Smt. Kashmiro Devi vs Union Of India (Uoi) And Ors.
2008 Latest Caselaw 823 Del

JUDGMENT

Sanjay Kishan Kaul, J.

1. The petitioner seeks ordinary family pension which has been stopped on account of her remarriage to the brother of her deceased husband, who died in service.

2. Late Sepoy Sher Singh joined Army and died while in active service on 02.12.1975. The petitioner, being the wife of the deceased Sepoy, was granted ordinary family pension from the said date. The petitioner, as per local customs, remarried the real brother of her deceased husband on 21.11.1977 and the ordinary family pension was discontinued from the date of the marriage. It appears that the petitioner did not raise the issue further for almost 17 years when she sent a legal notice through her counsel on 10.06.1994 demanding release of the pension. In reply to the said demand, the respondents vide letter dated 14.07.1994 informed her that she was not entitled to the ordinary family pension in view of her marriage to the brother of her deceased husband. The petitioner has thereafter filed the present petition on 25.03.1995.

3. In the counter affidavit, it has been stated that the death of late Sepoy Sher Singh was considered neither attributable to nor aggravated due to military service as he had died as a result of Thrombosis in the artery. The case for special family pension was rejected but ordinary family pension was sanctioned to the petitioner vide Pension Payment Order (PPO) dated 12.09.1977. A specific note was also given on reverse side of the PPO as under:

For the purpose of this Award, the marriage even with the real brother of the deceased soldier will be a disqualification.

4. A distinction has been sought to be made with a case of a widow of a soldier killed in action where even though the marriage is with the real brother of the deceased husband, in order to maintain a harmonious family life, the special family pension granted in such cases envisaged continuation of the family pension. The special family pension is stated to be governed by Regulation 216 of the Pension Regulations for the Army, 1961 (hereinafter to be referred to as, 'the said Regulations') while the case of the petitioner is stated to be governed by the provisions of the Administrative Instructions (AI) 51 of 1980, which is incorporated as Regulation 212. The case, thus, is that the provisions of Regulation 219, which extends the benefit even to the married widow in case the remarriage is with the brother, is applicable only to such special family pension and does not apply to the ordinary family pension.

5. In order to appreciate the rival contentions, it is the inter-play of the aforesaid Regulations and the Administrative Instructions, which have to be considered. It may be noticed that Army personnel are governed by the Army Act, 1950 (hereinafter to be referred to as, 'the said Act'). The Army Rules, 1954 have been enacted in pursuance to the powers conferred under Section 191 of the said Act. A number of non-statutory Administrative Instructions / Orders have been issued by the Government / Service Headquarters in respect of the service conditions of the personnel of the defense Forces including in respect of pensions. The matters pertaining to pensions have been consolidated in the form of the said Regulations, which is a compendium of such Orders and Instructions.

6. Section V deals with the family pensionary awards and Sub-section II thereof is in respect of Family Pension and Gratuity. Under Sub-section II, the sub-heading of 'Ordinary Family Pension' incorporates Regulation 212. Regulation 212 in turn stipulates that AI 51 of 1980 reproduced in the Officers Section deals with the matter in issue. AI 51 of 1980 reads as under:

AI 51 of 1980

Grant of Ordinary Family Pension

1. In supersession of all existing orders on the subject, the family pensionary benefits, as detailed in paragraph 2 and subsequent paras will be admissible to the families of the Armed Forces personnel (excluding families of reservists), who were in services on 1.1.1964 or who joined / join service thereafter and who died / die while in service or after retirement with a retiring, disability or invalid pension / special pension, on account of causes which are neither attributable to nor aggravated by service.

6. Family for the purpose of Family Pension means:

(i) Wife / Husband provided the marriage took place before retirement and also judicially separated wife / husband if the judicial separation was granted not on ground of adultery and the person surviving was not held guilty of committing adultery.

(ii) Sons below the age of 25 years.

(iii) Unmarried daughters below the age of 25 years.

(iv) Sons and daughters adopted legally up to the age limit (ii) and (iii) above.

7. The pension will be admissible:

(a) to a widow or widower up to the date of death or disqualification whichever is earlier;

(b) to a son until he attains the age of 25 years.

(c) to an unmarried daughter until she attains the age of 25 years or marriage whichever is earlier.

Provided that if a son or daughter is suffering from any disorder or disability of mind or is physically crippled or disabled so as to render him or her unable to earn a living even after attaining the age of 25 years the ordinary family pension shall be payable to such or daughter for life (MOD Letter No. N49601/AG/PS4(e)/3363/B/D(Pens/serv) dated 7/8/87.

7. Note 2 in the said heading is as under:

Note 2:- No reduction in family pension will be made even if a cut was imposed in the pension of the individual whose death gives rise to the claim for family pension.

8. The provisions relating to special family pension are contained in Regulations 213 to 216 along with the notes. The relevant portions read as under:

Special family pension

213. A special family pension may be granted to the family of an individual if his death was due to or hastened by -

(a) a wound, injury or disease which was attributable to military service,

or

(b) the aggravation by military service of a wound, injury or disease which existed before or arose during military service.

...

Eligible members of the family

216. The following members of the family of a deceased individual shall be viewed as eligible for the grant of a family pension, provided that they are otherwise qualified:

(a) Widow lawfully married.

(b) Father.

(c) Mother.

(d) Son, actual and legitimate.

(e) Daughter, actual and legitimate.

Note. - The term "father" and "mother" (or "parents") used in the above or any other rule in this sub-section shall also be deemed to include such putative parents (or surviving parent as the case may be) as had not contracted a lawful marriage, but were living as husband and wife at the time of or got lawfully married subsequent to, the conception of the deceased member of the forces.

9. There is a heading under 'Nomination of an heir to family pension', which contains Regulations 218 to 219. Regulation 219 reads as under:

Conditions of eligibility for a family pension

219. A relative specified in regulation 216 shall be eligible for the grant of family pension, provided -

General

(i) he or she is not in receipt of another pension from Government.

(ii) he or she is not employed under Government (but see regulation 222).

(iii) A widow has not remarried.

This condition shall not apply to a widow who remarried her deceased husband's brother, and continues to live a communal life with and / or contributes to the support of the other living eligible heirs.

...

10. Learned Counsel for the respondents has also pointed out that there is a separate extract in respect of ordinary family pension in the form of Administrative Instructions, which reads as under:

Extract from SAI 2/S/64

Grant of ordinary family pension to widows / children of certain certificates of Army Personnel Governed by Military Rules

...

5. The pension will be admissible:

(a) to a widow up to the date of death or remarriage whichever is earlier;

(b) to a minor son until he attains the age of 18 years;

(c) to an unmarried daughter until she attains the age of 21 years or marriage whichever is earlier.

Note : In cases where there are two or more widow, pension will be payable to the eldest surviving widow. On her death will be transferred to next surviving widow, if any. The eldest would mean seniority with reference to the date of marriage.

11. In a nutshell, the submission of learned Counsel for the respondents is that the special family pension is meant for such personnel who have died while serving the Army and the death is due to or hastened by the attributability or aggravation of military service. There is, thus, stated to be an intelligible differentia between the criteria for grant of special family pension as compared to ordinary family pension, which is granted to persons whose demise is not on account of causes attributable to or aggravated by military service. The special family pension is available to the widow, children, dependent parents, etc. while the ordinary family pension is more restrictive in its application being only for a widow / son till he attains 25 years of age and unmarried daughter only she attains 25 years of age. It was, thus, pleaded that it is Regulation 212 (AI 51 of 1980) which is applicable to cases like the petitioner and the provisions of special family pension like Regulation 216 would have no application to the case of the petitioner.

12. Regulation 219 is stated to be only for the special family pension though it appears under the heading of 'Nomination of heir to family pension'. This is so submitted on account of the fact that Regulation 219 stipulates that it refers to relatives specified in Regulation 216. It was, thus, submitted that though the phraseology used is 'family pension' in Regulation 219, the reference to Regulation 216 makes it clear that what is dealt with is only 'special family pension' and not other kinds of 'family pension'.

13. The submission of learned Counsel for the petitioner is to the contrary as it is stated that Regulation 219 comes to the aid of the petitioner and there is a clear provision made that though it is admissible to a widow, who is not remarried, the condition would not apply to the widow who remarries the deceased husband's brother and continues to live a communal life and / or contributes to the support of the other living eligible heirs. In the alternative, it is submitted that there is no intelligible differentia and the distinction sought to be made between a widow who remarries and is on receipt of a special family pension as distinct from an ordinary family pension is clearly arbitrary and illegal and the Regulation should be construed in a manner so as to treat all widows at par.

14. Learned Counsel for the petitioner has also referred to certain judicial pronouncements of the Punjab & Haryana High Court dealing with the subject matter. In Kiran Kumar v. State of Haryana and Ors. 2004 (2) SLR 694, it was held that a widow, who after remarriage, continues to live a common life and / or contributes to support all other living eligible heirs of the family, is entitled to a family pension even though she has remarried the brother of the deceased husband. A reference was also made to an earlier pronouncement in Kamaljit Kaur v. Union of India 1997 (3) PLR 451. It would be useful to extract paras 5 and 6 of the said judgment, which read as under:

5. Firstly, there is no rule which prohibits grant of family pension to the widow of the deceased who has remarried and particularly in the same family. The object of the rule is not to deny benefit of family pension to the dependent of the deceased, but, obviously provides an exception to that concept by postulating a situation where the widow remarried independently and her economic dependence upon the deceased is disintegrated, from the need of the family. In the present case, both such situations exist. Admittedly, the daughter of the deceased is living with the petitioner, who has remarried with the younger brother of the deceased. The economic dependence of the family, thus, continues in its entirety and ingredient of an exception seems to be satisfied in the present case.

6. Furthermore, we may refer to judgment of this Court in the case of Kamaljit Kaur v. Union of India and Ors. 1997 (3) PLR 441, wherein the Court while dealing with the Regulations 216 and 219 of the Service Pension and Gratuity Regulations in somewhat similar circumstances granted relief to the petitioner and held as under:

Petitioner, widow of Malkit Singh, married with the brother of the deceased. This fact is admitted in the written statement. In such a situation, the relevant Rule that applies to the case in hand is Rule 219 of Section 2 of Service Pension and Gratuity. That Rule states that "A relative specified in Regulation 216 shall be eligible for the grant of family pension". Widow is one mentioned in Regulation 216. Thus, it is beyond controversy that widow is entitled to pension under Rule 219. That Rule further states that if the widow re-marries her deceased husband's brother and continues to live a common life with and/or contributes to the support of the other living eligible heirs she continues to be entitled to family pension. In this case petitioner re-married deceased's direct brother. She is maintaining the son born to her through the deceased, thus, petitioner continues to have a right to get the family pension. That family pension was denied to her from May, 1994. The said action on the part of the respondents was illegal. So, respondents are directed to pay the entire arrears of pension due to the petitioner within a month from today. If the entire arrears are not paid within one month, as stated above, that entire arrears are not paid within one month, as stated above, that entire arrears will carry interest at the rate of 12% per annum from the date of the expiry of one month till the date of actual payment. We direct the respondents to continue to disburse the family pension due to petitioner regularly month by month. Petition is allowed as indicated above. Since respondents have raised all cantankerous contentions in the written statement filed in this case, we feel that it is a fit case where they are to be mulcted with costs. Respondents are directed to pay the costs of the petition including Advocate's fee of Rs. 2,000/-.

15. Learned Counsel also referred to the Order of the Division Bench of the same Court in C.W.P. No. 3415 of 1996 titled 'Smt. Surjit Kaur v. Chief Controller defense Accounts (Pensions), Allahabad' decided on 02.12.1996 wherein the aforesaid Regulations were considered. It was held that there was entitlement of ordinary family pension on a reading of Regulation 212, 216 and 219 in case of remarriage with the brother of the deceased husband. In Daljit Kaur v. Union of India and Ors. 2007 (2) SLR 87, learned Single Judge of the same Court observed as under:

6. Having heard learned Counsel at some length, I am of the considered view that this petition deserves to be allowed. The view taken by the Division Bench in Kamaljit Kaur's case (supra) has been rightly relied upon in Smt. Chawli Devi's case (supra). There is nothing in the rules dealing with the family pension, which may overcome the proviso attracted to Regulation 219 which is in the form of an exception, namely, that if a widow remarry with the deceased husband's brother and continues to live with him in commune and/or contribute to support other living heirs then she would be entitled to the grant of family pension. It appears that the case of the petitioner is covered by the aforementioned two judgments of this Court. When a person dies in uniform either while actually engaged in action or activities related to military service then he must be regarded to have died on account of injuries suffered by him attributable to military service. It has been held by a Division Bench of this Court in the case of Jarnail Singh v. Union of India 1997 (3) SCT 484 (P&H) : 1998 (1) SLR 418 (Pb. & Hry.) that a remote connection between the cause of death and the military service should be regarded as sufficient to conclude that the death was attributable to military service.

...

16. We have given our deep thought to the matter, especially taking into consideration the object of the Regulations and the factum of the petitioner being a widow of the Sepoy who died while in service.

17. It cannot be lost sight of that the object of a pension is to provide succor to the family members of a deceased personnel who has been unfortunately snatched away during the middle of his service. Such death causes trauma to the family both mental and financial. It is only the financial trauma which is sought to be remedied by providing for pension to the legal heirs of the deceased serving personnel. There are different categorizations of such pension depending on the circumstances in which the death occurred. There is no dispute that a distinction can be made between cases where a person has died while engaged in active military service and a person who dies in service on account of factors not attributable to or aggravated by military service. The second aspect itself is questionable in cases like the petitioner where the death is on account of Thrombosis when it is known that the demands of the services create their own pressures. Be that as it may, the two categories of pension have been specified where the ordinary family pension is almost half of the special family pension. The result is that in case like the deceased husband of the petitioner, the pension element is itself on a lower side.

18. The proposal that on marriage of such a widow, the pension should cease cannot be quarrelled with because her dependency is gone and she goes into another family where she is maintained by the current husband. The respondents were, however, conscious of the fact that there was local customs prevalent where often 'Chadar' was put by the brother of the deceased person so that the widow remains within the family and is provided support and succor. Thus, to encourage and provide for family support to such a widow that an exception has been carved out under Regulation 219 that even if a widow remarries and the marriage is with the brother of the deceased husband, the pension would not be terminated. There can be no distinction made between a widow of a person who has died by reasons attributable to or aggravated by military service and a person who has died just in service since the problems faced by the widows are identical. The difference in the cause of the death, however, has resulted in difference in the value of the pension.

19. The object of maintaining the widow in the commune of the family remains the same which is the cause for the exception carved out in Regulation 219.

20. It is no doubt true that Regulation 212 is based on the Administrative Instructions as incorporated therein. Here, remarriage disentitles her to pension. Similarly, Regulation 216 under the heading of 'Special Family Pension' also refers to family pension. No doubt, the first sentence of Regulation 219 does make a reference to Regulation 216, but that is in the context of the number of heirs specified therein which include not only heirs as enlisted in Regulation 216, but also under Regulation 212 - (Regulation 212 having more restricted number of heirs). The case of the widow falls under the heading 'General'. The disqualification in case of a widow, who is remarried, is qualified by the condition that as long as she is remarried to the brother of the deceased husband and continues to live a communal life and / or contributes to the support of the other living eligible heirs, she would not be disentitled to pension. We see no reason why this principle should not equally apply to the ordinary family pension under Regulation 212 and should be restricted only to special family pension under Regulation 216. A contrary view would result in an arbitrary distinction which would be hit by Articles 14 and 21 of the Constitution of India.

21. Learned Counsel for the respondents did seek to emphasize that the PPO issued to the petitioner itself provided for the restriction, but then if the PPO is contrary to the Regulations being the Administrative Instructions, it cannot hold fort. It can also not be lost sight of that these Regulations were Administrative Instructions are for guidance of the Authorities and does not really have a statutory force. There can be no rationale differentia much less intelligible differentia between the widow in receipt of a special family pension and an ordinary family pension so far as her lack of disqualification on remarriage to the brother of the diseased husband is concerned. This view is fortified by the pronouncements of the Punjab & Haryana High Court referred to aforesaid. We are inclined to follow the same line.

22. We are, thus, of the considered view that the petitioner is entitled to the ordinary family pension since she has married only the brother of her deceased husband and falls within the 'exception' category. However, in view of the delay on the part of the petitioner in approaching the Court, it is not possible to direct payment of arrears to the petitioner beyond the period of three years prior to the date of filing of the petition which is 25.03.1995 and, thus, the petitioner would be entitled to the said ordinary family pension from April, 1992 onwards.

23. A writ of mandamus is issued directing the respondents to pay ordinary family pension to the petitioner and to make payment of the arrears from 01.04.1992 till the date of filing of petition within a period of three months from the date of the judgment.

24. The writ petition is allowed leaving the parties are left to bear their own costs.