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Judgment
Hon’ble Mr. Manish Garg, Member (J)
In the instant Original Application, the applicant seeks the following relief(s):-
“(i)Pass an Order directing the Respondent to Release the family pension in favour of the Applicant herein, Applicant, after the death of the deceased government servant on 05.02.2021, along with interest chargeable at the rate of 9% per annum simple interest applicable from 05.02.2021.
ii) Pass any other order/ orders that this Hon 'ble Court may deem fit in the interest of justice.”
Highlighting the facts of the case, learned Counsel for the applicant submitted that the present OA has been filed by the applicant primarily being aggrieved by the respondents’ refusal to grant family pension to the applicant, a divorced daughter of the deceased Government servant, on the ground that she had not produced a decree of divorce from a competent Court, despite the fact that her divorce by customary Talaq had taken place on 20.12.2005 and was subsequently recorded in a settlement agreement dated 09.07.2006, much prior to the judgment of the Hon’ble Supreme Court dated 22.08.2017 concerning instant triple Talaq.
Learned counsel further contended that the respondents had failed to consider the customary form of divorce applicable to the applicant and had also ignored the deceased Government servant’s letter dated 11.01.2016 requesting grant of family pension in applicant’s favour.
Learned Counsel relied upon the decisions in Najmaben Umarbhai Kureshi v. Secretary to the Govt. of India, Ministry of Communication & IT, Department of Posts, OA No. 304 of 2018, decided on 07.10.2020 by the CAT, Ahmedabad Bench; Rabeya Banu v. Union of India, OA No. 250/990/2019, decided on 15.07.2021 by the CAT, Kolkata; Union of India v. Mayuriben Jani of the Hon’ble High Court of Gujarat; Sartaj Fatima v. State of U.P. Through Principal Secretary, Medical and Health U.P. Civil Secretariat, Lucknow & Ors., Special Appeal No. 132 of 2023 of the Hon’ble High Court of Allahabad to contend that insistence upon a decree of divorce from a competent Court, where customary divorce is otherwise recognized and remains unchallenged, is not justified for determining entitlement to family pension.
Learned counsel further argued that the respondents’ failure to afford the applicant an opportunity to explain or establish the validity of her customary divorce violated the principles of natural justice and Article 14, and that the rejection of her claim without proper consideration of the relevant facts and documents was arbitrary and contrary to the beneficial object of family pension.
Opposing the grant of relief, learned Counsel for the respondents submitted that the applicant is not entitled to family pension as she failed to furnish a valid decree of divorce from a competent Court establishing her status as a divorced daughter in terms of the applicable pension rules.
Learned counsel further contended that the alleged customary Talaq and the subsequent settlement agreement relied upon by the applicant could not, by themselves, be treated as sufficient proof of a legally established divorce for the purpose of grant of family pension.
Concluding the arguments, learned counsel submitted that the respondents had acted strictly in accordance with the applicable rules and instructions and that no violation of the principles of natural justice has been done. Accordingly, it was prayed that the OA, being devoid of merit, deserved to be dismissed.
In rejoinder, learned Counsel for the applicant further submitted that the respondents themselves, in their reply, have admitted that as per their official record, the applicant is a divorcee and that her divorce had taken place during the lifetime of her parents.
It was pointed out that the deceased pensioner had, during his lifetime, submitted an application dated 11.01.2016 before Respondent No. 03 seeking inclusion of the applicant as a family member eligible for family pension, which was acknowledged by Respondent No. 03 vide communication dated 13.01.2016. In the said communication, the respondents merely advised the deceased pensioner to submit a fresh application when the applicant became due for family pension and did not indicate that the applicant’s divorce, not having been obtained through a competent Court, would render her ineligible.
It was further pointed out that, despite having knowledge of her divorced status during the lifetime of the deceased pensioner, the respondents never informed the applicant or her father that she would be ineligible for family pension under the CCS (Pension) Rules, 1972.
Learned Counsel also submitted that the applicant has already furnished the requisite documents and that the only surviving issue is whether a divorce obtained through the customs recognised under her personal law can be recognised for the purpose of family pension. Reliance was reiterated upon the aforesaid judgments and it was contended that the pension being a benevolent legislation.
In the written submissions, learned Counsel for the applicant has further submitted that the applicant is presently 52 years of age, unemployed and has no independent source of income. It has further been submitted that the applicant has a son, born on 20.02.2003, and that she bears the responsibility of his education and maintenance. Learned Counsel has also drawn attention to the declaration dated 28.08.2017 made by the deceased pensioner, wherein the applicant was specifically described as his divorced, dependent and unemployed daughter and was stated to be eligible for pensionary benefits after his demise. It has further been submitted that the applicant was also nominated as a second nominee in the pension account of the deceased pensioner. Learned Counsel has additionally submitted that the customary divorce dated 20.12.2005 was pronounced in the presence of two witnesses. In support of the aforesaid submissions, learned Counsel has relied upon the decisions in Union of India and another v. Usha Eknath Patil, Writ Petition No. 6884 of 2016, decided on 03.04.2018); Union of India v. Mayuriben Jani, R/Special Civil Application No. 4792 of 2019 with R/Special Civil Application No. 324 of 2018, decided on 10.02.2020; and Najmaben Umarbhai Kureshi v. Department of Posts, O.A. No. 304 of 2018, decided on 07.10.2020 by the Ahmedabad Bench of this Tribunal, to contend that insistence upon production of a decree of divorce from a competent Court, where the customary divorce is otherwise recognised and remains undisputed, is not justified for determining entitlement to family pensio
Heard learned counsel for the respective parties and perused the pleadings available on record.
6. ANALYSIS :
The factual background highlighted by the respective parties, as noticed hereinabove, gives rise to the following issue for consideration: whether the claim of the applicant, a Muslim divorced daughter of the deceased Government servant, can be denied family pension solely on the ground that she has not produced a decree of divorce from a competent Civil Court, when the divorce is claimed to have been effected in accordance with the Muslim Personal Law.
Strictly speaking, a mere “customary Talaqnama” or written deed of divorce may not, by itself, constitute sufficient proof of a valid divorce under Muslim law where the factum of divorce is disputed by the wife. In the present case, however, the “customary Talaqnama” and the factum of divorce have not been disputed by either party to the Nikah. It is further contended that, under Muslim Personal Law, no formal proof of divorce in the nature of a declaratory decree of a Civil Court or compulsory registration of the “customary Talaqnama” is required.
In Fathima Sheriff v. Sub-Registrar, (2018) 44 KLT (SN 15) 133, the Hon’ble High Court of Kerala considered a case where a Muslim woman had obtained divorce in accordance with Muslim Personal Law, which was subsequently recorded by the local Jamat, which issued a certificate evidencing the dissolution of marriage. Thereafter, she intended to contract an inter-faith marriage under the Special Marriage Act, 1954 and, for establishing that she did not have a living spouse, produced the certificate issued by the Jamat. The Marriage Sub-Registrar, however, declined to accept the said certificate and insisted upon production of a decree of divorce from a competent Civil Court. The said action was challenged before the Hon’ble High Court, which observed that the marriage having been governed by Muslim Personal Law, which recognizes extra-judicial divorce, the certificate issued by the Jamat could constitute valid proof of dissolution, particularly when the factum or validity of the divorce was not disputed by either party. Accordingly, the Hon’ble Court held that the Jamat’s certificate was sufficient proof of dissolution of the marriage and that the Marriage Officer was not justified in insisting upon production of a decree of divorce from a Civil Court under the Special Marriage Act, 1954.
In the context of personal law, the Hon’ble Supreme Court in Shabnam Hashmi v. Union of India, (2014) 4 SCC 1, declined to examine the constitutional validity of personal laws where the controversy could be appropriately determined on an interpretation of the statute governing the subject matter.
It is no doubt true that in Writ Petition (C) No. 118 of 2016, Shayara Bano v. Union of India & Ors., decided on 22.08.2017, the Hon’ble Supreme Court considered the constitutional validity of the practice of “talaq-e-biddat” (instant triple Talaq), which was set aside by a majority of 3:2. However, the controversy in the present case does not concern “talaq-e-biddat”, but relates to the recognition of the applicant’s claimed customary divorce under Muslim Personal Law for the purpose of determining her entitlement to family pension.
The Hon’ble High Court of Delhi, in Masroor Ahmed v. State (NCT of Delhi) & Anr., (2007) ILR 2 Delhi 1329, noticed the various modes of dissolution of marriage recognized under Muslim Personal Law (Shariat) and, while examining the validity and legal effect of talaq, held as under:
“15.The question which arises is, given the shariat and its various schools, how does a person proceed on an issue which is in dispute? The solution is that in matters which can be settled privately, a person need only consult a mufti (jurisconsult) of his or her school. The mufti gives his fatwa or advisory decision based on the Shariat of his school. However, if a matter is carried to the point of litigation and cannot be settled privately then the qazi (judge) is required to deliver a qaza (judgment) based upon the Shariat (A qazi (or qadi) is a judge appointed by the political authority or state. He or she may pass judgments in his or her jurisdiction in respect of many legal matters, including divorce, inheritance, property, contractual disputes, etc. Schacht, p. 188. A qaza or kada is a judgment, which must be given according to the madhab to which the qadi belongs. Schacht, p. 196. More information on qazis and qazas can be found at pp. 188-198.). The difference between a fatwa and a qaza must be kept in the forefront. A fatwa is merely advisory whereas a qaza is binding. Both, of course, have to be based on the shariat and not on private interpretation de hors the shariat (Abdur Rahim, p. 172' (in respect of qazis).
The Muslim Personal Law (Shariat) Application Act, 1937 and the various forms of dissolution of marriage recognised by it.
16.In India, the confusion with regard to application of customary law as part of muslim law was set at rest by the enactment of The Muslim Personal Law (Shariat) Application Act, 1937. Section 2 of the 1937 Act reads as under: 2. Application of Personal Law to Muslims.--
Notwithstanding any customs or usage to the contrary, in all questions (save questions relating to agricultural land) regarding intestate succession, special property of females, including personal property inherited or obtained under contract or gift or any other provision of Personal Law, marriage, dissolution of marriage, including talaq, ila, zihar, lian, khula and mubaraat, maintenance, dower, guardianship, gifts, trusts and trust properties, and wakfs (other than charities and charitable institutions and charitable and religious endowments) the rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law (Shariat).
The key words are--notwithstanding any customs or usage to the contrary and--the rule of decision in cases where the parties are muslims shall be the muslim personal law (shariat). This provision requires the court before which any question relating to, inter-alia, dissolution of marriage is in issue and where the parties are muslims to apply the muslim personal law (shariat) irrespective of any contrary custom or usage. This is an injunction upon the court (See: C. Mohd. Yunus v. Syed Unnissa MANU/SC/0359/1961 : (1962) 1 SCR 67). What is also of great significance is the expression-'dissolution of marriage, including talaq, ila, zihar, lian, khula and mubaraat. This gives statutory recognition to the fact that under muslim personal law, a dissolution of marriage can be brought about by various means, only one of which is talaq. Although islam considers divorce to be odious and abominable, yet it is permissible on grounds of pragmatism, at the core of which is the concept of an irretrievably broken marriage. An elaborate lattice of modes of dissolution of marriage has been put in place, though with differing amplitude and width under the different schools, in an attempt to take care of all possibilities. Khula, for example, is the mode of dissolution when the wife does not want to continue with the marital tie. She proposes to her husband for dissolution of the marriage. This may or may not accompany her offer to give something in return. Generally, the wife offers to give up her claim to Mahr (dower). Khula is a divorce which proceeds from the wife which the husband cannot refuse subject only to reasonable negotiation with regard to what the wife has offered to give him in return. Mubaraat is where both the wife and husband decide to mutually put an end to their marital tie. Since this is divorce by mutual consent there is no necessity for the wife to give up or offer anything to the husband. It is important to note that both under khula and mubaraat there is no need for specifying any reason for the divorce. It takes place if the wife (in the case of khula) or the wife and husband together (in the case of mubaraat) decide to separate on a no fault/no blame basis. Resort to khula (and to a lesser degree, mubaraat) as a mode of dissolution of marriage is quite common in India.”
In Shaza Hamid v. Field Gun Factory, arising out of Original Application No. 998 of 2024, decided on 17.03.2026, the Single Bench of this Tribunal at Allahabad Bench observed as under:
“It is noted that the term used is 'divorced daughter' without any stipulation or prescription or qualification in regard to the mode of declaration of divorce.
9.A similar issue has been dealt with by the Jabalpur Bench of this Tribunal in O.A./734/2022 decided on 15.05.2025 in which on the question of whether the Khula/Ikrarnama/Talaknama submitted by the applicant is adequate for the respondents to consider her case for grant of family pension, or whether a legal divorce certificate issued by the competent court is necessary for the purpose, the judgement dated 07.10.2020 passed in O.A. No.308 of 2018 passed by the Ahmedabad Bench of this Tribunal in the case of Ms. Najmaben Umarbhai Kureshi vs Union of India & ors has been referred to and it has been concluded that there is no requirement for obtaining decree of divorce from competent court as held in Najmaben (supra) and the insistence of the respondents on divorce certificate issued by competent court for the purpose of family pension is not justified. The relevant portion of the judgement and order passed in Najmaben (supra) case is quoted below:-
"12.From the above, it can be seen that divorce of the applicant by way of "Customary Talaqnama" had taken place in the year 1992...It is noticed that there was no need to obtain Divorce Decree from competent court till the father of the applicant was alive, naturally the applicant had not obtained decree of Dissolution of Marriage from the competent court. At the same time, the factual matrix as stated herein above suggest that customary divorce of the applicant took place during the lifetime of her father and she continued to reside with him as divorcee daughter.
13.The Hon'ble High Court in the case of Union of India vs Mayuriben Jani Daughter of Shri Durgeshbhai Nandlal Jani (supra), it is noticed that while dealing with issue of denial of family pension to the divorced daughter of ex-railway for not fulfilling the conditions stipulated in OM dated 11.09.2013 and 19.07.2017 (i.e. R/1 collectively produced in this OA) the High Court held as under:
"Para 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 are required to be pressed into service for extending the benefit of the family pension to those family members need 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 recognize any further or other requirement to be eligible for receiving the family pension. The device in the form of guidelines 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 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 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 amount 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 divorce factum which have remained 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, reads as under: "Section 29(2):
Nothing contained in this Act shall be deemed to affect any right recognized 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."
Para 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 is 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 form of dissolution of marriage by the decree of 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 ensuring 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.
Para 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.
In the present case there is no challenge to the "Talaqnama" which had taken place between the applicant and her husband. Admittedly the customary divorce by way of "Talaqnama under Muslim Sariat" was well recognized mode of dissolution of marriage of Muslim couple at the relevant time and no need arose for the applicant to obtain a Divorce Decree from competent court. At the same time fact remains that the divorce of the applicant had taken place during the lifetime of her father..." (emphasis supplied)”
7. CONCLUSION :
In view of the above observations, and the fact that the case is squarely covered by the case law quoted above, the impugned action of the respondents in rejecting the claim of the applicant is quashed and set aside. Accordingly, the O.A. is allowed with a direction to the respondents to process the request of the applicant for the grant of family pension on the basis of the documents filed by her with respect to her divorce, as per the rules governing the matter, and grant her family pension if otherwise eligible from the due date, along with interest on the arrears at GPF rates.
This order should be complied with within a period of three months from the date of receipt of a certified copy of this order.
Pending M.A.(s), if any, shall stand disposed of. No costs.