Madras High Court
T.Vijayalakshmi vs Union Of India on 24 April, 2025
Author: M.Sundar
Bench: M.Sundar
W.P.No.30171 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 24.04.2025
CORAM
THE HONOURABLE MR.JUSTICE M.SUNDAR
and
THE HONOURABLE MRS.JUSTICE K.GOVINDARAJAN THILAKAVADI
W.P.No.30171 of 2023
T.Vijayalakshmi
W/o.Thangaraj ... Petitioner
vs.
1. Union of India
Through the Secretary
Government of India
Ministry of defence
South Block, New Delhi – 110 001
2. The Chief of Army Staff
Integerated HQ's of MoD (Army)
Post DHQ, New Delhi – 110 001
3. Sena Vayu Raksha Abhilekh
Pin 908803, C/o.99 APO
4. The Principal Controller of Defence Accounts (Pension)
Draupadi Ghat, Allahabad
(UP), Pin- 211 014 ... Respondents
Writ Petition filed under Article 226 of the Constitution of India
praying to issue a Writ of Certiorari calling for the entire records in the
Page Nos.1/19
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W.P.No.30171 of 2023
order of dismissal by the Armed Forces Tribunal, Regional Bench at
Chennai, in O.A.No.98 of 2022 dated 04.08.2023 and to quash the same and
consequently direct the fourth respondent to consider the petitioner
representation dated 28.03.2022 to grant the family pension of Late Shri.
Thangaraj and all other benefits.
For Petitioner : Mr.T.Sivagnanasambandan
For Respondents : Mr.K.Ramanamoorthy
Senior Panel Counsel
ORDER
[Order of the Court was made by M.SUNDAR, J.,]
A cry of a spouse of a deceased Soldier for family pension is the
central theme of the instant case. Order dated 04.08.2023 made in
O.A.No.98 of 2022 with M.A.No.152 of 2022 by 'Armed Forces Tribunal,
Regional Bench, Chennai' [hereinafter 'AFT' for the sake of convenience]
rejecting the petitioner's plea for family pension has been assailed in the
captioned 'Writ Petition' ['WP' for the sake of brevity]. This 'order dated
04.08.2023 made by AFT' shall hereinafter be referred to as 'impugned
order' for the sake of convenience and clarity.
2. To be noted, the impugned order has been made by AFT in exercise
of powers under Section 14 of the 'Armed Forces Tribunal Act, 2007 (15 of
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2007)' [hereinafter 'AFT Act' for the sake of brevity, convenience and
clarity].
3. Mr.T.Sivagnanasambandan, learned counsel on record for the writ
petitioner and Mr.K.Ramanamoorthy, learned Senior Panel Counsel for
Central Government, instructed by Major Prashanth K Mukundan (Dakshin
Bharat Area) for all the four respondents are before us.
4. To appreciate the crux and gravamen of the matter and for the sake
of specificity qua bone of contention, it is necessary to set out a chronology
in the form of a tabulation and the same is as follows:
SI.No. Date Event Remarks
1 18.09.1968 Mr.Thangaraj joined the -
Army as Sepoy
2 01.12.1976 Writ petitioner
(Ms.T.Vijayalakhsmi)
married Thangaraj
3 06.12.1979 Thangaraj was discharged Discharged on
from the Army medical grounds as
Nayak
4 13.07.1996 One Smt.V.Soundaram first -
wife of Thangaraj died
5 10.12.2014 Thangaraj died -
6 11.12.2014 The date from which writ This claim was
petitioner has made a claim rejected by AFT vide
for family pension the impugned order
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SI.No. Date Event Remarks
7 24.11.2021 Order of R3 (Sena Vayu This terse order of
Raksha Abhilekh) rejecting R3 was confirmed by
writ petitioner's claim for AFT vide impugned
pension on the sole ground order
that her marriage to
Thangaraj is second marriage
and thus plurality as it was
when first marriage with
Smt.V.Soundaram was
subsisting
8 04.08.2023 Impugned order of AFT
confirming 24.11.2021 order
of R3 primarily on the
ground of plurality of
marriage
9 29.09.2023 Captioned WP filed by
Smt.T.Vijayalakshmi
assailing the impugned order
of AFT
5. To be noted, aforementioned dates and events are undisputed and
that is the platform on which the bone of contention turns.
6. Learned counsel for writ petitioner submits that writ petitioner's
spouse Late Thangaraj was granted Service Element of Disability Pension
with effect from 06.12.1979 vide a PPO dated 05.03.1981 ['PPO' stands for
'Pension Payment Order' ]. This was being drawn by the Late Soldier. It was
pointed out that the writ petitioner has made a claim on and from
11.12.2014 (to be noted, date of demise of Soldier is 10.12.2014). It was
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also contended that plurality of marriage cannot be a ground to reject the
pension claim in the light of judgment in Shiramabai case [Shiramabai Vs.
Captain Record Officer for O.I.C Records, Sena Corps Abhilekh, Gaya,
Bihar State and another] reported in 2023 SCC OnLine SC 1026.
Learned counsel for writ petitioner adverting to the facts in Shiramabai
case drew our attention to paragraph 24 thereat.
Facts in Shiramabai case :
Subedar Pundalik Bhave enrolled in the Army in the year 1960 and
in the year 1984, he was discharged from the service at his request
and was granted service pension. He married three times: first in
1972; after his first wife died in two and half years, he married
Anusuya and while the said marriage was subsisting, he married the
appellant in 1981. In the year 1990, he and Anusuya were granted
divorce by mutual consent. Thereafter, Subedar Bhave approached
the second respondent for deleting the name of Anusuya and
endorsing the name of first appellant in the PPO. He also submitted
a certificate issued by the Village Sarpanch, Gram Panchayat
Bahirewadi, certifying that he and the first appellant got married
along with a copy of their wedding card as proof of the marriage.
He died in the year 2001. After his death, the first appellant
approached respondents for grant of family pension but the request
was denied because she married the deceased while the marriage
with Anusuya was subsisting. In 2005, the appellant and her children
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instituted a civil suit for declaration and for issuing direction to
respondents to grant pensionary benefits. The trial court ruled in
their favor but the District Judge reversed that decision and in 2013,
the Karnataka High Court dismissed the appeal preferred by
appellansts but on review Application, it had clarified that appellants
2 and 3 are entitled to the estate of Late Subedar Bhave. Aggrieved
over the order of High Court, appellants approached Hon'ble
Supreme Court.
Para 24:
'24. In the instant case, if the period upto the year 1990 was to be
excluded as the marriage between Late Subedar Bhave and
Anusuya had got dissolved only on 15th November, 1990, fact
remains that even thereafter, the deceased had continued to
cohabit with the appellant No. 1 for eleven long years, till his
demise in the year 2001. The appellant No. 1 was the mother of
two children born from the relationship with the deceased, namely,
appellants Nos. 2 and 3. Appellants No. 2 and 3 have been held
entitled to the estate of the deceased by virtue of the order passed
by the High Court on the Review application moved by them. In
the above background, a presumption ought to have been drawn in
favour of the validity of the marriage between the deceased and
the appellant No. 1, more so, when during his life time, the
deceased had approached the respondent authorities for seeking
deletion of the name of his previous wife - Anusuya from his
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service record and for endorsement of the name of the appellant
No. 1 therein, which was duly acted upon by the respondents vide
letter dated 05th July, 1999. It is also not in dispute that the ex-
wife did not claim any pension from the respondents on the demise
of Subedar Bhave.'
7. In response to the aforementioned argument, learned counsel for
respondents submitted that the impugned order of AFT is predicated inter
alia on Regulation 212 of 'Pension Regulation for the Army, 1961'
[hereinafter 'said Regulations' for the sake of convenience]. This Court
wanted to know the source of power qua said Regulation. Learned counsel
for respondents Mr.K.Ramanamoorthy, instructed by Major Prashanth K
Mukundan pointed out that said Regulations are a set of Regulations made
by Central Government in exercise of Regulation making power under
Section 192 of the 'Army Act,1950 (46 of 1950)' [hereinafter 'Army Act' for
the sake of brevity]. It was submitted that said Regulations are in vogue and
are operating.
8. Regulation 212 of said Regulations, which deals with 'Ordinary
Family Pension' reads as follows:
'212.An ordinary family pension may be granted to the
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family of Junior Commissioned Officer granted honorary
commission as a Commissioned Officer while on the
effective list, who dies during service or after retirement of
causes neither attributable to nor aggravated by military
service. '
9. In the impugned order of AFT, there is also a mention about there
being no legally valid marriage and there can be no sanctity attached to the
marriage in terms of Section 11 read with Section 5(1) of Hindu Marriage
Act, 1955 as regards marriage of writ petitioner with Late Thangaraj on
01.12.1976. This Court is of the considered view that this is hardly a
ground and it pales into insignificance in the light of Shiramabai principle
supra and S.P.S.Balasubramanyam principle being principle laid down by
Hon'ble Supreme Court in S.P.S.Balasubramanyam Vs. Suruttayan alias
Andali Padayachi and Others reported in (1994) 1 SCC 460. Facts in
S.P.S.Balasubramanyam case are that one Manthi had three sons. One of
his sons, namely Chinathambi married one Pavayee. He also lived with
another woman, whose name was also Pavayee through whom,
Chinnathambi had issues, one of them being Ramaswamy. He sold his one-
third share, which he received from his father to the appellant. The same
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was resisted by descendants of other two branches. The appellant therefore
filed suit for declaration and recovery of possession. Two main questions
were raised and they were, if Ramaswamy was legitimate child of
Chinathambi and the second one was the property being ancestral and
coparcenary property bequeathed by Manthi in favour of his sons and
grandsons but excluding Ramaswamy, could any valid title vest in him
under deed of settlement executed by his father in 1968. The trial court
accepted the claim of defendants and found that the deed of settlement made
by Chinathambi could not convey any right, title or interest in favour of
Ramaswamy or his mother as it was in respect of coparcenary property or
joint family property and, therefore, the deed of settlement was invalid. In
appeal, both findings were set aside. The Appellate Court found that as
Chinathambi and second Pavayee having lived together as husband and wife
since 1920, a presumption arose in law that they were husband and wife.
The Appellate Court also found that in the compromise entered between
three sons of Manthi in the suit filed by Chinathambi, there was a partition
and the parties agreed that the compromise arrived at by them may be given
effect to without effecting any partition by metes and bounds as they were in
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possession of their separate share. It was held that Chinathambi got
exclusive right over his share under the compromise and he was entitled to
execute the deed of settlement in 1968. In second appeal before the High
Court, the presumption drawn by the Appellate Court was found to have
been rebutted and it was found that when compromise was arrived between
the members of the family on a suit filed by Chinathambi, no reference was
made either to Pavayee or Ramaswamy. Reliance was also placed on the
depositions of PW 6 and DW 4 to support the conclusion that no legal
marriage had come into being between Chinathambi and Pavayee No. 2.
The High Court has set aside the judgment of the first appellate court.
Hence the appeal before Hon'ble Supreme Court. It was held that the
omission to mention the name of a woman who was living as a concubine
and her offspring in the will executed by the father-in-law could not destroy
the presumption which otherwise arose in law. To be noted
S.P.S.Balasubramanyam principle was rendered on 13.10.1993.
10. In any event, Shiramabai is directly on the point and it applies in
all fours to the case on hand. The reason is Padma Sundara Rao principle.
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[Padma Sundara Rao Vs. State of Tamil Nadu reported in (2002) 3 SCC
533: 2002 SCC OnLine SC 334]. To be noted, Padma Sundara Rao is a
Constitution Bench declaration of law. Facts in Padma Sundara Rao are a
notification issued under Section 6 of the Land Acquisition Act, 1894 was
assailed in Madras High Court and the High Court relying on
N.Narasimhaiah case reported in (1996) 3 SCC 88 held that the same was
validly issued. The matter was carried to Hon'ble Supreme Court on the
question of law as to whether after quashing of a notification under section
6, a fresh period of one year is available to the State Government to issue
another notification under section 6. It is in this context, i.e., while deciding
this legal question, a Constitution Bench of Hon'ble Supreme Court
declared the law as regards how courts should place reliance on case laws /
precedents and relevant paragraph is paragraph 9 which reads as follows:
''9.Courts should not place reliance on decisions without discussing
as to how the factual situation fits in with the fact situation of the
decision on which reliance is placed. There is always peril in treating
the words of a speech or judgment as though they are words in a
legislative enactment, and it is to be remembered that judicial
utterances are made in the setting of the facts of a particular case,
said Lord Morris in Herrington v. British Railways Board [(1972) 2
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WLR 537 : 1972 AC 877 (HL) [Sub nom British Railways Board v.
Herrington, (1972) 1 All ER 749 (HL)]] . Circumstantial flexibility,
one additional or different fact may make a world of difference
between conclusions in two cases.'
11. All that learned counsel for writ petitioner seeks is family pension
for writ petitioner. In this regard, learned counsel for respondents pointed
out that writ petitioner has made a claim on and from 11.12.2014 (to be
noted, date of demise of Soldier is 10.12.2014) but claim has been rejected
by R3 only on 24.11.2021. The writ petitioner if at all can only claim family
pension for three years prior to 24.11.2021 when R3 made the order i.e.,
from 24.11.2018 is learned counsel for Respondents' say. We accept this
submission made by learned counsel for respondents on the basis of Tarsem
Singh case [Union of India and Others Vs. Tarsem Singh] reported in
(2008) 8 SCC 648. Facts in Tarsem Singh are Subedar Tarsem Singh was
invalidateded out of the Army on November 13, 1983. In 1999, he filed a
writ petition in the High Court seeking to pay him disability pension. By
order dated 06.12.2000, a learned Single Judge ordered payment of disability
pension and arrears limited to 38 months prior to the petition and he was
also directed to appear before resurvey medical board. The appellant granted
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him pension and releaesd arrears for 38 months. The respondent preferred
appeal contending his arrears should be from November 1983. Hon'ble
Division Bench allowed his appeal, directing payment of arrears for the full
16 years period and subsequently by a modification, it had also granted
interest at 6% per annum. The appellant approached Hon'ble Supreme Court
challenging the direction of High Court for payment of arrears for 16 years.
It is in this context, Hon'ble Supreme Court considered the submissions and
came to the conclusion. Relevant paragraph is paragraph 6 and the same
reads as follows:
'6. In Shiv Dass vs. Union of India - 2007 (9) SCC 274, this
Court held:
'8.......The High Court does not ordinarily permit a belated
resort to the extraordinary remedy because it is likely to
cause confusion and public inconvenience and bring in its
train new injustices, and if writ jurisdiction is exercised after
unreasonable delay, it may have the effect of inflicting not
only hardship and inconvenience but also injustice on third
parties. It was pointed out that when writ jurisdiction is
invoked, unexplained delay coupled with the creation of
third party rights in the meantime is an important factor
which also weighs with the High Court in deciding whether
or not to exercise such jurisdiction.
10. In the case of pension the cause of action actually
continues from month to month. That, however, cannot be a
ground to overlook delay in filing the petition.......... If
petition is filed beyond a reasonable period say three years
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normally the Court would reject the same or restrict the
relief which could be granted to a reasonable period of
about three years.'
12. In the light of narrative, discussion and dispositive reasoning thus
far, we have no difficulty in coming to the conclusion that the finding of
AFT posited and predicated on Regulation 212 does not hold water and it
has to straightaway yield to the Shiramabai principle. To this extent we
interfere with the impugned order of AFT and set aside the same and accede
to the claim of the writ petitioner partially.
13. This Court deems it appropriate to make a short adumbration of
certain buttressing points and they are as follows:
i) Lone bone of contention is whether the writ petitioner
contracted valid marriage with Late Thangaraj. On a demurrer
if the writ petitioner had contracted the marriage after
13.07.1996 (after demise of first marriage with
Smt.V.Soundaram), there would have been no difficulty and
would have been entitled to pension. Therefore, what is
described as 'plurality of marriage' is the only point;
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ii) It is nobody's case that both wives were / are
claiming pension. To be noted, in any event, first wife is no
more and her date of demise is 13.07.1996 and she pre-
deceased the Soldier;
iii) In the light of Shiramabai and
S.P.S.Balasubramanyam principles, we have no difficulty in
writing that the writ petitioner who has undisputedly
continuously lived together with the Soldier under the same
roof and cohabited for a number of years with the late Soldier
is good enough to accede to her claim;
iv) It is not the case of the respondents that writ
petitioner is not married wife of Late Soldier Thangaraj. All
that AFT has said in the impugned order is writ petitioner is
not 'legally married wife' of Late Thangaraj as her marriage
was when marriage of Thangaraj with Smt.V.Soundaram was
subsisting.
v) As a sequitur to the previous point, we are after all
not testing the case of bigamy.
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14. Ergo sequitur of narrative, discussion and dispostive reasoning
thus far is, the following order is made:
i) The impugned order of AFT being order dated
04.08.2023 made in O.A.No.98 of 2022 with M.A.No.152 of
2022 is set aside to the extent that it rejects the entire claim
of the writ petitioner;
ii) The writ petitioner will be entitled to Family
Pension with effect from 24.11.2018 being 3 years prior to
the date of order of R3 dated 24.11.2021 vide which writ
petitioner's claim was rejected;
iii) The arrears of family pension from 24.11.2018
shall be paid by R4 with 6% per annum simple interest as
expeditiously as the business of R4 would permit but in any
event on or before 31.08.2025;
iv) In the light of view taken by this Court, it is open
to the writ petitioner to make application/s for any other
benefit or any other claim which she may make and the same
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shall be considered on its own merits and in accordance with
law by the respondents.
Captioned main WP allowed partly to the extent indicated above.
There shall be no order as to costs.
(M.S.,J.) (K.G.T.,J.)
24.04.2025
Index : Yes/No
Speaking order/Non speaking order
Neutral Citation: Yes/No
gpa
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To
1. The Secretary,
Government of India
Ministry of defence
South Block, New Delhi – 110 001
2. The Chief of Army Staff
Integrated HQ's of MoD (Army)
Post DHQ, New Delhi – 110 001
3. Sena Vayu Raksha Abhilekh
Pin 908803, C/o.99 APO
4. The Principal Controller of Defence Accounts (Pension)
Draupadi Ghat, Allahabad
(UP), Pin- 211 014
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M.SUNDAR, J.,
and
K.GOVINDARAJAN THILAKAVADI, J.,
gpa
24.04.2025
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