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Judgment
The applicant has filed this Original Application under Section 19 of the Administrative Tribunals Act, 1985 to claim the following reliefs:
"8.1This Hon'ble Tribunal be pleased to quash and set aside the impugned speaking order dated 15.05.2025.
8.2Direct the respondents to sanction and release family pension to the applicant w.e.f. 12.07.2021, i.e. the date of death of the employee, along with arrears and interest at 18% per annum.
8.3Declare the applicant as entitled to all consequential benefits arising from her status as the lawful widow of the deceased employee.
8.4Any other relief which this Hon'ble Tribunal deems fit and proper in the interest of justice under the given facts of the case.
8.5Cost of this application.
This is a second round of litigation. Earlier the applicant has approached this Tribunal by filing OA No.21/2024 which was disposed of by this Tribunal vide order dated 03.01.2025 with the following observations as contained in paragraph Nos.15 and 16 of the order:
"15.Further, the date of the marriage of the present applicant with the deceased employee was 30.08.2008 as per paragraph No.5.2 of the reply of the respondents. Therefore, it appears that there are some discrepancies in the report dated 17.08.2021. Under these circumstances, since there is no documentary material produced before this Tribunal or before the authority in respect of customary divorce of the applicant with Shri Uttam Narayan Vargade, therefore, the present OA is disposed of with liberty to the applicant to support her averments submitted in the rejoinder in respect of customary divorce and lawful marriage with the deceased employee within a period of 30 days from the date of receipt of a certified copy of this order.
16.In case, any such documentary material is submitted by the applicant to the respondent No.2, the same shall be considered by the respondent No.2 in accordance with the rules governing the field and if the applicant found entitled, family pension shall be released with arrears i.e. from the date of her entitlement. In case, authority comes to the conclusion that the applicant is not entitled for family pension then reasoned and speaking order shall be passed within a further period of 60 days from the submission of aforesaid material/documents by the applicant."
The impugned order has been passed pursuant to the above direction of the Tribunal in the earlier OA No.21/2024.
Brief facts of the case, as stated in the OA, are that the applicant married to late Shri Tukaram Goga Ghotkar in 2008 after his first wife Smt Lankabai Tukaram Ghotkar expired on 13.01.2007. This was her second marriage as earlier she had married one Uttam Narayan Warghade on 30.04.1986. However, a zerox copy of mutual customary divorce was obtained from him on 07.05.2007 and, thereafter the applicant married to late Shri Tukaram Goga Ghotkar. The said Shri Tukaram Goga Ghotkar expired on 12.07.2021 while in service. The applicant was informed by the respondents vide letter dated 17.01.2022 to obtain legal heirship certificate from the competent court of law for the settlement and pensionary benefits of the late employee. The applicant obtained a legal heirship certificate from the Court of Joint Civil Judge Junior Division, Igatpuri vide Civil Miscellaneous Application No.17/2022 wherein she was declared as widow and the legal heir of the deceased employee. Based on the above certificate, the respondents made the payment of settlement dues among the members of the family vide letter dated 11.12.2023.
It has been submitted that the applicant was granted settlement dues being the sole dependent widow of late employee but she was not granted family pension. Therefore, the applicant preferred OA No.21/2024 before this Tribunal which was disposed of in terms of direction as contained in paras 15 & 16 of the judgment as quoted above.
Pursuant to the above order of the Tribunal, the applicant filed her representation dated 07.03.2025 enclosing the customary divorce documents. However, the respondents, without due application of mind, passed the impugned order dated 15.05.2025 rejecting her claim on the ground that she had married with late Shri Tukaram Goga without taking a legal divorce from first husband Shri Uttam Narayan Varghade. Therefore, her marriage with late Shri Tukaram Goga was void and she is not eligible for family pension.
After issuance of notice, the respondents have filed their written statement/reply and contested the OA.
It has been submitted that the main issue of the present OA is granting family pension to the Applicant by declaring the applicant as the lawful widow of the deceased employee late Shri Tukaram Goga, Trackman, working under Senior Section Engineer (P/Way), Sion, who expired on 12.07.2021 and further to declare that the applicant has legally married the said late deceased employee Shri Tukaram Goga under Hindu Marriage Act 1955, after the applicant claims to have got mutual divorce from her existing husband one Mr Uttam Narayan Waghade executing a so called mutual Divorce (Customary Divorce) on a typed paper dated 07.05.2007 which is not legally recognised as a valid document after commencement of Hindu Marriage Act 1955, 13B of the said act. Divorce by mutual consent can be obtained only by, "Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be presented to the district court by both the parties to a marriage together, whether such marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976)", thus divorce decree by mutual consent can only be obtained by parties from a competent District Court. Further, Section 15 of the said Act states that a divorced person can remarry i.e "Section 15. When a marriage has been dissolved by a decree divorce and either there is no right of appeal against the decree or, if there is such a right of appeal, the time for appeal has expired without an appeal having been presented or an appeal has been presented but has been dismissed, it shall be lawful for either party to the marriage to marry again". Thus, only after a decree of divorce, a divorced person can lawfully marry again. Thus, it is submitted that to grant relief at prayer clause 8, this Tribunal has to declare the mutual consent divorced executed/typed on a paper by applicant and existing husband annexed as A-7 colly, especially at page 113 to 116 as consent decree which this Tribunal has no jurisdiction to grant being not subject matter of service related issue, even regarding prayer clause 8.3 to declare the applicant as legal widow of deceased employee, this Tribunal has no jurisdiction as it is beyond scope of service related dispute under section 14 of Administrative Tribunals Act.
It has been submitted that the applicant and all claimants have submitted legal heirship certificate dated 07.06.2022 for all property and credit not for family pension as per A-5 mentioned at page 16 issued by the Joint Civil Judge, Jr Division, Igatpuri wherein order was issued for legal heir-ship certificate in favour of applicant 01) Applicant (Smt Mandabai) (2nd wife), 2) Khandu Tukaram 3) Kalu Tukaram 4) Smt Zhumbarabai Tukaram Ghotkar @ Zhumbarabai Chandrakant Kunde. Settlement dues has already been passed in favour 01) Applicant (Smt Mandabai) (2nd wife), 2) Khandu Tukaram 3) Kalu Tukaram 4) Smt Zhumbarabai Tukaram Ghotkar @ Zhumbarabai Chandrakant Kunde as per legal heirship certificate dated 07.06.2022. The respondents submit that legal heirship certificate is for all property and credit as mentioned at page 16 A-5 to OA and that granting family pension is the legal right of only lawful wife/widow of deceased employees and cannot be termed as a property or credit at the hand of employees or deceased employees and paying accrued settlement dues on submission of legal heirship certificate is a different issue than granting family pension which has to be granted strictly as per law and rules laid down.
It has been further submitted that applicant was already married to one Shri Uttam Narayan Varghade (1st husband). The applicant had re-married deceased employee Late Shri Tukaram Goga on 30.08.2008 without taking a legal divorce from Shri Uttam Narayan Varghade (1st husband of applicant), hence, she is not eligible for family pension vide Railway Board letter No 14.01.2013 (Annexure R-1). Therefore, in compliance of this Tribunal's order dated 03.01.2025 in OA No.21 of 2024, Competent Authority disposed the representation dated 07.03.2025 and regret the claim of applicant for family pension.
It has been submitted that as per Staff & Welfare Inspector report dated 17.08.2021, Smt Lankabai, 1st wife of late Shri Tukaram Goga, has expired on 13.01.2007.
It has been submitted that late employee Shri Tukaram Goaga had re-married with applicant after the death of his first wife late Smt Lankaba in 2008. However, applicant was already married with one Shri Uttam Narayan Varghade. The applicant has re-married with deceased employee without taking a legal divorce from a competent court as per Hindu Marriage Act 1955 from her first husband Shri Uttam Narayan Varghade. Hence, Competent authority requisitioned the applicant to obtain the legal heirship from competent court of law for settlement accrued dues and advised vide letter dated 17.01.2022. This requirement was only for releasing settlement dues to applicant as specifically mentioned at Annexure A-4 and not for family pension for which specific rules apply to only the legally wedded wife/widow, as per Railway Pension Rule 19 family means wife or judicially separated wife, here since the applicant while marrying the deceased employee was already married to one Shri Uttam Narayan Varghade and no divorce decree was obtained by the applicant before marrying for the second time.
It has been submitted that the applicant is not a legally wedded wife because she was already married with one Shri Uttam Narayan Varghade (1st husband) and the applicant re-married with deceased Late Shri Tukaram Goga without taking legally divorce from 1st husband Shri Uttam Narayan Varghade for which the respondents cannot be blamed. Therefore, on the basis of aforesaid reply, they prayed for dismissal of the OA with cost.
The applicant has filed rejoinder. It has been stated that the applicant in OA does not seek a decree of divorce or any matrimonial relief. It assails a speaking order dated 15.05.2025 passed by respondent No.2 rejecting the applicant's claim for family pension and seeks consequential service-law relief flowing from the respondents' own long-standing recognition of her as the widow of late Shri Tukaram Goga Ghotkar.
It has been submitted that it is well settled that in adjudicating service and pensionary disputes, Courts and Tribunals can incidentally determine questions as to martial status for the limited purpose of deciding entitlement, especially where one party has already obtained a Civil Court order (here, a Legal Heirship Certificate) and the administration itself has acted upon it. The applicant is not asking to 'convert' a document into a decree; she only challenges the arbitrariness and illegality of the administrative decision refusing family pension.
It has been submitted that the impugned order dated 15.05.2025 is ex-facie non-speaking as it neither discusses the customary divorce material filed in compliance with this Tribunal's order nor reconciles the respondents' own prior recognition and the judicial legal heirship certificate with the conclusion now reached. This is squarely contrary to the settled law that administrative orders affecting civil rights must disclose reasons.
It has been submitted that family pension is a beneficial and social-security measure, intended to protect the dependants of a deceased employee. It has consistently been interpreted broadly and purposively by the Hon'ble Supreme Court and various High Courts. The respondents' approach amounts to a hyper-technical reliance on a Board letter and an assumed invalidity of marriage, without inquiry into the applicant's customary divorce and in the face of clear judicial recognition is contrary to the benevolent object.
The applicant relies on the customary divorce document as evidence of a prior dissolution of her earlier marriage, coupled with the subsequent conduct of all parties, including:
the deceased employee's marriage to her.
their cohabitation as husband and wife
recognition by the Railways through granting of spouse-benefits throughout the lifetime of her husband the late employee; and
the Legal Heirship Certificate of a civil court recognising her as widow.
The Tribunal is merely required to decide whether, in light of this material, the respondents' refusal of family pension is arbitrary and illegal. This is squarely within the "service matters" jurisdiction under Section 14 of the Administrative Tribunals Act.
It has been stated that the respondents' reliance on Sections 13B and 15 of the Hindu Marriage Act, 1955, is also one-sided and incomplete. It is settled that customary divorces can be recognised in law where a valid custom is pleaded and proved. The Hon'ble Supreme Court, while insisting on strict proof, has not held that all customary divorces stand obliterated by the enactment of the Hindu Marriage Act. (Yumanaji H. Jadhav v. Nirmala, (2002) 2 SCC 637; Subramani v. M. Chandralekha (2005) 9 SCC 407). Instead of examining the applicant's material and custom as directed by this Tribunal in OA No.21/2024, the respondents have simply brushed it aside by citing bare provisions of the Act. This is precisely the non-application of mind that the OA complains of.
It has been submitted that the plea that this Tribunal has 'no jurisdiction' even to incidentally examine marital status stands foreclosed by its earlier order dated 03.01.2025 in OA No.21/2024 wherein this Tribunal directed the respondents to reconsider the applicant's claim on the basis of the customary divorce material. The respondents cannot now turn around and contend that this Tribunal has no such jurisdiction.
It has been submitted that the legal heirship certificate issued by a competent civil court, after due process, judicially recognises the applicant as the widow and legal heir of Late Shri Tukaram Goga. Unless and until such judicial determination is set aside or modified by a court of competent jurisdiction, administrative authorities are not entitled to ignore or contradict it. The respondents have accepted the certificate and acted on it by disbursing settlement dues to the applicant as one of the heirs. Having chosen to treat her as the widow for that purpose, they are estopped from contending that she is not his widow for family pension. The doctrine of approbate and reprobate bars a party from blowing hot and cold, accepting a person's status when convenient and denying it when hot. The assertion that family pension is not "property" at the hands of the deceased employee may be legally accurate in the narrow sense, but it is irrelevant. The key point is that the civil court has determined the status of the applicant as widow; family pension flows from that status read with the Railway Services (Pension) Rules, 1993. The respondents cannot unilaterally neutralise or compartmentalise a judicial declaration.
It has been stated that the only ground on which family pension is now refused is the respondents' assertion that the applicant's earlier marriage with Shri Uttam Narayan Varghade was never dissolved "legally" and, hence, her subsequent marriage with the deceased is void. This conclusion is drawn without any adjudication by a matrimonial court and in total disregard of the customary divorce document produced, the conduct of parties, the civil court's legal heirship certificate recognising her as widow; and this Tribunal's own directions in OA No.21/2024.
It has been further stated that the respondents' stance effectively amounts to a unilateral administrative annulment of the applicant's marital status, which is impermissible. Questions of marital status cannot be conclusively determined by departmental fiat; yet, for service-law purposes, the Tribunal can and does routinely examine marital status to decide entitlement to family pension and similar benefits.
The applicant has placed reliance on the judgement of the Hon'ble Supreme Court in the case of Navjyoti Coop. Group Housing Society v. Union of India, (1992) 4 SCC 477 and in the case of Rameshwari Devi v. State of Bihar, (2000) 2 SCC 431 and Vidhyadhari v. Sukhrana Bai, (2008) 2 SCC 238.
It has been submitted that reliance on Railway Board letter dated 14.01.2013 (Annexure R-1) is misconceived. Firstly, executive instructions cannot override judicial determinations or statutory rules (Railway Services (Pension) Rules, 1993). Secondly, even on its own terms, the letter primarily addresses issues relating to benefits in cases of void or voidable marriages, particularly, in the context of "children" of such marriages. It cannot be used as a blunt instrument to defeat an otherwise well-founded claim based on judicial recognition and decades of administrative acceptance.
It has been stated that Rule 19 read with Rule 75 of the Railway Services (Pension) Rules, 1993, defines "family" to include widow and, in certain cases, judicially separated spouse. Once the applicant stands as the judicially recognised widow (per Legal Heirship Certificate) and administratively recognised spouse for all other purposes, the respondents cannot exclude her from the definition of "family" by relying on an executive circular and a unilateral view about the validity of her prior divorce.
During arguments, learned counsel for both the sides have relied on their pleadings and written statement.
I have carefully considered the rival submissions and gone through the pleadings and documents filed on record.
In the first round of litigation in OA No.21/2024 decided on 03.01.2025, the Tribunal came to the conclusion that there is no documentary material produced before the Tribunal or before the authority in respect of divorce of the applicant with Shri Uttam Narayan Vargade (1st husband of the applicant). Therefore, the OA was disposed of with liberty to the applicant to support her averments in respect of divorce and lawful marriage with the deceased employee within a period of 30 days from the date of receipt of a certified copy of the order and the respondents were directed to consider the same in accordance with the rules governing the field and if the applicant was found entitled, family pension was directed to be released. In case, the respondents come to the conclusion that the applicant is not entitled for family pension then reasoned and speaking order was directed to be passed within 60 days.
Pursuant to the above order of the Tribunal, the applicant has filed a xerox copy of typed two pages documents which is purported to be a customary divorce and claims that in view of the customary divorce, the marriage of the applicant with the deceased employee was legal. However, the respondents have claimed that the above customary divorce typed on the plain paper is not legally recognised as a valid document after commencement of Hindu Marriage Act, 1955. It has been submitted that Section 13B of the Hindu Marriage Act, 1955 provides that divorce by mutual consent can only be obtained by, subject to the provisions of Hindu Marriage Act, a petition for dissolution of marriage by a decree of divorce may be presented to the District Court by both the parties to a marriage together, whether such marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976)". Thus divorce decree by mutual consent can only be obtained by parties from a competent District Court. Further, Section 15 of the said Act states that a divorced person can remarry i.e "Section 15. When a marriage has been dissolved by a decree of divorce and either there is no right of appeal against the decree or if there is such a right of appeal, the time for appeal has expired without an appeal having been presented or an appeal has been presented but has been dismissed, it shall be lawful for either party to the marriage to marry again". Thus, only after a decree of divorce, a divorced person can lawfully marry again. It has been submitted that to grant relief at prayer clause 8, this Tribunal has to declare the mutual consent divorced executed/typed on a paper by applicant and existing husband annexed as A-7 colly, especially at page 113 to 116 as consent decree which this Tribunal has no jurisdiction to grant being not subject matter of service related issue, even regarding prayer clause 8.3 to declare the applicant as legal widow of deceased employee, this Tribunal has no jurisdiction as it is beyond scope of service related dispute under section 14 of Administrative Tribunals Act.
I find force in the argument of learned counsel for the respondents that since it is a disputed question of facts, this Tribunal has no jurisdiction to decide the question of disputed facts. The respondents are bound by the statutory service rules. According to the service rules, the family pension can be paid only to the legally wedded wife. Since the Hindu Marriage Act recognises the valid divorce only when a decree of dissolution of marriage is granted by the competent court of jurisdiction, this Tribunal cannot go into the same.
In view of the above, the submission made by learned counsel for the applicant that he is seeking family pension to the applicant who has married the deceased employee after obtaining customary divorce from her 1st husband can not be adjudicated by this Tribunal as it is not in accordance with law as the disputed question of facts can only be decided by the competent court of jurisdiction.
In view of the above, I am of the considered view that this Tribunal has no jurisdiction to decide the disputed question of facts and remedy to the applicant lies somewhere else.
Accordingly, the Original Application is dismissed. Pending MAs, if any, stand closed. No costs.