Smt. Ramgiri Devi vs Union Of India (Uoi) And Ors.
2006 Latest Caselaw 1494 Del

JUDGMENT

Swatanter Kumar, J.

1. What is the ambit and scope of Rule 98 of the Pension Regulations for Army 1961, Part-I, on the grant of Special Family Pension, is the question that falls for consideration of the Court in the present Writ Petition under Article 226 of the Constitution of India. The Rule reads as under:

Ordinary or Special Family Pension granted to the widow of a deceased officer shall be discontinued under the following circumstances:

(a) If she proves unworthy of it; or

(b) if she remarries.

Note: Condition in Clause (b) will not apply to widow in receipt of special family pension who remarries her deceased husband's real brother and continues to live a communal life with and/or contributes to the support of the other dependants of the deceased husband.

2. The sepoy, Mr. Deep Chand, was enrolled in Kumaon Regiment of the Indian Army on 01 December, 1961 and was allotted Service number 4147424. While taking part in the Indo-China War, the said soldier died on 18 November, 1962. Unfortunately, the petitioner, who claims to be the widow of the deceased, met with an accident as a result of which she got paralyzed and became immobilized for lifetime. With no one to look after her and as a handicapped person and by the influence of the various family members, the petitioner got married again to Shri Mahavir Prasad, cousin of deceased husband, on 26 January, 1968. The petitioner did not leave the ancestral house of her late husband and kept on staying with the mother of the deceased husband.

3. Vide letter dated 13 September, 2002, the petitioner was intimated that she would not be entitled to Special Family Pension any more in view of the Order of the Government of India dated 01 February, 1972, which provided a ban for grant of Special Family Pension on re-marriage to a person other than the real brother of the deceased. Aggrieved from this Order, the petitioner served a legal notice on 18 March, 2004 upon the respondents, but of no consequence, resulting in filing of the present Writ Petition by the petitioner.

4. The claim of the petitioner is that she has, in substance, not violated the spirit of Rule 98 inasmuch as the essence of the provision is that she should continue to live a communal life with the element of supporting other dependants of the deceased husband. As she is living in the same house with the other members of the family, she cannot be denied the Special Family Pension, and particularly, keeping in mind her physical state.

5. In the counter-affidavit filed by the respondents, the claim of the petitioner is disputed and it is stated that once she has married anybody else except the real brother of the deceased, her right to claim Special Family Pension would automatically come to an end. It is also stated that this Court has no territorial jurisdiction. The fact that a Special Family Pension was granted vide Order dated 16 July, 1963 is not disputed and after her remarriage, the entitlement ceases. According to the respondent, the petitioner has been granted ordinary family pension under the provisions of the Pension Payment Orders and it is only that she would not be entitled to Special Family Pension for the above reasons. It is not admitted that she is paralytic but only she suffers disablement of 55 per cent for her deformity 'right foot drop' as per the Medical put forward by her to the Department. In these circumstances, it is submitted that the petition may be dismissed.

6. The plain reading of the regulation of Rule 98 clearly shows that remarriage to a person other than the real brother of the deceased husband would invite the bar as contemplated under the said regulation. The petitioner has not challenged in the present Writ Petition that the said regulation is ultra vires or is unconstitutional for any reason whatsoever. Once the regulation is part of the statutory book, then it has to be given full effect. The word 'and' cannot be read as 'or'. It must be read in conjunction with the earlier part of the Note to the Rule, i.e., except a person who remarries the deceased person's real brother, remarriage would result in forfeiture of the right to claim family pension. The claimant's continuing to live communal life with and/or contribution to the support of other dependants of the deceased husband are additional factors. As Note is an exception to Rule 98 (b) and the exception is a composite one having different and distinct features, all these features must be satisfied to take advantage of the exception contained in the Note.

7. In the present case, there is no dispute even to the fact that the petitioner got remarried to a person who is not the real brother of her deceased husband. Once that condition is not satisfied, the action of the respondents in denying Special Family Pension to the petitioner cannot be faulted with. It is also conceded that the petitioner is receiving ordinary pension @ 1275/- per month w.e.f. 01.1.1996, which she will continue to receive.

In view of the above discussion, we are unable to accept the contention of the petitioner. The present Writ Petition is dismissed while leaving the parties to bear their own cost.