Ratno Devi vs Union of India

M.M. Kumar, C.J.—The instant appeal under Clause 12 of the Letters Patent is directed against the judgment and order dated 24.05.2013

rendered by the learned Writ Court while dismissing the writ petition filed by the appellant claiming family pension in lieu of the death of her son

who died in harness. A short question which emerges for determination is ""whether the appellant-Mother or the remarried widow (respon-dent-7)

would be entitled to Family Pension"". The appellant felt aggrieved because official respondents passed an order dated 27.02.2006 awarding family

pension to the remarried widow Sneh Lata-respondent No. 7. The appellant had a son, namely, Ramesh Lal, who was employed in Border

Security Force. He was serving in 73 Battalion of the Border Security Force (No. 99121625) and died in harness on 27.09.2005. He was

survived by the appellant-his mother and respondent No. 7-his widow. The family pension was released by official respondents to the widow of

Ramesh Lal, namely, Smt. Sneh Lata-respondent No. 7.

The appellant leveled allegation that the widow has re-married after two/three months of the death of her son. The appellant claimed to have

performed last rites of her deceased son because the widow-respondent No. 7 left her house and solemnized marriage with one Bunty Kumar who

is her nephew. She started living with him as his wife. The appellant sent representation to the B.S.F. Authorities and prayed for grant of family

pension to her. According to her, the family pension was illegally granted in favour of the widow-respondent No. 7 which is against provision of the

Central Civil Services (Pension) Rules 1972 and various other orders issued in that regard.

Keeping in view the allegation of re-marriage, the Writ Court on 17.04.2010 issued direction to the Additional District Judge (Matrimonial

Cases), Jammu to record his finding on the issue as to whether the widow-respondent No. 7 had re-married after the death of her husband, Sh.

Ramesh Lal. The Additional District Judge (Matrimonial Cases), Jammu submitted his report on 01.10.2011 opining that she had re-married after

the death of her husband with one Mr. Bunty Kumar and they have been living as husband and wife. The claim that Mr. Bunty Kumar is her

nephew has also not been rebutted. In other words, it was established that before marriage, the widow-respondent No. 7 was aunt of Mr. Bunty

Kumar. However, learned Additional District Judge traversed the area of legality of marriage under Hindu Marriage Act opining that such a

marriage cannot be regarded as a valid marriage and therefore, it is void. The operative part of the report would read as under:-

The instant case clearly falls within the preview of Section 5(iv) as the two are closely related to each other. For the purpose, relations are defined

in the Hindu Marriage Act under the head of Sapindas and also under the head of prohibited relationship. Here the only rider is that where the

customs and usage of both the parties allow such marriage, the marriage would not be a void marriage, but there is a need to establish the fact of

such customs and usage before the court if an objection to the validity of the marriage is raised on this ground. There is nothing on record to

suggest that any custom of a marriage between a woman with the nephew of her deceased husband can be entered into. Even the witnesses

examined by the complainant have termed that such a marriage is unacceptable in the society. The custom of marriage solemnized within scope and

mandate of Section V, Clause IV is not prevalent in R.S. Pura or Jammu, therefore, the marriage is within prohibit relation therefore void.

Mr. Jamwal learned counsel for the appellant has argued that the factum of re-marriage with Bunty Kumar stands categorically established on

record beyond any doubt. He then made a reference to Rule 54(6) of Family Pension Scheme to argue that the family pension is payable to the

widow till her death or re marriage whichever is earlier. The submission seems to be that the widow-respondent No. 7 having re-married would

not be entitled to family pension. Learned counsel argued that the writ court committed grave error in law by taking too legalistic view that her

marriage with Mr. Bunty Kumar her own nephew would not be considered as marriage in the eyes of law. Mr. Jamwal has further argued that

definition of expression 'family' is available in Rule 14(b) of the 1972 Rules which include 'wife' in the case of a male Government servant or

'husband' in the case of female Government servant. In the definition parents were not initially covered. However, the Government of India,

Department of Pension issued Office Memorandum No. 45/86/97-P & PW(A) PART-4 dated 27.10.1997 wherein dependant parents, widow

and divorced daughter were also included in the definition of family. Therefore, appellant would be eligible to seek her entitlement to the grant of

family pension.

Mr. Ajay Sharma, learned CGSC has not rebutted the submissions of Mr. Jamwal on the question of definition of family and the rules providing

for discontinuation of family pension after re-marriage of a widow.

However, Mr. Kalgotra learned counsel for the widow-respondent No. 7 has argued that the rule for grant of family pension to widow was

inserted to empower the females so as to rescue her from any exploitation. According to learned counsel, widow-respondent No. 7 has not been

given anything and was pushed out of the matrimonial home by the appellant and other members of the family. Therefore, the view of the learned

Single Judge holding that the marriage was a void marriage must be up-held.

Having heard learned counsel for the parties and perusing the record with their able assistance, we are of the view that too legalistic view taken

by the learned Single Judge in this matter has resulted in defeating the real object of the 1972 Rules and the Family Pension Scheme framed under

Rule 54. The basic object of rewarding family pension is that dependent's day to day needs are taken care of. It provides some solace in the shape

of financial security to such dependents. It is in this background that Rule 54(6) provides for discontinuation of payment of family pension to a

widow getting remarried and if such a dependent has adequate income. Clause 6 of Rule 54 of Family Pension Scheme is relevant for the purpose

of finding out whether widow respondent No. 7 would continue to be entitled for the award of family pension. The relevant extracts of the rule are

set out below in extenso for facility of reference:

54(1) to (5).............

(6) The period for which family pension is payable shall be as follows:-

(i) In the case of a widow or widower, up to the date of death or re-marriage, whichever is earlier;

(ii) In the case of a son, until he attains the age of (twenty-five) years; and

(iii) In the case of an unmarried daughter, until she attains the age of (twenty-five) years or until she gets married, whichever is earlier.

A perusal of the aforesaid rule would show that family pension would be payable to a widow throughout her life till death or re-marriage

whichever is earlier. In the present case, the factum of her re-marriage has been proved beyond any doubt. We are not concerned with the validity

or legality of such marriage because on the language of the rule, no such interpretation would be permissible. Moreover for interpreting such a

piece social legislation an extreme legalistic approach must be avoided because it may result in defeating its real object of ameliorating the suffering

of a dependent which could be curbed only by some financial support. Once the report of learned Additional District Judge shows that respondent

No. 7-widow had remarried, she has acquired a social security, dependency and even emotional support. Therefore, we are content to rely on the

factum of marriage and do not feel the necessity of determining its legal status.

It has further come on record that the expression 'family' in relation to a Government servant is not confined to wife or husband. Clause 14(b) of

the scheme defines expression 'family' and the same is extracted below in extenso:-

(b) ""family"" in relation to a Government servant means-

(i) Wife in the case of male Government servant, or husband in the case of a female Government servant.

Note 1.-Deleted.

Note 2.-Deleted

(ia) judicially separated wife or husband, such separation not being granted on the ground of adultery and the person surviving was not held guilty

of committing adultery.

(ii) Son who has not attained the age of (twenty-five) years and unmarried daughter who has not attained the age of (twenty-five) years, including

such son and daughter adopted legally.

The aforesaid definition of ""family"" remained in vogue for considerable period. Presumably, keeping in view the Indian scenario concerning

dependent parents they have been included in the definition by para. 7.2 of the Office Memorandum dated 27.10.1997 and the same reads as

under:

(26) Dependent parents and widowed/divorced daughter also included in the definition of family.-For the purpose of grant of Family Pension, the

definition of Family shall also include:

'(a) Parents who were wholly dependent on the Government servant when he/she was alive provided the deceased employee had left behind

neither a widow nor a child.

(b) Son/daughter including widowed/divorced daughter till he/she attains the age of 25 years or up to the date of his/her marriage/remarriage,

whichever is earlier.'

Income criteria:-The income criteria in respect of parents and widowed/divorced daughters will be that their earning is not more than Rs. 2,550

per month. The parents will get Family Pension at 30% of basic pay of the deceased: employee, subject to a minimum of Rs. 1,275 per month.

They also will have to produce an annual certificate to the effect that their earning is not more than Rs. 2,550 per month. Further the Family

Pension to the widowed/divorced daughter will be admissible till they attain the age of 25 years or up to the date of her re-marriage, whichever is

earlier.

A perusal of the aforesaid para would not leave any manner of doubt that the dependent parents are included in the definition ""family"" and

accordingly they would be entitled to grant of family pension in case the widow is found not entitled because of her remarriage.

As a sequel to the above discussion and for the reasons mentioned in the preceding paras pension, payment order No. 240550606088 dated

27.02.2006 issued by Directorate General, Border Security Force, New Delhi granting pension to Sneh Lata-respondent No. 7 widow of Sh.

Ramesh Lal is quashed. The judgment of the learned Single Judge dated 24.05.2013 is set aside. The official respondents shall release the pension

in favour of Ratno Devi-appellant. The needful shall be done within a period of two months from the date of receipt of copy of this order. The

appeal along with connected application(s) stand disposed of accordingly.