, considering the long drawn procedure of courts, even if such a decree was obtained after the death of the parents, that can be accepted if the divorce proceedings were initiated during the life time of one of the parents. The applicant calls such a contention in question, according to her, it violates the statutory provision under the CCS(Pension) Rules.

That means, family pension can be granted to a daughter if only she remained divorced during the life time of the parents, depending on them.

Having regard to the facts made out, I have reasons to uphold the contentions of the applicant. Firstly, as already adverted to, the respondents have not disputed the contentions of the applicant that she was a dependent of the parents and that after the demise of parents she has no ostensible means of livelihood. In fact, family pension is intended to such dependents to avoid destitution. It is a welfare measure to take care of the dependents, who live in penurious conditions.

Secondly, the applicant has asserted that she obtained divorce from her husband in 1984 itself. To support the claim, she has relied on Annexure-A2 divorce deed dated 24.05.1984. I have no doubt that such a document cannot stand judicial scrutiny. Even though Annexure-A2 is a registered document, it cannot be relied on to prove the status of the applicant as a divorcee.

All the same, Annexure-A2 cannot be thrown over board; it does not take away the status of the parties as husband and wife; it can be looked into for collateral purpose that the applicant had parted company from the relationship, which longed only for a few years. It is a registered document, despite the fact that it did not sever the relationship, it is a matter of presumption that such an agreement was brought in.

It is true that despite the creation of such a registered agreement, de jure status of the applicant as wife continued since the personal law does not permit divorce effected through mutual agreement by a registered deed. Legally speaking, divorce was effected only on obtaining Annexure-A9 decree from the competent family court. From the above, two inferences are possible. Firstly, even though the marriage was not legally divorced, the applicant remained virtually separated from the company of the husband, as a divorcee, and continued under the maintenance of the parents. Secondly and more importantly, the respondents have no case that Annexure-A2 was created with a bad motive to raise some claim in future. To put it in other words, there is no whisper by the respondents that, Annexure-A2 is a collusive arrangement attempted by the parties with some bad motive.

Rules say that a dependent divorcee during the period she remains unmarried is entitled to get family pension. There is nothing in the Rules that such divorce proceedings should have been initiated during the life time of one of the parents etc. Such an interpretation made to the Rules, even though clarificatory in nature, is liable to be read down, in the peculiar facts of the case.

It is the settled proposition of law that though the executive can issue clarificatory orders, such instructions should only supplement the statute by taking care of the situation. It should not supplant the Rules.

Even though Annexure-A2 does not have any legal bearing, it clearly supports the case of the applicant that she remained separate from the matrimonial relationship, virtually as a divorcee. The claim that she was depending on her parents is not disputed. I have no doubt that de hors Annexure-A2, such a claim is not sustainable. As a necessary corollary, the applicant is entitled, in the peculiar facts of the case, to get family pension. However, considering the fact that she obtained a legal divorce only on 26.03.2018, the grant of family pension need to be made from that date only.

Resultantly, Annexure-A1 is quashed and the respondents are directed to grant family pension to the applicant from 26.03.2018 with arrears, within a period of three months from the date of receipt of a copy of this order. It is made clear that such an order would be valid only so long as she remains unmarried.

(Dated, this the 17th July, 2023)