Radha K vs Union Of India
2021 Latest Caselaw 16899 Ker

W.P.(C).No.26911/2020
                                   1


             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
             THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN
 THURSDAY, THE 12TH DAY OF AUGUST 2021 / 21ST SRAVANA, 1943
                        WP(C) NO. 26911 OF 2020
PETITIONER:

             RADHA K.
             AGED 70 YEARS
             W/O.LATE P.V.BALAN, EX-SERVICEMEN,
             PEEDIKAVALAPPIL, RESIDING AT KAVYALAYAM, PO
             POOKODE, KUTHUPARAMBA, KANNUR DISTRICT PIN 670 691

             BY ADVS.
             K.MOHANAKANNAN
             SMT.T.V.NEEMA



RESPONDENTS:

     1       UNION OF INDIA
             REP. BY SECRETARY TO GOVERNMENT, MINISTRY OF
             DEFENCE, NEW DELHI 110 001

     2       THE PRINCIPAL CONTROLLER OF DEFENSE ACCOUNTS
             (PENSION)
             O/O.THE PRINCIPAL CONTROLLER OF DEFENSE ACCOUNTS
             (PENSION), DARUPADI GHAT, ALLAHABAD-211 014

     3       THE SENIOR RECORDS OFFICER,
             MADRAS REGIMENT ABHILELEKH KARYALAYA RECORDS,
             MADRAS REGIMENT, C/O. 56 APO, PIN 900 458

     4       DEFENCE PENSION DISBURSING OFFICER
             DEFENCE PENSION DISTURBANCE OFFICE, MINISTRY OF
             DEFENCE, KANNUR -670002
 W.P.(C).No.26911/2020
                                    2

     5        SAINIK WELARE OFFICER
              ZILLA SAINIK WELFARE OFFICE, CIVIL STATION, KANNUR
              DISTRICT, PIN 670 643

              BY ADV SRI.K.ARJUN VENUGOPAL




       THIS     WRIT    PETITION   (CIVIL)   HAVING   COME   UP   FOR
ADMISSION ON 2.08.2021, THE COURT ON 12.08.2021 DELIVERED
THE FOLLOWING:
 W.P.(C).No.26911/2020
                                        3


                         ANU SIVARAMAN, J.
                    = = = = = = = = = = = = = = =
                       W.P.(C).No.26911 of 2020
                   = = = = = = = = = = = = = = = =
                 Dated this the 12th day of August, 2021

                                   JUDGMENT

1. This writ petition is filed challenging Exhibit P12 order of the

3rd respondent and seeking directions to respondents 2 to 4 to

sanction and release the family pension due on the death of

the petitioner's deceased husband to her. It is submitted that

the petitioner is the legally wedded wife of the late

Peedikavalappil Balan, who was an ex-service man. Exhibit P1

is the marriage certificate evidencing the marriage on

4.7.1971. The petitioner's husband passed away on 23.6.2017

as evident from Exhibit P2 Death Certificate. The life time

arrears of pension had been disbursed to the petitioner, who

was his wife and nominee. By Exhibit P5, the respondents

stated that since the deceased was married to Smt.S.Bhargavi

Amma on 22.4.1966 and nominated her to receive all the

financial benefits on his death, the petitioner's claim for family

pension could be considered only once the legality of the 2 nd

marriage is established.

W.P.(C).No.26911/2020

2. The learned counsel for the petitioner submits that a reading

of Exhibit P5 would itself show that the 1 st marriage was

invalid and that the marriage to the petitioner was the only

legally valid marriage. It is submitted that the petitioner was

paid family pension from the railways, where her husband was

reemployed after his military service, which is evident from

Exhibit P6. It is submitted that the petitioner had again

approached the respondents seeking release of family pension

to her and by Exhibit P7, the Zila Sainik Welfare Officer had

addressed the respondents requiring the consideration of the

claim at the earliest. In spite of repeated correspondences, it

is submitted that Exhibit P12 reply has now been issued to the

petitioner stating as follows:-

"2. On scrutiny of documents received for vide letters mentioned under reference, it is noticed that your all four children have already been completed the age of 25 yrs and daughier also got married with Baiju AP.

3. It is for your kind information that as per Para 66 & 67 of Pension Regulation for the Army 2008 (Part-l), son of the deceased soldier is eligible for family pension till he attains the age of 25 yrs or upto the date of marriage whichever is earlier and daughter is eligible for family pension till she gets married or her earning becomes more than the prescribed limit for family pension whichever is earlier.

W.P.(C).No.26911/2020

4. In view of the above you and your children are not entitled for family pension. "

3. It is submitted that Smt.Bhargavi Amma has also passed away

on 17.7.2019 and there is now absolutely no impediment for

release of the family pension to the petitioner. It is submitted

that though the AFT is empowered to consider the issue, there

is no regular Bench of the AFT at Kochi and that the AFT holds

only camp sittings in Kochi, that too, to hear emergent matters

and that there is very little chance of the petitioner, a

septuagenarian and a widow getting any benefit in her lifetime

with the said limited sittings. On these pleadings, the

petitioner seeks a direction to consider the claim of the

petitioner for family pension in accordance with law,

untrammelled by the dilatory replies given by the respondents.

4. A statement has been placed on record by the Central

Government. Apart from re-stating the facts of the case, it is

submitted that the issue is to be considered by the AFT and

since the AFT has commenced special virtual sitting on

23.3.2021 and cases of urgent nature are being considered W.P.(C).No.26911/2020

through video conferencing, the writ petition itself is not

maintainable. It is further submitted at paragraphs 10 as

follows:-

"10. In Original Application No.258 of 2010 titled Smt.Roshini Devi Vs.

UOI, on similar facts, the Hon'ble Armed Forces Tribunal (Principal

Bench), New Delhi held that the marriage contracted with a minor is

valid and that the second marriage during the subsistence of first

marriage is illegitimate. On such legal position, the applicant in that

case was not allowed by the Hon'ble Tribunal to claim pensionary

benefits. The Hon'ble Armed Forces Tribunal (Regional

Bench),Lucknow in Original Application No. 288 of 2013, titled

Sarabjeet Kaur V. UOI has also taken a similar view. "

5. I have considered the contentions advanced. The question

raised by the petitioner is with regard to her claim for family

pension on the basis of the nominations and her valid marriage

to the deceased ex-service man as is evident from Exhibit P1.

The question whether the marriage between her husband and

Smt.Bhargavi Amma, who was allegedly aged only 14 years, in

1966 is no longer relevant, since it is an admitted fact that the

said Bhargavi Amma never raised any claim and now she is no W.P.(C).No.26911/2020

more. The question with regard to the legality of the marriage

of the petitioner is also irrelevant in view of the fact that there

are no rival claimants to family pension. In the above view of

the matter, I am of the opinion that since the petitioner is the

legally wedded wife of the late ex-service man and his nominee

according to the pension papers, since there is no rival

claimant, the claim of the petitioner for family pension is liable

to be considered in accordance with law. Ext.P12 reply does

not consider the specific claim of the petitioner for family

pension and is only an evasive reply. The contention that the

AFT is sitting and is holding special virtual sittings to consider

urgent matters would not be a ground to non-suit the

petitioner in view of Section 14 of the Armed Forces Tribunals

Act, which provides for ouster of jurisdiction of all courts

except High Courts exercising jurisdiction under Article 226 of

the Constitution of India and of the Apex Court. In view of the

fact that the existence of an alternate remedy can, by no

stretch of imagination, be an absolute bar for exercise of the

discretionary original jurisdiction by this Court, I am of the

opinion that the writ petitioner, who is a 70 year old widow, W.P.(C).No.26911/2020

should not be non-suited on the ground of the existence of an

alternate remedy.

6. In the above view of the matter, the impugned order is set

aside. There will be a direction to the competent among the

respondents to take up the claim raised by the petitioner for

family pension and consider and dispose of the same taking

specific note of the fact that the petitioner has been accepted

as the legally wedded wife of the ex-serviceman for years

together and that there is no rival claim raised from any

quarters for family pension. The specific claim of the

petitioner for family pension shall be considered in accordance

with the relevant rules and appropriate orders passed within a

period of two months from the date of receipt of a copy of this

judgment.

Writ petition is ordered accordingly.

Sd/-

Anu Sivaraman, Judge

sj W.P.(C).No.26911/2020

APPENDIX OF WP(C) 26911/2020

PETITIONER EXHIBITS

EXHIBIT P1 TRUE COPY OF THE MARRIAGE CERTIFICATE OF THE PETITIONER DATED 23.1.2020

EXHIBIT P2 TRUE COPY OF THE DEATH CERTIFICATE OF THE PETITIONER'S HUSBAND ISSUED BY THE KOOTHUPARAMBU MUNICIPALITY DATED 3.7.2017

EXHIBIT P3 TRUE COPY OF THE CERTIFICATE ISSUED BY THE DEFENCE PENSION DISBURSING OFFICER (DPDO) DATED 27.11.2019

EXHIBIT P4 TRUE COPY OF THE PROCEEDINGS OF THE DPO DATED 25.6.2019

EXHIBIT P5 TRUE COPY OF THE LETTER DATED 9.7.2019 ISSUED BY THE 3RD RESPONDENT

EXHIBIT P6 TRUE COPY OF THE ORDER SANCTIONING FAMILY PENSION TO THE PETITIONER DATED 20.9.2020

EXHIBIT P7 TRUE COPY OF THE LETTER DATED 27.5.2019

EXHIBIT P8 TRUE COPY OF THE LETTER NO.2554628/FP/PG-2 4/9/2019 TO THE 2ND RESPONDENT

EXHIBIT P9 TRUE COPY OF THE LETTER NO.2554628/FP/PG-2 5/10/2019

EXHIBIT P10 TRUE COPY OF THE LETTER NO.2554628/FP/PG-2 9/12/2019 W.P.(C).No.26911/2020

EXHIBIT P11 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT DATED 28.8.2020

EXHIBIT P12 TRUE COPY OF THE LETTER NO.2554628/FP/PG-2 8/2/2020 AND THE COVERING LETTER DATED 10/9/2020

EXHIBIT P13 TRUE COPY OF THE CERTIFICATE ISSUED BY THE THALASSERY MUNICIPALITY DATED 27.11.2019

True copy

P.S. To Judge