*IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 28th April, 2011
+ W.P.(C) 5159/2008
ANITA ..... Petitioner
Through: Mr. Baankey Bihari Sharma,
Advocate.
versus
RITA & ORS. ..... Respondents
Through: Dr. Vijendra Mahandiyan & Ms.
Pallavi Awasthi, Advocates for R1
to 3.
Mr. Ashwani Bhardwaj, Advocate
for R-4 to 6.
+ W.P.(C) 8241/2009
ANITA ..... Petitioner
Through: Mr. Baankey Bihari Sharma,
Advocate.
versus
UOI & ORS. ..... Respondents
Through: Mr. Ashwani Bhardwaj, Advocate.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. Whether reporters of Local papers may No
be allowed to see the judgment?
2. To be referred to the reporter or not? No
3. Whether the judgment should be reported No
in the Digest?
RAJIV SAHAI ENDLAW, J.
W.P.(C) 5159/2008 & W.P.(C) 8241/2009 Page 1 of 6
1. One Shri Jai Rajan Panikar was a civil employee of the Indian Air Force. He had filed a petition for dissolution of his marriage with Smt. Anita (petitioner in both petitions). The said petition was dismissed and he had preferred an appeal to this Court against the order of dismissal of his petition seeking divorce. During the pendency of the appeal before this Court, the said Shri Jai Rajan Panikar died. Smt. Anita applied to the Air Force for release of family pension and other service benefits of the said Shri Jai Rajan Panikar.
2. At that stage, Smt. Rita and her two minor children Prerna and Hardek filed a suit before the Civil Judge claiming that the said Smt. Rita was the wife of Shri Jai Rajan Panikar and the minors Prerna and Hardek were his children and to inter alia restrain Smt. Anita from withdrawing the pensionary and other service benefits of Shri Jai Rajan Panikar. Though an interim order was granted initially in the said suit by the Civil Judge but the application for interim relief was ultimately dismissed. Smt. Rita and her children Prerna and Hardek appealed thereagainst and which appeal was decided and allowed by the Addl. District Judge and which W.P.(C) 5159/2008 & W.P.(C) 8241/2009 Page 2 of 6 order is subject matter of challenge in W.P.(C) No.5159/2008. The Addl. District Judge held that since the children, claimed to be of the deceased Sh. Jai Rajan Panikar, if so proved, were entitled to the benefit of Section 16 of the Hindu Marriage Act, 1955, the pensionary and other benefits could not be permitted to be disbursed till the said question was decided. Accordingly, the Air Force was restrained from releasing the pensionary and other benefits to Smt. Anita.
3. Ordinarily, a CM(M) petition under Article 227 of the Constitution of India and not writ petition under Article 226 as preferred, would lie against such an order . The order sheet however shows that this writ petition was in fact directed to be listed before the Roster Bench dealing with CM(M) but was transferred to the Bench dealing with the writ petitions for the reasons of being connected with W.P.(C) No.8241/2009.
4. W.P.(C) No.8241/2009 has been filed by Smt. Anita seeking mandamus to Air Force to release the pensionary and other benefits to her. W.P.(C) 5159/2008 & W.P.(C) 8241/2009 Page 3 of 6
5. Though the counsel for the Smt. Rita and her children Prerna and Hardek has sought adjournment of the matter contending that an application on behalf of the minor children has been filed but which could not be got listed inspite of best efforts, but considering that the matter has been pending for long, need was not felt to adjourn and a copy of the application has been taken from the counsel and placed on record. In the said application direction is claimed to the Air Force to release to the minors the service benefits of the said Shri Jai Rajan Panikar of their share.
6. The counsel for the petitioner has contended that he is at this stage pressing the petitions only for relief of the release of pension and the release of the other benefits may be left to be adjudicated after the disposal of the suit pending before the Trial Court.
7. As far as the claim of the minors in the application aforesaid for the release of service benefits of their share to them is concerned, in my opinion the appropriate Court for moving the said application would be the Trial Court and not this Court. The said prayer is accordingly disposed of with liberty to approach the Trial Court.
W.P.(C) 5159/2008 & W.P.(C) 8241/2009 Page 4 of 6
8. As far as the pension is concerned, the marriage of Smt. Anita with Shri Jai Rajan Panikar of which Shri Jai Rajan Panikar himself had sought dissolution cannot be disputed. The said Smt. Anita would accordingly be entitled to the family pension which as per rules is in the first instance, entitlement of the widow only. Even if the minors Prerna and Hardek are to be proved to be children of deceased Shri Jai Rajan Panikar and entitled to benefit of Section 16 (supra), their claim for pensionary benefits would arise only after the widow of the deceased namely Smt. Anita.
9. It has as such been enquired from the counsel for the Smt. Rita and her children as to how Smt. Anita can possibly be deprived of the pensionary benefits. No answer has been forthcoming.
10. Accordingly, the order of the Addl. District Judge in so far as restraining release of pensionary benefits to Smt. Anita is concerned, is set aside. The Air Force is directed to release the arrears of pension together with interest if admissible thereon within six weeks from today to the said Smt. Anita and to in future also continue to pay the pension in accordance with law to Smt. Anita.
W.P.(C) 5159/2008 & W.P.(C) 8241/2009 Page 5 of 6 The petitions are disposed of with no order as to costs. Dasti under signature of court master.
RAJIV SAHAI ENDLAW (JUDGE) APRIL 28, 2011 pp..
W.P.(C) 5159/2008 & W.P.(C) 8241/2009 Page 6 of 6