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Judgment
O R D E R
By Justice Akhil Kumar Srivastava, JM;
Through this Original Application, applicant has sought for direction to respondents to grant family pension to her from the date of death of Late Smt. Shayama Bai i.e. 04.11.2002 being the only dependent legal heirs of deceased employee.
The brief facts of the case are that the applicant is the daughter of Smt. Shyama Bai who was working on the post of Safai Karamchari in the respondent department and was retired on 21.12.1999 and she died on 04.11.2002. Applicant got married to Shri Santram Bramhne on 05.05.1979 and the said marriage was abandoned on 17.05.1987 in presence of social worker/family members of both and document of abandonment was executed in the name of Samajik Nyay (Annexure A/6) and since then she was residing with her mother Late Smt. Shyama Bai and was fully dependent on her till her mother’s death. Thereafter she submitted representation on 17.06.2010 for grant of family pension to the respondents. Respondents vide letter dated 13.02.2012 (Annexure A/9) directed the applicant to produce the decree of dependent from the Civil Court and other necessary documents. Applicant thereafter filed the suit for declaration of dependent on Late Smt. Shyama Bai vide Civil Suit No.295/2015 which was dismissed on 13.07.2016 by 5th Civil Judge Class II Jabalpur. The said order was challenged by the applicant before the 8th Additional District Judge Jabalpur in Civil Appeal No.187A/2016 which was decreed in favour of the applicant on 09.10.2017 (Annexure A/10). Thereafter applicant filed all the relevant documents as required by the respondents. Respondents vide letter dated 01.06.2018 (Annexure A/13) asked the applicant to submit decree of divorce and other documents. It is submitted by the applicant that she has already provided all the relevant documents to the respondents. She also approached National Commission of Safai Karamcharies Govt. of India and Member of Commission wrote letter to the respondents but the respondent-authority rejected the claim of the applicant vide order dated 20.02.2018 (Annexure A/1) and 07.01.2019 (Annexure A/2). Hence this Original Application.
Respondents in their reply have submitted that as per Railway Board’s Circular RBE No.99/2013 inter alia that, “only those children who are dependent and meet other conditions of eligibility for family pension at the time of death of the Govt. servant or his/her spouse, whichever is later are eligible for family pension…”.Further RBE No.102/2017 specifically clarifies that “…where the divorce proceedings had been filed in a competent court during the life time of the employer/pensioner or his spouse but divorce took place after their death provided the claimant fulfils all other conditions for Family Pension under Rule 54 of the CCS(Pension) Rules, 1972. In such cases family pension will commend from the date of divorce. In the present case applicant had not produced any divorce decree before the respondent department till date hence in the light of aforementioned facts and RB circulars mention above she is not eligible for family pension. Further it is submitted by the respondents that decree of dependency had never been sought from applicant. Applicant got widowed in 2009 while her mother Smt. Shyama Bai died in 04.11.2002. Applicant had filed suit No.295/2015 for declaring herself dependent on Shyama Bai while she had been directed to submit a divorce decree. The said suit was dismissed by learned Judge. Even respondent-Railways had not been made a party in both the Civil Suites.
Heard the learned counsel for the parties and perused the pleadings and documents annexed therewith. Applicant has not filed any rejoinder to the reply filed by the respondents.
Undisputedly, the customary divorce of the applicant took place during the life time of the pensioner Smt.Shyama Bai. The applicant got customary divorce on 17.05.1987. The applicant was residing with the pensioner and remained dependent of her till she expired on 04.11.2002. Admittedly, the applicant’s customary divorce proceedings were initiated and concluded during the life time of the said pensioner. Since the customary divorce was recognized in the community and society of the applicant there was no need or occasion for the applicant to obtain divorce decree from the court of law during the life time of the pensioner. After the death of the pensioner, applicant was advised to obtain the divorce decree from the court of law. But she had filed a case for declaration of dependency on her mother before the 5th Civil Judge Class 2 Jabalpur which was dismissed. Being aggrieved applicant filed appeal before 8th Additional Civil Judge Jabalpur whereby it was held that applicant was dependent upon her mother. Thereafter, the claim of the applicant for grant of family pension was denied by the respondents vide impugned order dated 20.12.2018 and 07.01.2019, mainly on the ground that the applicant had not filed any divorce proceedings in a competent court after the death of the pensioner and as per the terms of RBE No.102/2017 the divorce proceedings ought to have been filed in a competent court during the life time of the pensioner. Since the applicant has not fulfilled the said condition, her application was rejected by the respondents.
The issue about the eligibility of divorced daughter to claim family pension based on the customary divorce is now well settled by the Hon’ble High Court of Gujarat in the case of Union of India vs. Mayuriben Jani Daughter of Shri Durgeshbhai Nandlal Jani decided on 17.02.2020. It is appropriate to reproduce the observations and findings of the said judgment which reads as under:-
“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 required to be pressed into service for extending the benefit of the family pension to those who are in need thereof, as it is intended to benefit those family members who needs support. Bearing this proposition of law in mind, if one examines Rule 75 which is also in parimateria with Rule 54 of the said Rules, would indicate that the family pension is available to the divorced daughter. The Rule does not recognized any further or other requirement to be eligible for receiving the family pension. The device in the form of guideline 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 the 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 the 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 amounted 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 remain 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, read 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.”
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 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 the 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 enuring 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.
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.
19.The petitioners are directed to see to it that the family pensions are accorded to the respondents from the date when they are entitled as per Rule 75 of the Rules and the payment be made on that basis as expeditiously as possible preferably within a period of 90 days from the date of receipt of copy of this order.”
It can be seen that after referring the provisions of Family Pension Scheme for Railway Servants, 1964 it is also stipulated in Rule 75 of Railway Services (Pension) Rules, 1993 the Hon’ble High Court in the aforesaid judgment held that 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 the competent Court and would be improving the provision of the Hindu Marriage Act without any authority of law and the benefit, therefore, which are enuring 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.
In the present case, undisputedly, the customary divorce of the applicant took place in the year 1987. It reveals from the records that said customary divorce of the applicant was not disputed by the respondent. As noticed hereinabove, the claim of the applicant was denied by the respondents only on the ground that the divorce proceedings of the applicant before the competent court of law was not filed during the life time of the pensioner. At the same time, it is apt to mention that the customary divorce of the applicant took place during the life time of the pensioner i.e., the mother of the applicant who was receiving the pension.
In view of the aforesaid discussion and in the light of the judgment passed by the Hon’ble High Court in Mayuriben Jani (supra), we are of the considered opinion that the impugned orders (Annexure A/1 and A/2) suffers from infirmities and deserves to be set aside, accordingly, same is quashed and set aside.
Resultantly, this Original Application is allowed. Impugned orders dated 20.12.2018 (Annexure A/1) and 07.01.2019 (Annexure A/2) are quashed and set aside. Respondents are directed to pay family pension to the applicant from the date when she became eligible under Rule 75 of the Railway Services (Pension) Rules and the payment including arrears be made on that basis as expeditiously as possible, in any case within 90 days from the date of receipt of copy of this order. No order as to costs.