Central Administrative Tribunal - Mumbai
Smt Sheikh Bilkish Bano vs South East Central Railway on 7 November, 2024
1 OA No.815/2021 CENTRAL ADMINISTRATIVE TRIBUNAL MUMBAT BENCH, CAMP AT NAGPUR. ORIGINAL APPLICATION No.815/2021 Dated this fhustiey/Ene 1 "aay ef November, 2024 | CORAM: Mr. Santosh Mehra, Member (A) Smt. Sheikh Bilkish Bano D/o Late Sheikh Ibrahim Smt. Bilkish Bano Noor Mohammad (Divorcee), Aged about 44 Years, Occ. Household, R/o Bhoi Line, Sufi Nagar, Near Bhoiline Masjid, Kamptee, Tah. Kamptee, Distt. Nagpur, Maharashtra. 441001. Mob. No. 9850625979. .. Applicant ( By Advocate Shri D.C. Chahande) VERSUS 1. The Union of India, Through The Secretary, Ministry of Railways, Railway Board, Rail Bhavan, Raisina Road, New Delhi-110001. 2. The General Manager, South East Central Railway New Zonal Building, Bilaspur, Chhattisgarh -- 495004. 3, The Divisional Railway Manager, 5.E.C. Railway, Kingsway, Opp. Central Office, Jaystubh Chowk, Mohan Nagar, Nagpur, Maharashtra- 440001. 4, The Senior Divisional Personnel Officer, 2 OA No.815/2021 S.E.C. Railway Mixed Higher Secondary School, Budhwari Bazar, Bilspur, . Chhattisgarh-495003. 5. The Asst. Personnel Officer, South East Central Railway, New Zonal Building, Bilaspur, Chhattisgarh -- 495004. .. Respondents ( By Advocate Shri Bhaskar D Pandit) Reserved on : 24" October, 2024. Pronounced on: 7 te hOvembn, 29 y ORDER
The applicant has filed this OA under Section 19 of the Administrative Tribunals Act, 1985 and has prayed for the following reliefs:
"8.4j) allow this application.
(ti)call for all records and proceedings of the grant of family pension of the divorcee daughter of Sheikh Ibrahim the Ex-employee from the respondent No. 4 Senior Divisional Personal Officer S.E.C, Railway, Nagpur;
tit. be further pleased to quash and set aside impugned office order No. 1/NGP Niptaraf201Y/01/l dated 23-29/10/2019 Annexure-1 by which legitimate claim of family pension of the applicant was rejected by the respondent No.4 Senior Divisional 3 OA No.815/2021 Personal Officer S.E.C. Railway Nagpur; tv. direct the respondent No.4 to grant family pension of the applicant divorcee daughter of deceased Sheikh Ibrahim with effect from 10/11/2004 and arearrs there of with admissible interest Hill its realization;
v. Issue rule nisi and admit the application for final hearing;
vi. any other relief or reliefs that may be deemed fit and proper under the facts and circumstances of the case may kindly be granted in favour of the applicant as against the respondents in the interest of justice."
2. Facts in brief are that:
21 Learned counsel for ihe applicant submits that the father of the applicant, namely, Sheikh Ibrahim was in permanent employment working under control and supervision of respondent no.2, DRM, 5.E.C. Railway as Motor Trolly Driver, K.P. The father of the applicant retired from service on superannuation w.e.f. 30% September, 1993 and, thereafter, was entitled for family pension.
2.2 Learned counsel for the applicant submitted that the applicant is a divorcee daughter of SK. Ibrahim who 4 OA No.815/2021 was dependent upon her father, the ex-employee of the respondents S.E.C. Railway. The employee of the respondents, Shri Sheikh Ibrahim 5/o Sheikh Idu died on 09% November, 2004, leaving behind her daughter, present applicant Smt. Bilkis Bano. The mother of the applicant ie., wife of the deceased employee predeceased Sheikh Ibrahim and died on 12 October, 2002. The present applicant is a daughter and was dependent upon her deceased father Sheikh Ibrahim, Ex-employee of the respondents S.E.C. Railway.
2.3 Learned counsel for the applicant was the legally wedded wife of one Noor Mohd. S/o Peer Gulab, R/o Ballarshah, Dist. Chandrapur, (MS); The Nikaha (Marriage) was performed between the applicant and said Shri Noor Mohd. S/o Peer Gulab on 06% May, 1990., according to Muslim Personal Law prevailing in the community. The amount of Mehar of Rs.7,786/- was fixed at the time of Nikhanama. However, there was no issue 5 OA No.815/2021 from the above said marriage between the applicant and the said Noor Mohd. After marriage, the applicant went to the house of her husband Noor Mohd. At Ballarshah, Dist.
Chandrapur and they resided together for about six months or so. However, the spouses did not enjoy happy marital life. About one year or so after marriage, the applicant was sent to her parents house i.e. at Kamptee by her husband Noor Mohd., on the assurance that he will come back to fetch her after a month. However, the husband of the applicant did not turn up to fetch the applicant back to his house in view of festering marital disputes. In the circumstances, the applicant decided to obtain divorce from her husband. The husband of the applicant gave divorce to the applicant on 10% june, 1994 in the form of Talaq-Khula in the presence of the Members of the Committee of Ballarpur Jama Masjid and family members.
2.4 Learned counsel for the applicant further submitted that the applicant gave up her rights of Mehar 6 OA No.815/2021 and amount of maintenance for the period of three years.
The husband of the applicant also returned Dahej Articles to the applicant. The said Talaq-Khula dated 10% June, 1994 was also sent to the Secretary Jama Masjid, Ballarashah, which was duly received and acknowledged by the said Committee, In response to the above said Talaq- Khula, the applicant has given her consent to the said Talag dated 10th June, 1994, given by Noor Mohd. and also given up the amount of Mehar of Rs. 7,786/- and also maintenance against her husband. The said letter of acceptance of the above said Talaq Khula was also sent to the President, Jama Masjid Community Ballarashah.
2.5 Learned counsel for the applicant farther submits that since the date of Talaq Khula dated 10 June, 1994, the applicant was residing with her parent's house at Kamptee with her father Sheikh Ibrahim, Ex- employee of the respondents. Based on a petition filed by the applicant for dissolution of marriage before the 6th Joint Civil Judge 7 . OA No.815/2021 Sr. Dn. Nagpur (Shri G.P. Bavaskar), in Reg. Civil Suit No. 1032/2013,against her husband Noor Mohd., a judgment and decree of divorce dated 13% January, 2016, was passed by which the marriage between and applicant and her husband Noor Mohd. S/ o. Peer Gulab was declared to be dissolved.
He further submits that as has been stated above, the applicant was residing with her father at Kamptee since the date of Talaq-Khula dated 10% June, 1994 and she was totally dependent upon her father deceased Sheikh Ibrahim S/o. Eidu. Hence, the applicant is entitled to receive family pension of her father after his death. In the above circumstances, the applicant has also sworn-in an affidavit dated 14" January, 2004.
2.6 Learned counsel for the applicant stated that by the office letter dated 08t November, 2017 (13 November,
17) issued by the respondent No. 4, it was informed that the
- case of family pension of the applicant could not be 8 OA No.815/2021 considered in absence of proper judgment and decree of the Competent Family Court. The applicant had already submitted copy of judgment and decree dated 13 January, 2016 from the Competent Court of law in Reg. Civil Suit No. 1032/2013, passed by Hon'ble 6th Jt. Civil 2/2013, Judge Sr. Dn. Nagpur. In the circumstances, the applicant gave representation dated 22-4 September, 18, through the General Secretary, South Eastern, Central Railway, Pensioners Association, Nagpur, addressed to the respondent No. 4, Sr. Divisional Personal Officer, SEC Railway, Nagpur, praying for family pension of her deceased father Sheikh Ibrahim, Ex-MCM which was duly received and acknowledged by the respondents. However, the legitimate claim of the applicant for family pension was not considered by the respondent SEC Railway for the reasons best known to them. Simultaneously, the applicant had given a representation on 02°¢ May, 2019 for considering family pension claim in the Pension Adalat 9 OA No.815/2021 which was to be held on 15% June, 2019.
2.7-- It is submitted that since the respondents have not considered legitimate claim of the applicant for family _pension of her deceased father in spite of the judgment and decree from the Competent Court of law, the applicant has again given representation dated 25% June, 2019 through the General Secretary Pensioners Association, Nagpur to the Dy. Chief Personal Officer (HQ) SEC Railway, Bilaspur. 2.8 The applicant gave another application dated 06% September, 2019 and stated that in addition to Khula Namha she has obtained to decree of divorce from the court of 6th Jt. Civil Judge Sr. Dn. Nagpur and copy of the same was enclosed. The said application was duly received and acknowledged by the respondent No. 4 Sr. Divisional Personal Officer, SEC Railway, Nagpur. However, no action was taken and the applicant was not been granted family pension of her deceased father. Hence, the applicant again requested the respondent vide application dated 24% ay 10 OA No,815/2021 October, 2019, for grant of family pension as a divorcee daughter of Sheikh Ibrahim, Ex-Motor Trolly, Driver KP. and to keep the matter for discussion in Pension Adalat to be held in December, 2019.
2.9 Finally, the applicant received order/ communication dated 23-29% October, 2019, from the Assistant Personal Officer, Sr. Divisional Railway Nagpur and it was informed that the applicant is not entitled for family pension in view of the Railway Board, Establishment Rules 109/2014 and 102/2018. It was further informed that since the father of the applicant died on 09 November, 2004 and the proceedings for divorce was initiated on 05% August, 2013 and father of the applicant died on 09% November, 2004 and mother died on 12 October, 2002, the applicant was not considered to be dependent upon her parents, 2.10 The learned counsel for the applicant strongly contended that the respondents Sr. Divisional Personal a i OA No.815/2021 Officer, S.E.C. Railway Nagpur ought to have seen and considered that the divorce by way of Khulah Nama was given by the husband of the applicant on 10 June, 1994. In the circumstances, it can not be construed that the divorce took place after the death of Ex-employee Sheikh Ibrahim the father of the applicant. It is clear that that respondents Sr. Divisional Personnel Officer had committed a great mistake apparent on face of record and as such the impugned order dated 23-29 October, 2019 cannot be sustained in the eye of law and the same is liable to be quashed and set aside. The learned counsel for the applicant asserted that Sr. Divisional Personnel Officer, S.E.C. Railway ought to have seen and considered that in fact divorce by way of Khula (Talaq) was obtained and accepted by the Jama Masjid Committee, Ballarpur dated 10 June, 1994. The said Khula (Talaq) was confirmed by the competent court of law by way of decree of divorce vide judgment and decree dated 13 January, 2016. On this 12 OA No.815/2021 count, the impugned order/communication dated 23-29th October, 2019 passed by the Sr. Divisional Personnel, 5.E.C. Railway is per se illegal as much as bad in law and the same should be quashed and set aside as it is sheer injustice and unfair labour practice.
3. Learned counsel for the applicant placed reliance on the judgment of the Hon'ble High Court of Judicature at Madras in the case of Mohammed Rafi Vs. The State of Tamil Nadu & 2 Ors., in WP No.35688/2019 decided on 11" January, 2023, He has invited my attention to the following paras of the judgment:
"11. ......The learned counsel for the second respondent Shariat Council placed reliancé on the decision of the Kerala High Court rendered on 28.10.2020 in R.P.No.936 of 2021 in Mat.Appl.No.89 of 2020 2022 Live Law (ker) 559 : 2022 SCC OnLine Ker 5512, wherein the right of a muslim women to resort to the extra judicial divorce of khula, allowing her to terminate her marriage..."
"14. The second respondent Shariat Council is a society registered under the provisions of the Tamil Nadu Societies Registration Act, 1975. It exercises overwhelming the power over the members of the Jamath. It seems to give a impression as that of By meen, 13 OA No.815/2021 a public body. Therefore, this Court is inclined to exercise the jurisdiction under Article 226 of the Constitution of India against the second respondent Shariat Council. Therefore, this Court is of the view that this Writ Petition as against the second respondent Shariat Council is maintainable..."
"15. A Muslim Woman has an inalienable rights to dissolve her Marriage. This is recognized under the provisions of the Muslim Personal Law (Shariat) Application Act, 1937."
"18. ....Section 2 (applicable to Tamil Nadu) Application of Personal law to Muslims. --- Notwithstanding any custom or usage to the contrary, in all questions 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 Tallag, Hla, Zihar, Lian, Khula and Mubaraat, maintenance, dower, guardianship, gifts, trusis and trust properties and wakfs the rule .of decision in cases where the parties are Muslims shall be the Muslim Personal Law (Shariat)..".
"21. When the Dissolution of Muslim Marriages Act, 1939 was enacted with effect from 17.03.1939, several grounds for decree for dissolution of marriage were statutorily recognized under Section 2 of ithe Dissolution of Muslim Marriages Act, 1939. Section 2(i) to (viti) of the said Act contains grounds for dissolution of marriage on fault basis. Section 2(ix) of the Act deals with residuary clause, under which, a married Muslim Woman is entitled to obtain a decree for dissolution of marriage on any other grounds which is recognized as a valid for the 14 OA No.815/2021 dissolution of marriages under Muslim Law.
Thus, Khula which is recognized under the personal law is now statutorily recoonized under the vrovisions of the Dissolution of Muslim Marriages Act, 1939."
"24, The Division Bench of the Kerala High Court, in its judgment dated 28.10.2022, in a review petition in R.P.No.936 of 2021 in Mat. Appeal No.89 of 2020 etc., which is reported in 2022 SCC OnLine Ker 5512, held that it is acknowledged by Islamic law that the Muslim wife has the right to demand termination of marriage".
"27. By the common order dated 09.04.2021 in Mat. Appeal No.89 of 2020 etc which is reported in 2021 SCC OnLine Ker 2054 : (2021) 3 DMC 297, the Division Bench has passed the detailed order."
"28, The Division Bench of the Kerala High Court referred to four major forms of dissolution of marriage as recognized under the Islamic Law and protected under the Muslim Personal Law (Shariat) Application Act, 1937 at the instances of the wife namely, (i) Talag-e-tafwiz, (ii) Khula, (itt) Mubara' at, and (iv) Faskh."
"29. As far as the issue relating to Khula, with which this Court is concerned herein, the Division Bench of the Kerala High Court has observed as under:-
20. Khula: Khula is the form of divorce conferred upon wife similar to talag conferred upon the husband. The recognition of Khula as a form of divorce is directly available from the Holy Quran. In Chapter IT Verses 228-229, Quran confers rights on both husband and wife to unilaterally divorce the spouse. It is apposite to refer to verses 228-229", 15 OA No.815/2021 "32. The Division Bench of the Kerala High Court in the above case has concluded as follews:-
"81, In the absence of ary secular law governing khula, we hold that Khula would be valid if the following conditions are satisfied: (i). A declaration of repudiation or termination of marriage by wife. (ti). An offer to return dower or any other material gain received by her during marital tie. (iti). An effective attempt for reconciliation was preceded before the declaration of khula."
4, Learned counsel has further placed reliance on the judgment of the High Court of Bombay at Nagpur in the case of Union of India through the General Manager & Another Vs. Usha Eknath Patil in WP No.6884/2016 decided on 034 April, 2018 wherein it has been held thus:
"Petitioner - employer questions the order dated 30/9/2016 passed in =: Review ~--_---- Petition No.211/00003/2016 and order dated 27/11/2015 passed on Original Application Noe.2195/2622.
tt edeeeen nee | Z, Marriage of respondent ~ Usha took place in the year 1979 and it is claimed by her that because of dispute there was a customary divorce in presence of Panchayat Members on 21/7/1992. Since then she started living away from her husband and with her mother. Her father Eknath happened to be employee of petitioners and he expired on 16/2/1982. Widow of Eknath, ie, mother of respondent, namely, Vatsaia expired on 28/12/1999. Thus, respondent - Usha stayed as member of family of Eknath with her widowed mother from 21/7/1992 till 28/12/1999.
m7 16 OA No.815/2021
3. Defence of petitioners before Central Administrative Tribunal was that in order to claim to be member of family of Eknath, divorce of Usha with her husband should have been before death of Vatsala, i¢.. before 28/12/1999, Here, lecal divorce is given by 2 nd Joint Civil Judse, Senior Division, Jalgaon on 29/11/2010 in Hindu Marriage Petition No. 5010/2010. Thus, till 29/11/2010 Usha could not have been the member of family of Eknath."
Pee recor rol reerr et eri Shri Bambal, learned counsel for the respondent submits that marriage of respondent No. 1 - Usha took place in the year 1979 and because of matrimonial discord, customary divorce in presence of Panchayat members took place on 21.67.1992. She was thus residing with her mother after that date till the death of mother on 28.12.1999. She was, therefore, very much dependent on pension of the deceased Eknath and also member of his family.
8. Perusal af order dated 27/11/2015 in Original Application No.2195/2612 shows that in paragraph no.14 while recording findings, Central Administrative Tribunal has drawn from a joint pursis filed by Usha and her husband in Hindu Marriage Petition before civil Court. In that pursis civil Court was informed that parties were staying separately since last 18 years. Accepting that statement, an 29/11/2010, énd Joint Civil Judge, Senior Division, Jalgaon granted decree and dissolved marriage dated 10/5/1979.
weve lO. Again in paragraph no.10 of this order Central Administrative Tribunal has found that Usha esiablished the fact that she separated from her husband and secured customary divorce in presence of Panch Committee in the year 1992, ie, before death of her mother.
11. Petitioners before us are not in position to place on record anv evidence which will show incorrectness of this finding or expose falsehood in stand of Usha, Effort only is fo urge that in law, before 29/11/2010 there was no divorce ae 17 OA No.815/2021 and Usha being married, did not form part of family of Eknath when widow of Eknath (Vatsala) had expired on 28/12/1999.
12. The relevant Clause 19 (b) defines family and on which petitioners have placed reliance, reads as under
"19 (b) "family", in relation to railway servant, Means ~
(i) wife in the case of a male railway servant or husband in the case of a female railway servant;
(ti) a judicially separated wife or husband, such separation not beng granted on the ground of adultery and the person surviving was not held guilty of committing adultery;
(ati) unmarried son who has not attained the age of twenty-five years and unmarried or widowed or divorced daughter, including such son and daughter adopted legally;
(iv) dependent parents :
(v) dependent disabled siblings (1.e. brother or sister) of a railway servants."
13. Clause nos.4 and 5 of office memorandum dated 11/9/2013, insofar as it is relevant for present purposes, read as under :-
"4, It is clarified that the family pension is payable to the children as they are considered to be dependent on the Government servant/pensioner or wp6884,16.0dt his/her spouse. A child who is net earning equal to or more than the sum of minimum family pension and dearness relief thereon is considered to be dependent on his/her parents. Therefore, only FO ee 18 _ OA No.815/2021 those children who are dependent and meet other conditions of eligibility for family pension at the time of death of the Government servant or his/her spouse, whichever 1s later, are eligible for family pension. If two or more children are eligible for family pension at that time, family pension will be payable to each child on his/her turn provided he/she is still eligible for family pension when the turn comes. Similarly, family pension to a widowed/divorced daughter is payable provided she fulfils all eligibility conditions at the time of deathfineligibility of her parents and on the date her turn to receive family pension comes.
5. As regards opening of old cases, a daughter if eligible as explained in the preceding paragraph, may be granted family pension with effect from 30 th August, 2004, The position is illustrated through an example. Shri A, a pensioner, died in 1986. He was survived by his wife, Smt. B, a son Shri C and daughter, Kumari D, the daughter being the younger. Kumari D married in 1990 and got widowed in 1996. Smt. B died in 2001. Thereafter, Shri C was getting family pension, being disabled, and died in 2003. Thereafter, the family pension was stopped as Kumari D was not eligible for it at that time. She applied for family pension on the basis of O.M., dated 30th August, 2004. Since she was a wp6884.16.odi widow and had no independent source of income at the time of death of her mother and on the date her turn came, she may be granted family pension. The family pension will continue only till she remarries or staris carning her livelihood equal to or more than the sum of minimum family pension and dearness relief thereon."
"19. Here, fact of customary divorce is not in dispute. The competent civil Court _has on 29/11/2010 in recognition of customary divorce and separate stay from 21/7/1992 dissolved ra 19 OA No.815/2021 marriage, Thus, fact that daughter - Usha was not residing with her husband since 21/7/1992 has been accepted by competent Court. The Central Administrative Tribunal in Original Application on 27/11/2015 has accepted this finding of civil Court. The petitioner - railways could not displace that finding even during review proceedings.
20. Today, our attention has been drawn to office memorandum dated 19/7/2017. This memorandum clarifies the earlier office memorandum dated 11/9/2613 mentioned supra. The office memorandum stipulates that daughter, if eligible may be granted family pension, provided she fulfils all eligibility conditions at the time of death/ineligibility of her parents.
21. There cannot be any debate about this proposition. Here, Clause 19 (b), mentioned supra, includes not only a widowed or divorced daughter but also unmarried daughter. The said clause also entitles adopted son or daughter to family pension. Clause therefore is wide and looks after welfare of family of deceased employee. Clauses 4 and 5 (highlighted portion, supra) of office memorandum dated 11/09/2013 show the intention of Railways not to leave a destitute woman without any means of livelihood. This object and intention can not be defeated in present facts.
22. In_ present facts, though customary divorce on 21/7/1992 may not be legally recognized, facts show that from said date Usha was not residing with her husband and was. therefore member of family of her deceased father. She 20 OA No.815/2021 was therefore a_destitute residing with her mother Vatsala who expired on 28/12/1999. When the provision entitles unmarried or a divorced or a widowed daughter to family pension, we find that Usha is definitely covered thereunder.
23, We therefore do not see any jurisdictional error or perversity in the order passed by Central Administrative Tribunal. No case is made out. Writ Petition is therefore dismissed. Rule stands discharged. No costs."
5. Learned counsel for the applicant has also submitted that the applicant filed Reg. Civil Suit No.1032/2013 before the 6% Jt.Civil Judge SR. DN. Nagpur which was decided on 13" January, 2016. The relevant portion of the judgment reads as follows:
"This is a suit filed by plaintiff Bilkish Bano against defendant for dissolution of marriage.
2] tis contended by the plaintiff that she is legally wedded wife of the defendant and their marriage was solemnized on 06.05.1990, according to Muslim Law prevailing in the community at Kamptee, Dist. Nagpur. Ai the time of Nikahanama, Mehar amount of Rs.7,786/- was fixed. The plaintiff and the defendant were not blessed unith any child.
3] After marriage, the plaintiff had been to the om, 21 OA No.815/2021 house of the defendant at Ballarshah Dist. Chandrapur and they resided together for about six months. But due to difference of opinion, they have not enjoyed happy married life. During cohabitation the defendant was always giving abuses and was insuiting the plaintiff. Defendant also started beating the plaintiff. Defendant used | to come to the house in late hours under the influence of liquor and used to beat the plaintiff. The plaintiff was bearing illteratment given by defendant with a hope that the days will change in future. Defendant was also maintaining illicit relations with other women and was suspecting the character of plaintiff. Defendant was also not providing daily needs to the plaintiff. One day the defendant. under influence of liquor poured rock oil on the person of the plaintiff. It was not possible for the plaintiff to cohabit with the defendant.
4] Near about one year, after the marriage, defendant sent the plaintiff to her parents house and assured that he will come back after one month. But after one month, the defendant did not turn up to fetch the plaintiff back to his house. Thereafter, the plaintiff had been to the house of defendant along with her brother. But defendant did not allow her to reside to his house. When the plaintiff and defendant realized that there is least possibility to reside together, they decided to obtain divorce. Therefore, in presence of Panchas and elder member of family, defendant gave divorce to the plaintiff on 10.06.1994 by virtue of Talque-Khulah. Now there is no marital relations in between the plaintiff and the defendant. The plaintiff gave up her right of Mehar. Defendant paid amount of maintenance to the plaintiff for period of 3 years. Now, the plaintiff and defendant 22 OA No.815/2021 will not claim anything against each other. _ Defendant also returned Dahej articles to the plaintiff. Since the date of Talque, the plaintiff is residing at her parents house. It is prayed that decree of divorce be passed in her favour.
5] Suit summons was received by the defendant. But he remained absent. Suit is proceeded exparte against the defendant vide order dated 20.06.2014, 6] Following points arose my for determination to which I have recorded my findings there on with the reasons stated below. | Sr; Points : Findings 4 | Whether the plaintiff is entitled for in the affirmative decree of dissolution af marriage?
2 What order and decree? As per final order.
REASONS 7] In support of her case, the plaintiff examined herself at Exh.10 as P.W.1 and also examined one Hafeez Mumtasib Akthar as PW.2 at Exh.11, Shaikh Babbu S/o Shaikh Wali Mohammad at Exh.12 as P.W.3 and Shamim Ahamad S/o Abdul Gaffar as PW.4 at Exh.20. She also placed reliance on Nikahanama at Exlt.17, its translation copy at Exh.18, Khulahanama at Exh.19. Heard learned counsel appearing in behalf of the plaintiff.
Le eesseravens When the plaintiff had been to the house of defendant, he did not allow her to reside at his hause and gave Talgue- Khulah ae, 23 OA No.815/2021 on 10.06.1994 and returned back her Dahej articles. The plaintiff gave up Mehar amount which was fixed and received maintenance for a period of 3 years. Her evidence also discloses that the defendant was having illicit _relations with other.
9} Oral evidence of the plaintiff finds corroboration from the evidence of P.W.2 to 4. The evidence of witnesses clearly discloses that the marriage of the plaintiff was solemnized with the defendant on 06.05.1990 at Kamptee, Dist. Nagpur. Oral evidence of witnesses_finds corroboration from Nikahanama Exh.17 and its true translated copy at Exh. 18. The evidence of witness remained unrebutted and unchallenged. Unchallenged testimony of wtinesses, corroborated by documents is sufficient to prove that the marriage _in between the plaintiff and defendant was solemnized on 06.05.1990. Evidence further discloses that after marriage the plaintiff had been to the house_of defendant for cohabitation and she was illtreated by defendant and she was treated bythe defendant with cruelty.
10] In such circumstances, there is sufficient evidence on record that defendant treated the plaintiff with cruelty ie. to say habitually assaulting her and made her life miserable by cruelty and was associated with woman of evil repute. As such in terms of section 2 (viti) (a), (b),
(ix) of dissolution of Muslim Marriage Act 1939, the plaintiff is entitled for decree of dissolution of marriage, In the circumstances, I answer point no.
a | 24 OA No.815/2021 1 in the 'affirmative' and for answering point no.2, 1 proceed to pass the following order.
ORDER rg) Suit is decreed with costs, 2] Marriage in between the plaintiff and defendant is ordered to be dissolved by decree of divorce.
3) Decree be drawn . up accordingly.
4) Pronounced and dictated in open court."
6. The applicant has filed copy of affidavit filed before the Court of Executive Magistrate Kamptee dated 14th January, 2004 which is reproduced for ready reference:
"Sheikh Bilkish Bano D/o. Sheikh Ibrahim, aged about 35 years, Occ. Household, R/o Bhoi Line, Near Masjid, Kamptee, Tah. Kamptee, Distt. Nagpur.
SUBJECT: For Submission of an affidavit to effect that I am divorcee and I am residing with my father and I am depending upon my father.
AFFIDAVIT I, the deponent do hereby take an oath and state on solemn affirmation that I am residing at above said address and I am also divorcee and now lam residing with my father Shri. Sheikh Ibrahim S/o Sheikh Eidu. And I am depending upon my £2...25 OA No.815/2021
father. That, nry father also totally maintaining me.
Hence this affidavit.
KAMPTEE DATED:14/01/04. Sd/-
DEPONENT"
"VERIFICATION Verified and signed by me that the above information in para No. 1 and 2 are true and correct found false then I am liable to prosecuted as per section 199 and 200. of IP.C. KAMPTEE DATED:-14/1/14 Sd/ DEPONENT.
Sd/-
Rajesh C. Dhoke Petition Writer Dt. 14/1/04"
7, The learned counsel for the applicant has also drawn my attention to letter dated 08 November, 2017 sent by Divisional Personnel Officer-Il, 5.E.C. Railway, Nagpur to the applicant. The relevant portion of the said letter is quoted below:
sesceeees It is to inform you that as per Pension Manuel and instruction contained in _ CPO/BSP's Estt. Rule 86/05, the provision for AO SE 26 OA No.815/2021 granting family pension to divorcee daughters is similar for all religions and "Khulanama" submitted by you is as per Muslim Personal Law.
In view of the above, you family pension case cannot be considered in absence of proper judgment and decree from the competent family court."
8. Learned counsel for the applicant has further drawn my attention to letter dated 22.4 September, 2018 sent by General Secretary, S.E.C. South Railway Pensioners' Association - Nagpur addressed to The Sr. Divisional Personnel Officer, S.E. Railway, Nagpur which reads as below:
To, 22.09.2018 The Sr. Divl Personnel Officer, :
S.E.Rly, Nagpur.
Dear sir, Sub: Claim for Family Pension.
Vide your letter | No.P/NGP/SET017/72 dt.08.11.1017 while the Khulanam submitted by Smt.Bilkis Bano divorcee daughter of late Sri. Sk, Ibrahim ex MCM is according to the Muslim Personal Law it is stated that the claim for family pension cannot be considered in terms of Pension Mannual and Estt Rule No.86/2005 and 27 OA No.815/2021 she is being advised that she should obtain a decree from the competent family court.
There is no vrovision in the Pension manual and in the Estt Rule No.86/2005 that Muslim Personal Law cannot be accented and it is very pertinent to mention that Muslim Personal Law is covered under Shariat Application Act 1937.(Copy enclosed)......."
The Learned Counsel for the applicant has also drawn our attention to the judgment of this Tribunal in OA No. 2055/2020 in the case of Shashikala @ Sushila Shankarrao Bhalekar Vs. The DRM, Jalgaon in which the OA was upheld by this very Tribunal.
9, Reply has been filed by the respondents on 25% May, 2023. The respondents have contested the claim of the applicant and submitted that that applicant was not dependent upon her father and mother during the lifetime of her parents. The applicant's mother expired on 12% October, 2002 and her father expired on 09% November, 2004. At that time, the applicant depended upon her husband. No divorce petition before the competent court of law was filed by the applicant during the lifetime of her 28 OA No.815/2021 parents. The applicant filed regular civil suite for divorce in year 2013 and subsequently decree of divorce was granted by the court in year 2016. In this regard, the Railway Board Establishment Rule No.109/2014 and 102/2017 provides that to grant family pension te a divorce daughter, the divorce proceedings should have been filed in the competent court during the lifetime of the employee/pensioner or his/her spouse, even if divorce takes place after their death. In the view of the same, the applicant is not entitled for family pension in lieu of her deceased father.
9.1 It has been further submitted that as per death certificate submitted by the applicant, Late Sheikh Ibrahim i.e, applicant's father expired on 09 November, 2004 and Late Jainabee i.e. applicant's mother expired on 12 October, 2002. The applicant filed regular civil suit no.1032/2013 on 05 August, 2013. Subsequently, as per copy submitted by the applicant, divorce was taken from Noor Mohmmad on 13* January, 2016 from the competent court of law. The 29 OA No.813/2021 family pension claim of the applicant was rightly rejected by Respondent No4 by applying the SECR's Estt. Rule No.109/2014 (RBE No.109/2014) and 152/2017 (RBE No.102/2017) a letter was sent to the applicant accordingly on 23/29% October, 2019 vide this letter.
9.2 It is further submitted that the applicant is not entitled for any relief prayed for a reason that the OA is time barred and hit by laches. The claim of the applicant is devoid of any merit and substance.
10. Learned counsel for the respondents has also relied upon the judgment of the Hon'ble High Court of Judicature at Madras in the case of Mohammed Raft Vs. The State of Tamil Nadu (supra). The relevant paras are quoted below for ready reference:
33. The Courts are empowered under Section 7(1)(b) of the Family Courts Act, 1984 read with Section 2 of the Dissolution of Muslim Marriages Act, 1939 and Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937 to pass a decree to dissolve a MATTIAgE.
34, The private bodies such as the Shariat 30 OA No.815/2021 Council, the second respondent herein cannot pronounce or certify dissolution of marriage by Khula, They are not Courts or Arbitrators of disputes. The Courts have also frowned upon such practice as mentioned above. This Court has also granted an interim stay vide order in Bader Sayeed Vs. Union of India, 2017 SCC OnLine Mad 74. It has restrained the bodies such as the respondents therein (Kazis) from issuing such Certificates certifying dissolution of marriage by Khula,
35. Thus, while it is open for a Muslim Woman to exercise her inalienable righis to dissolve the marriage by Khula recognized under_the Muslim __ Personal Law _(Shariat) Application Act, 1937 by approaching a Family Court, it cannot be before_a self declared body consisting of few members of famath. Therefore, the petitioner has made out the case for interference in this Writ Petition. Thus, the impugned Khula Certificate dated 21.06.2017 issued by the second respondent Shariat Council is liable to be quashed and is accordingly quashed, The petitioner and the third respondent are directed to approach the Tamil Nadu Legal Services Authority or a Family Court to resolve their disputes,"
11. Learned counsel for the respondents has referred to OM No.1/13/09-P&PW(E) dated 18t September, 2014. Relevant portion of the said OM is reproduced below for ready reference:31 OA No.815/2021
"OFFICE MEMORANDUM Sub: Eligibility of widowed/divorced daughters for family pension - clarification regarding.
sessed. Provision for grant of family pension to a widowed/divorced daughter beyond the age a 25 years has been made vide OM dated 30.08.2004. . will was clarified, vide OM dated 28.04. 2011, "tbat the family pension may be granted to eligible widowed/divorced daughters with effect from 30.08.2004, in case the death of the Govt. Servant/pensioner occurred before this date.
3. It was further clarified vide OM dated 11thSeptember, 2013 that if a daughter became a divorcee/widow during the period when the pensionffamily pension was payable to her father/mother, such a daughter, on fulfillment of other conditions, shall be entitled to family, pension. The clarification was aimed at correctly interpreting the conditions of eligibility of a widowed/divorced daughter in terms of the concept of family pension under the CCS (pension) Rules, 1972. It was also stated that it was only a clarification and. the entitlement of widowed/divorced daughter would continue to be determined in terms of OM dated 25th/30th August, 2004 read with OM dated 28111 April, 2011. It implies that the family pension should discontinue in those cases where it had been sanctioned in pursuance of these OM but without taking into consideration that the widowed/divorced daughter was leading a married life at the time_of death of her father/mother, whoever died later and was, therefore ineligible for family pension. It would be appropriate that in order to maintain equality before law, family pension. payable to such daughters ___is discontinued. ..."
12. referred to OM No.1/13/09-P&PWE) dated 19% July, 2017.
32 OA No.815/2021Learned counsel for the respondents has also The relevant portion is reproduced below:
"OFFICE MEMORANDUM Sub: Eligibility of divorced daughters for grant of family pension - clarification regarding.
vase Tt was clarified that a daughter if eligible, as explained in the preceding paragraph, may be granted family pension provided she fulfills all eligibility conditions at the time of death/ineligibility of her parents and still on the date her tum to receive family pension comes. Accordingly, divorced daughters who fulfill other conditions are eligible for family pension if a decree of divorce had been issued by the competent court during the life time of at least one of the parents.
5. This department has been receiving grievances from various quarters that the divorce proceedings are along drawn procedure which take many years before attaining finality. There are many cases in which the divorce proceedings of a daughter of a Government employee/pensioner had been instituted in the competent court during the life time of one or both of them but none of them was alive by the time the decree of divorce was granted by the competent authority.
6. .csnsdt has been decided to grant family pension to a divorced daughter in such cases a afin 33 OA No.815/2021 where the divorce proceedings had been filed in a competent court during the life-time of the employee/pensioner or his/her spouse but divorce took place after their death....... *
13. Learned counsel for the applicant has filed Rejoinder to the reply filed by the respondents. In the said rejoinder it is stated that the husband of the applicant Shaikh Noor Mohammad had given divorce by KHULANAMA' dated 10% June, 1994, to the applicant in presence of the 'Jama Masjid Committee on non-judicial stamp.of Rs. 10 before six witnesses. It is clear that the applicant was residing with her parents since the 10% June, 1994 and was dependent upon her parents. The applicant submitted a sworr-in an affidavit dated 14 January, 2004, wherein ithes been specifically made it clear that the applicant was depending upon her father. Thus, contention of the respondent that the applicant was not dependent upon her parents is totally false and baseless and cannot be sustained in the eye of law.
34 OA No.815/202114. Heard the learned counsel for the applicant and the learned counsel for the respondents and have perused the pleadings available on record.
Findings
15. Learned counsel for the respondents has objected to the averments of the learned counsel for the applicant primarily on the following grounds;
I. That the OA is hit by delays and laches.
Il. That though a Muslim woman is entitled to divorce as per the Dissolution of Muslim Marriages Act, 1939, ''Khulanama' is not admissible as a formal proof of divorce and formal decree of a Family Court has to be there to prove that divorce has taken place.
Il. A divorced woman is not entitled to family pension of her father, when the divorce has taken place after the death of the father.
16. The chronological sequence of events as admitted by all the parties is briefly outlined as below:
35 | OA No.815/20211. The applicant got married to her husband Sheikh Noor Mohammed on 06% May, 1990 according to the Muslim Law practices. The Nikah of the applicant and her husband, though not passed/validated by any formal order of a Family Court has not been disputed by the respondents,
2. The divorce, between the applicant and her husband has happened on 10% June, 1994 for which the documented record is the Khula Nama dated 10% June, 1994.
This Khula Nama, as per Annexure A-5 was issued by Secretary Jama Majid Ballarpur and signed by seven witnesses. It is ironical that the respondents have accepted the fact of the marriage between the applicant and her husband in 1990 for which there is no formal decree of a Family Court but have rejected her claim of divorce in 1994 and insisted on a Formal decree of a Family Court for the same.
3, The applicant has been staying with her parents since 10th June, 1994. There is nothing brought on record by 1 ey cn 36 OA No.815/2021 the respondents to contest or challenge this assertion of the applicant.
4, The father of the applicant superannuated on 30% September, 1993 and was receiving family pension.
5. The mother of the applicant died on 12h October, 2002.
6. The father of the applicant died on Qo November, 2004.
7. The applicant filed a sworn in affidavit on 14% January, 2004 indicating his dependence on our deceased father.
8. The applicant applied for a formal decree of divorce on 06% September, 2013 ina Family Court and the same was received by her on 13% January, 2016.
17. The above mentioned facts clearly indicate that the applicant and her husband were staying separately and had obtained divorce through a Khula Nama dt 10% June, 1994, The same was simply affirmed or validated or 37 ' OA No.815/2021 confirmed by the Family Court vide its order 13 January, 2016. It is also not disputed that a divorced daughter is entitled to family pension. In this regard, the OM dt 18% September, 2014 clearly mentions that a divorced daughter above the age of 25 years is entitled to family pension. It is nowhere contended that divorce was not acceptable because it was under the Muslim personal law. The only contention of the respondent was that the divorce ~ had taken place after the death of the pensioner, as per the order of the Family Court issued on 13% January, 2016. | However, there is abundant evidence on record as indicated above that the applicant and her husband were not staying together , since 10 June, 1994, Moreover, nothing is brought on record by the respondents to show that the applicant had any independent source of income. Therefore, it can be safely concluded that the applicant was dependent upon her father and her divorce had taken place on 10% June, 1994 which was formally confirmed through a decree of Family 38 OA No.815/2021 Court on 13 January, 2016. This order of the Family Court was only a technical formality which only confirmed the divorce which had taken place in 1994,
18. In this regard, it is important to note that in a series of judgments, the Supreme Court has repeatedly held that a mere technicality should not come in the way of dispensing justice. The Hon'ble Supreme Court had asserted the same, both regarding the condonation of delay and to unduly strict adherence to technical and procedural formalities. This is clearly borne out from the following:
18.1 In the case of State of Punjab And Another Vs. Shamlal Murari And Another, (1976) 1 SCC 719 decided on 06% October, 1975 the Hon'ble Supreme Court emphasized that procedural technicalities should not hinder the delivery of justice. The Court ruled that if strict adherence to procedure leads to an unjust result, then it is essential to prioritize fairness and substantive justice.
ae .8.We must always remember that processual law is not to be a tyrant but a servant, not an 39 OA No.815/2021. obstruction but an aid to justice. It has been wisely observed that procedural prescriptions are the handmaid and not the mistress, a lubricant, not a resistant in the administration of justice. Where the non- compliance, tho' procedural, will thwart fair hearing or prejudice doing of justice to parties, the rule is mandatory. But, grammar apart, if the breach can be corrected without injury to a just disposal of the case, we should not enthrone a regulatory requirement into a dominant desideratum. After, all Courts are to do justice, not to wreck this end product on technicalities.
9. The State has yet another hurdle in tts way. In the present case, an application for condonation of delay in filing the three copies re gueried by r. 3 was made and the Court, in the exercise of its discretion, held that such condonation should not be granted.
Discretionary exercise of power by a Court cannot be lightly interfered with by a Court of appeal, and we are loathe, therefore, to upset the order of the High Court declining to condone the delay, there being nothing perverse or trrational in the exercise. In this view also, the appellant has to lose. For these reasons, the appeal fails and is dismissed. There will be no order as to costs."
18.2 In the case of Ram Nath Sao Alias Ram Nath Sahu And Others Vs. Gobardhan Sao And Others , (2002) 3 SCC 195, decided on 27% February, 2002 the Hon'ble Supreme Court emphasized that procedural formalities * 40 OA No.815/2021 should not become tools of injustice. The Court further clarified that if procedural rules are not followed strictly, but justice is served, the case should not be dismissed on technical grounds.
"The expression "sufficient cause" within the meaning of Section 5 of the d Limitation Act, 1963 or Order 22 Rule 9 CPC or any other similar provision should receive a liberal construction so as to advance substantial justice when no negligence or inaction or want of bona fides is imputable to a party. In a particular case whether explanation furnished would constitute "sufficient cause" or not will be dependent upon facts of that case. There cannot be a straitjacket formula for accepting or rejecting explanation furnished for the delay caused in taking steps. However, courts should not proceed with the tendency of finding e fault with the cause shown and reject the petition by a slipshod order in over- jubilation of disposal drive, Acceptance of explanation furnished should be the rule and refusal, an exception, more so when no negligence or inaction or want of bona fides can be imputed to the defaulting party. On the other hand, while considering the matter the courts should not lose sight of the fact that by not taking steps within the time prescribed a valuable right has accrued to the other party which should not be lightly defeated by condoning delay in a routine-like manner. However, by taking a pedantic and hypertechnical view. of the matter the explanation furnished should not he rejected when stakes are high and/or arguable points of facts and law are involved in the case, causing enormous loss and irreparable injury to the party mm. -4. OA No.815/2021
against whom the lis terminates, either by default or inaction and defeating valuable right of such a party to have the decision on merit.
The Court further observed in paragraphs 11, 12 and 13 which run thus--
"Ll. Rules of limitation are not meant to destroy the rights of parties. They are meant to see that parties do not resort to dilatory tacties, but seek their remedy --
promptly, The object of providing a legal remedy is to repair the damage caused by reason of legal injury...
The law of limitation is thus founded on public policy. It is enshrined in the maxim interest retpublicae ut sit finis litium (it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the rights of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly.
12. A court knows that refusal to condone delay would resuli in foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the court is always deliberate...
13. lt must be remembered that in every case of delay, there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy, the court must show utmost consideration to the suitor.
In view of the foregoing discussions, we are clearly of the opinion that on the facts of present case, Division Bench of the High Court was not justified in upholding order passed by the learned Single Judge whereby prayers for condonation OE ageccntinaien 42 OA No.815/2021 of delay and setting aside abatement were refused and accordingly the delay in filing the petition for setting aside abatement is condoned, abatement is set aside and prayer for substitution is granted."
19. In Union of India Through the General Manager and Another Vs, Usha Eknath Patil (supra), the Bombay High Court had adequately addressed critical aspects of procedural fairness and the importance of justice over technical formalities. This case is very similar to the case at hand in terms of facts and circumstances. | The primary issue before the Court was whether the claim could be dismissed solely on procedural grounds, disregarding the widow's legitimate claim for compensation. The Bombay High Court emphasized that procedural laws are intended to facilitate justice, not hinder it. The Court cited precedents where the importance of dispensing justice was held to supersede rigid procedural adherence. The Court held that the widow's claim could not be dismissed merely on technical grounds, as that would lead to a miscarriage of justice. It stressed that the 43 OA No.815/2021 purpose of the Employee Compensation Act is to provide relief to the dependents of employees who die in the course of employment, and technicalities should not obstruct this objective. The Court reiterated that procedural rules should be interpreted liberally, especially in beneficial legislation like the Employee Compensation Act, which aims to provide support to the bereaved family members of employees. The Bombay High Court ruled in favor of Usha Eknath Patil, setting aside the Railways' objections based on technicalities. The Court upheld her right to claim compensation and directed that justice should prevail over mere procedural formalities.
20. Tt is also pertinent to mention that Right to follow Muslim Personal Law is a Fundamental Right- The Hon'ble CJI has explicitly held in Shyra Bano(2017) that personal law is included within the freedom of religion and observed that courts have a duty to protect personal law and are barred from finding fault in it. The Hon'ble CjI further 44 OA No.815/2021 held that personal law is beyond the judicial scrutiny.
"Personal law' has a constitutional protection. This protection is extended to 'personal law' through Article 25 of the Constitution. It needs to be kept in mind, that the stature of 'personal law' is that of a fundamental right. The elevation of 'personal law' to this stature came about when the Constitution came into force. This was because Article 25 was included in Part DI of the Constitution. Stated differently, 'personal law' of every religious denomination, -- is protected from invasion and breach, except as provided by and under Article 25.
21. It is settled law that a Muslim Woman has an inalienable rights to dissolve her Marriage. This right is explicitly recognized under the provisions of the Muslim Personal Law (Shariat) Application Act, 1937 which includes khula as a type of divorce recognised by Muslim Personal law.
22. : The two judges Divisional Bench of Kerala High 45 OA No.815/2021 Court judgment dated 28 October, 2022 (supra) had overruled Single Judge judgment of Kerala High Courtin K. C, Moyin 0. Nafeesa, 1972 KLT 785 that had negated the tight of Muslim women to invoke extra-judicial divorce in light of the Dissolution of Muslim Marriages Act, 1939. After the detailed examination of provisions of Shariat Act,1937 and Dissolution of Muslim Marriages Act, 1939, the Divisional Bench of Justice A. Muhammad Mustaque and Justice Cy. Dias observed the following:
" On an overall analysis of the scheme of the Shariat Act as well as the Dissolution of Muslim Marriages Act as above, we are of the considered view that the Dissolution of Muslim Marriages Act restrict Muslim women to annul their marriage invoking Faskh except through the intervention of the Court. All other forms of extra-judicial divorce as referred in Section 2 of the Shariat Act are thus available to Muslim Ff Hay | 46 OA No.815/2021 women. We, therefore, hold that the law declared _in KC. Moyin's case (supra) is not good law."
. 23. The single Judge bench judgment of Madras High Court by Justice G, Sarvanan of Madras High Court in Mohammad Rafi v. State of Tamil Nadu(2023) just like K.C. Moyjin's judgment have to give way toa division bench judgment. Between a single judge's judgment and a Divisional Bench judgment, judicial hierarchy demands that latter - should be followed.
Further more , Supreme Court in Shayra Bano(2017) has elevated Right to follow personal law to the high status of Fundamental Right. Even the Muslim Women( Protection of Rights on Marriage) Act, 2019 only declares instant triple divorce at the instance of husband as void. All other forms of extra- judicial divorces like Talak e Ahsan(three months divorce), Talak e Tafwiz(Delegated Divorce), Talake Mubarra(Divorce by mutual consent), Khula( Divorce at the 47 OA No.815/2021 instance of Wife) remain valid. Court's intervention is necessary if marriage is to be declared Fasak or nullity ie void from the . very inception. |
24. Further more , it is also settled law that if the decision of any extra-judicial person or organization is contested by one of the parties, it cannot be enforced. However , if the decision is accepted by both the parties in a civil matter, it remains valid. It is pertinent te mention here that In Bilkis's case, the erstwhile husband had neither contested the decision of Khula nor the date of dissolution. In fact, the Decree in the family court, issued in 2016 clearly mentions that the erstwhile husband did not even attend the proceedings despite the summons being served upon him.
25. A Division Bench of Supreme Court itself fad recognised validity of extrajudicial Khula if it is not contested by the husband in Juveria Abdul Majid Patni v. Atif Iqbal Mansoori, (2014) 10 SCC 736, while considering extra-judicial divorce of khula, Court had held that, "The &, 48 OA No.815/2071 *Khula' is a mode of divorce which proceeds from the wife, the husband cannot refuse subject only to reasonable negotiation with regard to what the wife has offered to give him in return."
26. The Apex Court in the above case also highlighted the limited role of Family Courts in such matters when it observed that "in the matter of unilateral dissolution of marriage, invoking Khula and talaq, the scope of inquiry before the Family Courts is limited. In such proceedings, the court shall record the khula or talaq to declare the marital status of the parties after due notice to other party. The Family Court therefore, shall restrain from adjudicating upon such extra-judicial divorce unless it is called upon to decide its validity in appropriate manner." In the case of Bilkis, unlike in Juveriya, the erstwhile husband had himself signed the divorce deed dated June 10,1994, His subsequent non-appearance before the Family Court is also a tacit acceptance of divorce, otherwise he could have contested the 49 ~ OA No.815/2021 1994 decision of divorce.
27. ott is also pertinent to note that in this divorce deed of June 10 ,1994, the erstwhile husband had pronounced triple divorce which was valid in 1994 and was declared void only in 2017 and punishable offence only after the 2019 law.
28, The decision of the Family Court dated January | 13, 2016 merely validated /confirmed the dissolution of matriage that had happened on June 10, 1994, It is totally erroneous on the part of the respondent to consider that divorce happened on January 13, 2016. Furthermore, the above-mentioned judgments of ; the Hon'ble Supreme Court in Ram Nath Sao (supra) and The State - of Punjab and Another Vs. Shamlal Murari & Anr, (supra) and the Supreme Court judgment related to condonation of delay during the Pandemic of Covid-19 (MA No.21/2022 in MA 665/2021 in SUO MOTU WRIT PETITION (C) NO. 3 OF 2020 decided on 16% January, 2022) adequately addressed the delay, if at all, 50 OA No.815/2021 in filing the OA on 215 December, 2021 in response to the impugned order dated 234 October, 2019.
29, It is also important to note that Constitutional Courts have been regularly taking cognizance of Muslim Personal Law related matters to protect the interests of Muslim women. It would be not only absurd but grossly unfair to consider date of decree as date of divorce to deprive some financial benefit to a destitute divorced woman. Furthermore, the principle laid down by the High Court of Bombay at Nagpur in the case of Union of India through the General Manager & Another Vs. Usha Eknath Patil (supra) fully apply to the facts and circumstances of this case. Ido not propose to take any different view in this matter.
30. In the light of above, itis held that the applicant is entitled to family pension, from the date of the death of her father. Hence, the OA is allowed.
51 OA No.815/202131. It is here by ordered that the respondent will pay family pension to the applicant from the date of death of her father. This exercise should be completed within a period of four months from the date of receipt of copy of this order.
Pending MAs, if any , stand closed. No costs.
"~(Santosh'Méhray Member (A) am.