Samirabanu D/O Sabirhussain ... vs Union Of India
2023 Latest Caselaw 3427 Guj

    C/SCA/18168/2021                                JUDGMENT DATED: 27/04/2023




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 18168 of 2021


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI

and
HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR

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1    Whether Reporters of Local Papers may be allowed
     to see the judgment ?

2    To be referred to the Reporter or not ?

3    Whether their Lordships wish to see the fair copy
     of the judgment ?

4    Whether this case involves a substantial question
     of law as to the interpretation of the Constitution
     of India or any order made thereunder ?

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                       SAMIRABANU D/O SABIRHUSSAIN MALEK
                                     Versus
                                UNION OF INDIA
==========================================================
Appearance:
SUNITA S CHATURVEDI(2572) for the Petitioner(s) No. 1
MS ARCHANA U AMIN(2462) for the Respondent(s) No. 2
NOTICE UNSERVED for the Respondent(s) No. 1
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    CORAM:HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
          and
          HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR

                                Date : 27/04/2023

                        ORAL JUDGMENT

(PER : HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR)

C/SCA/18168/2021 JUDGMENT DATED: 27/04/2023

1. Rule returnable forthwith. Ms.Archana Amin, learned

advocate waives service of notice of Rule for respondent

No.2. At the joint request of learned advocates for the

respective parties, the matter has been taken up for final

disposal today.

2. The present petition is filed under Articles 226 and

227 of the Constitution of India by the petitioner challenging

the order dated 13.01.2020 passed by the Central

Administrative Tribunal, Ahmedabad (for short, "the

Tribunal") in Original Application No.66 of 2019, wherein

the Tribunal has rejected the claim of the petitioner for

family pension.

3. It is the case of the petitioner that, the father of

petitioner was employee of Railway Department and he

retired from service on 31.01.2004 from the post of Fitter-I

and after retirement, he was getting pension. The

petitioner's mother died on 26.08.2011. The petitioner was

C/SCA/18168/2021 JUDGMENT DATED: 27/04/2023

married but she had obtained divorce through notarized

deed, as per the customary divorce "Talaknama" on

27.01.2012, and since then, she was dependent on her

father. Father of the petitioner died on 16.03.2015. As the

petitioner was divorcee and dependent upon her father,

after death of her parents, she is entitle to get her family

pension. Therefore, the petitioner moved an application with

all the required documents for getting family pension to the

respondents and after failing reply on behalf of the

respondents, the petitioner approached to the respondent

through recognized Union, however, her request was

rejected by respondent No.2 vide letter dated 26.11.2018 on

the ground that the divorce deed has been registered after

the death of her parents. On the same ground, the matter

was rejected by the General Manager on 06.12.2018.

Thereafter, being aggrieved and dissatisfied, the petitioner

preferred an application, being Original Application No.66 of

2019 before the Tribunal which was dismissed on

13.01.2022. Hence, the present petitioner has filed this

petition.

C/SCA/18168/2021 JUDGMENT DATED: 27/04/2023

4. Ms.Sunita Chaturvedi, learned advocate appearing for

the petitioner submits that the petitioner is a divorced

daughter of deceased employee, who was working with the

respondents. She further submits that as the petitioner was

given divorce by her husband by pronouncing ' Talak' in the

year 2012 and documents to this effect came to be executed

in the year 2012 itself, she is entitled to get family pension.

She further submits that the mother of the petitioner

expired and, hence, the petitioner was dependent of her

father and residing with her father. She further submits

that as petitioner's father expired on 16.03.2015, she

approached the respondent authority for getting the family

pension but at that time, the respondent sought legal deed

of divorce, and therefore, as per the direction of the

respondent authority, the registered deed came to be

executed on 10.04.2015 and respondent took objection that

the Divorce Deed is prepared after the death of the

employee, and therefore, she could not be considered to be

the 'dependent' after the death of employee and on this

C/SCA/18168/2021 JUDGMENT DATED: 27/04/2023

ground her application has been turned down.

5. Further, the learned advocate for the petitioner

submits that the respondent authority has not considered

the deed of customary divorce produced by the petitioner

whereas the customary divorce is not in dispute. The said

deed is produced on record which was executed before the

notary due to settlement in the domestic violence

proceedings. She further submits that the said fact is also

reiterated in the registered Divorce Deed prepared on

10.04.2015, however the respondent authority has not

considered the said fact and rejected the application of the

petitioner. She submits that the respondent authority and

learned Tribunal have committed an error in dismissing the

applications of the petitioner, and therefore, she has

requested to allow this petition.

6. Per contra, Ms.Archana Amin, learned advocate for the

respondent has vehemently opposed the petition and

submits that customary divorce is not valid one and the

C/SCA/18168/2021 JUDGMENT DATED: 27/04/2023

respondent had asked the petitioner to submit documentary

evidence which can prove the divorce proceedings instituted

in the competent forum of law during the life time of the

pensioners, which is yet to be submitted by the petitioner

before the respondent authority. It is further submitted that

the petitioner was never advised to submit the registered

deed of the divorce after death of the petitioner's father and

the grant of family pension to a divorced daughter is

governed by the office memorandum dated 19.07.2017

issued by the Government of India, and in absence of any

document to prove that the divorce proceedings were

instituted in the competent Court of law during the life time

of the pensioner, the petitioner is not entitled to get pension.

In view of the above, no error has been committed by the

respondent and she has requested to dismissed the petition.

7. We have heard the learned advocates for the respective

parties and perused the material placed on record and order

passed by the learned Tribunal. From the record, it reveals

that deceased -Sabbirhussain Gulam Malek was an

C/SCA/18168/2021 JUDGMENT DATED: 27/04/2023

employee of respondent No.2 authority, who was retired on

31.01.2004 from the respondent department and he was

getting regular pension. Pension papers are produced at

Annexure-A. As the mother of the petitioner expired on

26.08.2011, the death certificate is produced at Annexure-

B.

8. As per the say of the petitioner, she is entitled to get

family pension and for that she had approached the

respondent authority under Rule 75 of the Railway Service

(Pension) Rules, 1975 (for short, "the Rules"). As the

petitioner was residing with her father on account of her

divorce since 27.01.2012, she addressed a communication

to the respondent authority along with requisite documents,

but unfortunately her request came to be rejected and a

stand was taken by the respondent that the divorce of the

petitioner took place on 10.04.2015 and the date of death of

the pensioner and his spouse is on 16.03.2015 and

26.08.2011 respectively and since the divorce of the

petitioner has occurred after the death of her parents thus,

C/SCA/18168/2021 JUDGMENT DATED: 27/04/2023

she was not dependent on her parents. When they were

alive, hence she is not eligible for the family pension in

terms of Railway Board letter dated 26.09.2013. Except this,

no any reason is assigned for denial of request made by the

petitioner.

9. Now coming back to the controversy involved in the

matter as to whether the petitioner was dependent on her

parents, and her divorce took place when her father was

alive. To deal with the aforesaid core issues, the respondent

authority has relied on Divorce Deed dated 10.04.2015

produced at page 40 of the compilation and come to the

conclusion that the death of parents occurred prior to

10.04.2015, therefore, the petitioner was not dependent on

deceased pensioner when he was alive. The learned Tribunal

has also endorsed the said view based on the said divorce

deed dated 10.04.2015 which is produced on record at

Annexure-D (page 26) of the compilation and relied only on

para-5 of the said deed which reads as under:

C/SCA/18168/2021 JUDGMENT DATED: 27/04/2023

"(5) In that regard I the first party Shakilahmed alias Chhotamunna Abdulrahim Ansari in present of mind before the wintess (1) Mohammedhusen Abdulrazzak Shaikh Age: 46 years, Religious: Muslim Res. At : 148, Kankariya railway Colony, Gomtipur, Ahmedabad (2) Sabirhusen Gulamhusen Malek Age: 62 years, Religious: Muslim, Res. At : 38, Sohel Park, Ramol, Jantanagar, Ramol, Ahmedabad, in the presence of these witness my saying "Talak" three times given talak to the second party Samirabanu D/o. Sabirhusen Gulamhusen malek and free her from my Nikah as my Wife and this "Talak" is accepted by the second party Samirabanu D/o. Sabirhusen Gulamhusen Malek in presence of these two witnesses. Thus we both the parties are free from the relation of Husband-Wife."

10. But while considering the said document, the learned

Tribunal has not considered para 16 of the said document

which reads as under:

"16.The divorce deed is made before the notary on Date 27.01.2012 and which has been registered with Registration Sr.No.61/2012"

11. The said deed cannot be read in isolation of Clause 16.

It is required to be read as a whole and from combined

reading of the aforesaid two clauses, it clearly reveals that

prior to the said divorce deed dated 10.04.2015, on

27.01.2012 vide notarized registered document, Serial

No.61 of 2012 customary divorce took place in the presence

of two witnesses wherein, further it is clearly stated that the

case (Criminal Case No.219 of 2011) filed under the

C/SCA/18168/2021 JUDGMENT DATED: 27/04/2023

Domestic Violation Act is pending and if any other litigation

is pending the same is required to be withdrawn. Thus, in

view of pendency of same litigation, divorce took place of the

petitioner and the petitioner has obtained customary divorce

which is also recognized under the Muslim Law. If we

consider the said fact and combined reading of both the said

Clause Nos.5 and 16 of the document dated 10.04.2015, it

clearly reveals that on 27.01.2012, the petitioner got

divorced from her husband which is prior to the death of

her father i.e. on 16.03.2015. Only with a view to fulfill the

requirement, she has got registered deed subsequently,

which cannot be construed that she has got divorced and

subsequent to the death of pensioner, she was not divorced

before the death of her father. Hence, she was not a

dependent on the pensioner.

12. As disclosed above, the respondent authority and the

learned Tribunal has also read Clause 5 in isolation of

Clause 16 of registered divorce deed dated 10.04.2015.

Even, the divorce of the petitioner is not disputed by

C/SCA/18168/2021 JUDGMENT DATED: 27/04/2023

anyone. In other words, the party of customary divorce has

also not disputed the factum of divorce before the

authority. In view of above rejection of pension request,

nothing is found or any valid or sound reason except that,

the divorce deed is subsequent to the death of pensioner.

We are of the considered view that as divorce is recognized

under the customary law and factum of customary divorce

has neither been disputed by the authority, nor challenged

by her husband of the petitioner. In view of the above, it

clearly reveals that the dissolution of marriage stood prior to

the death of petitioner's father i.e. on 27.01.2012.

13. In view of the above, the respondent authority and

learned Tribunal have committed grave error in dismissing

the request of the petitioner. Even otherwise, customary

divorce is already recognized by this Court and since the

issue is squarely covered by a decision of this Court in the

case of Union of India versus Sudhaben Nayak D/o Late

Dinanath Nayak and Subhadraben Nayak, decided on

17.02.2020 in Special Civil Application No.324 of 2018,

C/SCA/18168/2021 JUDGMENT DATED: 27/04/2023

wherein validity of customary divorce has been upheld and

in absence of any recognition of divorce from the competent

authority, claim of a divorcee daughter cannot be declined.

Even similar view is also taken by this High Court in the

case of Union of India versus Rekhaben D/O Gopalbhai N

Parmar, decided on 22.12.2021 in Special Civil Application

No.1871 of 2021 and as Clause 19(6) in relation to railway

servant includes unmarried or divorced daughter, she is

entitled to get family pension. Hence. the petitioner is

entitled to get family pension.

14. In view of the above, the petition stands allowed. The

order dated 06.12.2018 passed by respondent General

Manager, Western Railway, Churchgate, Mumbai rejecting

claim of the petitioner for family pension, and the order

dated 26.11.2018 passed by the respondent No.2

(Annexure-G and H of the petition) is hereby quashed and

set aside. The order dated 13.01.2020 passed by Central

Administrative Tribunal in O.A. No.66 of 2019 is also

quashed and set aside.

C/SCA/18168/2021 JUDGMENT DATED: 27/04/2023

15. The respondents are directed to calculate family

pension payable to the petitioner and arrange to pay the

same within 90 days from the date of receipt of the order.

Rule is made absolute. No order as to costs.

(VIPUL M. PANCHOLI, J)

(HASMUKH D. SUTHAR,J) ALI