Radha K vs Union Of India

Anu Sivaraman, J

This writ petition is filed challenging Exhibit P12 order of the 3rd respondent and seeking directions to respondents 2 to 4 to sanction and release the

family pension due on the death of the petitioner's deceased husband to her. It is submitted that the petitioner is the legally wedded wife of the late

Peedikavalappil Balan, who was an ex-service man. Exhibit P1 is the marriage certificate evidencing the marriage on 4.7.1971. The petitioner's

husband passed away on 23.6.2017 as evident from Exhibit P2 Death Certificate. The life time arrears of pension had been disbursed to the petitioner,

who was his wife and nominee. By Exhibit P5, the respondents stated that since the deceased was married to Smt.S.Bhargavi Amma on 22.4.1966

and nominated her to receive all the financial benefits on his death, the petitioner's claim for family pension could be considered only once the legality

of the 2nd marriage is established.

The learned counsel for the petitioner submits that a reading of Exhibit P5 would itself show that the 1st marriage was invalid and that the marriage

to the petitioner was the only legally valid marriage. It is submitted that the petitioner was paid family pension from the railways, where her husband

was reemployed after his military service, which is evident from Exhibit P6. It is submitted that the petitioner had again approached the respondents

seeking release of family pension to her and by Exhibit P7, the Zila Sainik Welfare Officer had addressed the respondents requiring the consideration

of the claim at the earliest. In spite of repeated correspondences, it is submitted that Exhibit P12 reply has now been issued to the petitioner stating as

follows:-

“2. On scrutiny of documents received for vide letters mentioned under reference, it is noticed that your all four children have already been

completed the age of 25 yrs and daughier also got married with Baiju AP.

It is for your kind information that as per Para 66 & 67 of Pension Regulation for the Army 2008 (Part-l), son of the deceased soldier is eligible for

family pension till he attains the age of 25 yrs or upto the date of marriage whichever is earlier and daughter is eligible for family pension till she gets

married or her earning becomes more than the prescribed limit for family pension whichever is earlier.

In view of the above you and your children are not entitled for family pension. â€​

It is submitted that Smt.Bhargavi Amma has also passed away on 17.7.2019 and there is now absolutely no impediment for release of the family

pension to the petitioner. It is submitted that though the AFT is empowered to consider the issue, there is no regular Bench of the AFT at Kochi and

that the AFT holds only camp sittings in Kochi, that too, to hear emergent matters and that there is very little chance of the petitioner, a

septuagenarian and a widow getting any benefit in her lifetime with the said limited sittings. On these pleadings, the petitioner seeks a direction to

consider the claim of the petitioner for family pension in accordance with law, untrammelled by the dilatory replies given by the respondents.

A statement has been placed on record by the Central Government. Apart from re-stating the facts of the case, it is submitted that the issue is to be

considered by the AFT and since the AFT has commenced special virtual sitting on 23.3.2021 and cases of urgent nature are being considered

through video conferencing, the writ petition itself is not maintainable. It is further submitted at paragraphs 10 as follows:-

“10. In Original Application No.258 of 2010 titled Smt.Roshini Devi Vs. UOI, on similar facts, the Hon’ble Armed Forces Tribunal (Principal

Bench), New Delhi held that the marriage contracted with a minor is valid and that the second marriage during the subsistence of first marriage is

illegitimate. On such legal position, the applicant in that case was not allowed by the Hon'ble Tribunal to claim pensionary benefits. The Hon'ble

Armed Forces Tribunal (Regional Bench),Lucknow in Original Application No. 288 of 2013, titled Sarabjeet Kaur V. UOI has also taken a similar

view. “

I have considered the contentions advanced. The question raised by the petitioner is with regard to her claim for family pension on the basis of the

nominations and her valid marriage to the deceased ex-service man as is evident from Exhibit P1. The question whether the marriage between her

husband and Smt.Bhargavi Amma, who was allegedly aged only 14 years, in 1966 is no longer relevant, since it is an admitted fact that the said

Bhargavi Amma never raised any claim and now she is no more. The question with regard to the legality of the marriage of the petitioner is also

irrelevant in view of the fact that there are no rival claimants to family pension. In the above view of the matter, I am of the opinion that since the

petitioner is the legally wedded wife of the late ex-service man and his nominee according to the pension papers, since there is no rival claimant, the

claim of the petitioner for family pension is liable to be considered in accordance with law. Ext.P12 reply does not consider the specific claim of the

petitioner for family pension and is only an evasive reply. The contention that the AFT is sitting and is holding special virtual sittings to consider urgent

matters would not be a ground to non-suit the petitioner in view of Section 14 of the Armed Forces Tribunals Act, which provides for ouster of

jurisdiction of all courts except High Courts exercising jurisdiction under Article 226 of the Constitution of India and of the Apex Court. In view of the

fact that the existence of an alternate remedy can, by no stretch of imagination, be an absolute bar for exercise of the discretionary original jurisdiction

by this Court, I am of the opinion that the writ petitioner, who is a 70 year old widow, should not be non-suited on the ground of the existence of an

alternate remedy.

In the above view of the matter, the impugned order is set aside. There will be a direction to the competent among the respondents to take up the

claim raised by the petitioner for family pension and consider and dispose of the same taking specific note of the fact that the petitioner has been

accepted as the legally wedded wife of the ex-serviceman for years together and that there is no rival claim raised from any quarters for family

pension. The specific claim of the petitioner for family pension shall be considered in accordance with the relevant rules and appropriate orders passed

within a period of two months from the date of receipt of a copy of this judgment.

Writ petition is ordered accordingly.