Smitaben Hiralalbhai Parmar vs The General Manager (Finance)
2021 Latest Caselaw 1582 Guj

         C/SCA/17517/2019                                    ORDER




          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

           R/SPECIAL CIVIL APPLICATION NO. 17517 of 2019

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                     SMITABEN HIRALALBHAI PARMAR
                                 Versus
                    THE GENERAL MANAGER (FINANCE)
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Appearance:
HCLS COMMITTEE(4998) for the Petitioner(s) No. 1
MS. JIGNA B SUCHAK(7004) for the Petitioner(s) No. 1
MR NIRAL R MEHTA(3001) for the Respondent(s) No. 1,2
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 CORAM: HONOURABLE MS. JUSTICE SONIA GOKANI
        and
        HONOURABLE MS. JUSTICE SANGEETA K. VISHEN

                            Date : 03/02/2021

                        ORAL ORDER

(PER : HONOURABLE MS. JUSTICE SONIA GOKANI)

1. By way of present petition, the challenge is made to the

orders/communications dated 02.01.2019 and 07.01.2019

passed by the respondent nos. 1 and 2 respectively whereby they

rejected the request of grant of family pension to the petitioner

on the ground of ineligibility.

2. The facts of the present case, in detail, are as follows: -

2.1. The father of the petitioner late Shri Hiralalbhai Parmar

was working on the post of Ex-cash Overseer, City Division,

Ahmedabad, who retired from his post on 28.02.2002 and he

was receiving pension from Khokhra Mahemdavad Post Office

C/SCA/17517/2019 ORDER

vide PPO No. GT 3180. The mother of the petitioner passed away

on 03.11.2006 and the father of the petitioner also passed away

on 17.09.2017.

2.2. The petitioner herself got married to one Mr. Nilesh

Manubhai Parmar on 17.05.1999, however due to matrimonial

dispute, it was decided to take customary divorce on 03.06.2000.

accordingly, mutually on the stamp paper, customarily she

separated from her husband and she continued to be with her

father thereafter.

2.3. On the death of her father, the petitioner filed an

application on 11.11.2017 before the respondent no.2 authority

to grant pension as per the CCS (Pension) Rules, 1972 as being

the divorced daughter as she would fit into the criteria of those

who are eligible. However, when she went to submit the said

application, she was orally informed by the respondent no.2

authority that she would have to obtain a decree of divorce from

the Court of law.

2.4. According to the petitioner, when orally it was conveyed

that as the divorce she has taken is by way of customary divorce

in the year 2000, there is a requirement of obtaining decree of

divorce from the Court of law, she by way of Family Suit No. 638

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of 2018 before the Family Court No. 4, Ahmedabad sought the

same and she was granted the decree of divorce as per mutual

consent.

2.5. She thereafter once again applied for the family pension

on 13.04.2018 along with the copy of writ of divorce as was

required of hers, therefore on 02.01.2019 and 07.01.2019 the

communications have been sent to the petitioner holding the

petitioner ineligible for grant of family pension.

2.6. It is the grievance on the part of the petitioner that she

is unemployed and has given no maintenance amount or

permanent alimony by her husband. She has customarily

divorced from the year 2000 and the approach on the part of the

respondent authority is hyper technical.

2.7. Reliance is also placed on the Office Memorandum dated

19.07.2017 which states that if the divorce proceedings are

stretched for the lengthy period, the grant of pension given to

those applicants whose divorce proceedings are pending as on

date of death of the government servant is also accepted.

3. Hence, the present petition is filed with the following

prayers: -

"(a) Be pleased to admit/allow this writ petition.

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(b) Be pleased to issue a writ of certiorari or any other appropriate writ, order or direction quashing and setting aside impugned orders/communications dated 02.01.2019 and 07.01.2019 passed by present respondent No. 1 and No. 2 Authority respectively,

(c) Pending admission, hearing, and final disposal of present petition stay execution and implementation of impugned orders/communications dated 02.01.2019 and 07.01.2019 passed by present respondent authorities,

(d) Be pleased to grant any other and further relief/s in the interest of justice."

4. On issuance of notice for final disposal on 09.10.2019, the

respondent appeared and filed the affidavit-in-reply. By way of

filing affidavit-in-reply it is urged that the in the pension papers

of late Shri Hiralalbhai Parmar, in form no.3, the name of the

present petitioner was not mentioned coupled with the fact that

the date of dissolution of marriage was declared w.e.f.

30.07.2018 and therefore, she is not found eligible to get the

family pension, not being dependent.

4.1. The Office Memorandum dated 19.07.2017 is also

produced which shows that the family pension can be granted to

the divorced daughter in case where the divorce proceedings

have been filed in a competent Court during the life time of the

employee - pensioner and the divorce takes place after the death

provided the claimant fulfill all other conditions for grant of

family pension under the CCS (Pension) Rules, 1972.

C/SCA/17517/2019 ORDER

5. Today the matter had been taken up for final hearing

considering the plight of the petitioner. Learned advocate Ms.

Suchak who is appointed in Legal Aid for the petitioner has

urged that the financial condition of the petitioner is quite

vitiable. She also has urged that she has a genuine customary

divorce in the year 2000 and thereafter, as there was a need for

the decree of divorce, by preferring the Family Suit No. 638 of

2018, she had obtained the same and yet, for no reason, the

denial has come from the respondent authority. She has further

urged that there are two sisters of the petitioner and both are

married and settled in their own life and there is no objection

from any of the heirs.

5.1. Learned advocate Ms. Suchak has heavily relied on the

decision of this Court rendered in Special Civil Application No.

324 of 2018 dated 10.02.2020.

6. We have heard learned advocate Mr. Niral Mehta appearing

for the respondent authorities, who has urged that there is

neither decree of customary divorce nor the decree which has

been obtained by the mutual consent, is being brought, however,

when the father died and thereafter she needed to fill-up the

form of pension, the petitioner is shown to be his dependent. In

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absence of her being reflected as a dependent by the father, the

authority had not considered the case. He further has submitted

that there neither any reason nor ineligibility criteria which

impediment the authority to consider the case except the factum

of not being reflected as a dependent by the employee.

7. Thus, having heard both the sides and also having closely

examined the material on record, we notice that the denial which

has come for and on behalf of the respondent for the first time

was on 11.11.2017. We noticed that the father of the petitioner

after serving for the life time, had passed away on 17.09.2017.

He retired from his post on 28.02.2002 and had continued to

receive the pension from the Khokhra Mahemdavad Post Office

vide PPO No. GT 3180. He survived till 17.09.2017 and in the

interregnum, the mother of the petitioner passed away on

03.11.2006.

7.1. On the death of the father, the petitioner made an

application after two months on 11.11.2017 for grant of pension

under the CCS Pension Rules, 1972, however, she was orally

conveyed of the impediment being the customary divorce paper

of the year 2000. She was required to obtained the decree of

divorce from the Court of law and resubmit her application. She,

for obtaining the decree of divorce had filed Family Suit No. 638

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of 2018 and obtained the decree of divorce by mutual consent on

30.07.2018. This also has a reference of the couple having

decree of divorce by mutual consent in customary way. The

reference is also made of the divorce date on a stamp paper of

Rs. 50/- which is 03.06.2000. She also had waived her right to

claim the maintenance from her husband. Accordingly, the

Court awarded decree on 30.07.2018.

7.2. We noticed that after the decree of divorce was produced

with a request to reconsider her request of being a dependent of

the employee and eligible to receive the family pension, a

communication dated 02.01.2019 was sent to her which reads

as under: -

"Sub: - Family Pension - Case of Smita H. Parmar D/O S.H.Parmar holder of PPO NO. GP-3180 Who Retired on 28/02/2002 & then expired on 17/09/2017

Ref: - Your office letter no. C-2/2/FP- CHILD/SHP/18-19 Dt.26.11.2018.

With reference to your letter cited above in connection with family pension case, it is intimated that postal pensioner expired on 17/09/2017. The Family pension claimed by Divorcee daughter Smita H Parmar. As per Divorce paper divorce paper was filed on 21.03.2018 and case was decided on 30.07.2018 after the death of postal pensioner S.H.Parmar expired on 17/09/2017. As per CCS pension rule 1972 rule 54 clarification no 27 the Divorcee daughter Smita H Parmar is not eligible for family pension the rule is reproduced here as under Only those children who are dependent and

C/SCA/17517/2019 ORDER

meet other condition are eligible for family pension at the time of death of the Government servant or his/her spouse. Kindly cause to return copy of pensioner portion of PPO/Revised PPO Dt. 17/11/2017 (Both copies) and intimate upon which period the Family Pension was paid."

7.3. This categorically recognizes the fact that only those

children who are dependent and meet other conditions are

eligible for the family pension at the time of death of the

Government Servant or his/her spouse, and the pension can be

given to them. As per the CCS Pension Rules, 1972, the

reference is made of Rule 54 Clarification No. 27 to state that the

petitioner is not one of those dependents who could meet the

criteria of getting the family pension.

7.4. We noticed that what has been objected to by the other

side is that at the time of filling-up the nomination form, the

petitioner is not being shown as a dependent. Such nomination

form has not come on the record. At the same time, there is no

date which is being referred to as to on which date such

nomination form is being filled-in. It is ordinarily to be filled-in at

the time when the service record is initiated. At a later stage, a

person can make changes and make nomination also and even if

there is a complete absence of nomination, that would not take

away the right of the dependent to get the family pension. As

submitted by learned advocate Mr. Mehta fairly that she is not in

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any manner ineligible for being a divorced daughter and for want

of any objection on the part of any other heirs, it is only because

her name is missing in the nomination form filled-in by the

father that she is being denied the pension. In our opinion, such

could hardly be the criteria which should weigh with the

respondent for denying eligible dependent the amount of pension

under the Pension Rules.

8. In Special Civil Application No. 324 of 2018, the Court was

dealing with the question as to whether the divorced daughter

was entitled to receive the benefit of family pension and was

required to produce divorce decree duly authenticated or issued

by the competent Court of law and could she be denied the

benefit if she only produces the customary divorce deed for

seeking the benefit of family pension. In that matter, family

pension recipient mother died on 25.10.2011 and on account of

her demise, the sole surviver in the family i.e. the original

applicant - divorced daughter became eligible to receive family

pension who approached the authority by making an application

in the month of August, 2012 and made a request for grant of

pension as per the provision of Rule 75 of the Railway Services

(Pension) Rules. This request was rejected on the ground that

she was needed to produce a valid divorce decree issued by the

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competent Court. The person with whom she had taken the

customary divorce had died on 09.07.2013 and in this

circumstances, the Court needed to consider the request of grant

of pension. Some of the findings and observation would deserve

reproduction at this stage: -

"15. The provision of Rule 75 of the Family Pension Rules, in fact, is a benevolent piece of subordinate legislation and therefore it needs to be governed by the principles which required to be pressed into service for extending the benefit of the family pension to those who are in need thereof, as it is intended to benefit those family members who needs support. Bearing this proposition of law in mind, if one examines Rule 75 which is also in pari-materia with Rule 54 of the said Rules, would indicate that the family pension is available to the divorced daughter. The Rule does not recognized any further or other requirement to be eligible for receiving the family pension. The device in the form of guideline developed by the authorities and incorporated in Office Memorandum are, therefore, to be viewed as only facilitating tools to assess gauge and examine the cases of the divorced daughter to receive family pension on the basis of the eligibility. When the factum of customary divorce is well recognized by the provision of the Hindu Marriage Act with special emphasis upon Section 29(2), then perhaps rightly the author of Rule 54 and/or Rule 75 have not thought it fit to qualify the word "divorced daughter" by making it conditional that the divorce has to be declared by the competent Court, else it would perhaps amounted to improve upon the provision of Hindu Marriage Act, which unequivocally recognizes the customary divorce as a valid divorce provided the same is permissible under the community and the circumstances. The question, therefore, arises as to whether the respondents in the instant case, were having any justification to insist upon the divorce decree from the competent Court and were they justified in declining to act upon the customary

C/SCA/17517/2019 ORDER

divorce factum which have remain unchallenged before the authority and which have been recorded by the Tribunal in its orders at length and elaborately. Section 29(2) of the Hindu Marriage Act, read as under:

"Section 29(2):- Nothing contained in this Act shall be deemed to affect any right recognised by custom or conferred by any special enactment to obtain the dissolution of a Hindu marriage, whether solemnized before or after the commencement of this Act."

16. In other words, it can well be said that when the factum of customary divorce in both the cases have not been challenged by the authorities. Their insistence for divorce decree only from the competent Court indicating valid dissolution of marriage would not be justified. The Court hasten to add here that this proposition on the valid premise that there exists no dispute qua customary divorce, in other words, the factum of applicants having a valid customary divorce deed when not under challenge and has accepted, then its mere authentication in the from of dissolution of marriage by the decree of the competent Court, in our view, would be improving the provision of the Hindu Marriage Act without any authority of law and the benefit, therefore, which are enuring under Rule 54 and Rule 75 when it is not qualified in any other manner would have to be accorded to the divorced daughter also.

17. As Bombay High Court has observed rightly in its judgment the important factor is the family in which the daughter is residing when the pensioner/recipient of the family pension dies. When the said factum has not been disputed in both the cases and when it is clearly recorded by the Tribunal as a fact that both the applicants were residing with the pensioner/recipient of the family pension, then the insistence for dissolution of marriage by the competent Court only by way of decree, in our view, was not justified."

9. In the instant case, undoubtedly, the father of the

petitioner - the employee who retired was serving as an Ex-cash

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Overseer in City Division, Ahmedabad, but, that would not mean

that he may not make a mistake of not introducing daughter as

a nominee and sometimes, it may not occur to the employee to

show his/her daughter as a dependent. The employee retired on

28.02.2002 whereas the customary divorce of his daughter had

taken place already on 03.06.2000 and therefore, the daughter

could have been shown as his dependent. What is vital, however,

is that later on also before the Court of law, there is a recognition

of this document of customary divorce in a decree of divorce and

the Court has also acknowledged the fact that she has not asked

for any kind of alimony from her husband.

9.1. The customary divorce proceedings as mentioned

hereinabove started before his retirement and there is not a

semblance of doubt with regard to the genuineness of the divorce

and even otherwise also, in the judgment of Special Civil

Application No. 324 of 2018, the customary divorce also has

been held valid whereas in case of the very petitioner, the decree

of divorce is also obtained and the same has a reference of the

customary divorce. In no manner, can she be called ineligible for

the family pension.

10. In every each way, under the rules which are guiding the

respondent for availing the pension to the family of the ex-

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employee, the petitioner is fitting into the criteria and therefore,

the orders/communications passed by the respondent

authorities on 02.01.2019 and 07.01.2019 deserves to be

interfered with.

11. The present petition is allowed accordingly. The

orders/communications of respondent nos. 1 and 2 dated

02.01.2019 and 07.01.2019 respectively are hereby quashed and

set aside.

12. Let the case of the petitioner be considered as directed

above and the amount of pension be refunded by the authorities

in a period of eight weeks from the date of receipt of copy of this

order.

(SONIA GOKANI, J)

(SANGEETA K. VISHEN,J) Bhoomi